Yet again, not having Con Law as a required first year course hamstrings me a bit (not to worry, I just came out of an exam for an elective course that was easily the first law school exam I've taken where I felt I wrote something coherent and remotely intelligent given the time constraints). Todd Zywicki notes at the VC that an Alabama judge is making the argument that Marbury v. Madison did not intend to give exclusive power of interpretation to the courts (but executives and legislatuve branches also share in that duty).
Again I'm no expert and I hope those with expertise in the field will opine, but there are a couple of ironies at work here. First, I don't think anyone contests that this was A view of con interpretation at the time of Marbury, before it, and after it. Yet (after a cursory review of my Companion to the Supreme Court) even I know that the effect of Marbury was to limit the power of executing laws that the judiciary found incompatible with the con. Or put another way, what the hell is the point of protecting speech, press, and religion if they are to be defined by the very same entities from which they are protected. Might as well let the fox build the chicken coop. The second irony is that (again thanks to the Companion) Marbury was decided at a time when the Republican party controlled the legislative and executive bodies of the United States and the various states, and felt the Federalists were using the judiciary to place a roadblock on their agenda (if this sounds familiar...it shouldn't). I'll let people draw their own inferences from this.