William Michael Treanor, Fordham University School of Law, has posted a paper on
Marbury v. Madison, which is forthcoming as a chapter in
Federal Courts Stories, ed. Vicki Jackson & Judith Resnik. Here's the abstract:
Chief Justice John Marshall's opinion in Marbury v. Madison, though one of the most famous decisions ever issued by the Supreme Court is one of the most misunderstood. Marbury is widely thought to be the decision that created the doctrine of judicial review but by the time Chief Justice Marshall issued the opinion, judicial review was already generally accepted.. Marbury was, however, the first case in which the Supreme Court explicitly embraced the power and struck down a statute. The case was not simply an exercise of judicial review, but it reflected an expansive conception of the judicial power to review legislative acts affecting the judiciary and to review and provide remedies against Executive Branch decision making. In order to properly understand what Marshall accomplished with Marbury, the decision must be viewed in the context of the political disputes of the early nineteenth century, particularly contention between the Republican administration of President Thomas Jefferson and the Federalist-dominated judiciary. This essay establishes that background and then draws back chronologically and describes the early history of judicial review, highlighting the history of judicial review in Virginia to which Chief Justice Marshall would have been exposed as a young lawyer. The essay then turns to the decision itself and its significance in light of its unique context.
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