Title: The voidness of repugnant statutes: Another look at the meaning of Marbury
Abstract: THERE ARE A FEW SENTENCES in Marbury against Madison that have surpassed status of mere legal aphorisms or slogans and become almost holy writ to American legal mind. Of these, probably most famous appears at a crucial juncture of opinion. Others today have already drawn your attention to it: is emphatically and of judicial to say what is. ^ As you will already have gathered, it matters a great deal to interpretation of this decision in its original context just where emphasis in sentence is placed. The conventional view, if I may call it that, emphasizes last six words-to say what is-with a special frison on word law. The Constitution, on this view, is a species of law, specifically kind of on which judges are accustomed to pronounce, By declaring Constitution to be of this kind, Court sets in motion an inexorable syllogism whereby judiciary has authority to pronounce definitively on meaning of Constitution. Because Constitution, on this view, is law, judges have an authority not possessed by other departments of government. Judges have, in essence, final say on what Constitution means. By contrast, what one might call revisionist theory of meaning of Marbury-Professor Kramer has called it departmental view-emphasizes words the judicial department in sentence in question. To extent that a case arises under laws of United States, judiciary has no choice but to interpret Constitution as it applies to those laws. It is not only the province but also the duty of judicial to say what is. That judiciary must opine on meaning of Constitution when facts of case require it to do so need not mean that judiciary has a special competence or authority in comparison with other departments of government-the executive and legislative-in determining meaning of Constitution. On this view, law on which judicial must speak is of particular case, which is either valid or invalid in light of Constitution. The judiciary can and must decide that particular case, but that does not mean that, under circumstances, other branches of government might not offer their own interpretations of meaning of Constitution, and with equal force. Each of possible readings of Marbury, conventional and revisionist, has real merit. Textual support for each can be drawn from elsewhere in opinion, indeed from surrounding paragraphs. Although it was practice of Supreme Court at time of Marbury to read opinions in their entirety from bench-a practice now happily discontinued-we have no record of where Chief Justice Marshall placed emphasis in his reading of this now-famous sentence. Even if we did, we should probably be loath to depend on such a subjective measure for determining legal meaning. (I am reminded of vigorous debate among Anglican divines in first part of eighteenth century over question whether musical notations attached to text of Hebrew Bible by medieval Tiberian Masoretes ought to be weighed in construing meaning of Hebrew text.)3 Yet we are not without tools to try to resolve, or at least illuminate, ambiguity at heart of Marbury. In particular, this morning, I want to draw your attention to an assertion that appears just a few sentences before Marbury's famous pronouncement: Certainly all those who have framed written constitutions contemplate them as forming fundamental and paramount of nation, and consequently theory of every such government must be, that an act of legislature repugnant to constitution is void.4 Chief Justice Marshall then follows up this proposition with a rhetorical question: If an act of legislature, repugnant to Constitution, is void, does it, notwithstanding its invalidity, bind courts and oblige them to give it effect? …
Publication Year: 2004
Publication Date: 2004-03-01
Language: en
Type: article
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Cited By Count: 2
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