Re: Marshall & Upholding Federal Statutes

[Robert Justin Lipkin]

       Perhaps I misread Bill's original post. I thought the issue was whether the same court (in my example, this would be the Supreme Court only) could, in any given case, make two different constitutional decisions: (1) nullify the law or (2) refuse to give the law effect. My interest in this issue centers on the Supreme Court's power of judicial review/supremacy only. I was not addressing other important issues regarding the interrelationships between lower courts--state and federal--state decisis, and so forth.

       For me the test case is the Supreme Court, and more specifically, Marbury.  In holding the relevant provision of the Judiciary Act of 1789 to be unconstitutional, was Marshall nullifying the provision or was he merely refusing to give it effect? My interest is conceptual and epistemic: (a) Conceptually, what does it mean to say that he did one rather than the other? and (b) Epistemically, how do we know when the Court does one rather than the other?

       In my post last evening I posed the question this way: If you believe that Chief Justice Marshall did not nullify the provision, but only failed to give it effect, what advice would you have given him if his intention had been to nullify? (And how much does this issue depend upon how Marshall would describe his own decision?) Was it possible for him to nullify the law had he chosen to do so? Or is nullification a very strict term of art that can only occur when the legal system has these and those features? If so, what features do you have in mind? 

       In order for the distinction to be significant when pertaining to the Supreme Court's declaration that a particular law is unconstitutional, we must explain just what counts as nullification. We must also explain what the Court must do simply to refuse to give the law effect but not nullify.  And what is the difference between these two kinds of judicial actions?

Bobby Lipkin
Widener University School of Law
Delaware