I'm
not so sure this is "one of those rare occasions where a particular individual
had a profound effect on history." One of the nice elements of Newmyer's
John Marshall and the Heroic Age of the Supreme Court (which, as the title
implies, otherwise tends to go with this great-man view) is his late chapter on
Marshall's changing reputation over time. Among Whigs and their
successors in the mid-19th century, Marshall's nationalism made him a
hero. While the Jacksonians were ascendant, Marshall didn't seem like all
that profoundly effective of an individual (including to himself at the end of
his life), but after the Civil War history is, well, whiggish. In the late
nineteenth and early twentieth century, Marshall gets celebrated for his defense
of property rights, and thanks to conservative Gilded-Age Republicans Marshall
looks very important as the voice of property and countermajoritarian judicial
review. Later, he's the New Deal Marshall, and then the Cooper v. Aaron
judicial supremacy Marshall. He's a man for all seasons, but I'm not sure
he's effecting much.
On the
creation of modern judicial review by Republicans in the late nineteenth
century, in addition to what's been mentioned, I'd add Davison Douglas, "The
Rhetorical Uses of Marbury v. Madison," Wake Forest Law Review (forthcoming) and
Keith Whittington, "To Support This Constitution," in Marbury v. Madison, eds.
Graber and Perhac.
Keith
Whittington
