Marshall Redux

Mark Graber MGRABER at
Tue Oct 18 12:30:58 PDT 2005

Maybe Marbury in theory is unanswerable, though a great many intelligent
people have thought they have had answers.  Certainly most people in
1803 did not think Marshall unanswerable on all mosts.  Most had
previously agreed with judicial review.  Jeffersons thought the analysis
of mandamus mistaken, but felt no need to press the point.  But to
repeat a point Scott Gerber has made, the argument requires more pages
than we have here.  I think Robert Clinton and Louise Weinberg have the
best defenses of Marbury, and Ban Alstyne the best critique.  Persons
unfamiliar should read and decide for themselves.  

one point, however seems clearly mistaken.  Perhaps Charles Grove
Haines was a 60s generation scholar with weird notions, though that
would be a peculiar way of describing someone who wrote in the 1920s. 
And William Van Alsyne has hithertofore not been known as a critical
legal theorist or sloppy legal analyst eager to toss left wing
propaganda into the constitution.  

While I disagree with a good deal of what is in Robert Clinton's study
of Marbury, I do think one point is historically correct.  Marbury
became a hot decision only at the end of the 19th century as proponents
attempted, perhaps wrongly, to use that decision as a precent for their
understanding of judicial power, and many populists and progressives
tried to undermine Marshall as a means for privileging their
constitutional vision.

Mark A. Graber

>>> Sean Wilson <whoooo26505 at> 10/18/2005 2:59:13 PM >>>
Gosh. That is a great point, Paul. One of the things that might help
rediscover Marshall is a study on his personality. I'm not an expert
here -- I know the guy was a social drinker and was not a mythical
Hercules (no one is) -- but as I understand it, he had a real desire to
try to craft an opinion in such a way that people who opposed it simply
could not disagree with. I always find Socratic epistemology in his
jurisprudence. This had to have affected how he framed issues and how he
went about his craft. The political loophole he may have found in
Marbury was, in fact, a giant and a gem of legal reasoning all at the
same time. It remains every bit as much of a classic in law for what it
SAYS as does any groundbreaking work in philosophy for its academic
field. It has stood the test of time and is still the best read of the
legal issues even today. He had to have been greatly pleased with the
argument he had assembled, both because they provided him with a sense
of cogency !
 that his
 Socratic urges desired, and a sense of expediency that politics
necessitated. When the best argument solves the political problem, you
have quite a zenith in my book.
By the way, I would not characterize the attacks against Marshall's
decision as an exercise in  "progressivism." I would rather characterize
it as an unfortunate byproduct of those 60s-generation scholars who came
to power in academia and unleashed some terrible notions upon legal
culture: that epistemology is really nothing more than culture, power
and psychology mixed together; that decisions which accurately read
legal sentences are really just as good as those that ignore the
sentences; and that all legal issues are equally uncertain; etc.
When legal culture moved from analysis into sophistry, it degenerated,
plain and simple. 

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