Re: Marshall & Upholding Federal Statutes

[Robert Justin Lipkin]

In a message dated 8/14/2003 2:44:15 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:

whether courts can "nullify" unconstitutional laws, or whether courts will simply not give effect to unconstitutional laws in cases pending before them, which is what the Court did in Marbury as well as Dred Scott. 

       I really would like to give this distinction greater thought, but at first blush, it seems to be a distinction without a difference. If we distinguish between a judicial decision that nullifies a law and one that simply does not give effect to an unconstitutional law, what's the difference.  If the former case, is it somehow impossible for Congress to pass the law again without the offensive provision? How permanent is "nullification"? In the second case, does the litigant get to try again? Might another William Marbury win the next day in another courtroom? What's the practical payoff?

       I submit, acontextually--just describing these two possibilities--there is no difference and no  similarity for that matter. What makes a difference is how the judicial institution of which either act is a constitutive part conceives the judicial behavior, that is, how practitioners, judges, law professors, and citizens regard the Court's behavior, including the judicial actors--judges, parties, and so forth--who actually participated in the decision. And does this behavior cause serious schisms in the ordinary affairs of state? Or rather do the other branches of government (including the states) accept this--sometimes kicking and screaming of course--as the conventional operation  of government. In short, perhaps what we require is a piece of judicial anthropology or judicial sociology to settle this issue. What more could Chief Justice Marshall have said in Marbury to suggest that in his view--when push comes to shove--the Court gets to decide the constitutionality and the effect of  the relevant portion of the 1789 Judiciary Act? And that should other institutions think they typically have the final say, well, at least in Marshall's view, they're just wrong. Should  he have said that not only can't the Court grant the writ in this case, but it cannot do so in any relevantly similarly case?  What speech act, rhetorical phrase, discursive explanation would make Marshall's opinion clearly a "nullification" and not simply a refusal to give the provision its effect?  I suggest answering this question requires appealing to Marshall's future behavior on the Court and the Court's role in future American constitutional development.

            I don't think anyone--at least to my knowledge--ever defined judicial supremacy, as Howard does, to wit: "a free-floating power to pass on the constitutionality of all government practices)," certainly not in American constitutional history. (But I'm no historian, and certainly can be wrong about this). Judicial supremacy does not entail the Justices awaking one morning and saying to one another, "When was the last time we met to determine whether American society in general and its laws in particular are constitutional?" Nor does judicial supremacy entail that the Court gets to pass on each and every law as a matter of course.

       I understand constitutional supremacy to be the following: Institution X is constitutionally supreme when in a multi-system government, X gets to make the final decision regarding constitutional meaning in the appropriate case when (and if) there's an institutional conflict.  That is, X decides the constitutionality of  the laws, at least in most circumstances.  Now this is compatible with X not possessing such supremacy in every case, just in most cases.  If the Court is X, judicial supremacy reigns only when it and other institutions recognize that in most cases of conflicting constitutional interpretations, the Court gets to decide over the other federal branches as well as the state or the people. Is this not how the court functions in contemporary American constitutionalism and government?

       I suppose what I'm struggling with is this. There is a distinction between (1) what Marbury signified at the time it was decided, and (2) what it signifies today. (Although, these certainly may be the same.) Suppose you believe that based on all that we know about Marbury, it's clear that Marshall  intended to nullify the law in question.  My question is this: What did Marshall fail to do, in your eyes, to realize his intent? Alternatively, suppose you believe that Marshall simply (though stridently) refused to give the relevant provision effect. What would he have had to do (write, say, and so forth) for you to be convinced that he nullified the law or at least intended to nullify the law?

       My apologies for the length of this post. But with all due respect, the more I think about this issue the less helpful I think the initial distinction is.

Bobby Lipkin
Widener University School of Law
Delaware