The Age of Marbury: Judicial Review in a Democracy of Rights

Tulane Law School Working Paper No. 2003-01

74 Pages Posted: 12 Nov 2003

Date Written: September 3, 2003

Abstract

This is the third and last article in a series I have written exploring the new terrain of the conflict between democracy and judicial review. I develop a theory of judicial review that is critical of contemporary judicial review and responsive to our democratic values and political circumstances without relying on the countermajoritarian difficulty. I begin by showing that the kind of judicial review endorsed in Marbury v. Madison is quite remote from the institution of judicial review as it exists today. While Marshall's reasoning remains persuasive for many, historical evidence shows that his argument was based on a completely different understanding of the law/politics distinction than the one that prevails today. In building my own theory of judicial review, I begin by contrasting Alexander Bickel's theory with Robert Dahl's famous study of the Supreme Court's influence to show how both works were dependent on the political context of their time. I then provide a political context for my theory by highlighting the importance of a closely divided government and the politicization of constitutional issues and the federal judicial appointment process. I justify democracy by appealing to the concept of a "democracy of rights" that is led naturally to consistently protect constitutional values through legislation. Finally, I apply this account of democracy to argue that the judiciary should defer to legislation that protects constitutional rights. I also argue that the creation of a democracy of rights and the politicization of constitutional issues has led to a point where vigorous judicial review can no longer be justified.

In the last part, I contrast my theory with two recent defenses of judicial review, one offered by Daniel Farber and Suzanna Sherry and the other by Christopher Eisgruber.

Keywords: Judicial review, democracy

Suggested Citation

Griffin, Stephen M., The Age of Marbury: Judicial Review in a Democracy of Rights (September 3, 2003). Tulane Law School Working Paper No. 2003-01, Available at SSRN: https://ssrn.com/abstract=441240 or http://dx.doi.org/10.2139/ssrn.441240

Stephen M. Griffin (Contact Author)

Tulane University Law School ( email )

6329 Freret Street
New Orleans, LA 70118
United States
504-865-5910 (Phone)
504-862-8857 (Fax)

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