The Rule of Law?

Separation of powers is a common theme in the history of the judiciary.  Although Article III does not grant the Supreme Court the power to strike down laws it considers repugnant to the Constitution, every law student in America knows that this power exists thanks to Chief Justice John Marshal’s opinion in Marbury v. Madison.  Place this in the context of the following quote from Posner’s How Judges Think:

The original precedent in a line of precedents could not have been based on precedent.  At the origin of the line must be something else.  It might well be a policy judgment or, what often will amount to the same thing, the interpretation of a vague statute or vague constitutional provision – and the policy judgment or the policy-laden interpretation might well be determined by ideology.

Not only is the foregoing true, but it seems especially so with regard to Marbury – arguably the most important legal decision in American history.  The opinion that gave the federal judiciary its most consequential power is founded not upon the text of the Constitution but upon Marshal’s preconceptions; perhaps his beliefs in a strong federal government, a strong federal judiciary, and a system of checks and balances.  So one can certainly argue that “the rule of law” (or a “government of laws not men”) had immensely significant exceptions, even from the onset.  We should recognize this regardless of whether we think judicial review is a good thing.  And proponents of judicial review should at least recognize its drawbacks.   After all, Marbury may have been the seed that was responsible for the Supreme Court becoming the largely political institution that it is today.  Without the enormous power of judicial review and the exclusive voice of constitutionality, the Court would be stripped of almost all of its political utility.