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

by William E. Nelson,N. E. H. Hull,Peter Charles Hoffer

We take for granted today the tremendous power of the Supreme Court to interpret our laws and overrule any found in conflict with the Constitution. Yet our nation was a quarter-century old before that power of "judicial review" was fully articulated by the Court itself in Marbury v. Madison (1803). William Nelson's concise study of that landmark case provides an insightful and readable guide for students and general readers alike.On the surface, the case itself seems a minor one at best. William Marbury, a last-minute judicial appointee of outgoing Federalist president John Adams, demanded redress from the Supreme Court when his commission was not delivered. But Chief Justice John Marshall could clearly see the danger his demand posed for a weak court filled with Federalist judges. Wary of the Court's standing with the new Republican administration of Thomas Jefferson, Marshall hit upon a solution that was both principled and pragmatic. He determined that while Marbury was justified in his suit, the law on which his claim was based was in conflict with the Constitution. It was the first time that the Court struck down an act of Congress as unconstitutional, thus establishing the doctrine of judicial review, which designates the Court as chief interpreter of the Constitution.Nelson relates the story behind Marbury and explains why it is a foundational case for understanding the Supreme Court. He reveals how Marshall deftly avoided a dangerous political confrontation between the executive and judicial branches by upholding the rule of law. He also shows how Marshall managed to shore up the Court's prestige and power rather than have it serve partisan political agendas.Nelson clarifies how the Marshall court sought to preserve what was best in eighteenth-century constitutionalism while accommodating nineteenth-century political realities and also traces the gradual transformation of Marbury-style judicial review since Marshall's time.Although the Supreme Court did not assert its power of judicial review for another fifty-four years after Marbury, it has since then invalidated numerous acts of Congress. From Marshall's modest bid for consensus to what some consider the modern Court's "activist" excesses, judicial review has been a cornerstone in the edifice of the federal judiciary. Nelson's analysis helps us better understand how this fundamental principle emerged and why it still matters.
Download Marbury v. Madison : The Origins and Legacy of Judicial Review epub
ISBN: 0700610626
ISBN13: 978-0700610624
Category: Other
Subcategory: Humanities
Author: William E. Nelson,N. E. H. Hull,Peter Charles Hoffer
Language: English
Publisher: University Press of Kansas (November 20, 2000)
Pages: 160 pages
ePUB size: 1935 kb
FB2 size: 1203 kb
Rating: 4.5
Votes: 649
Other Formats: mbr doc docx lrf

On newsstands classes of Constitutional Law in Brazil, the consecrated case that set a precedent in the Theory of Constitutional Laws. Required reading.
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.
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).
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.