politics and Marbury v. Madison.

Sanford Levinson SLevinson at law.utexas.edu
Thu Oct 20 08:53:32 PDT 2005

- Sanford Levinson
(Sent from a Blackberry)

-----Original Message-----
From: Sean Wilson <whoooo26505 at yahoo.com>
To: Sanford Levinson <SLevinson at law.utexas.edu>; mgraber at gvpt.umd.edu <mgraber at gvpt.umd.edu>; ebraman at indiana.edu <ebraman at indiana.edu>
CC: conlawprof at lists.ucla.edu <conlawprof at lists.ucla.edu>; lawcourts-l at usc.edu <lawcourts-l at usc.edu>
Sent: Thu Oct 20 10:33:36 2005
Subject: Re: politics and Marbury v. Madison.

I agree with you Sandy that academic freedom does cover that.
But I would ask you to consider this: Marbury is a wonderful narrative. Think of it in terms of a great story. What I find is that students today (at least at the undergraduate level) are lacking three things that Marbury can teach: (1) the historical politics of the ascendancy of Jefferson and agrarian ideology in American government -- the first realignment in American history, the first transfer of power from insiders to outsiders, and the first attempt to Court pack; (2) the idea that an argument can stand on its own merits apart from its proponent's enjoyment (most students are sloppy in their approach to epistemology today); and (3) the idea that, sometimes, Machiavelli and Hercules actually vote in the same direction (showing that bias and merit do not actually oppose each other all the time). Very rich story. An amazing teaching lesson. The story is made so good by its historical anecdotes -- the lateness of the commissions arriving on Marshall's desk, the story about Jefferson's secretary of state coming in an hour early with Jefferson's watch, telling Marshall to leave. The impeachment of judges. The extension of the Court's term. All of this ends with an historic syllogism and one of the greatest opinions in the history of American jurisprudence. 
When I teach this, I do it in three parts: (1) history first; (2) the decision and its logic next; and (3) a thorough analysis of the arguments for and against judicial review.  Honestly it is a great show. It takes about a full week to teach.
I wish you would reconsider. I cannot imagine a student in a Con Law 1 class not hearing about Marbury.  

Sanford Levinson <SLevinson at law.utexas.edu> wrote:

	My rationale for not teaching Marbury is that it's not worth spending the minimum of three full days it takes to begin to teach it well.


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