Marbury v Madison: An Analysis

High Court Quarterly Review, Vol. 1, No. 2, pp. 58-141, 2005

88 Pages Posted: 30 Jun 2008

Date Written: 2005

Abstract

Marbury v Madison, the early nineteenth century American case, profoundly affects to this day Australian jurisprudence, as a result of acceptance by the Australian High Court of its "principles" as "axiomatic," and serves as a basis for the justification of judicial supremacy over the legislature and the executive. The attachment to Marbury rests, however. on little sustained analysis of the case itself. This article analyzes the case in its historical, political and legal milieu. The analysis reveals that there is little if any principle involved, and that the opinion has little legal merit. It argues that in elevating the judicial power in interpreting the US Constitution, for essentially political and personal reasons, Marshall CJ perpetrated a fraud upon the Constitution by deliberately marginalizing the role of the people in amending the Constitution, and effectively giving that right to the Court as sole interpreter. The High Court's endorsement of this flawed, foreign and essentially irrelevant case for the vastly different Australian constitutional context, has resulted, it is argued, in the stultification of any vibrant democratic constitutionalism in Australia by usurping the people's right to know, understand and change their Constitution, and arrogating those functions solely to the judicial interpretations of the Court.

Keywords: Marbury, Madison, judicial review, US Constitution, constitutional history, constitutional law, Australian Constitution, Jefferson, Marshall CJ, John Marshall, democracy, federalism, Federalists, republicanism

JEL Classification: K00

Suggested Citation

Kelly, Margaret R.L.L., Marbury v Madison: An Analysis (2005). High Court Quarterly Review, Vol. 1, No. 2, pp. 58-141, 2005, Available at SSRN: https://ssrn.com/abstract=1149870

Margaret R.L.L. Kelly (Contact Author)

Macquarie Law School ( email )

Macquarie University
Balaclava Road, North Ryde NSW, 2109, Australia
Sydney, New South Wales 2109
Australia

HOME PAGE: http://www.law.mq.edu.au/html/staff/kellym.htm

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