Constitutional Existence Conditions and Judicial Review

Abstract

Critics of Marbury v. Madison have long complained that judicial review frustrates majoritarian democracy. In addition, critics sometimes complain that the Constitution's text does not entail judicial review of federal legislation. In Marbury, Chief Justice John Marshall invokes the judicial oath of office in support of judicial review, but the oath does not distinguish judges from other ublic officials who also swear fealty to the Constitution. Nor do Marshall's other arguments, such as the possibility of clear constitutional violation by the legislature, justify privileging judicial interpretation. The opinion, for all its majesty, never squarely addresses the fundamental question of whose interpretation of the Constitution should prevail in cases of conflict. Both sorts of criticism-that a sound democratic constitution should not establish judicial review and that the American Constitution is best read not to establish judicial review-can lead ultimately to calls for the complete abolition of judicial review, for "[t]aking the Constitution [a]way from the [c]ourts."

Ingredient in most forms of judicial review skepticism is the implicit claim that it would be possible for courts to accept the word of Congress as final on matters of constitutional interpretation. Once one acknowledges that courts have the duty to apply statutes and other nonconstitutional sources of law, however, it becomes difficult to understand how they could not exercise at least some version of the Marbury power. In short, it may be impossible to take the entire Constitution away from the courts.

Keywords: constitution, interpretation, judicial review, congress, courts, amendment