GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2003

Status

Accepted

Abstract

Chief Justice John Marshall's opinion in Marbury v. Madison is generally regarded as the cornerstone of American judicial review. Marshall's opinion in Marbury skillfully invoked the distinctive American concept of popular sovereignty and linked that concept to the written Constitution. Marshall argued that judicial review provided the best means for enforcing the people's will, as declared in the written Constitution, without resort to the drastic remedy of revolution. Marshall warned that, without judicial review, the legislative branch would enjoy a practical and real omnipotence and would reduce to nothing what we have deemed the greatest improvement on political institutions - a written constitution.

In Marbury and subsequent cases, Marshall based his constitutional decisions on the supreme authority of the Constitution's text. Marshall used interpretive canons drawn from the common law and natural law as helpful tools for defining the meaning of the Constitution's terms, but he avoided any direct reliance on unwritten principles of natural law. By portraying the Supreme Court as a faithful agent of the people's will embodied in the Constitution's text, Marshall sought to encourage popular acceptance of the Court as the principal interpreter and guardian of the Constitution.

In developing his theories of popular sovereignty and judicial review, Marshall drew upon the ideas of other Founders, including James Wilson. During the ratification of the Constitution, Wilson declared that the Constitution's principles of popular consent represented the great panacea of human politics. By affirming the right of the people to mold [their government] into any shape they please, the Constitution provided a remedy for every distemper in government. While Wilson's concept of popular sovereignty was similar to Marshall's, Wilson advocated a far more ambitious role for the courts in the new federal republic. Wilson called upon American judges and lawyers to develop a new science of law based on principles of natural law and psychological insights furnished by the Scottish Enlightenment theories of moral sense and common sense. Wilson believed that this new legal science would enable judges to work in concert with jurors and elected officials in bringing society closer to the perfection intended by humankind's divine Creator. As judges performed their function of judicial review, Wilson contended that they must enforce applicable principles of natural law as well as the text and purposes of the Constitution. Thus, as Professor Robert McCloskey has observed, Wilson envisioned a grand moral consensus that would reconcile the venerable Western idea of a binding higher law with the relatively new idea of the will of the people.

Wilson tried to persuade the public to accept his methodology for harmonizing natural law and popular sovereignty on three occasions - in defending the Framers' decision to omit a bill of rights from the original Constitution, in deciding Chisholm v. Georgia, and in instructing the grand and petit juries in Henfield's Case. On all three occasions Wilson's efforts were rejected, and he was accused of undermining the Constitution, threatening the residuary sovereignty of the states, and subverting the liberties of the people. This article suggests several reasons why Wilson failed, and why Marshall rather than Wilson is remembered today as the principal founder of the American doctrine of judicial review.

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