Burton Caine Law Review Article -- Critique

The following is the first page of my critique of a law review article that was written by one of my law professors at Temple University, Burton Caine.  Professor Caine telephoned me about the letter in early January 1984.  When I locate the remaining pages of the letter I will post them.

Professor Caine's article "Judicial Review, Democracy v. Constitutionality," which appeared in the Temple Law Review, has been reprinted by the government and circulated throughout the world. He has also written on new interpretations of significant stories in the Hebrew Bible.

December 28, 1983
3801 Connecticut Ave., NW
Apt. 136
Washington, DC  20008

Prof. Burton Caine
Temple University School of Law
1719 N. Broad Street
Philadelphia, PA  19122

Dear Professor Caine:

I was a student in your course in Political and Civil Rights in the Fall 1981 semester and am currently an LL.M. candidate in International Law at the Washington College of Law, American University.

I read with great interest your article “Judicial Review--Democracy versus Constitutionality” and am writing to offer an alternative view of Marbury v Madison.  It is an analysis that emphasizes an aspect of Marbury you seem to have overlooked, yet an analysis that nonetheless inferentially supports your conclusions.

The conclusions of your paper are indisputable.  However, from a purely logical perspective, I believe you have “skipped a step” in your reasoning.  Interestingly, although you quote the preamble to the Constitution, you omit the one phrase that illustrates the sub silencio, unstated aim of Marbury -- “In order to form a more perfect Union . . . “.  Marbury illustrates an intent to establish the supremacy of federal law, an intent  to form a more perfect union in which state interests are subordinated to the interests of the federal government.  Judicial review must best seen as an attempt to check encroachment of state interests on the then newly-created federal entity.  It is in promoting federal supremacy--the supremacy of a federal, and purely federal, interpretation of the Constitution -- that Marbury helps ensure individual rights.  Judicial review affords the Federal Courts the means to fashion a purely federally-defined version of individual rights as embodied in the Bill of Rights, and in so doing, protects individual rights from encroachment by majoritarian, state-oriented interests.

This analysis is rooted in an understanding of the nature and form of the U.S. as it appeared to John  Marshall.  The U.S. had only fairly recently been united.  So-called states rights and state interests must have appeared to Marshall as a grave threat to federal supremacy--a threat, though not apparent today, that cannot be overlooked in an analysis of Marbury.  The federal union in the early nineteenth century must have appeared to Marshall as a fragile entity and Marbury must be viewed as Marshall’s response to this perception.

While John Marshall “does not search out the framers’ intent,”