Marbury now embodies a particular approach to constitutional law and decision making; it is emblematic of the doctrine of judicial review. The decision provides the constitutional cornerstone of the doctrine in the United States and, as a result, supports the core democratic structures of government in this country. With the flurry of scholarship accompanying the recent bicentennial of the decision, it would seem there is hardly anything new left to say about the opinion.
In attempting to construct United States-style judicial review for the Mexican Supreme Court in the 1880s, Ignacio Vallarta, president of the court, read Marbury in a way that preceded this use of the case in the United States. Using this surprising fact as a central example, this article makes several important contributions to the field of comparative constitutional law. The work demonstrates that through constitutional migration, novel readings of constitutional sources can arise in foreign fora. In an era when the United States Supreme Court may be accused of parochialism in its constitutional analysis, the article addresses the current controversy surrounding the Court's recent use of foreign sources. In discussing Vallarta's constitutional thought, the work makes contributions to the terminology of constitutional migration, to the historiography of Mexican constitutionalism, and to questions of common law and civil law approaches to constitutional decision making. It concludes that Mexico's precocious use of Marbury profoundly affected Mexican legal development and may serve as an example of the usefulness of comparative constitutionalism.
M C. Mirow,
Marbury in Mexico: Judicial Review’s Precocious Southern Migration
, 35 Hastings Const. L.Q. 41
Available at: http://ecollections.law.fiu.edu/faculty_publications/115