From: thf2@ellis.uchicago.edu (Citecheck Hell)
Subject: Marbury v Madison (US 1803)
Followup-To: misc.legal,soc.history,alt.politics.usa.constitution
Reply-To: thf2@midway.uchicago.edu
Organization: University of Chicago Computing Organizations
Date: Wed, 7 Oct 1992 00:29:23 GMT

Followups to: soc.history, misc.legal, and a.p.usa.constitution

In article <1992Oct6.165438.5726@ucsu.Colorado.EDU> fcrary@ucsu.Colorado.EDU (Frank Crary) writes:
>>I think though that this concedes too much.  The Supreme Court
>>invoked judicial review numerous times before Marbury...
>
>They invoked it, but Marbury was the first time they overturned a 
>federal law and claimed the rest of government was bound by their
>ruling (e.g. that they had the final say in the matter.)

Not so.  I've already cited to a 1792 opinion that lists cases where
courts overturned an Act of Congress.

>>...and the 
>>Federalist Papers (and records of the debates of the Constitutional
>>Convention) clearly envision a judiciary with such a power.  
>
>There is little doubt the extreme Federalists, such as Hamilton, wanted
>judicial review, but the Constitution was a compromise in any ways, 
>including judicial powers. 

Not so.  Even those who opposed judicial review at the Convention
(such as Mercer and Dickinson) acknowledged that there was no preferable
alternative.  In fact, the First Congress had evidently contemplated
that even state courts might hold federal statutes invalid; section 25
of the Judiciary Act gave the Supreme Court jurisdiction to review
state court judgments "where is drawn in question the validity of a
treaty or statute of . . . the United States, and the decision is against
their validity."  1 Stat 73, 85.

>I really don't think a strong argument for such an implied constitutional
>power can be made from the Federalist papers and the Convention debates:
>John Marshall was _extremely_ familiar with this context (since he was
>_part_ of it, to a limited extent.) In writing the Marbury v. Madison
>ruling, he tried to put judicial review on the strongest foundations
>possible (that was the entire reason the Court heard that case, and
>ruled as it did...). But even so, he didn't think the debates around
>ratification offered any support for judicial review worth mentioning.

That might be true if John Marshall wrote opinions the way that most
judges today write opinions -- relying heavily on precedent to shore
up one's argument.  "Rare is the judge today who would disdain such
support and rely wholly upon the force of his own argument, but his
later opinions were to show that Marshall often paid little heed to
precedents even when they squarely supported him."  See, e.g.,
Hodgson v Bowerbank, Cohens v Virginia, Osborn v Bank of the United
States, and Trustees of Dartmouth College v Woodward.  (All cited by
Currie at 70 n 44.)

Remember also that Marshall did not have available to him the text of
the Convention debates, which weren't published until after Marbury.
(Not sure of exact date offhand.)

[All of the material in this post comes from David Currie's excellent
history "The Constitution in the Supreme Court: The First Hundred Years,
1789-1888."]
-- 
ted frank | thf2@midway.uchicago.edu 
also at quibeaux@uchicago.edu | standard disclaimers
the university of chicago law school, chicago, illinois 60637
ajax crypto-analyzer -- warning! remove all chicken bones first
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