Replies

"Interesting knowledgebase you have acquired. Obviously you have read alot. But you seem unless I am mistaken to take your study and carve it in some sort of self-edifying granite."

"Self-edifying granite"?
I think I've been insulted.
But I'm not sure.
There's no particular ego at work, if that's what you mean.
I am not very much driven along by current partisan passions in the US, on either side. I tend to look at things systemically, and relatively dispassionately, looking for the best solution, with a preference for humane solutions. (This is why the long-term effect of following the tidal wave of anti-immigrant passion all the way to the point of reinterpreting the 14th Amendment to eliminate the lex solis seems so terrible to me. Yes, stop illegal immigration, by building a wall. Deport if you must. But don't go so far as to use a massive illegal labor pool, forcing it to keep its head down (and therefore wages low and regular protections non-existence), but then condemn children born here to the same fate. There has to be an eventual regularization of people who come for the money, hunker down, and stay. Maybe not for them, but for their children. Otherwise you end up with a class of sudras.)

"Marbury v Madison can be revisited."

Yes. By the Supreme Court or the Amendment process.
Between the tree-swinging liberals and the cave-dwelling arch-conservatives on the Supreme Court today, there is not one would would overturn Marbury. It's obvious that, systemically, there has to be a final arbiter of constitutionality. And given the three choices, the Supreme Court is the least bad option. There isn't a judge sitting on a federal bench in America, no matter how far to the right, who would accept the idea that the final arbiter of what the Constitution means lies in Congress itself. The abuses and excesses to which that would directly lead, in short order, are obvious.

"I recall that the Founders especially Madison were not so keen on its initial outcome. Thinking it was not a clear threat to the Republic, and thinking that it could in time be challenged de novo, they did not oppose nor did they endorse the potential conflicting judicial authority of Marbury v Madison."

"The Founders?" No. That portion of the Founders who now constituted what we now call the Democratic-Republican Party, most prominently President Jefferson, were fit to be tied. After all, the departing Federalists had foisted a set of midnight appointments on them, and they were unable to undo these things because a Federalist, John Marshall, who a few months ago had handed Mr. Marbury his commission, was now writing an opinion that said that Congress couldn't take it back.

Madison, Jefferson's close ally, was also unhappy about the decision, even though it had fulfilled precisely that role that Madison himself had written a little over a decade earlier the Supreme Court would fill. The shifting sands of politics caused positions initially conceived and expressed during the time of ratification of the Constitution to become uncomfortable, and indeed this very thing causes certain of the Federalist Papers to be difficult to attribute, because after Hamilton's death, Madison was reticent about claiming credit for some of the most persuasive of Publius' writings in favor of positions which the Administration he served now opposed.

However, as to the reasons that Marbury was not immediately opposed, I disagree that it was "the Founders" who were not keen on its outcome. The Federalists, who had lost the national election but still could hold up President Jefferson in the Senate, were very pleased with the decision. Government was divided. Jefferson and Madison didn't have the POWER to be able to sweep through reversing legislation, even had they wanted to. They could have made the charge, and been defeated.

Likewise, in the Marbury opinion itself, Marshall was very crafty. He asserted the power to review acts of Congress, and the role of the Supreme Court to expound the Constitution. But then, having done so, he did NOT ultimately put Marbury in the position (if I recall it was a postmastership), finding that no effective remedy could be crafted.
So, Marshall asserted the authority, but didn't actually stick the public official into Jefferson's eye. It is interesting to see what would have happened if he had. Jefferson may have been moved to oppose. But the Federalists in the Senate may have stood by Marshall and the Supreme Court. The toxic spirit of party, which Washington warned about, and which Hamilton, Madison and Jay all regretted in The Federalist, was already very much alive.
The bottom line is that Jefferson and Madison probably could not have thwarted Marbury even if they wanted to, because they did not control the Senate sufficiently to do so.

"And until recent, the thinking has been for centuries that justices would eschew the potential activism provided them via Marbury v Madison."

I disagree. The three most atrocious rulings in American history, prior to Roe v. Wade, were all of them extremely activist, and intentionally so: Dredd Scott, Plessy v. Ferguson, and Lochner. Plessy was the most activist decision in history, directly ignoring three amendments to the Constitution! Dred Scott and Lochner were very aggressive, political jurisprudence. 1846, 1896 and 1906...that spans practically all of American history. Very aggressive, and noxious, judicial activism is not a new thing. The Supreme Court has always known its power, and has only been defied on a few occasions, mostly by President Lincoln.

"I have been informed more directly that it is the thinking of many constitutional scholars that Marbury v Madison had not been challenged because throughout most of U.S. history, jurists had not abused the authority that it provided."

Again, I most vociferously disagree.
Dredd Scott caused the Civil War.
Plessy ripped three amendments out of the Constitution and allowed apartheid to descend on American blacks, reversing Reconstruction and, to a certain extent, the outcome of the Civil War for almost 50 years.
Lochner prevented the STATES from passing most sorts of labor regulations whatever, even those involving health and safety of workers.
These were aggressive, abusive decisions that, all three of them, changed American history for the worse.
Roe is bad, but this is not a new phenomenon.

"I have also been informed that the same scholarly community includes an open discussion of the certainty of challenging Marbury v Madison in the coming years."

Challenge away!
Scalia's not going to vote to overturn Marbury.
Neither is Thomas.
Nobody will.
So, to mount this challenge, it will have to be extrajudicial.
The most effective defiance of the Supreme Court has been executive. Andrew Jackson famously defied the Supreme Court, once (they told him he couldn't commit the CHerokee Trail of Tears; he did it anyway). Abraham Lincoln routinely ignored all Supreme Court habeas corpus orders issued to free Southern sympathizers and journalists pre-emptively arrested on Lincoln's orders during the Civil War.
A Congressional defiance of the Court would be toothless without the Executive.
An Executive defiance of the Court would be impeachable without the support of Congress.
So, both covalent branches would have to act together, and outright defy the Court, because the Court is never in a million years going to overrule Marbury v. Madison.