Marbury V. Madison: The Origins and Legacy of Judicial Review

By William Edward Nelson

Book Overview

On the surface, the case itself seems a minor one at best. William Marbury, a last-minute judicial appointee of outgoing Federalist president John Adams, demanded redress from the Supreme Court when his commission was not delivered. But Chief Justice John Marshall could clearly see the danger his demand posed for a weak court filled with Federalist judges. Wary of the Court's standing with the new Republican administration of Thomas Jefferson, Marshall hit upon a solution that was both principled and pragmatic. He determined that while Marbury was justified in his suit, the law on which his claim was based was in conflict with the Constitution. It was the first time that the Court struck down an act of Congress as unconstitutional, thus establishing the doctrine of judicial review that designates the Court as chief interpreter of the Constitution.

Nelson relates the story behind Marbury and explains why it is a foundational case for understanding the Supreme Court. He reveals how Marshall deftly avoided a dangerous political confrontation between the executive and judicial branches by upholding the rule of law. Nelson also shows how Marshall managed to shore up the Court's prestige and power rather than have it serve partisan political agendas.

Nelson expands upon his original historical analysis by providing a more complete and nuanced account of eighteenth-century constitutionalism and the early development of judicial review. The new material includes chapters on nullification of legislation in local courts, James Otis's articulation of the doctrine of judicial review in the Writs of Assistance Case, the use of this doctrine in response to the Stamp Act and Townshend Act, and the expansion of judicial review in the State Cases. This revised and expanded edition provides a fuller picture of colonial America and a richer understanding of Marshall's foundational decision.

• Format: Paperback
• Language: English
• ISBN: 0700626409
• ISBN13: 9780700626403
• Release Date: May 2018
• Publisher: University Press of Kansas
• Length: 184 Pages
• Weight: 0.60 lbs.
• Dimensions: 0.6" x 5.5" x 8.5"

Customer Reviews

Activist Judges? I give you an activist judge!

So the founding fathers more or less set up a judiciary for some purpose, likely similar to the British courts with which they were accustomed, and maybe laws would be struck down (John Jay had done this previously). So what's all this talk about Marbury v. Madison? Why should we care who Chief John Marshall was? This short book (125 pages) does an excellent job of answering these two vital questions. Marshall was a man with a powerful personality and great intelligence that focused the power of the judiciary and made it, through his own will alone it seems, into an equal arm of government. The author explores the historical undertones that brought the actually action to the court (as well as the sister actions), explores what made this decisions so different in form and function to all previous decisions. He then goes on to review some of the long term aspects within the judiciary as a direct result of this decision and closes by reviewing the impact of Marbury to other jurisdictions (countries).

Important Legal History

Marbury v. Madison is a case that every law student knows and that very few people understand. Although modern legal discourse focuses on cases that decide social issues like racial preferences, abortion, and gay rights, none of these cases are as important as Marbury. The reason for this is simple - - unless Justice Marshall had established that it was the exclusive province of the judiciary to determine the constitutionality of legislation, none of the important social issues would be decided in the courts. They would be decided in the legislature or in the executive.Mr. Nelson does a nice job of tracing the history that gave rise to judicial review and explaining how judicial review has become the primary place where many of our social problems are resolved. I recommend it to anyone who is interested in why 9 people in black robes may be the most powerful people in the United States, even though you rarely see them and most citizens don't know their names.