MARBURY V. MADISON AT THE INTERNATIONAL LEVEL

Marbury v. Madison1 is a great symbol of constitutionalism. It has become emblematic, reaching far beyond the scope of what was actually discussed and decided by the Supreme Court. The principle of judicial review of the constitutionality of acts of Congress was not expressed in the U.S. Constitution, nor was it an inevitable development. Other political or legal means for controlling the exercise of supreme legislative power might have been preferred. But John Marshall saw otherwise. As an Australian public lawyer re-reading Marbury v. Madison, I find it an extraordinarily moving decision. The case bears an interesting relationship to the history of constitutional review in other common law countries. The early Australian High Court was established in 1903 by the Judiciary Act (Cth).2 That Act borrowed language directly from its U.S. equivalent, the Judiciary Act of 1789. The High Court was vested, inter alia, with the original jurisdiction which the Supreme Court had been called on to exercise against Madison, including the jurisdiction to make orders of mandamus against officers of the Commonwealth. But there was an important difference: because of John Marshall and Marbury both the Australian federal constitution of 1900 and the Judiciary Act of 1903 assumed that there would be judicial review of legislation. As a result, the High Court exercised judicial review of legislation from its very early stages, and continues to do so to the present day.3 In 1906 the Privy Council rejected the U.S. analogy on the ground that [n]o State of the Australian Commonwealth has the power of independent legislation possessed by the States of the American Union. Every Act of the Victorian Council and Assembly requires the assent of the Crown.4 According to this view, the subordinate and colonial status of the Australian States was the dominant factor. The State Parliament of Victoria was a subordinate legislature, rather like a local council. By implication, if the Parliament was a sovereign legislature, the situation would have been different. That is a profound misreading of Marbury, and a profound misreading of the common law tradition as it has been received in the former British colonies. The Privy Council's decision was not accepted by the Australian High Court.5 Instead constitutional appeals to the Privy Council were limited and eventually abolished.6 By contrast, in the United Kingdom the view that only subordinate entities are subject to judicial review has continued to have influence. Thus, when the House of Lords exercised a form of judicial review in the context of legislation inconsistent with European Union law in the landmark Factortame case, it did so in a more or less inarticulate way. Rather than delivering judgment, members of the House of Lords give speeches, but on this point the House of Lords was speechless. Of course the House of Lords had no option but to say that, in terms of the operation of the European Union as an integrated institution with an integrated law, the British legislation in question was inoperative to the extent of any inconsistency with the E.U. law, but it did not know how to articulate this. This was because of the tradition of sovereignty precluding judicial review, a tradition which Australia does not share and which the United States, at least in its internal affairs, does not share either. When the Australian Constitution was drafted in the 1890s, less than a century after Marbury, the principle of judicial review of the constitutionality of acts of the federal Parliament was plainly taken for granted, in reliance on U.S. authority. From its beginning as an uncertain and merely potential implication of a federal union structure, judicial review moved to being considered necessary to the effective control of the terms of a federal union. Marbury is the emblem of this movement. Consideration of the significance of Marbury at the international level raises the general issue of the relationship between international law and political decision-making, especially political decision-making by international organizations. …