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

by William Edward Nelson

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.

Genres: History, Law

184 pages, Paperback

First published January 1, 2000

Reviews

[Sher · Rating 4 out of 5]

I read this book concurrently with Without Precedent: Chief Justice John Marshall and His Times, and it was terrifically helpful. Nelson describes judicial review in the 18th C and how Marshall's decision in Marbury V Madison 19th C changed the role of the Supreme Court to one that tried to separate politics from law and the Constitution. Meaning the Court would avoid getting involved in politics! Later Judicial review ends of protecting minorities and post WWII judicial review spreads across the world.

[Carolina · Rating 4 out of 5]

This is well-written. Nelson is concise in 125 pages, but gives a good amount of context to the background surrounding Marbury v. Madison and the way that judicial review has evolved since the decision. It's very accessible to the general audience that the book is intended for both in language and in content.

One problem that more academic readers of Nelson’s book will come across is Nelson’s use of sources vs. the editors’ choice to not include formal citations throughout the text. It's understandable that the editors want the book to appeal to a general audience who would be largely unconcerned with what sources Nelson is citing, and both Nelson and the editors can safely assume that if an academic reader wishes to know more about Nelson’s research and interpretive process, they could start by reading Nelson’s three articles that the book is based on.

[Schwimfan · Rating 4 out of 5]

Good at explaining the decision in context -and how Marshall's idea of judicial review is different from the understanding of judicial review we have today. What was once deliberately apolitical is now why the SCOTUS is understood as a political body more than a judicial one.

My favorite parts were when Nelson traces the early 18th century cases where judicial review first appears.