Marbury v. Madison and the Establishment of Judicial Autonomy1 WILLIAM E. NELSON My topic is Marbury v. Madison,2 the 1803 Supreme Court case that we understand to be the progenitor ofjudicial review—the doctrine allowing courts to hold acts of Congress uncon stitutional. My claim is that Marbury was actually about something larger. It was about main taining a balance between two concepts, democracy—the idea expressed by Lincoln in the Get tysburg Address of government of the people, by the people, and for the people;3 and the rule of law—the idea expressed by John Adams in the Massachusetts Constitution of 1780 that ours is a government of laws and not of men.4 Virtually all Americans believe in both concepts—one, that the people make the law, and two, that law somehow transcends mere human will and incorporates ultimate princi ples ofright. So defined, however, the two con cepts are potentially in tension with each other. My claim this evening will be that for nearly two centuries, Marbury v. Madison provided a set of distinctions that enabled Americans to keep both the concept of democracy and the concept of the rule of law at the base of their constitutional theory. This claim, in turn, has three compo nents. First, we need to understand that John Marshall, by deciding Marbury, did not direct how we today should resolve the tensions we face between democracy and the rule of law. He couldn’t possibly have done that because he, like us, could not predict what would hap pen two centuries in the future. All he could know—all we can know—is what has hap pened in the past; all he could do—all we can do—is use knowledge ofthe past to try to con trol events in the present. The future, for Mar shall like us, was beyond both knowledge and control. Thus, if we want to appreciate the insight that Marshall’s opinion in Marbury v. Madi son can provide us, we need to proceed to the second component of my claim—we need to understand what Marbury meant to Marshall. Only then can we turn to the third compo- THE ESTABLISHMENT OF JUDICIAL AUTONOMY 241 nent—understanding in broad outline how change that has occurred since Marbury has partially transformed its meaning, leaving it both different and the same as the case de cided by John Marshall. It is to the second component—what Marbury meant in its time—that I now want to turn. Understanding what Marshall decided in Marbury requires, in turn, that we begin with the government, law, and society of eigh teenth-century Virginia—where Marshall was born and raised and from which he derived his ideas and values. We need to appreciate that eighteenth-century Virginia, unlike America today, was not governed by a ubiquitous bureaucracy with clear chains of command reaching upward to central political authori ties. There were no police, state or local, no department of motor vehicles, no highway department, no state education bureaucracy. There was no colonial equivalent, on any level of government, of the Internal Revenue Ser vice or the Social Security Administration.5 Because there was no modern bureau cracy, thejudiciary and the officials like sher iffs responsible to it were the primary link be tween a colony’s central government and its outlying localities. The judiciary alone could coerce individuals by punishing crimes and imposing money judgments. Courts also ap portioned and collected taxes, supervised the construction and maintenance of highways, issued licenses, regulated licensees’ busi nesses, and administered the Poor Law.6 As one member of Congress observed in an endof -the-century recapitulation, “[ojther depart ments of the Government” may have been “more splendid,” but only the “courts of jus tice [came] home to every man’s habitation.”7 But even though courts possessed vast jurisdiction, no one believed that judges pos sessed policy-making prerogatives of the sort that we assume Congress and the President possess today. It was a commonplace, as Josiah Quincy of Massachusetts argued in 1770, that courts merely dispensed justice ac cording to law, which was thought to be “founded in principles, that are permanent...
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Jan 1, 2023
Rochelle Raineri Zuck 
Open Access