May 06, 2005

My Interpretation Can Kick Your Interpretation's Ass

by Armen

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 shouldn't). I'll let people draw their own inferences from this.

May 6, 2005 04:21 PM | TrackBack

Judge Easterbrook on the 7th Circuit has also made a similar argument, at least with respect to the Executive Branch. He wrote an article about it that appeared in teh Case Western Law review (according to my syllabus, Vol 40, p. 905 in case you want to look it up). It only makes sense... the analysis of Marbury applies equally well to the Legislature and the Executive.

Posted by: Unreasonable Man at May 6, 2005 05:45 PM

The Supreme Court's right or power of judical review is not necessarily the equivalent of judicial supremacy in construing the Constitution. The difference remains to be resolved. Remember Pres. Andy Jackson who wondered aloud about the power (lack of an army?) of the Court to enforce
its decisions that he might disagree with.

With respect to the political parties at the time of Marbury, Jefferson's Republicans were states-righters, while Adams', Hamilton's and Marshall's Federalists were for a strong central government. I mention this to contrast the Federalist Society of today from the then Federalist Party, as the Society shares many of the views of Jefferson's Republican Party (which lead to the Democratic Party with Jackson a few years later).

Armen, while you are taking ConLaw, you might wish to read Randy Barnett's "Restoring the Lost Constitution" published last year and report to us from time to time whether it is indeed lost. It's all in the interpretation, yours, Randy's, mine .... And be cautious of Scalia's slippery slope.

Posted by: Shag from Brookline at May 7, 2005 07:26 AM
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