Roosevelt and Khan on Marbury, Lochner, and McCulloch

Kermit Roosevelt, University of Pennsylvania Law School, and Heath Khan, a 2019 Penn Law graduate, have posted McCulloch v. Marbury, forthcoming in Constitutional Commentary 34 (2019): 263-311:

Marshall, CJ, Swearing in Andrew Jackson (LC)

This article builds on recent scholarship about the origins and creation of “our Marbury” — the contemporary understanding of the case and its significance — to argue that Marbury is in fact wholly unsuited for the role it plays in Supreme Court rhetoric and academic instruction. While Marbury is generally understood to support aggressive judicial review, or actual invalidation of a government act, it offers no guidance at all for how judicial review should be employed in particular cases — in particular, whether review should be aggressive or deferential. The actual opinion in Marbury makes no effort to justify its lack of deference to the First Congress, probably because the opinion is a bad-faith exercise in judicial creativity motivated by partisan concerns. Moreover, Marbury-as-symbol has its origins in attempts to support the now-discredited Lochner era of aggressive judicial review. Ironically, while Marbury's origins are tied to Lochner, and Marbury itself is as partisan as the Court ever gets, the two now operate as symbolic opposites. Linking a decision to Marbury is a way to legitimize aggressive judicial review while linking it to Lochner it is a way to delegitimize it. Neither of these symbols achieves more than rhetorical effect. Modern invocations of Lochner tend to be as devoid of content as invocations of Marbury: Lochner-as-symbol also tells us nothing about when judicial review should be aggressive and when it should be deferential.

But there is a decision that does: McCulloch v. Maryland. McCulloch, like Marbury, is an early opinion by Chief Justice Marshall that is included in every constitutional law casebook. Unlike Marbury, McCulloch has a discussion of the proper exercise of judicial review. While the factors it sets forth as supporting deferential or aggressive review have not all won a place in Supreme Court jurisprudence, many of them have, and in fact the McCulloch theory can do most of the work that Marbury is supposed to do. In particular, it can support the exercise of aggressive judicial review in most of the Warren Court’s decisions—which, following the failed attempt to support Lochner, was Marbury’s main historical role. And unlike Marbury, McCulloch is not a partisan result-oriented decision. The article concludes that McCulloch should replace Marbury as the leading case about judicial review.

--Dan Ernst