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Richard H. Fallon, Marbury and the Constitutional Mind: A Bicentennial Essay on the Wages of Doctrinal Tension, 91 Calif. L. Rev. 1 (2003).

Abstract: Bicentennial celebrations of Marbury v. Madison should recognize Marbury's influence in shaping a body of constitutional law that is not only rich and diverse but also tension-ridden. Marbury furnishes the canonical statement of the judicial role, but that statement is multiple, not singular. Specifically, Marbury exhibits three distinct faces. A "private-rights" face asserts that courts must decide constitutional issues when, but only when, necessary to adjudicate traditional disputes involving concrete injuries. A "special-functions" face implies that courts have a broader role in enforcing constitutional norms. A "political" or "prudential" face, which is suggested by Marbury's surrounding facts, counsels that courts should sometimes tailor their rulings to avoid collision with the political branches. Marbury's three faces frequently yield conflicting prescriptions. What is more, all help to shape contemporary constitutional law. The result is widespread doctrinal tension. In the literature on constitutional law and theory, varied strategies have emerged for dealing with the challenges and cognitive dissonance that doctrinal tension generates. Some strategies seek to establish doctrinal coherence through creative interpretation, policy-driven reform, or historical reconstruction. Others attempt to explain and disarm doctrinal conflict. But no one strategy can satisfy all of the demands for ordered understanding that a participant in constitutional practice might reasonably assert. Richness and diversity are the glory of Marbury's legacy, but tension and methodological disagreement are also integral to its heritage.