Louis Fisher on Judicial Supremacy

Scarberry, Mark Mark.Scarberry at pepperdine.edu
Tue Sep 7 14:53:59 PDT 2010

I thought I'd bring this APSA paper on SSRN to the attention of list
members. I haven't read it yet, but Louis Fisher had a distinguished
career with the Congressional Research Service and as Specialist in
Constitutional Law at the Library of Congress before joining the
Constitution Project. See

LSN U.S. Constitutional Law: Interpretation & Judicial Review eJournal
Vol. 5 No. 52,  09/06/2010

"Judicial Supremacy: How Did this Far-Fetched Claim Originate?"  
APSA 2010 Annual Meeting Paper
LOUIS FISHER, The Constitution Project
Email: lfisher at constitutionproject.org
"Much nonsense has been written about Marbury v. Madison (1803),
especially in recent decades by the Supreme Court. Yes, it represents
the first time the Court held a statutory provision of Congress to be
unconstitutional. However, other extravagant claims, including judicial
supremacy, would be disowned by its author, Chief Justice John Marshall.
By placing a public stamp of approval on judicial review, the Court
formally recognized what was obvious: that elected branches are subject
to the constraints of the Constitution. That elementary point is on
public display every time elected officials take their oath of office.
The more interesting issue is who gets to decide what is
unconstitutional and whether that decision is in any sense final. In our
democracy no branch is final on constitutional questions." 

My apologies if everyone gets this SSRN journal and has already seen the

Mark Scarberry
Pepperdine Law

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