on self-negation in Marbury
There was a nagging knot about in Marbury v Madison:
- First, Marshall rules that the Supreme Court has the power of judicial review of laws measured against the Constitution, etc, and the immediate consequence of this is that the Judiciary Act of 1789 is not constitutional.
- However -- that act was the one that Marbury was trying to use to get his commission, because the act declared that the Supreme Court had power to grant him it. Marshall, of course, argued that the Constitution did not positively grant the Court this original power, and that there were good reasons for not thinking that it did so negatively.
- In other words, Marshall trimmed the Court's original jurisdiction, where it could have been expanded (ie, to issuing such a writ), and by doing so, actually hugely expanded, or at least confirmed, its appellate jurisdiction (ie, to all constitutional matters). In pronouncing the its own word as law on the lesser jurisdictional matter (which it chose to renounce), the Court made its word law on the greater one (as in Derrida’s “Declarations,” etc). (Cf. also Lincoln on the Dred Scott Court’s decision not to maintain prohibition of slavery in new territories, “Congress decides that it will not continue the prohibition, and the Supreme Court decides that is could not if it would”: the performative declaration of self-incapacity which speaks power.) It makes me think of Adorno and Horkheimer's Odysseus, the wily bourgeois who kept subjecting himself to ancient mythic powers, but always with a dialectical twist, so that he came out on top through renunciation / self-negation, able ultimately to control the situation and survive where his peers did not.
Somewhere there must be lots of commentary on this twist ...