Re: The Initiation of Judicial Review

[Mark Graber]

I am wondering whether even this is right.  Consider a different claim, which in different ways Howard in a wonderful APSR article and I (in a number of very obscure articles) have been trying to make.  The foundations of modern judicial review can be found in the late nineteenth century.  The primary persons responsible are Republicans in Congress and the American bar.  An occasional opinion does cite Marbury, but no evidence exists that Marbury had any substantial impact on these political movements that led a) vital American elites to create vehicles by which courts could play a greater role in American life and b) justices to accept that role.  Marbury is based on the conceit that justices create judicial review, a conceit that no serious student of ANY OTHER LEGAL REGIME considers valid.   Mark A. Graber >>> [EMAIL PROTECTED] 06/30/03 01:42PM >>>        Howard's question is certainly fair. I shall try to (too) briefly provide the outline of an answer.        Marbury might have been "an awfully minor exercise of power" but Marshall's tenure as Chief Justice was not. Instead, he created, or at least laid the foundations for creating, a form of judicial review that was in no way inevitable, or even very likely. (That is, like others, I find Marshall's reasoning in such cases as Marbury, McCulloch, Gibbons to be far from obvious.) Further, in my view, this is one of those rare occasions where a particular individual had a profound effect on history. Had Jay or Ellsworth, rather than Marshall, been Chief Justice during this period, American constitutional politics and culture would have turned out to be vastly different. If that's right,  I do not believe anyone in the Founding generation or in 1801 could have predicted the development of constitutional law through Marshall's tenure as Chief Justice.        Marshall was a nationalist, and, indeed in my view, implemented 'political'/constitutional decisions far more nationalistic than even the High Federalists would have done,  although that's a close call. Regarding the means for his nationalist vision, Marshall was a pragmatist, and interpreted constitutional and statutory text in ways congenial to this nationalist vision. That no other federal laws were struck down during this period isn't dispositive of  whether Marshall was a judicial supremacist if by this term one means that the Court has the ultimate authority for interpreting the Constitution. And although the conventional view is that judicial supremacy didn't truly arrive until Cooper v. Aaron, in my view, Marshall's rhetoric in Marbury suggests a judicial supremacist view at least germinating there.        Finally, I think the notions of "national supremacist" and "judicial supremacist," in Howard's post, address different issues.  The former addresses the issue of who should wield ultimate political power. The second addresses which institution should have the final say in interpreting the Constitution. Marshall, in my view, was a supremacist in both senses, and he deftly used the latter to bring about the former. Bobby Lipkin Widener University School of Law Delaware