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Originalism and Classic Cases: Marbury v. Madison
Michael Ramsey

This post continues my occasional series on originalist aspects of classic “casebook” cases in Constitutional Law.

Commentators have sometimes suggested that Marbury v. Madison is a problem for originalism because the Constitution’s original meaning doesn’t provide for judicial review.  Thus the idea of using originalism as a method of judicial review is self-contradictory.

I’ve never been impressed with this argument (see Chapter 16 of The Constitution’s Text in Foreign Affairs), in part because the text seems to contemplate federal courts entertaining constitutional cases (Article III, Section 2 and Article VI) and pre-ratification history seems to suggest that the founding generation envisioned some form of judicial review.  But I had forgotten this episode, recounted in Pauline Maier’s outstanding recent book Ratification:

In October 1788, when contemplating possible amendments to mollify anti-federalists, Madison wrote Jefferson about the pros and cons of a bill of rights.  Though doubtful, he suggested two advantages.  In Professor Maier’s words:

Insofar as the political truths they declare became ‘fundamental maxims,’ incorporated into the ‘national sentiment,’ bills of rights might moderate the majority’s tendency to act according to its interests and passions.  A bill of rights could also be used against the government in the unlikely event that it became a source of oppression.  (pp. 444-45).

Jefferson replied the next Spring, arguing in favor of a bill of rights.  After discussing Madison’s points,

[h]e also added another item to Madison’s list of ways in which a written bill of rights might be of use in a republic: ‘the legal check which it puts in the hands of the judiciary.’  An independent judiciary composed of men like George Wythe, John Blair, and Edmund Pendleton could give a bill of rights teeth.  He admitted that declarations of rights might sometimes ‘cramp government in it’s useful exertions,’ but that was ‘shortlived, moderate, and reparable,’ while the disadvantages of having none were ‘permanent, afflicting, and irreparable’ …  (p. 445).

Madison apparently took the point, for when he submitted to Congress the proposal that formed the basis of the first 10 amendments (in June 1789) he argued among other things that:

[i]f provisions protecting rights were incorporated into the Constitution, ‘independent tribunals of justice will consider themselves … the guardians of those rights’ and will become ‘an impenetrable bulwark’ against unlawful assumptions of power by the executive and legislative branches, resisting ‘every encroachment upon rights expressly stipulated in the constitution by the declaration of rights.’  (p. 451).

This seems important evidence of a founding-era understanding that the “judicial Power” included a power of constitutional review -- evidence that may sometimes be missed by people focusing only on the drafting and ratifying of the unamended Constitution.  It’s not just that Jefferson (of all people!) suggested it, and Madison adopted the point.  Even more powerfully, Madison made the point to Congress in pretty strong terms, and so far as Professor Maier recounts, no one objected or questioned the idea.  It’s true that Madison initially didn’t think of the courts as important to a bill of rights, and that in Congress he emphasized other arguments more forcefully.  But it’s still hard to read these passages and conclude that constitutional review by the courts was something John Marshall invented more than a decade later in Marbury.