The Activist: John Marshall, Marbury v. Madison, and the Myth of Judicial Review

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9780802714886: The Activist: John Marshall, Marbury v. Madison, and the Myth of Judicial Review

The story of the landmark case that put the “Supreme” in Supreme Court.

Among the many momentous decisions rendered by the Supreme Court, none has had a greater impact than that  passed down in 1803 by Chief Justice John Marshall in the case of Marbury v. Madison.  While the ruling itself was innocuous—denying the plea of a minor functionary named William Marbury on constitutionally technical grounds—its implications were enormous.  For Marshall had, in essence, claimed for the Supreme Court the right to determine what the Constitution and our laws under it really mean, known formally as the principle of “judicial review.”  Yet, as Lawrence Goldstone shows in his compelling narrative, that right is nowhere expressed in the Constitution and was not even considered by the Framers or the Founding Fathers, who would never have granted such power in a checks-and-balances system to unelected officials serving for life.

The Activist underscores the drama that occurred in 1803 by examining the debates that took place during the Constitutional Convention of 1787—among the most dramatic moments in American history—over the formation and structure of our judicial system.  In parallel, Goldstone introduces in brief the life and ambition of John Marshall, and the early, fragile years of the Supreme Court, which—until Marshall’s ascension to Chief Justice—sat atop the weakest of the three branches of government.  Marshall made the Court supreme, and while judicial review has been used sparingly, without it the Court would likely never have intervened in the 2000 presidential election.  Indeed, the great irony Goldstone reveals is that judicial review is now so enfranchised that Justice Antonin Scalia could admit, as he has, that the Supreme Court “made it up” in the same breath as he insists that justices must adhere steadfastly to the exact words of the Constitution.

Nobody brings the debates of the Constitutional Convention to life as does Lawrence Goldstone, and in this election year, no more interesting book on the Supreme Court will appear than The Activist, which makes the past come alive in the present.

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About the Author:

Lawrence Goldstone holds a Ph.D. in American Constitutional Studies, and is the author of several highly praised works of narrative history, including Dark Bargain: Slavery, Profits, and the Struggle for the Constitution; and, with his wife, Nancy, Out of the Flames and The Friar and the Cipher.  He is also the author of the thriller The Anatomy of Deception.  He lives in Westport, Connecticut.

Review:

The Activist begins with a telling quotation in which Justice Scalia concedes that the Supreme Court's power to pass judgment on the constitutionality of statutes was "made . . . up" (p. 1). Justice Scalia was referring to Marbury v. Madison, which Lawrence Goldstone offers as the "seminal case in American jurisprudence" (p. 2). Dr. Goldstone begins by sketching the background context of the Constitutional Convention of 1787 and the personal history of Chief Justice Marshall, whose opinion in Marbury is described as "perhaps the most adroit exhibition of judicial legerdemain by any judge in the nation's history" (p. 216). Dr. Goldstone then explicates Marbury's role in establishing the power of judicial review, asking whether the Founders would have intended the Court to enjoy the power it wields as the ultimate arbiter of constitutionality. He concludes that the answer is no--to him, the Marbury decision represented little more than "constitutional amendment by fiat, a de facto addition to Article III itself" (p. 224). Although its central claims break little new ground, The Activist presents a vivid account of a pivotal moment in American constitutional history.” ?Harvard Law Review

“The author's voice is never far from the surface in this sprightly study of the circumstances surrounding the Supreme Court's epochal 1803 decision in Marbury v. Madison that declared an act of Congress unconstitutional. Chief Justice John Marshall's reasoning was "laughable," Goldstone says in characteristically unbuttoned language. Yet popular historian Goldstone (Dark Bargain), who has a Ph.D. in American constitutional studies, also has to acknowledge Marshall's statesmanship and political brilliance in his Marbury decision, a maneuver against the new Democratic-Republican president Jefferson by the Federalist Marshall. The result is a readable, if opinionated, tour of the origins of judicial review. It's hard to make sense of the term "myth" in the book's subtitle, given that judicial review has become the basis of American constitutional law. Still, the book is a valuable review of a complex subject. It also has relevance for today, when, as Goldstone claims, "originalist" judges, in the name of adhering strictly to the words of the Constitution, use judicial review, which is not in the Constitution, to inconsistently strike down laws.” ?Publishers Weekly

“John Marshall shaped the Supreme Court from its beginnings as a lawyer during Virginia's constitutional ratification process and later as its chief justice on the power of judicial review. Goldstone (Dark Bargain: Slavery, Profits, and the Struggle for the Constitution) proposes that the "myth" of judicial review is that it is not spelled out anywhere in the Constitution, yet the concept has been embraced by strict constructionalists who interpret the law based solely on the Constitution's text. Goldstone says that Marshall's decision in Marbury v. Madison, obliging the Jefferson administration to deliver the previous president's judicial appointment to William Marbury, enhanced the court's power by giving it the authority to say what the law is, an essential function of the courts. Goldstone builds suspense by beginning with the furious 1787 Constitutional Convention debates over the court's jurisdiction and power. He continues with the political battles that marked the beginning of the Supreme Court and ends with the events leading up to Marbury v. Madison. He lays out a remarkably detailed history and argument in favor of Marshall's decision, which set the precedent for judicial review. This is an excellent book on a complex subject. Recommended for all libraries.” ?Library Journal

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