Marbury v. Madison and Judicial Review / Edition 1

by Robert Lowry Clinton

Overview

Few Supreme Court decisions are as well known or loom as large in our nation’s history as Marbury v. Madison. The 1803 decision is widely viewed as having established the doctrine of judicial review, which permits the Court to overturn acts of Congress that violate the Constitution; moreover, such judicial decisions are final, not subject to further appeal.

Robert Clinton contends that few decisions have been more misunderstood, or misused, in the debates over judicial review. He argues that the accepted view of Marbury is ahistorical and emerges from nearly a century of misinterpretation both by historians and by legal scholars.

Product Details

ISBN-13:	9780700605170
Publisher:	University Press of Kansas
Publication date:	09/25/1989
Edition description:	Reprint
Pages:	344
Product dimensions:	6.00(w) x 9.00(h) x 0.78(d)

Table of Contents

Preface

Part One: Judicial Power in the Early American Republic

1. A Historical and Theoretical Perspective

-Judicial Review

-Marbury, Blackston, and the Constitution

-Constitutional Review in the Early American Republic

2. The Blackstonian Inheritance

-Roman Antecedents

-French, Italian, and English Antecedents

-Conclusion

3. The Emergence of and Early American Doctrine of Judicial Power

-The Colonial Period

-The Revolutionary Period

-Conclusions

4. The Federal Convention

-The Council Proposal

-The Judicial Function

-The Ratification Struggle

-The 1790s

Part Two: A Precedent for All Seasons

5. The Case of Marbury v. Madison

-Background

-The Case

-Summary Dismissal

-Statutory Construction

-The Exceptions Clause

-Judicial Review

-Conclusions

6. Judicial Review in the Marshall and Taney Periods

-Contemporaneous Reaction to Marbury

-Legal Treatises during the Marshall and Taney Periods

-Van Buren’s View of Marbury

-Jackson and Lincoln on Judicial Review

7. The Strange History of Marbury in the Supreme Court

-Marbury in the Supreme Court, Nineteenth Century

-Marbury in the Supreme Court, Twentieth Century

-Conclusions

8. Eakin v. Raub: Refutation or Justification of Marbury v. Madison?

-Justice Gibson’s Dissent

-Marbury Revisited

-Conclusions

Part Three: The Creation of Judicial Myth

9. Public and/or Private Contracts

-The Contract Clause in the Founding Era

-The Contract Clause in the Early Supreme Court

-The Contract Clause in the Late Marshall and Taney Eras

-The Shift

-The Argument against Marshall’s Critics

-Effects of the Shift

10. The Great Debate on the Judicial Function

-Background

-Post-Civil War Treatises

-The Great Debate

-The Aftermath

11. A Reinterpretation of American Constitutional History

-The Attack on Marbury and Judicial Review

-A Marbury Centennial?

-Prelude to the Progressive Revision

-The Progressive Revision

-Beveridge’s Marbury

12. Beyond the Mythical Marbury

-Nationalism and the Marshall Court

-Substantive Due Process and Selective Incorporation

-Judicial Review in the Twentieth Century

-Marbury Commentary in the Twentieth Century

-Conclusions

Notes

Bibliography

Index

Editorial Reviews

"This book is without doubt one of the half dozen recent works that will be central to the scholarly dispute about judicial review."—Political Science Quarterly

"Clinton offers a resounding correction of the prevailing orthodoxy on the Marbury case that has dominated scholarship in law, history, and political science for roughly the last century. . . . If he contended only ‘that Marbury was not a political decision but was based on sound constitutional doctrine and existing legal precedent’, this book would still make a quite valuable contribution to the literature. . . . But there is more: the constitutional doctrine and legal precedents Clinton has rediscovered, in which the Marbury ruling is firmly grounded, reveal judicial review to be . . . of profoundly narrower scope than is admitted today by right or left, by originalists or nonoriginalists. . . . Clinton has done [much] to blow away a good deal of fog surrounding Marshall, Marbury, and the scope of judicial power."—Review of Politics

"An important book. Clinton’s new and unorthodox look at Marbury v. Madison is interesting, provocative, and controversial. He presents—clearly, forcefully, and persuasively—a great amount of evidence to support his thesis."—Social Science Quarterly

"Clinton’s reconstruction of the legal academicians’ wrangling over Marbury makes delightful reading. . . . He is witty, subtle, and makes points with great deftness."—William and Mary Quarterly

"A coherent, provocative, and welcome challenge to the liberal-Progressive interpretation of judicial review."—Journal of American History

"This is one of the half dozen recent works that will be central to the scholarly dispute about judicial review. It will be widely read by law professors and political scientists who teach constitutional law and by constitutional historians."—Martin Shapiro, author of Who Guards the Guardians: Judicial Control of Administration

"Every student of judicial review should read this book. Even those who disagree with its main thesis will find it very stimulating."—Christopher Wolfe, author of The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law

From the Publisher

This book without doubt will be central to the scholarly dispute about judicial review.

Political Science Quarterly

Clinton does [much] to blow away a good deal of fog surrounding Marshall, Marbury, and the scope of judicial power.

Review of Politics

An important book. Interesting, provocative, and controversial.

Social Science Quarterly

Makes delightful reading. . . . Clinton is witty, subtle, and makes points with great deftness.

William and Mary Quarterly