Philemon, Marbury, and the Passive-Aggressive Assertion of Legal Authority
29 B.Y.U. J. of Pub. L. (2014, Forthcoming)
25 Pages Posted: 13 Jan 2014 Last revised: 2 Apr 2014
Date Written: April 1, 2014
The essay “Philemon, Marbury, and the Passive-Aggressive Assertion of Legal Authority” draws a parallel between the Apostle Paul’s Letter to Philemon and Chief Justice John Marshall’s opinion in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). In each instance, the author claimed a legal authority to direct someone else to act — in Philemon, to order Philemon to release the slave Onesimus; in Marbury, to order the President to comply with the law — but declined to exercise that authority in that particular case. We should praise Paul’s skillfulness in avoiding a risk of prosecution for encouraging Philemon to extend Onesimus mercy for his misdeeds and to grant him freedom, and laud Marshall’s claim of the right to engage in judicial review. But democratic self-government is hardly the same type of vile institution as slavery. Unjustified assertions by government officials of authority over private parties also are neither the same type of white lie that Paul uttered nor an enterprise that the courts can largely leave alone. Accordingly, we should not automatically extend the admiration that we display for Paul’s and Marshall’s political skills to government officials when they use the same technique and claim to possess legal authority that they do not enjoy.
Keywords: Marbury v. Madison, judicial review
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