John Marshall Globalized1

AERICANS-an appellation inhabitants of United States have tended to appropriate, to annoyance of citizens of Latin America and Canada-sometimes appear to believe that they invented all progressive political values that are dominant at birth of twenty-first century: democracy, rule of law, human rights; perhaps also federalism; perhaps also freedom of economic enterprise. Claims that Americans invented these ideas (and ideals) might be dismissed as ignorant chauvinism. But United States can properly claim that it invented, or established, and disseminated, one institution-judicial review-the authority of courts to interpret and enforce national constitution-the legacy of John Marshall and of his decision in Marbury v. Madison, bicentennial of which has been celebrated in year 2003.2 1. I have been invited to muse on what has become of Marbury in age of globalization. Marbury, it sometimes seems, has become a metaphor for every new, or dramatic, assertion of authority by judges, anywhere, in any country, sometimes characterized, not always with approbation, as by judges. But Marbury also has a more limited, more authentic, use, to signify authority of judges to maintain constitutionalism, to help assure that government respects constraints. By United States Constitution, members of all branches of government shall be bound by Oath or Affirmation, to support this Constitution.3 But on face of Constitution there is no one, and no body, with authority to monitor constitutionality of acts of other branches, representatives, or officials. In Marbury, John Marshall declared that Constitution is law, Law of Land, and it is emphatically, province and duty of department, to say what law is.4 It is not clear, or universally agreed, what it was that Marshall decided. He ruled (or said) that judiciary could not act contrary to Constitution. He ruled (or said) that Congress could not act contrary to Constitution. It is not clear that he held (or said) that other branches of government, and representatives and officials generally, were bound to accept judiciary's view of constitutionality of their acts. Decades, generations, later-in 1958-the Supreme Court asserted that Marbury had declared the basic principle that federal judiciary is in exposition of law of Constitution, and that principle has ever since been respected by this Court and Country as a permanent and indispensable feature of our system.5 Whether John Marshall said, or intended, all of that, is still debated in Academy, but that interpretation of Marbury is doctrine of review that governs in United States today: federal judiciary, with Supreme Court at its peak, is supreme in interpretation and application of Constitution; it is final; it is infallible.6 2. Globalizing review Nearly every one of almost two hundred countries-nation states-in world today has a constitution, and many systems have provided for review by judges, a practice commonly described as judicial review. In an increasing number of nation states, review is responsibility of a constitutional court. see page 60 below. Meaningful review assumes that there is a national constitution (usually a written constitution), prescriptive in character and having force of law. In time, constitutions have begun to reflect commitment to constitutionalism, and to some or all of its principal elements as now conceived-the consent of governed, representative government, separation of powers, commitment to individual rights, and in some instances (as in United States) restraints of a federal system. …