As part of SCOTUSblog's tribute to Justice Scalia, Lee Lieberman Otis: Justice Scalia and Marbury v. Madison. She recalls from his Constitutional Law course:
My sharpest memory of the class is how he explained Marbury v. Madison. At least since the second half of the twentieth century, law professors have taught Marbury as the case where Chief Justice John Marshall, through a clever jiu jitsu move, avoided a confrontation with the president by “discovering” (read “inventing”) a power of the Supreme Court to strike down an act of Congress. This power, the professoriate claimed, was nowhere to be found in the text of the Constitution. It was the first act of the Court “shaping” the Constitution to fit our needs. They went on to read Marshall’s famous statement that “it is emphatically the province and duty of the Court to say what the law is” as a successful power grab by the Chief Justice that turned the Supreme Court into the final arbiter of constitutional questions.
Then-Professor Scalia read this statement rather differently. He viewed it as being primarily not about judicial power, but about judicial obligation (or as Professor Philip Hamburger would later say, judicial duty). He understood Marshall’s point to be not that the Court is some kind of special guardian of the Constitution but something far more straightforward: that the Constitution is a law, and therefore, like other laws, it supplies the rule of decision to the Court in a case properly before the Court. In the Scalia reading of Marbury, there is no special “power of judicial review,” just the question whether the Constitution is a law that the Supreme Court is required to follow in a case before it.
This reading of Marbury, I later realized, was integral to how Justice Scalia saw his job – not as the shaper of the Constitution, but as its servant. …
Agreed, and this is why Scalia never had any problem with Marbury (the real Marbury) despite many professors' attempts to claim it was not justified by the Constitution's original meaning.
RELATED: At defining ideas, Richard Epstein: Scalia Maligned (criticizing the Jeffrey Toobin article discussed here). And more generally:
… The chief flaw in alternative theories to originalism is that they often provide no coherent methodology for systematic interpretation of the Constitution.
Indeed, this last point can be made more generally. The insistence that words be given their original public meaning at the time of the founding is, in one sense, less restrictive than might appear to be the case, for many terms like “commerce” or “private property” hold their meanings for long periods of time across different societies. Moreover, the originalist project can only prove viable if it recognizes that any system of interpretation has to deal with the words and phrases that are not in the Constitution as well as those that are. The point here is not new, but goes back as far as Roman times, when general propositions, like “it is wrong to kill or to take the private property of others,” are understood to create only a prima facie case of liability, subject to defenses that are nowhere written in the text.
To persons unpracticed in the art of interpretation, it is too easy to assume that these unwritten exceptions into the doctrine open up the floodgates to endless discretion. But that point is wrong. The terms that are read into contracts, statutes, and constitutions are not ad hoc, but the standard provisions that are always raised in response to an initial command. Yes, thou shalt not kill, but one may kill in self-defense, or in defense of a third party. Yes, one cannot take private property without just compensation, but both a private party and the state are entitled to disarm an assailant or shut down a nuisance. Out of such examples, a consistent account of the police power is developed—and this interpretative approach was one of the central tropes of constitutional law long before progressive thinkers worked their mischief with the constitutional text.
That is just the point. It is wrong to think that originalists have to be inattentive to structure, or must ignore the delicate task of implication. They can’t and don’t. But what the modern progressives have never answered is Scalia’s challenge to their own legitimacy: the modern approaches allow any justice to impose his or her policy preferences on the rest of society. …
Posted at 6:42 AM