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Constitutional Rules, Constitutional Standards, and Constitutional Settlement: Marbury v. Madison and the Case for Judicial Supremacy

13 Pages Posted: 25 Sep 2003  

Larry Alexander

University of San Diego School of Law

Abstract

Even after 200 years, Marbury v. Madison continues to generate scholarly attention. There is a huge and rich literature on the merits and implications of the Marshall opinion apart from its assertion of judicial review. Nevertheless, the main body of the vast Marbury oeuvre is devoted to judicial review. Is judicial review provided for in the Constitution? If not, has its legitimacy been established other than by constitutional provenance? What is the scope of judicial review? In other words, to what governmental acts is it applicable? Finally, what is the force of judicial review? Does it have stare decisis effect as well as res judicata effect? And if it has stare decisis effect, is that effect as strong as or stronger than the Supreme Court's gloss on Marbury in Cooper v. Aaron implies?

In this paper I focus on the force question, its relation to the so-called countermajoritarian difficulty, and to what extent attacks on Cooper v. Aaron are meritorious.

Keywords: Marbury v. Madison, Aaron v. Cooper, judicial review, consititutional law

JEL Classification: K00, K10, K19, K30, K39

Suggested Citation

Alexander, Larry, Constitutional Rules, Constitutional Standards, and Constitutional Settlement: Marbury v. Madison and the Case for Judicial Supremacy. Constitutional Commentary, Forthcoming. Available at SSRN: https://ssrn.com/abstract=445900 or http://dx.doi.org/10.2139/ssrn.445900

Lawrence Alexander (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-2317 (Phone)
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