Getting the "Marbury Syllogism" Right

People sometimes refer to the "Marbury Syllogism," a particularly simple justification of judicial review in the American constitutional system. It goes something like this:

• The function of courts is to interpret the law.
• The Constitution is law.
• Therefore, the function of courts includes interpreting the Constitution.

A lot of people find this unconvincingly simplistic. It's kind of circular, anyway: how do we know that the function of courts is to interpret the law, if that task includes striking down laws passed by democratically-elected legislatures? The text of the Constitution does not give the courts this function, just to read it. Maybe the function of courts is just to interpret the laws, like courts around the world do in contracts disputes or whatever, not to go around judging those laws against the Constitution. Maybe interpreting the Constitution is up to the elected branches, and the Court oughtn't second-guess them.

Well, maybe, but I think that there's a much stronger syllogism than the conventional one that does amply justify judicial review. It goes like this:

• The function of courts is to enforce the law and apply it to particular cases.
• Legislative acts in contravention of the Constitution are not law.
• Therefore, the courts should not enforce such acts, or apply them to particular cases.

And that, in fact, is how judicial review works. In the course of considering a particular legal dispute, the Court will simply not apply a law that it believes to be unconstitutional. And this really does seem to follow from the Constitution's own declaration that it, and "the Laws of the United States which shall be made in pursuance thereof," are the Supreme Law of the Land. Implicitly, any so-called law which is made not in pursuance thereof but in violation thereof is not the supreme law of anything. It doesn't exist, because the Constitution does not permit it to exist. For a court to nonetheless enforce such a nonexistent law would be highly improper. Therefore, courts must operate on the assumption that any laws which are in fact unconstitutional do not exist, and that they ought refuse to enforce them. Doing this, of course, requires those Courts to have an idea of what the Constitution means, which requires interpreting that document. And there you have judicial review. I don't see how there are any holes in that case, if we're talking about debating whether the Constitution does in fact provide for judicial review. Of course, one could make a philosophical argument in favor of legislative supremacy, but that's a different question. Our Constitution rather plainly does not provide for Congressional supremacy. There are many things which Congress lacks the power, or more accurately the legitimate authority, to do. If Congress tries to tell people it did some of those things, it is wrong, and those people should not go along with it. It really is that simple.