In part 2, I examined the gap between the activist cases of the early-mid 1900s and the 1803 ruling.
Here in part 3, the negative and positive aspects are examined.
The negative power to say something is unconstitutional is clearly a different animal than the positive power of cooking up whole new legislation. It is not uncommon to read or hear judicial review cast as a veto or a nullification - a negative - and with a view on Marbury veto and nullify are two words which are both fairly accurate terms to use.
I'm not saying that I wholly agree with judicial nullification of laws, however, we have yet another huge gap to examine. That gap is the gap between negative judicial vetos, as exists with Marbury, and positive judicial law creations, such as Miranda v. Arizona. Is that a bad example? How about Roe v. Wade? I'm sure I could find others where "the law of the land" has absolutely zero legislation backing it.
The point is this: We have three separate terms which I will examine here. Those terms are
1) Judicial Review
2) Judicial Activism
3) Judicial Supremacy
There is a huge difference between a case that is horrible and rotten such as Dredd Scott and a case like Miranda. Dredd Scott, while one of if not perhaps the worst case to ever come out of the court, is not a judicial review case.(or more precisely, I have not found any source which calls Dredd Scott a judicial review case) It is, at the end of the day, "simply" horrible judicial outcome. Miranda, on the other hand, is an affront to the constitution. Ironically, it's actually also an affront to Marbury.
Can anybody point to me the new law that was manufactured out of Marbury? Because I can't find any. I can find, however, a law that was negatived by Marbury on the grounds that said law was unconstitutional.
This is a negative vs a positive. This is important to understand, because Judicial Supremacy means that the judiciary is the most supreme, even more supreme than the constitution itself. If a judicial body has the ability create new legislation and to re-write the constitution any time it sees fit, then it is practicing judicial supremacy. The constitution is not supreme here, the court is supreme.
The concept of judicial activism really has no definition and for many, the term is thrown around based on if one does or does not like the results of any particular case. Anything can be activist, regardless of the constitutional aspect.
Finally, the concept of judicial review. Let's be real, not only did the Founders discuss it at the Convention, it also existed prior to Marbury.(See the Hylton case) At the end of the day, Marbury manufactured no new laws out of whole cloth. The power to negative is clearly and plainly different than the power to positive.
Miranda created new law. Roe created new law. Obergefell created new law. There are dozens of others.
Let's cite a little bit of Marbury here. Marshall wrote:
The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.
Please note, that Marshall does not say "You congressmen do not have the power to positively create new constitutional statutes without amendments, but we judges do!" "You congressmen do not have the power to place yourselves above the constitution" "BUT WE DO!!!" He never says that, and he deliberately says the opposite. Here is more Marshall:
It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.
This is the supremacy clause of the constitution that he is referencing here. Note that in the supremacy clause, the laws(meaning the legislature) and treaties are mentioned second. The courts are mentioned last.
These are not insignificant things to ponder when you consider how progressives position themselves. We have a big gap between Marbury and when the courts started, consistently started, creating new laws of the land.(as a non-legislative body) Judicial review may be a problem we need to solve and dial back, but clearly what the courts are doing today in the 21st century and what they started doing in the early-mid 1900s is not in any way because of the events that transpired during the course of Marbury v. Madison, no matter how many times progressives may loudly shout as to its affirmative.