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

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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.

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).

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.

Part of the difficulty with this book is its lack of originality. Marbury v Madison turned on the Supreme Court's reading of the Judiciary Act. That reading reduced to the effect punctuation has on the meaning of a chain of words: "A woman, without her man, is nothing." "A woman: without her, man is nothing." Similarly, the judgment of Marbury v Madison was merely a utiliziation of punctuation to achieve the judgment they wanted.

This book was written by a liberal east coast law professor.
Its an account of how the tyranny of the courts developed over
time and how they gained the power they have today. The writer
is mostly wrong in his conclusions, but he is a good source for
more serious writers on this subjects in that he at least gets
some of the facts right.

Judicial Review is the self-given unconstitutional power of the
federal courts to oversee the other branches of government and
to make laws for the country. While such powers were talked
about in the federalist papers, they were explicitly excluded
from the constitution and did not appear until 1803 when
John Marshall launched his politically motiviated coup against
the other branches while they were weak and divided.

The book clearly shows that the power of judicial review is
unconsitutional and how it was only created as a personal
decision made by Marshall. What is not mentioned was the
part secular humanism played in its creation. In a secular
humanist society, judges control the meaning of the law and
act as aribrary rulers over normal people. Elected leaders
are pushed to the side in favor of unelected judges who use
power in the name of the law to impose their will.

Chapter 1 makes the argument for a secular humanist government.
Chapter 2 shows how the conflict between the Federalists and
the liberals resulted in political gridlock which allowed the
courts to grab for power. The third chapter gives a biased
and wrong portrait of John Marshall. In Chapter 5, we see
how the liberals chipped away at the constitution a little bit
at a time with their new power. How they subverted the system
slowly and built up the power of the judges is in the next
chapter.

In Chapter 7, the book starts to look at the Crisis of democracy
in America during the 1930s. The socialist Franklin Roosevelt
was attempting to implement an anti-constitutional socialist
agenda on the country. The court attempted to stand up to
him, but after going eye-to-eye backed down. The writer doesn't
properly deal with events, but what happened was that democracy
failed for a time and the court itself was subverted by liberal
justices who entrenched themselves for a battle against freedom
that has lasted until today. The liberals used the conservative
attempt to defend the constitution with judicial review as an
excuse (when they gained power) to overthrow the whole
constitution and establish the judicial tyranny that exists
today. What that fight shows is that judicial review is useless
to those who would defend the constitution. It is only useful
in the hands of liberals who would destroy it.

The writer at this point shows his liberal hand of cards. He
comes out in favor of so-called minority rule against the
constitution and democracy. Minority rule is really rule by
secular humanist judges who want to be tyrants over ordinary
Americans. These are the people who want to give americans
rights they don't want while they take all our freedoms away.

A civil or a constitutional right is the creation of a government
of man. It has no meaning and no value. Freedom is the creation
of a strong people and the laws of nature. There is nothing more
precious than freedom and freedom is worth more than the entire
bill of rights and every decision by every judge who ever lived.

Rather than undemocratic minority government by judges, America
needs to restore the constitution and begin to trust its leaders
again. Congress and the President under our system should have
an equal opinion with the court on what the constitution means
and what is constitutional. In fact, since they are elected
by the people, their opinion should matter more than that of
the court.

At the end of the book, the liberal writer goes all out in
support of judicial tyranny. People and their elected leaders
can't be trusted. We need a living constitution where judges
rewrite it at will and our very lives can be taken away by
judges (see what happened this year in Florida).

Unelected judges can not be trusted with our freedom. They
are too easily corrupted by power and unaccountability. Nelson
fails, in particular to deal with the right to life and the law.
The right to life and being on the side of life is key to any
real system of law. Its in every document the founders wrote
and yet judges ignore it every day while presiding over murder
from the bench.

Nelson also plays the race card toward the end. He calls for
the preservation of the liberal status quo established in the
1930s and suggests that any attempt to restore the real american
law that existed before socialism put its claws into the country
under FDR will lead to racism. In fact, just the opposite is
true. Judges have been at the forefront of establishing
segregation and race in the law since the 1890s. True freedom
means what it says. It scares liberals, but restoring real
freedom would be worth more than any liberal promises of rights.

Disregarding the liberal nonsense at the end of the book, this
book clearly makes the case that judical review is
unconstitutional and can only lead to evil. He also establishes
(without knowing it) the case for fundemental reform of the
courts and the law. But rather than his world of secular
humanist liberalism, reform means making judges accountable,
restoring the right to life and property, ending the
anti-constitutional invention known as judicial review and
restoring the balance in government such that courts consider
the views of the president and congress in making decisions.