Wednesday, November 5, 2014

Olken on Marshall and Marbury

Samuel R. Olken, John Marshall Law School, has posted two articles that originally appeared in the John Marshall Law Review.  The first is Chief Justice John Marshall and the Course of American Constitutional History, published in 33 (2000): 743-79.  Here is the abstract:    
This essay provides an overview of the Supreme Court judicial career of Chief Justice John Marshall and the far ranging influence of the nation’s fourth chief justice. Written as an extended introduction to a special symposium issue of The John Marshall Law Review, this essay attributes Marshall’s profound influence upon the development of American constitutional law to his instrumental conception of the Constitution and his judicial pragmatism. Through his highly effective judicial statesmanship, Marshall drew upon his instincts as a politician to steer the Court through the tumult of the early republic while forging the foundation of modern constitutional law.
The second is The Ironies of Marbury v. Madison and John Marshall's Judicial Statesmanship which appeared in 37 (2004): 391-439.  Here is the abstract:
In the annals of constitutional law Marbury v. Madison is an iconic case. Through various twists and turns, Chief Justice John Marshall set forth the Supreme Court’s authority to review the constitutionality of Section 13 of the Judiciary Act of 1789 and declare it unconstitutional based on its purported conflict with Article III of the Constitution. Much discussed and analyzed, Marbury remains a staple of constitutional law, as noteworthy for its far reaching conclusion about the role of the Supreme Court in a constitutional democracy as for its unusual procedural and factual background. This article examines the many ironies of Marbury v. Madison and provides an essential perspective from which to understand how John Marshall averted political embarrassment and institutional paralysis to craft a compelling opinion that enhanced the prestige of the Court at a critical juncture in American history.