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12 of 14 people found the following review helpful
on December 16, 2008
Once you're traveling in Constitutional legal circles, "activist" is an epithet --- meaning, basically, that the other person with whom you do not share a political party is using the Constitution for political purposes. A horrible thing, to be sure. Most of the time (but not always, there are exceptions) the opposite epithet is "originalist," which means that the other person wants to interpret the Constitution based on the received wisdom of the Founding Fathers, looking down on us, as from a judicial Olympus with haughty and austere visages, proclaiming the Only Right Approach to Constitutional issues, in voices dry as dust and tinged with the irritation of the centuries.

One suspects, however, that if the Founders were confronted with the issues the Supreme Court is now facing --- particularly the recent Establishment Clause case involving an obscure Utah cult dedicated, among other things, to the practice of mummifying pets --- that the exalted personages would find themselves laughing like drains at the absurdity of it all.

Lawrence Goldstone's avowed purpose is to illustrate that one of the Founding Fathers --- John Marshall, the first great and consequential Chief Justice --- belongs in the "activist" category, and the question of whether he accomplishes this purpose will be left to the intelligent and discerning reader. What he actually manages to do, however (at least in the area of judicial review), is shatter originalism into a thousand broken pieces, scattered across the marble corridors of jurisprudence like the debris of a gallant but doomed civilization overrun by bandits.

The book traces judicial review --- the idea that an unelected judiciary should have the authority to invalidate legislative or executive actions that conflict with the Constitution --- through the Articles of Confederation all the way down to the thump of Marbury v. Madison landing on John Marshall's desk. And what Goldstone finds in all this mass of historical evidence is the loud, clear, unequivocal voice of the Founding Fathers, stating in unison, "Well, I don't know, what do you think?"

Of course, they said no such thing --- although it would have been much more helpful if they had, because (as Goldstone proves, and a comprehensive job he does of it) there really isn't all that much in the record, and what there is displays a good bit of division on the issue, when there is not a complete lack of effort to come to grips with the question. Goldstone follows the tracks of judicial review through the lost history of the ratifying conventions and the Federalist-Antifederalist debate, and comes up with a startling lack of consensus on how the Supreme Court should apply the Constitution to the law in case of a conflict.

The issue wouldn't come up for quite some time --- not until the famous case of Marbury v. Madison --- allowing Goldstone to map out the early years of the Supreme Court, notable primarily for the Justice's gripes about "circuit riding," traveling across the then-remote American wilderness to hold court outside Washington. He does a phenomenal job of making the murky facts of Marbury, and their even murkier political context, clear and understandable. If Goldstone can't do quite the same thing for Justice Marshall's opinion in Marbury, there's a reason for that. He calls Marbury a "masterpiece of misdirection," and his clear prose does little to illuminate the thickets of Marshall's. (The Marbury opinion is included as an appendix for the adventurous.)

THE ACTIVIST proves its central point convincingly; Marbury was an activist decision, perhaps bordering on the partisan. But it does something else entirely, and greater; by parsing out the history of the idea of judicial review, it demolishes the myth that today's Constitutional issues can best be resolved by consulting the founding documents. There is, after all, no guarantee that they would agree with us on the issues, any more than they agreed with each other.

--- Reviewed by Curtis Edmonds
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4 of 4 people found the following review helpful
on October 6, 2013
Somehow this book made it to sale without ever being edited. You'll get to hear all the narrator's mistakes. He repeats sentences. Sometimes he says things like "blah, blah, blah" when he realizes he's made a mistake and then repeats the sentence. He'll say things like "where was I?" and then start over. He's got a nice voice and the book is interesting, but they need to send it to an editor before they sell it.
I even emailed to let them know one had slipped through the cracks and the answer was to download it again. I don't think they understood my point. The quality of the sound was fine. IT was the lack of editing that was the problem.
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8 of 10 people found the following review helpful
on February 27, 2009
I enjoyed The Activist for its history. But the author's swipes at originalist jurisprudence, tacked onto the beginning and ending of the book, seemed an afterthought - as though someone had advised him that his book might sell better if he did something to make it "topical." Worse, it was jarringly inaccurate. In his concluding remarks, Goldstone asserts that, "If one...subscribes to Justice Scalia's philosophy, it is difficult to see how a continuing defense of the right of judicial review can be maintained." You would think that someone who had scrupulously researched the history of Marbury v. Madison could have found his way to p. 138 of Scalia's A Matter of Interpretation, where the justice addresses that very point -

"Originalism, like any other theory of interpretation put into practice in an ongoing system of law, must accommodate the doctrine of stare decisis; it cannot remake the world anew. It is of no more consequence at this point whether the Alien and Sedition Acts of 1798 were in accord with the original understanding of the First Amendment than it is whether Marbury v. Madison was decided correctly. Where originalism will make a difference is not in the rolling back of accepted old principles of constitutional law but in the rejection of usurpatious new ones....

"[Stare Decisis] is a compromise of all philosophies of interpretation....The demand that originalists alone "be true to their lights" and forswear stare decisis is essentially a demand that they alone render their methodology so disruptive of the established state of things that it will be useful only as an academic exercise and not as a workable prescription for judicial governance."
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4 of 6 people found the following review helpful
on February 17, 2009
I don't have a problem with the idea of judicial review, but I figured this book was worth a shot. I enjoyed a lot of the author's analysis as he tries to illustrate the idea that judicial review is a "myth." He supports his thesis well enough, and includes some meaningful analysis. However, this book, like all other anti-judicial review arguments I've seen, doesn't really develop an alternative. There can be no doubt that the federal courts, and the Supreme Court especially, have judicial power. Thus, courts determine the winners and losers of legal disputes. When there is a debate about the meaning of a Constitutional provision, someone must provide one consistent answer. The author never states what body that should be. Congress? But a free country can't allow those writing the laws to judge the Constitutionality of their own acts. The President? This would allow one person to make the decision. The states? We've been down that road before, and the states lost (nullification, civil war, etc.). It's certainly logical for the Supreme Court to have that power. The fact that it is not an elected body worries the author a great deal -- he stresses that such a power should rest with an entity responsible to the People. This was a five star book if it ended better, with more detail about the author's ideas for an alternative. The book is like a great movie that ends poorly (i.e. a good movie, not a great one). We can't have every branch of government, and every state, implementing their own view on the Constitution and federal law. Perhaps Marshall's logic in the Marbury case wasn't foolproof, but it's better than the incomplete concept in this book. It's a worthwhile read, but don't be prepared for a solution, just some things to ponder.
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5 of 23 people found the following review helpful
The title certainly demands attention, but mine was quickly dampened when I delved inside. On the first page, the author quotes Justice Scalia on what it means to be of the school of constitutional law known as the textualist school: "If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words." Then, as if it somehow follows from Justice Scalia's credo, Goldstone adds his own fallacious riff: "To an originalist, then, anything more not specifically enunciated in the Constitution cannot be the law." Hardly. By Mr. Goldstone's definition, any originalist must refuse (among other things): any State immunity from suit by private parties in Federal court, Congress the power to make mail fraud a federal crime, and the President any privileged conversation with an advisor. I could not bring myself to read on, for fear of finding more error of the same sort.
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