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

Rating:
Summary: Important Legal History
Review: 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.

Rating:
Summary: Important Legal History
Review: 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.

Rating:
Summary: A Good but (Unfortunately) One-Sided Introduction
Review: NYU Professor of Law William Nelson should be commended for this fine little book. For all of you pre-law school listmania folks out there, please add this book to your lists. Nelson delivers what he promises - an account of the origins and legacy of judicial review, that is, the power of the federal judiciary to examine whether legislative acts comport with the Constitution. While Alexander Hamilton wrote about such power in The Federalist No. 78, it was John Marshall who penned its realization in 1803.

The Introduction does the requisite stage-setting and notes that The Framers never intended to bestow such power upon the Courts, as well as that Marshall understood the move as necessary to preserve the then-well-accepted distinction between the realm of the legal from the political. Chapter 1 outlines and expands upon the well-accepted legal/political distinction as it was then understood. Chapter 2 sets-up the showdown between the outgoing Federalists (President John Adams et. al.) and the incoming Republicans (Thomas Jefferson et. al.). Chapter 3 nicely sketches a biographical picture of John Marshall. Chapter 4 is all about the showdown during the years of 1801-03 previously set-up in Chapter 2, including some Marbury v. Madison highlights. Chapter 5 documents the relatively slight impact of Marbury on the infantile United States. Chapter 6 notes the gradual expansion of judicial review continuing into the latter 19th Century. Chapter 7 picks up where Chapter 6 left off focusing mainly upon the explosive use of judicial review in the 1930s, and noting the increasing eagerness of the Court to enter into the political fray caused, writes Nelson, by a growing loss of faith in democracy in America during that decade. (This is where my political antennae deployed. Sure enough, on p.103 Nelson tips his hand, noting that "the critics of the [1930s] Court are misguided in expecting the justices to decide judicial review cases involving racial, religious, or cultural minorities without making repeated, ad hoc policy judgments.... the essential task of government in our times is not to establish the will of the majority but to protect the integrity and civil liberties of minorities. Legislat[ures] are too self-interested to be trusted .... Because of its independence and impartiality, the judiciary appears the most promising alternative [to the untrustworthy legislatures]. But no one has promulgated clear legal principles that can direct judges in the performance of the task. Their job is not to champion the interests of minorities on all occasions, but only when it is fair and just to do so.") Chapter 8 details the impact of judicial review on the rest of the post WWII globe.

The book concludes with Chapter 9, in which Nelson forthrightly weighs in on how he feels about judicial review. Nelson criticizes judges who would place too much value upon precedent and fidelity to the text of the Constitution, advocating instead for a "broader reading" of the Document. Nelson draws his strength for such a reading from the "consensus that began to emerge in the 1930s and that since then has become widely shared by Americans and most other people in the world: a consensus that racial, religious, and comparable forms of discrimination are profoundly evil and unjust."

While the moral premise is obviously true (and seems almost silly to state), that the aggressive employment of judicial review is therefore always warranted does not follow. Nelson then again criticizes the "political right" for over-emphasizing "adherence to precedent" and "fidelity to the Founding Fathers," for such "should be understood" as "careless" and "myopic." No, Nelson argues, because "there will always be individuals and groups whose interests do not coincide with the interests of the majority" (another obvious truism that seems silly to utter), "policy choice may [in some instances] simply be inevitable" (never known anyone to argue to the contrary), "racial religious, and comparable forms of discrimination are profoundly evil and unjust," "democratic majorities sometimes lack the impartiality to provide the necessary protection that victims of discrimination deserve" (Qs: But don't legislators take an oath to protect and uphold the Constitution, just like judges? Where does this discussion of moral desserts come from?) and "only judges are sufficiently insulated from majority prejudices to be trusted" (Q: Didn't these same judges hand down Plessy v. Ferguson? Scott v. Sandford?) with political decisions of such import.

None of the consequences of subscribing to Nelson's faith in the appointed-for-life judiciary are considered. Nelson is silent on the issue of the currently vicious and bloody federal judiciary confirmation process, which is a well-known by-product of Nelson's view. Nor does Nelson consider the potentiality that judges may simply place politics first in all decisions, or, worse, just decide wrongly. Nor does Nelson mention that legislators swear the same oath judges do to protect and uphold the Constitution. Nor does Nelson place any weight on the fact that it only takes one federal judge to invalidate democratically enacted law that has successfully traversed the long and arduous process becoming such requires, although Nelson does mention that a legislative super-majority can always override the single judge if it can be mustered. It's quite a bit to take on faith, really. One alternative, of course, is to place one's trust in the American people and the democratic process. It is, after all, the 21st Century.

Aside from the political disagreements, this book is a nice read. The writing could certainly be improved upon in the areas of style and usage. In all, I sure wish I'd read this one prior to law school.