politics and Marbury v. Madison.

[Mark Graber]

If we do teach Marbury, as I do, would we consider it academic
malpractice to teach the case and not also have students read

a) the arguments for judicial review Federalists in Congress made in
1801 against the Repeal of the Judiciary Act of 1801 (highlighting how
the last part of Marbury is merely a cut and paste job)

b) the arguments against judicial supremacy (sometimes also made against
judicial review) made by Jeffersonian proponents of the Repeal Act,
demonstrating that there was opposing arguments.  Would it also be
necessary to include the scraps of Jeffersonian arguments in 1792ish on
how Hayburn was wonderful, because courts might clip the wings of
Hamilton, et al.

MAG

>>> "Braman, Eileen" <ebraman at indiana.edu> 10/19/05 3:32 PM >>>


This brought me back to a posting I made last moth (or earlier this
month) in response to a distinction made by Leslie Goldstien between
impartiality and objectivity, arguing that they should be thought of as
empirically and theoretically distinct concepts with impartiality
implying lack of favoritism to either side in litigation and objectivity
implying ability to consider evidence (legal and otherwise), fairly
without the undue infuence of  bias.  Lets say neutrality is a third
concept having to do with using one's influence in favor of a particular
outcome.

 

This gives us a new framework to think about the Marbury decision: (1)
Marshall was certainly not impartial between the parties - he favored
the Federalists and thus thought between Marbury and the Jeffersonians
Marbury had a right to the comission - hence part I of the decision (2)
he was also not neutral - but he did not exercise his influnece in favor
of a political outcome but an instituional one - choosing to strenghten
the position of the court for years to come by placating Jefforson,
avoiding the threat to the neonecessent court and establishing judicial
review at the same time (3) did these sincere political and strategic
interests make him less than objective in interpeting the dictates of
the Consitution?  Perhaps - I leave it to others... but it is still one
of the most elegant justifications for judicial authority out there - I
do teach Marbury --- and I get inspired each time I do so.  Whether the
logic was (or was not) inevitable the language is eloquent and
persuasive -  and I think Marshall was "right" about the need for
constituional policing - I also think he was right about judges being
the most equipped to do so.  It is a great decision not withstanding
(and many would argue because of ) these humanistic complications.  Very
worthy of such lively discussion.

 

 

---------------------------------------------------------

Eileen Braman, Assistant Professor

Department of Political Science

Indiana University

210 Woodburn Hall 

1100 East Seventh Street

Bloomington, IN 47405

(812) 856-1831

 

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