marbury

Folks, it seems to me to always come back to this, when we talk about the judiciary, the role of the judiciary, and the power of the...etc.

I think fondly of the day or two we discussed Marbury v Madison in con law - and I wish it could have been an entire course. Is the below linked article describes, it is this case that we continually debate...despite out not really acknowledging such. Chernow has an article in the Times today with a pretty good, quick history of the events leading to Marbury, and thus the increased role of the Courts to interpret the Constitution.

Give a read. The history is right, so far as I can tell. But I don't agree with all Chernow writes. He ignores the fact that both parties wax and wane in their support of the judiciary in general. It depends on the case and the outcome. For a time, progressives loved a strong Court, then they feared it with the Rehnquist Court, and now they just hold their breath, wondering if perhaps they'll be made happy by decisions such as Lawrence. The same goes, with different case examples, for non-progressives. In any event, Chernow narrows in, oddly, on a small group of Evangelicals that have been fairly outspoken recently.

Somehow, also, Chernow refutes his own column with his confusion. The well written history primer shows us that the Judiciary was, according to the Constitution as framed, the weakest branch, and quite up to the control of Congress. Circuit Courts did not exist. Hamilton, in the Federalist Papers, worried about the Court rulings' effect. And Marbury v. Madison changed this - lifting the court to, more or less, what it is today; ie, the final word on questions Constitutional.

Thus, it is strange that Chernow ends his column with:

So, before they starve the lower courts of funds, Republicans in Congress and the conservative evangelicals who support them would be wise to ponder these events of the early 1800's. For all the talk today of tyrannical judges, the judiciary still relies on Congress for its financing and on the executive branch to enforce its decisions. It could easily, once again, end up at the mercy of the other two branches, upsetting the delicate balance the framers intended.

That "the framers intended?" Chernow retreats to what I think is sloppy and wrongheaded rhetoric. And does so right after illuminating that the framers did not intend the post- Marbury judiciary. Namely, though, it is that Chernow ends with this aloof answer rather than challenging the reader to do what we should do now: decide if we agree with Marbury.

I do. And I think Chernow's achievement is to point out that, when we debate judicial power, we should start with this old case. That is the crucial question: should the Court be the final word on Constitutional issues? Instead, to many commenters reinvent the wheel, or more precisely, simply ignore the wheel, when debating this important topic. If you don't agree with Marbury, say so.