Marbury and the Constitutional Mind: A Bicentennial Essay on the Wages of Doctrinal Tension

harm-for example, injury to the interest in seeing that the law is obeyed-deprives the case of the concrete specificity that characterized those controversies which were 'the traditional concern of the courts at Westminster"' (quoting Coleman v. Miller, 307 U.S. 433, 460 (1939) (Frankfurter, J., dissenting)) and that alone should therefore be regarded as properly justiciable today); Valley Forge Christian Coll. v. Citizens United for Separation of Church & State, 454 U.S. 464, 476 (1982) (asserting that standing limitations are "part of the basic charter promulgated by the Framers of the Constitution at Philadelphia in 1787"). Scholars, however, have predominantly rejected the Court's assumption. See, e.g., Richard Pierce, Is Standing Law or Politics?, 77 N.C. L. REv. 1741, 1765 (reviewing historical studies and concluding that "no historical support exists for the proposition that [Vol. 9 1:1 MARBURY AND THE CONSTITUTIONAL MIND perhaps to a historically grounded but now forgotten approach that coherently embodies some but not all aspects of the private-rights and specialfunctions models.246 If a project of this kind rendered Marbury wholly selfconsistent, then the historical truth would contain no disturbing dissonance, and subsequent misunderstandings could be characterized as simple errors. In offering these comments on the possible -fruits of historical inquiries, I do not pretend to judge Pfander's conclusions about the best reading of the 1789 Judiciary Act. Neither do I mean to project the success or failure of similar historical inquiries of the kind that I have sketched. I would insist, however, that the historicist project, as I have described it, could not imaginably satisfy the concerns of everyone who is unsettled by apparent contradictions in current constitutional doctrines. Even if successful in its own terms, historicism could not purge tensions from contemporary doctrine except on the contestable assumption that historical truths uniquely determine current legal meaning and constitutional validity. Full implementation of this assumption would have draconian effects unlikely to be acceptable to anyone. In a closely analogous case that much influences my modeling of historicism, self-styled "originalists" believe that constitutional interpretation should in principle reflect the "original understanding" of relevant constitutional provisions.247 Nevertheless, nearly all originalists accept that at least some mistaken decisions must now be accepted on the basis of stare decisis.2 48 For those adopting this approach, originalism is not a complete constitutional theory, for its implementation requires the development of a normative theory of stare