Marbury v. Madison : The Origins and Legacy of Judicial Review [Paperback]

William E. Nelson (Author), N. E. H. Hull (Editor), Peter Charles Hoffer (Editor)

Book Description

ISBN-10: 0700610626 | ISBN-13: 978-0700610624 | Publication Date: November 20, 2000

We take for granted today the tremendous power of the Supreme Court to interpret our laws and overrule any found in conflict with the Constitution. Yet our nation was a quarter-century old before that power of "judicial review" was fully articulated by the Court itself in Marbury v. Madison (1803). William Nelson's concise study of that landmark case provides an insightful and readable guide for students and general readers alike.

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 in 1801 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, which 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. He also shows how by asserting that the task of courts was one of discovering rather than making law, Marshall managed to shore up the Court's prestige and power rather than have it serve partisan political agendas.

Nelson clarifies how the Marshall court sought to preserve what was best in eighteenth-century constitutionalism while accommodating nineteenth-century political realities, and also traces the gradual transformation of Marbury-style judicial review since Marshall's time.

Although the Supreme Court did not assert its power of judicial review for another fifty-four years after Marbury, it has since then invalidated numerous acts of Congress. From Marshall's modest bid for consensus to what some consider the modern Court's "activist" excesses, judicial review has been a cornerstone in the edifice of the federal judiciary. Nelson's analysis helps us better understand how this fundamental principle emerged and why it still matters.

This book is part of the Landmark Law Cases and American Society series.

Editorial Reviews

From the Back Cover

"William Nelson, the country's ablest legal historian, has written the most concise yet thoughtful analysis of the first great landmark case in the canon of American constitutional law. Nelson deftly situates Marbury in its own time while illuminating its continuing significance for our own era. This is a book from which scholars and students at every level will learn."--Jack N. Rakove, author of Original Meanings: Politics and Ideas in the Making of the Constitution

"This deft and provocative study is at once an incisive history and a reflective meditation on the legitimacy of judicial review."--Charles F. Hobson, author of The Great Chief Justice: John Marshall and the Rule of Law

"Well written, coherent, and accessible for students and general readers."--G. Edward White, author of The Marshall Court and Cultural Change

About the Author

William E. Nelson is the Joel and Anne Ehrenkranz Professor of Law at New York University School of Law. Among his books are The Fourteenth Amendment: From Political Principle to Judicial Doctrine (winner of the Littleton-Griswold Prize) and The Roots of American Bureaucracy, 1830-1900.

Product Details

• Paperback: 160 pages
• Publisher: University Press of Kansas (November 20, 2000)
• Language: English
• ISBN-10: 0700610626
• ISBN-13: 978-0700610624
• Product Dimensions: 8.4 x 5.6 x 0.4 inches
• Shipping Weight: 8.3 ounces (View shipping rates and policies)
• Average Customer Review: 3.2 out of 5 stars  See all reviews (5 customer reviews)
• Amazon Best Sellers Rank: #480,678 in Books (See Top 100 in Books)

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Customer Reviews

Most Helpful Customer Reviews

10 of 10 people found the following review helpful:

4.0 out of 5 stars Important Legal History, May 14, 2004

By 

P. O'Rourke "Patrick T. O'Rourke" (Highlands Ranch, CO United States) - See all my reviews
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This review is from: Marbury v. Madison : The Origins and Legacy of Judicial Review (Paperback)

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.

9 of 10 people found the following review helpful:

4.0 out of 5 stars Activist Judges? I give you an activist judge!, February 6, 2006

By 

Jeffrey W. Wehner (Cincinnati, OH) - See all my reviews
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This review is from: Marbury v. Madison : The Origins and Legacy of Judicial Review (Paperback)

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).

1 of 1 people found the following review helpful:

3.0 out of 5 stars Interesting book on doctrine of judicial review, September 23, 2010

By 

E. Jaksetic (Virginia, USA) - See all my reviews
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This review is from: Marbury v. Madison : The Origins and Legacy of Judicial Review (Paperback)

This book examines the doctrine of judicial review in America. The author's discussion has five parts: (1) A survey of American political and legal history and doctrines that preceded the Presidential election of 1800, and the controversies surrounding that election. (2) The facts and circumstances leading up to the case of Marbury v. Madison, and the Supreme Court's decision in that case. (3) The initial political and legal consequences of the Supreme Court's decision in Marbury v. Madison. (4) The later change in legal interpretations of the Supreme Court's decision in Marbury v. Madison, which broadened its scope and reach. (5) The spread of the doctrine of judicial review around the world, and the relevance of the doctrine of judicial review today.

The first four parts of the book are generally interesting, and provide a good introduction to the history of the doctrine of judicial review in America. Although the author sets forth a plausible interpretation of the doctrine of judicial review, it should not be read as a conclusive or definitive interpretation. Indeed, the author acknowledges that his interpretation of the doctrine of judicial review differs from several other interpretations (Introduction, pages 2-9). Also, the author's statements in favor of a broad, expansive interpretation of the doctrine of judicial review are a bit problematic because they seem to rely on acceptance of the rise of liberal, progressive policies between the late 1800s and the New Deal, rather than any identifiable cogent argument. The fifth part of the book is interesting, but relies heavily on general policy pronouncements that seem to lack specific supporting arguments.

This book would be worth reading by anyone (regardless of political persuasion) interested in the doctrine of judicial review, and the issue of what is the proper role of courts in America.