Vol. 11 No. 3 (April 2001) pp. 158-161.

MARBURY V. MADISON: THE ORIGINS AND LEGACY OF JUDICIAL REVIEW by William E. Nelson. Lawrence Kansas: The University of Kansas Press, 2000. 142 pp. Cloth, $29.95. ISBN: 0-7006-1061-8. Paper $12.95. ISBN: 0-7006-1062-6.

Reviewed by Don Crowley, Department of Political Science, University of Idaho.

In recent years scholars have revisited John Marshall's use of judicial review at least partially with an eye towards defining its legacy and meaning in the modern era. Although William E. Nelson's short work MARBURY V. MADISON: THE ORIGINS AND LEGACY OF JUDICIAL REVIEW will probably be read in terms of this ongoing debate, he doesn't explicitly set out to stake out a position in this conflict. Indeed by the end of the book Nelson explicitly acknowledges that the legacy of the Marbury opinion is ambiguous. What Nelson does offer is a nice compact analysis of the historical context within which Marshall developed judicial review. He completes the book with a short discussion of the role of judicial review in the development of modern constitutionalism. As he notes in the introduction his "main objective is neither to criticize nor to praise Marbury v. Madison" (p. 7) Instead, he hopes to contribute to our understanding of how the Marbury decision sought to "preserve what the justices and nearly all their fellow citizens found best in eighteenth century constitutionalism, while at the same time accommodating that constitutionalism to the new nineteenth century political realities" (p. 7). Overall, Nelson's book is an interesting read and a good choice for those teaching constitutional history. However, for most other political science classes there are other, probably better choices. The core of Nelson's work seeks to reconstruct how Marshall saw the role of courts and the function of judicial review. As explained by Nelson, the Marbury decision arose at a point when a broad social consensus on law was beginning to breakdown. Federalists "generally viewed law as a reflection of fixed and transcendent principles," while Republicans "considered it the embodiment of popular will" (p. 38).

Although a Federalist, Marshall was a moderate searching for ways to restore political consensus and content to let the processes of politics work. In Nelson's account, Marshall emerges as not only willing to help with Jefferson's transition into office but also seeking to "move beyond the harsh rhetoric of the electoral campaign and to restore greater civility to relationships between the two political parties" (p. 52). Nelson does not regard Marshall as a partisan seeking to use the courts as a bulwark against the Jeffersonians. Rather. Marshall viewed his role as one of establishing a line between the domain of law and the domain of politics. Nelson claims, "the foundation of Marshall's constitutional jurisprudence is the distinction between political matters, to be resolved by the legislative and executive branches in the new democratic majoritarian style, and legal matters, to be resolved by the judiciary in the government-by-consensus style that had

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prevailed inmost eighteenth-century American courts" (p. 59).

This, of course, is a highly debatable claim and one, in our perhaps more cynical age, that is easy to reject. Nelson's thesis is that Marshall believed that the people had enacted "generally agreed-upon principles of right into their Constitution" (p. 64). When the Court sought to defend those rights it was acting in the domain of law not the domain of politics. Finding Marbury as possessing a vested legal right to his commission, Marshall therefore could claim that he was entitled to a remedy. This obviously amounts to a fairly standard defense of judicial review. Less convincing is Nelson's defense of Marshall's reasons for not granting that remedy to Marbury. The political reasons to avoid a confrontation with the Jefferson administration are apparent and aptly reviewed by Nelson. However, Nelson asserts that Marshall did not see judicial review as allowing "judges to exercise political discretion." Instead, the decision to declare part of the 1789 Judiciary Act unconstitutional was compelled by a type of mechanical jurisprudence. By simply laying the legislation granting original jurisdiction to the Court in mandamus cases against the Constitution that did not grant original jurisdiction in such cases, the Court was obligated by fundamental principles to reject the legislation and thus Marbury's remedy.

Many have made the point that Marshall's use of judicial review in Marbury was somewhat passive since it allowed him to avoid a confrontation with the Jefferson administration while simultaneously defending the power of the Court to interpret the Constitution. This position was reinforced by other decisions made by Marshall avoiding a direct confrontation with the Jefferson administration (Graber, 1998). Still Nelson's point is not that Marshall acted strategically and politically by avoiding a confrontation, but instead that Marshall acted non-politically in defense of principles that existed independently of the will of the judges who applied them. This is a far more problematic claim. Nelson argues that, to establish the view that courts would protect legal rights while staying out of political questions, Marshall had to decide Marbury the way he did. Further Nelson asserts that this decision was central to the ability of judicial review to become accepted in nineteenth-century America. Although it is impossible to know what Marshall was thinking, one can argue that the Marbury decision helped to establish the legitimacy of judicial review while rejecting the assertion that his actions were compelled by a need to establish a line between the domain of politics and domain of law. That such a distinction was symbolically important is apparent, to claim that Marshall was actually compelled to act by it is far from clear.

In Nelson's view, Marshall's distinction between law and politics established the role of judicial review as a way to curb partisan excesses and help "move the country back towards its eighteenth century tradition of consensus government." When the Court "merely protected vested property rights that few Americans questioned, they were not subjected to political attacks" (p. 82). Without examining how solid this consensus was, Nelson notes that as the "circle of politically active Americans expanded during the course of the century, constitutional principles, especially principles about the sanctity of private property, became the subject of political debate." (p. 83). As consensus on core principles diminished the Court's involvement became more entangled in

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political conflict. As broad based reform movements developed the ability to win legislative favor the Court's propensity to protect private property became more controversial and judicial review started to look less like a defense of consensus-based principles and more as a way to protect propertied minorities against majorities. Such uses of judicial review came under increasing attack from progressives who insisted that rather than defending legal principles the Court was increasingly involved in policy choices that should be the domain of politics (p. 94).

Although Nelson is reasonably persuasive in noting how the breakdown of societal consensus exposed the Court as a policy maker, especially with regard to property, he is less persuasive in detailing the rise of preferred position and the Court's use of judicial review to defend the civil liberties of unpopular minorities. He locates this shift in the growing awareness of interest group politics and the expanding fear of totalitarianism. Nelson argues that to the extent that the Court took on the role of defending powerless minorities no one was able to articulate "clear legal principles that can direct judges in the performance of the task" (p. 103). Thus conservative critics could attack the Court for making ad-hoc policy judgments based more on their "intuitions about sound social policy" than on legal principles (p. 103).

Interestingly, after laying out the basis for the conservative critique of the Warren Court's use of judicial review, Nelson attempts to come to the defense of liberal activism. In the last two chapters Nelson reviews the worldwide expansion of judicial review and suggests that the concept owes its increasing popularity to its ability to provide protection for ethnic, religious, and cultural minorities. For Nelson the globalization of the doctrine is owed to a developing worldwide consensus that "racial, religious, and comparable forms of discrimination are profoundly evil and unjust" (p. 119). Thus judicial review, which once defended consensual norms regarding property, finds its modern justification by advancing "policies that promote justice and equality and prevent injustice and discrimination" (p. 120).

There is much to like in this account of the evolution of judicial review, unfortunately I'm not completely persuaded. Certainly judicial review, when it reflects consensus values is likely to be less controversial. Indeed when it reflects elite values and other interests are incapable of articulating their opposition it might be thought of as reflecting a consensus. Still, Nelson seems all too quick to assert a consensus and to find the Court defending it. It is unclear to me whether Marshall was really reflecting a consensus or simply finding it strategically convenient to avoid a confrontation with Jefferson while preserving institutional prestige for another day. In a similar vein, I would like to believe that the increasing respect for judicial review in modern democracies reflects an emerging consensus on the crucial role of courts in promoting equality and preventing discrimination. However, even this is far from clear. Perhaps I'm being blinded by the Rehnquist Court's desire to use judicial review to preserve structural forms rooted in an eighteenth century version of democracy rather than advance rights and attack discrimination.


Graber, Mark A. 1998. "Establishing Judicial Review? Schooner Peggy and the

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Early Marshall Court." POLITICAL RESEARCH QUARTERLY 51: 221-239.

Copyright 2001 by the author, Don Crowley.