I appreciate all the conversation about the teaching question that I asked. I think I will stick to my old fashioned ways and start with Marbury as usual. First, I think it is a great way of exposing students to critical thinking in a case that doesn't raise moral questions. Second, it introduces students to the jusitifications for judicial review which I use as a spring board to discuss the pros and cons. Third , I like the idea of starting at the beginning (maybe not the very beginning but close enough). Finally, Marbury exposes students to the special function and private rights views of federal jurisdiction which come in handy during the justiciability part of the course. I totally understand, however, why it's a debateable choice. I still would like to know, however, how con law teachers who accept (really accept) the realist critique go about their teaching.
Thanks, Eric Segall GSU College of Law >>> [EMAIL PROTECTED] 06/30/03 10:25AM >>> >Bobby writes; > For the next class I will begin by indicating that we will now > identify the case that virtually initiated judicial review, namely, > Marbury v. Madison. But Marbury did NOT "initiate[] judicial review." It is only the first case that actually invalidated a (trivial) statute. Marbury, incidentally, was not cited by the Supreme Court for at least 75 years with regard to judicial review. I include the following footnote from a forthcoming article that Jack Balkin and I have written on "the facts of Marbury" (as in what is the proper answer that I student should give when asked to state "the facts of Marbury v. Madison"?), forthcoming in Constitutional Commentary. sandy As Mark Graber convincingly argues in Establishing Judicial Review, Marbury and the Judiciary Act of 1789, 38 TULSA L. REV. __ (forthcoming 2003), it was the Judiciary Act of 1789 that �established� judicial review, and not Marbury, which simply illustrated it. And, as David Currie has shown with equal force, a number of pre-Marbury cases can be understood only against the background assumption that the judiciary did in fact have the power to invalidate a federal law at least under some conditions. See David Currie, 1 THE CONSTITUTION IN THE SUPREME COURT 37-51 (1985). See, e.g., Hylton v. U.S., 3 U.S.171 (1796), which can be understood only on the assumption that the Court in fact possessed the power that we call judicial review. Thus, wrote Justice Chase, ��. only one question is submitted to the opinion of this court; whether the law of Congress, of the 5th of June, 1794, entitled, 'An act to lay duties upon carriages, for the conveyance of persons,' is unconstitutional and void?� The issue in Hylton concerned the arcane question of �direct taxes,� as required by the Constitution, see Article I, Article 9 (�No capitation, or other direct Tax, shall be laid, except in Proportion to the Census or enumeration herein directed to be taken�). The Court rejected the attack and held the tax constitutional. The main point, though, is that the Court suggested, fully seven years before Marbury (and five years before Marshall�s ascension to the Court, that it could have declared it �unconstitutional and void� had it been persuaded that the law violated the Constitution.
