Bobby asks good questions, but as usual, I don't have especially useful answers. Sure, there are "great men/women" who make a difference; but it is hard to distinguish them from more conventional folks who are lionized by others for their own purposes. I don't know of any criteria that would help us sort things out. I don't doubt that some folks deserve lots of credit for their distinctive contributions, but when we identify such people we are probably revealing as much about our own politics as anything. (Here I would just underscore Keith's prior point about how different generations have reinvented Marshall.) Moreover, my own disciplinary training leads me to focus more on general patterns rather than unique or idiosyncratic effects.
Eugene properly chides us for keeping the discussion on topic, and so let me just add that this issue is important because it influences the way in which we orient ourselves to certain issues in modern constitutional theory. The traditional (and incredibly misleading) story of the Federalist Marshall, surrounded by hostile Jeffersonians, using all his strategic gifts to outfox the enemy, might lead us to think of judicial power as more independent (that is, less politically contrained and/or determined) than it really is; relatedly, it might incline us to think of judicial power as always pitted against the political branches rather than as an integral part of the way in which a regime organizes its power. This has to influence the way in which we talk about (for example) the role of the judiciary in the political system, and about the consequences of judicial review. By moving away from "Great Man" theories of constitutional change, we may end up with an enriched underst anding of the political determinants of constitutional decision-making *within* courts. Among other things, as Keith Whittington has pointed out, we may actually come to realize that even "judicial supremacy" may be better understood by looking at the actions of politicians outside the judiciary that at the courts themselves. Howard Gillman USC ----- Original Message ----- From: Robert Justin Lipkin <[EMAIL PROTECTED]> Date: Monday, June 30, 2003 2:38 pm Subject: Re: The Initiation of Judicial Review > In my view, one should approach the great man view warily; but that > doesn't entail it is always inapplicable. Although I agree there are > importantconceptual and historical complexities here, I would ask those > who do not > think Marshall had a very significant effect on constitutional development the > following questions: (1) In your view, does any historical figure--great > man or > woman--have a sufficiently profound effect so that had he or she never lived > the course of history undoubtedly would have been different? (2) If so, > what do > you mean by such assertions?, (3) Further, how do you identify such > characters? (4) If not, please state your own conception of historical (and > constitutional, of course) change. > > In other words, is the argument that this? "Marshall was not a > terribly influential constitutional actor because he fails to exhibit the > criticalfeatures of such characters." Of is the argument "Marshall was not > a terribly > influential constitutional actors because no such actors exist."? > > I am sufficiently pragmatist to believe that even though most > rhapsodic depictions of influential historical characters should be > regarded with a > grain of truth, sometimes one runs into the genuine article. > > Bobby Lipkin > Widener University School of Law > Delaware >
