The Anti-Fedralists -- and Marshall
SLevinson at law.utexas.edu
Tue Oct 18 13:33:38 PDT 2005
Paul mentions Charlesl Grove Haines. I would also mention my own mentor, Robert McCloskey, who could scarcely be described as a 60's radical. In fact, I am curious if anyone on this list knows of a full-fledged defense of Marbury's reasoning prior to Clinton and my colleague Louise Weinberg's (which I think is clearly the best, though I am obviously unpersuaded at the end of the day)? Marbury was basically uncitedd throughout the 19th century, and it takes it (mistaken) pride of place in law school casebooks only after the New Deal. Prior to that, casebooks tended to begin with basic questions about constitutional structure, including that most basic of all questions, the amending power.
Do any Marbury-Marshall fans have any explanation for the fact that Marshall doesn't cite it in any of his opinions especially at the end of his amazing first paragraph of McCulloch, where he simply announces, with no explanation, that "by this court alone" can the decision be made as to the constitutionality of the US Bank (and Maryland's power to tax same)?
And does anything ride of the rejection of Marbury's reading of the Judiciary Act and/or Article III? Almost everyone agrees that judicial review is part of our operating system, for better and worse. The ongoing debate--save for thought experiments like Mark Tushnet's--is under what circumstances courts should second-guess other decisionmakers. I am unaware that fans of Marbury support every exertion of judicial review, just as opponents of the case do not oppose every such exercise. So why is there so much heat generated about teh opinion (and I freely confess that I have contributed perhaps more than my share to the heat)?
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