3
judicial power of the United States shall be vested in one Supreme Court,” and Marshall,
as Chief Justice, was clearly a member of the Supreme Court. To be sure, Article III also
specifies that judges “shall hold their Offices during good Behaviour,”
6
and the Fifth
Amendment guarantees that no one can be “deprived of life, liberty, or property without
due process of law,”
7
but neither of these clauses explicitly prevented the self-interested
Marshall from presiding over the case, and there was at the time no positive law
pronouncement, no statutory code of judicial ethics, that barred a biased jurist from
taking the bench.
Yet, even absent an express statutory prohibition, I think most of us have the
innate sense that a judge should not sit in judgment over a case in which he has a personal
interest. Call it “bad” behavior for a judge, or a deprivation of the process that is due as a
matter of fundamental fairness, but is it not evident that to pursue either inquiry
necessarily requires that we look beyond the mere text of the Constitution, to some notion
of justice that would help give substance to its provisions? It may well be, then, that the
problem of judges ruling on un-enumerated rights was with us long before Earl Warren
took the bench.
There is another problem underlying Marbury, at least as it has come to be
interpreted, that needs to be addressed. Although in our re-enactment Professor
Chemerinsky and I donned period dress—complete with wigs, knee-breeches, and
6
U.S. C
ONST
. A
RT
. III, § 1.
7
U.S. C
ONST
. A
MEND
. V.
Convention