Jonathan Fischbach argues in Politico that we should reconsider Marbury v. Madison: Letting the federal courts strike down laws as unconstitutional isn’t something the Constitution authorizes, and has led to more harm than we sometimes appreciate.
Noah Feldman worries in Bloomberg Opinion that his fellow liberals, newly alive to the dangers of judicial power, will go too far in curtailing it: “If Congress could exempt laws from judicial review, they might make a habit of it. The law against flag-burning, for example, would probably have been passed with a provision saying the court couldn’t strike down.”
Fischbach and Feldman, though coming at the issue of judicial power from opposite directions, each get important things right. Fischbach is right that we are too quick to surrender the Constitution to the protection of the courts; Feldman is right that any shift in the balance of power among the branches of the federal government is likely to reduce some abuses at the cost of enabling others.
I think both of them go wrong, though, in failing to distinguish between two types of judicial review. Fischbach fairly lays out the background of Marbury, which makes his suggestion that Chief Justice John Marshall and the others got it wrong puzzling. The Court in that case said it would refuse to exercise a power Congress could not constitutionally grant it. (Arguably, Marbury should not be taken to stand for a more general power of invalidation.) If Fischbach thinks it’s wrong for the courts to set aside a legal provision even in this circumstance, what’s his alternative? Having the Supreme Court expressly defy the Constitution?
The type of review the Marbury Court exercised is such a limited inference from the Constitution that jurisdiction-limiting can’t touch it — which means Feldman’s example is mistaken. If the federal courts don’t think it’s constitutional to fine or jail someone for burning a flag, Congress can’t make them do it. Either the flag-burning law would be material for the courts, or it wouldn’t; it can’t be both at the same time.
In short, Fischbach should not advocate, and Feldman not fear, a rejection of judicial review that goes so far as to force the courts to give final effect to unconstitutional laws.