Re: Marshall & Upholding Federal Stutes

[Louise Weinberg]

August 3, 2003
Dear Bobby,
        [Self promotion warning.] There is a 160-page magnum opus of mine on Marbury (forthcoming Virginia Law Review, Oct. 2003). The article pretty much demolishes (she said modestly) the conventional technical critique of Marshall's statutory "construction" and the conventional technical critique of Marshall's constitutional "interpretation."  It also knocks holes in the conventional historical narrative within which we teach the case.  (This is not entirely self-promoting; I really don't know any other source for much of the argumentation in this article.)  The article doesn't deal with judicial review as such, but does mention McCulloch as the significant example of the point you make below.
Best,
Louise

At 05:51 AM 8/13/03, you wrote:

       Two virtually independent issues: (1) There is a familiar line designed, I think, to minimize (perhaps that's too strong) Marbury's importance which states that the Supreme Court did not strike down another federal law for over fifty years. I assume this also is designed to show (suggest) that judicial review/supremacy during those years was not a terribly significant power, especially compared with judicial review/supremcy's role in the 20th century. Is there any literature addressing this particular issue: Despite the lapse in the use of judicial review to strike down federal statutes, the history of the Marshall Court demonstrates the tremendous (additional?) power Marshall grabbed for the Court in upholding federal statutes in such cases as McCulloch, Gibbons, and others? Thus, the lapse in striking down federal statutes is not even remotely dispositive in the debate over the power (legitimate or stolen)  Marshall garnered for the Court during his tenure as Chief Justice because in upholding federal statutes Marshall nevertheless arguably transformed American constitutionalism and government.  If so, upholding federal laws as much as striking them down should be considered in evaluating the power the Court acquired during this period.

       (2) Is there an obvious answer (which I'm unfortunately overlooking) why didn't Marshall address Art. I, Section 9, cl. 6: "No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another." in Gibbons?  Thanks.


Bobby Lipkin
Widener University School of Law
Delaware