Re: The Initiation of Judicial Review

[Francisco Martin]

Prof. Graber writes: "Marbury is based on the conceit that justices create judicial review, a conceit that no serious student of ANY OTHER LEGAL REGIME considers valid."   I have been enjoying the discussion of judicial review/supremacy.  However, my take on this issue is quite different. The origins and legal authority of Supreme Court constitutional interpretive supremacy over Congressional constitutional interpretation as effected through legislation appears to me to be based on three related legal sources pre-dating even the U.S. cases (Marbury, Caton, etc.): (1) the law of nations reflected in common law/natural law/fundamental law, (2) the law of nations� prohibition of judges being judges in their own cases, and most importantly (3) the Constitution�s explicit and law of nations� effective prohibitions of bills of attainder. Let me explain by looking at Coke�s decision in Bonham�s Case � the apparent first English case dealing with judicial review (with which the Founders probably were aware). Bonham�s Case is interesting in two respects. First, the case dealt with a judge (viz., the London College of Physicians) being judge in his own case (whether to bar a physician from practicing medicine). Second, Coke appealed to common law and reason. Coke no doubt knew that the prohibition of a judge judging his own case was a law of nations norm (see Corpus Juris Civilis and Vattel) and that the law of nations was incorporated into the common law and identified with natural reason/natural law/fundamental law in the early 17th century. For the law of nations (and Coke), no royal prerogative or domestic, non-constitutional law could lawfully violate the law of nations. This law of nations prohibition of judicial partiality is related to the both the Constitution�s and law of nations� prohibition of bills of attainder. The law-making branch of the state cannot be judge in their own cause which otherwise would be allowed if bills of attainder were lawful. For Congress to have equal or superior constitutional status as the interpreter of the Constitution through its legislative power as applied in cases coming before the Court effectively runs afoul of the bill of attainder prohibitions in the Constitution and under the law of nations. Congress becomes both party and judge by passing legislation that it says with equal or superior authority is constitutional in cases. The pre-Marbury cases in the U.S. dealing with judicial supremacy are particularly instructive. In those cases, U.S. or state courts appealed to fundamental or natural law. In those cases, the U.S. Constitution or state constitution was the fundamental law in question. Under the law of nations, constitutions � which often were treaties � were evidence of the law of nations. The law of nations (jus gentium) also was identified with fundamental or natural law by James Wilson and other international law jurists cited by other Founding Fathers (e.g., Burlamaqui, Vattel, etc.). (Recall that jus gentium is not lex gentium, which connotes only positive law.) The idea of Supreme Court supremacy in constitutional interpretation intrinsically is based on the norm of judicial impartiality that is located in international law. Finally, we should not be citing Marbury as a "good" precedent judicial supremacy. Marshall should have recused himself because of his personal involvement in the case and because the law of nations upon which the very notion of judicial supremacy hung would have prohibited him from sitting. Francisco Forrest Martin