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

by William E. Nelson

Overview

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 that 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. Nelson also shows how Marshall managed to shore up the Court’s prestige and power rather than have it serve partisan political agendas.

Nelson expands upon his original historical analysis by providing a more complete and nuanced account of eighteenth-century constitutionalism and the early development of judicial review. The new material includes chapters on nullification of legislation in local courts, James Otis’s articulation of the doctrine of judicial review in the Writs of Assistance Case, the use of this doctrine in response to the Stamp Act and Townshend Act, and the expansion of judicial review in the State Cases. This revised and expanded edition provides a fuller picture of colonial America and a richer understanding of Marshall’s foundational decision.

Product Details

ISBN-13:	9780700626403
Publisher:	University Press of Kansas
Publication date:	05/19/2018
Series:	Landmark Law Cases and American Society
Edition description:	Second
Pages:	184
Product dimensions:	5.50(w) x 8.50(h) x 0.70(d)

About the Author

William E. Nelson is the Judge Edward Weinfeld Professor of Law at the New York University School of Law.

Table of Contents

Editors’ Preface

Acknowledgments

Introduction

1. The Localized Structure of Power

2. The Consensus Community

3. James Otis and the Writs of Assistance Case

4. The Stamp Act and the Townshend Acts

5. The State Cases and the 1787 Convention

6. The Politics of Constitutional Change

7. John Marshall

8. Marbury and the Crisis of 1801-1803

9. The Early Impact of Marbury

10. The Judicial Review Becomes Politically Charged

11. The Judiciary as Protector of Minorities

12. The Worldwide Spread of Judicial Review

Conclusion: The Relevance of Marbury to Judicial Review Today

Chronology

Bibliographical Essay

Index

Editorial Reviews

A provocative and compelling work of scholarship by the dean of colonial and framing–era legal historians.”—G. Edward White, David and Mary Harrison Distinguished Professor of Law, University of Virginia School of Law

“The richness of the Supreme Court’s decision in Marbury v. Madison is evident in the way multiple generations of historians keep finding new meanings in it. Whether that’s a reflection of Marshall’s brilliance or of the creativity of his historical interpreters is an open question, but William Nelson’s second foray into this territory shows him, once again, to be among the most insightful. Nelson’s reconstruction of the way Marshall sought to secure a line between law and politics is novel, complicated, and has broad implications for how we understand the role of courts and judges in the early republic.”—Larry Kramer, author of The People Themselves: Popular Constitutionalism and Judicial Review

“William Nelson draws on his unrivaled knowledge of early American law to provide richer historical context to his original study of this seminal case. Four new chapters give valuable explanatory depth to his discussion of the origins of judicial review and how its meaning has changed over the course of two centuries.”—Charles F. Hobson, author of The Great Yazoo Lands Sale: The Case of Fletcher v. Peck

“This is constitutional history at its best, situating Marbury v. Madison and judicial review in a context much different from our own and, at the same time, revealing their relevance to enduring questions of constitutional governance.”—David Thomas Konig, professor of law, Washington University School of Law

“By tracing the origins of the American doctrine of judicial review back to mid-eighteenth-century judicial and jury nullification of Parliamentary acts and other legislation, through the arguments and writings of James Otis, Jr. in the early 1760s, and then to the 1765–1766 colonial cases refusing to enforce the Stamp Act, this new book on Marbury v. Madison raises important new questions about the meaning and legacy of that case.”—Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law at the University of Chicago

“We should celebrate this new and expanded edition of Bill Nelson’s classic study of the origins and legacy of judicial review. It contains important new evidence of colonial courts using quasi-constitutional concepts to nullify the notorious Stamp Act, thus drawing even tighter connections between Marbury and judicial practices that preceded the ratification of the Constitution. He also significantly expands our understanding of James Otis. Nelson, one of our most eminent and indefatigable legal historians, has done it again.”—Robert C. Post, Sterling Professor of Law, Yale Law School

From the Publisher