In addition to Robert Nagel’s column on rejecting judicial remedies for our political disagreements (posted earlier on the Tenther blog), National Review Online has also treated us to two columns by Prof. Robert Lowry Clinton.

The first, “Judicial Supremacy and the Constitution,” disposes of the doctrine of judicial supremacy by looking at the Supreme Court’s place within the constitutional framework. One of his conclusions after this examination is below and is certainly a radical departure from accepted constitutional law:

“…judicial review is authorized in the Constitution, but only in a very restrictive form. It has nothing whatever to do with policymaking. Rather, constitutional judicial review is merely the power to disregard, or refuse to apply, a law that the court believes to be unconstitutional (not “pursuant” to the Constitution) when deciding a particular case. Strictly speaking, as Abraham Lincoln said of the notorious Dred Scott decision, the court’s decision applies only to the parties in that case — not to anyone else.”

In his column titled “The Marbury Myth,” Prof. Clinton demolishes what remains of judicial supremacy by re-examining the famous case supposedly establishing this principle for all time, Marbury v. Madison. He says,

“Thus, Marbury-style judicial review is very limited in scope. It is restricted to cases in which Congress has unconstitutionally meddled with the Court’s functions. This is surely why the case was largely ignored by courts and legal commentators as a precedent for judicial review until the late 19th century. The Court itself didn’t notice that Marbury had anything to do with judicial review until 1887, and even then it misread the case as authorizing judicial review of state law — which Marbury had nothing to do with. It was not until 1895 that the Court first cited Marbury as a precedent for judicial review of national law, despite having invalidated some 20 congressional acts by that time. Stop and think for a moment about what this means: The case that is used as the leading precedent for modern judicial supremacy was not even regarded as an instance of judicial review until 92 years after it was decided!”

But just as interesting and important is why and how Marbury came to be regarded as establishing judicial supremacy. Prof. Clinton sheds much needed light on this in his column:

“The story of how this myth was created is an interesting one. The work began in the 1870s, when a group of influential lawyers representing business interests began shopping for a good precedent for judicial supremacy. The reason they needed a better precedent was that the true original precedent for judicial supremacy was also the Supreme Court’s most embarrassing decision — the Dred Scott opinion, which allowed the extension of slavery into the American territories in the 1850s and arguably led to the Civil War.

“This group of lawyers, in league with the captains of industry, opposed government regulation of economic activity. Since the state legislatures and Congress were passing regulations designed to mitigate the worst effects of the Industrial Revolution, the lawyers and their clients sought to employ the federal courts in an effort to counter the regulations. The problem was that the courts had never exercised such power, and the constitutional basis for it was doubtful at best. So the only way to get the job done was to find a precedent for judicial supremacy. But Marbury was too tame and Dred Scott was too notorious. The only thing left was to reinvent Marbury, reinterpreting its language to make it seem like an exercise in judicial supremacy.”

The federal courts have been joy-riding, carefree, in the sports car of constitutional authority, as though it belonged exclusively to them; it is high time the “grown-ups” (elected officials of the other branches and levels of government, and the common citizen) took the keys back from them and taught them some responsibility and humility.

Walt Garlington
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