Constitutional Commentary articles from June 2003

Constitutional Commentary archives from June 2003

Marbury and the retreat from judicial supremacy.
June 22, 2003... I. INTRODUCTION: EVER SINCE MARBURY For many long years, conventional wisdom had it that Marbury v. Madison invented the modern practice of judicial review, by which we mean a practice of regularly submitting constitutional disputes to...

The Marbury of 1803 and the modern Marbury.
June 22, 2003... Of all the commentary on Marbury v. Madison, my favorite is that of Alexander Bickel likening the case to a tourist attraction: It is... a great historic event, a famous victory.... It is hallowed. It is revered. If it had a...

What are the facts of Marbury v. Madison? (1).
June 22, 2003... One of the most familiar features of the first year class in constitutional law, or indeed, in any first year subject, is the ritual practice of asking young law students to state the facts of cases. Not surprisingly, one of the first cases...

Not the King's Bench.(United States Supreme Court being the highest court of original jurisdiction but having no power to issue prerogative writs)
June 22, 2003... Speaking at a public birthday party for an icon, even if the honoree is one or two hundred years old, can be a surprisingly tricky business. Short of turning the party into a roast, it seems rude to criticize the birthday boy too harshly. On...

The lame ducks of Marbury. (presidential transition from John Adams to Thomas Jefferson, persistant problem of lame duck appointments)
June 22, 2003... Thomas Jefferson and John Adams had not been the best of friends before the election of 1800, and their competition for the presidency gave them ample occasion to ponder each other's faults. Yet it was easy for Jefferson to identify the single...

Marbury's wrongness.(evaluation of Marbury v. Madison's case)
June 22, 2003... Is it possible that everything in Marbury v. Madison--except for the theorem of judicial review--is wrong? Surely, in the colorful, confident words of Chief Justice Marshall in Marbury, such a proposition "is too extravagant to be maintained."...

The importance of being final.(supremacy of the US Supreme Court)
June 22, 2003... The Supreme Court likes to bill itself as the definitive interpreter of the Constitution. In Cooper v. Aaron (1), all nine Justices individually signed an opinion proclaiming that the Court's constitutional doctrines were the supreme law of the...

Constitutional rules, constitutional standards, and constitutional settlement: Marbury v. Madison and the case for judicial supremacy.
June 22, 2003... As we mark the 200th anniversary of Marbury v. Madison, (1) it should be noted that huge forests have been levelled and tons of ink spilled in analyzing, interpreting, and debating the merits of John Marshall's opinion in that case, and that...

Interpretative equality as a structural imperative.
June 22, 2003... To serious students of the Constitution, Chief Justice Marshall's discussion of judicial review in Marbury v. Madison (1) was about judicial equality--the power of the courts, co-equal to the similar powers of the legislative and executive...

The office of the oath.(purpose of the judicial oath to support the Constitution)
June 22, 2003... There is little difficulty, Alexander Bickel declared, in concluding that the Constitution takes precedence in cases in which the Constitution and congressional legislation conflict. Whether, or in what circumstances, federal judges should...

Judicial supremacy and its discontents.
June 22, 2003... [T]he federal judiciary is supreme in the exposition of the law of the Constitution.... (1) The decision [Brown v. Board of Education] tortured the Constitution--the South will torture the decision. (2) Will nobody...