Bench Memos

Re: Freeing the Constitution from the Judges

It’s been a busy week for constitutional commentary on NRO, and I’ve had trouble keeping up.

On Monday, Matt called attention to Robert Lowry Clinton’s fine NRO essay, “Judicial Supremacy and the Constitution” (as well as to a symposium in the current issue of National Review, which I’m looking forward to reading).  Today on NRO, Clinton provides an excellent companion piece, “The Marbury Myth.”  As he puts it, “While it is true that Marbury provides a basis for judicial review—the Court’s power to invalidate laws in a limited range of cases—it provides no support whatever for judicial supremacy.”  Among his many interesting observations:

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!

I’m reminded that one good thing to come out of the American Bar Association’s badly confused report opposing presidential signing statements was Laurence Tribe’s acknowledgment that Marbury in no way establishes that the federal judiciary in general—or the Supreme Court in particular—is supreme over the President and Congress in determining what the Constitution means:  “presidents have never taken so wholly juricentric … a view of the constitutional universe—a view that certainly isn’t implied by the power of judicial review as recognized in Marbury v. Madison.” 

The myth of judicial supremacy has, of course, made it easier for the Supreme Court to usurp the fundamental liberty of American citizens to engage in self-government through our elected representatives.  In this regard, I’d highly recommend Gerard V. Bradley’s NRO essay from yesterday, “Liberty and the Supreme Court,” which discusses the infamous “mystery” passage from Planned Parenthood v. Casey and the Court’s broader hollowing out of the concept of liberty.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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