Re: The Initiation of Judicial Review

[Robert Justin Lipkin]

In a message dated 6/30/2003 12:12:33 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:

But, of course, Marbury contains nary a word about judicial supremacy.

       The language Sandy quotes says "judicial review/supremacy" to acknowledge that there might be a dispute about just what Marbury establishes. The conventional view, as well as Sandy's, is that Marbury establishes (at best) judicial review, but not judicial supremacy. I disagree with the conventional view. I do not think very much evidence exists  of the "departmental" view, at least not from the case itself. More importantly, Marshall was too sharp a theorist, in my view, and too wily a politician not to realize two fundamental points. (1) Interpretive equality between and among the federal branches of government would quickly lead to the inability of the federal government to act at least concerning constitutional issues, or put in other terms, without explicit guidance interpretive equality between and among the branches is conceptually incoherent and practicably unworkable, and (2) Coming right out and flatly stating that the Court has the final authority--over Congress and the Presidency--in interpreting the Constitution may prove to be a politically foolish proclamation. Thus, in my view, the passage in M'Culloch to which Sandy refers is no surprise. But it is surely a non squitur to infer from Jackson and Lincoln's rejection of judicial supremacy that Marshall was not committed to it in Marbury,  though I concede that the term "establishing" might be too strong.

Bobby Lipkin
Widener University School of Law
Delaware