Re: The Initiation of Judicial Review

[Sanford Levinson]

Bobby writes:

 I'd be surprised if anyone in the generation ratifying the Constitution could have anticipated Marshall's revolutionary use of judicial review/supremacy throughout his tenure as Chief Justice. If that is right, then Marshall's use of judicial review initiated a revolutionary process of constitutional lawmaking. 

But, of course, Marbury contains nary a word about judicial supremacy.  It is the amazing first paragraph in McCulloch (which, of course, does not cite Marbury) that moves from the quite modest notion of "departmental" judicial review to something that might be called judicial supremacy.  And, of course, Marshall is scarcely successful in "establishing" it, given, say, Jackson's veto message and Lincoln's later critique after Dred Scott. 

What Marshall's use of judicial review in Marbury did was to initiate a pattern and practice of the Supreme Court ducking certain hot potatoes by any means necessary, which in this instance included the invalidation of a thoroughly trivial law (assuming, of course, that Section 13 and Article III were correctly construed, which I deny).  If one is going to teach Marbury, then I think it is essential to include Stuart v. Laird (all four paragraphs of it), which is the *real* capitulation of the Court to the Jeffersonian rebellion against the midnight judges.

sandy