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

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

William Nelson gives the Supreme Court case Marbury v. Madison ample historical context and addresses new interpretations of it in light of recent scholarship in Marbury v. Madison: The Origins and Legacy of Judicial Review (first edition).

The book is part of the University Press of Kansas’ Landmark Law Cases and American Society series, so the book must be understood through both the author’s intentions and decisions as well as the editors’ intentions and decisions.

The editors say in the editors’ preface that they included Marbury v. Madison—specifically Nelson’s interpretation of this case—in the series because it’s an important case in United States history. They state that “the case is an essential part of the adolescence of American democratic republicanism” and that the meaning of judicial review has shifted since Chief Justice John Marshall’s ruling. Nelson’s purpose in writing the book, however, goes beyond the recognition of Marbury v. Madison as a “foundational” case for understanding the Supreme Court today.

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Nelson writes that the old interpretation of Marbury—that Marshall purposefully furthered the goals of his own political party in the decision—is flawed. Nelson claims to pioneer a new interpretation of Marbury, and while he acknowledges that some historians (Charles Hobson, Sylvia Snowiss, Robert Lowry Clinton) have contributed to the recent scholarship surrounding the case, he sees the need for a book that examines the historical context of the case and its ongoing significance in American and global constitutionalism. Nelson combines constitutional theory, political science, and legal theory to do this.

The book’s audience is determined by the series it belongs to. The editors note in the bibliographical essay that the series is designed for students and general readers. So while the purpose of this book is to dive into the details of the context and significance of the Marbury case, Nelson is limited given the restraints of the target audience and wishes of the editors.

Nelson keeps this audience in mind as he clearly states his thesis and what he is attempting to prove in Marbury v. Madison: The Origins and Legacy of Judicial Review. He lays it out for readers plainly in the introduction: “The core thesis of this book is that in Marbury v. Madison, Chief Justice John Marshall drew a line, which nearly all citizens of his time believed ought to be drawn, between the legal and the political—between those matters on which all Americans agreed and which therefore were fixed and immutable and those matters which were subject to fluctuation and change through democratic politics.”

To lay the foundation for proving his thesis, Nelson first examines the legal and historical context of the time, starting with English law and how Americans colonists thought about law and fundamental ideas in the 18th century. The first three chapters contextualize the society, legal theory, and personal biography of Marshall that are vital to Nelson’s interpretation of Marbury. The fourth chapter deals with details of the case itself. Then, chapters five through nine show that since the Marbury decision in 1803, society and legal and constitutional theories have shifted to give judicial review a different meaning and application in today’s world. This supports Nelson’s argument that the current view of judicial review is different, but related to, the Marshall Court’s view of judicial review. According to Nelson, it is these arguments and context that make the book stand out among recent scholarship on the case.

The book is concise at 125 pages, and Nelson generally provides enough context for students and the general public to follow his ideas. However, the book would benefit from more discussion of the shift of the courts and society that Nelson discusses in chapter seven regarding President Franklin Delano Roosevelt and the “redefinition of democracy.” The importance of the 1930s as the period when judges began to decide more and more on cases that were once considered political is intriguing, but we don’t learn enough about it in that chapter.

Another flaw in Marbury v. Madison: The Origins and Legacy of Judicial Review is the editors’ choice not to include formal citations throughout the text. While the editors explain that this practice is supposed to enhance the readability of the text for its general audience, Nelson’s use of sources demands more explanation in places. Several times throughout the text, Nelson says that “no one thought about this issue this way” or that “everyone thought about this issue this way.” These generalizations might be based on the primary sources Nelson has examined, or they could be based on the secondary sources he’s read on the matter. The lack of citations in these areas is problematic for academic readers who want to know how Nelson is reaching these conclusions. However, it’s understandable that the editors want the book to appeal to a general audience, which would be largely unconcerned with these issues; both Nelson and the editors can safely assume that if academic readers wish to know more about Nelson’s research and interpretive process, they could start by reading Nelson’s three articles that the book draws from.

Beyond the issues that might pique the curiosity of Nelson’s more scholarly readers, Nelson’s writing is well-suited toward a general audience, as he is careful to define terms that his audience may not be familiar with. This attention to detail and definitions is not just the mark of a good writer, but of a good philosopher and rhetorician: Nelson understands that the first step to starting a discussion is to define the terms so that everyone is on the same page. After the terms have been defined, everyone can argue about how to put together the story, or interpretation, of the agreed-upon terms. Nelson does this both at the sentence level and at a global level as he carefully establishes context surrounding a particular idea and decision and then shows why, given the defined context, his “story” holds together.

Nelson, William E. Marbury v. Madison: The Origins and Legacy of Judicial Review. Lawrence, Kansas: University of Kansas Press, 2000.

Read a book review of another book that also discusses the constitution: The Constitution Today by Akhil Reed Amar.