The Strange Cases of Marbury and Lochner in the Constitutional Imagination
In this article, Miguel Schor examines the spread of judicial review throughout the world. Taking a historical and comparative approach, Professor Schor details how the American cases of Marbury v. Madison (1803) and Lochner v. New York (1905) influenced global views of judicial review. Schor likens the two cases to Robert Louis Stevenson’s protaganist/antagonist in The Strange Case of Dr. Jekyll and Mr. Hyde. As Jekyll was inseparable from Hyde, Marbury and Lochner have become “inextricably linked” in the constitutional imagination. Marbury stirred hopes that courts could curb legislative overreaching and safeguard constitutional rights, while Lochner stoked fears that the excesses of judicial review could imperil the foundations of democracy.
Schor argues that contrary to conventional wisdom, Lochner was more influential than Marbury. Chief Justice Marshall did not invent judicial review—rather, Marbury merely reflected an evolution of the common law and limited legislative power. A century later, Lochner ignited fears that judicial overreach could undermine democracy. Schor describes how the American experience with Lochner caused constitutional designers worldwide to think carefully about the role of judicial review in a democratic state. Cautioned by Lochner and the powerful and independent U.S. courts, constitutional framers adopted stronger methods for ensuring political accountability of the judiciary.
Professor Schor further observes that paradoxically, as civil law courts have become more like common law courts, the U.S. Supreme Court exhibits increasingly civil law-like tendencies. In particular, he criticizes the formalism and disdain for precedent demonstrated by the majority in Heller.
Schor concludes by noting that Marbury and Lochner prompted a “long struggle to both empower courts and to cabin judicial discretion.” Political accountability and balancing tests emerged as responses to Lochner, checking the expansion of judicial power.
