Marbury v Madison at 200: Revisionist Scholarship and the Legitimacy of American Judicial Review
| Date | 01 September 2002 |
| DOI | http://doi.org/10.1111/1468-2230.00409 |
| Author | Johnathan O’Neill |
| Published date | 01 September 2002 |
REVIEW ARTICLE
Marbury vMadison at 200: Revisionist Scholarship and
the Legitimacy of American Judicial Review
Johnathan O’Neill*
William E. Nelson,Marbury vMadison: The Origins and Legacy of Judicial
Review, Lawrence, KN: University Press of Kansas, 2000, x + 125 pp, pb £9.50.
In recent years many scholars have come to reject the view that Marbury v
Madison1(decided on 24 February 1803) was ever intended or originally
understood to support American judicial review as currently practised and
exported. This book constitutes a scholarly turning point. William Nelson, a
leading American legal historian, has written an accessible introduction to
Marbury and American judicial review which deftly builds upon recent
reinterpretations. His incorporation of many revisionist conclusions in this
introductory volume, plus the bicentennial of the decision, provide an occasion
to consider recent Marbury revisionism in more depth.
Revisionists claim that Marbury itself, and American judicial review for most of
the nineteenth century, were far more limited than the modern Supreme Court’s
essentially legislative, ‘ad hoc balancing’ (p 9) of competing policy claims.2
Moreover, Marbury was not the source of the ‘judicial supremacy’ that the Court
currently practises in its name, in which the Court’s opinions define the ultimate
meaning of the Constitution for all other government branches and citizens. While
Nelson agrees that Marbury provided no basis for this modern form of judicial
power, he nevertheless defends it and appears to want this power to spread.
Therefore, his book invites not only an examination of the recent Marbury
revisionism, but also a consideration of Nelson’s defence of modern judicial
review.
I. The decision and its modern meaning
The circumstances, facts, and opinion in Marbury can be briefly summarized. After
the election of Thomas Jefferson as the first Republican President in 1800, the
lame-duck Federalist Congress created several new judgeships which they
intended to fill with Federalists before the handover of power to the Republicans.
The pressure of business caused by the transition in presidential administrations
prevented William Marbury’s commission as a justice of the peace in the District
of Columbia from being delivered to him. When the Republican administration
refused to deliver it, Marbury, acting under Section 13 of the Judiciary Act of
ßThe Modern Law Review Limited 2002 (MLR 65:5, September). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.792
* Institute of United States Studies, School of Advanced Study, University of London.
1Marbury vMadison, 1 Cranch 137 (1803), 161, 166, 170, 173–176.
2 All page references in the text are to this book.
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