Bench Memos

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Pedantic Footnote Time


My thanks to Ramesh for mentioning my first book, Against the Imperial Judiciary, in the same breath as Robert Lowry Clinton’s classic Marbury v. Madison and Judicial Review, which reordered a lot of people’s thinking (including my own) when it was published 20 years ago.  Clinton’s book revealed that the conventional view of Marbury was actually a revisionist view that had settled into a complacent dominance; he recovered instead the original “conventional” view of John Marshall himself, and of the founding generation, about what we now call judicial review.

I don’t follow Clinton in every minute particular, and I would now say some things differently than I did in Imperial Judiciary.  In fact I have: see my essay on Marshall in Bryan-Paul Frost and Jeffrey Sikkenga’s History of American Political Thought.  But the essential argument remains the same: that the Constitution and its makers and early interpreters did not contemplate the free-ranging “review” power we take for granted in the Supreme Court today.

Among many of the closest students of Marshall’s career and Marbury in particular, a recognition of the Great Chief Justice’s limited view of the Court’s power is now more and more common.  These students include Herbert Johnson and Charles Hobson, the editors of Marshall’s papers; Jean Edward Smith and R. Kent Newmyer, his best biographers; and William E. Nelson, author of an important book on Marbury.

Who knows?  Maybe the old conventional wisdom will become the new conventional wisdom once again, and the revisionists who began to aid and abet the aggrandizement of judicial power around a century ago will be soundly undone, as they deserve to be.

For a quick rundown on what is at stake, see my piece up today at The Public Discourse–written, I should add, before Ramesh’s New York Times article that kicked off some very interesting discussions around here.  Part 2 of my series will run at PD on Friday.


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