Legal Scholar Challenges "Marbury v. Madison" Myth, Cites "Dogma of Deference"

Legal scholar Timothy Sandefur recently asserted on social media that the widely held belief that judicial review was "invented" in the landmark 1803 Supreme Court case Marbury v. Madison is a common misconception. Sandefur, a prominent voice in constitutional law, attributed this enduring myth to what he terms the "Dogma of Deference," a notion that he argues prioritizes democracy as the highest political value, thereby casting inherent suspicion upon the judiciary. His statement challenges a fundamental tenet of American legal education and public understanding of constitutional history.

Traditionally, Marbury v. Madison is celebrated as the pivotal case where Chief Justice John Marshall formally established the principle of judicial review, granting American courts the authority to declare legislative acts unconstitutional. This decision, which saw the Supreme Court strike down a portion of the Judiciary Act of 1789, is often presented as the birth of the judiciary's power to act as a check on the other branches of government. It solidified the Constitution as the supreme law of the land, enforceable by the courts.

However, historical research, echoed by Sandefur's perspective, indicates that the concept and practice of judicial review predated Marbury. Instances of courts reviewing and invalidating statutes occurred in several states, including New Jersey's Holmes v. Walton (1780) and North Carolina's Bayard v. Singleton (1787), well before the 1803 ruling. While Marbury undeniably made the practice routine and firmly established it at the federal level, it built upon an existing foundation rather than creating the power ex nihilo.

Sandefur defines the "Dogma of Deference" as a product of early 20th-century Progressive thought, which viewed courts as "countermajoritarian" and inherently suspect. This perspective, he contends, shifted the focus of constitutional interpretation from protecting individual liberty and limited government to reconciling judicial power with popular democracy. Such a framework, Sandefur argues, has fostered an environment where judicial restraint is often seen as a virtue, even when it means upholding laws that infringe upon constitutional boundaries.

According to Sandefur, this deferential attitude allows legislatures to overstep their constitutional limits, leading to an expansion of governmental power that the Constitution was designed to prevent. He posits that when courts defer too much, they fail in their duty to enforce the "will of the people" as expressed in the Constitution, ultimately undermining the system of checks and balances. Sandefur suggests that wrongly upholding an unconstitutional law can have more detrimental and lasting consequences than wrongly striking down a valid one.