Marbury v. Madison : The Origins and Legacy of Judicial Review 
On the surface, the case itself seems a minor one at best. William Marbury, a last-minute judicial appointee of outgoing Federalist president John Adams, demanded redress from the Supreme Court in 1801 when his commission was not delivered. But Chief Justice John Marshall could clearly see the danger his demand posed for a weak court filled with Federalist judges. Wary of the Court's standing with the new Republican administration of Thomas Jefferson, Marshall hit upon a solution that was both principled and pragmatic. He determined that while Marbury was justified in his suit, the law on which his claim was based was in conflict with the Constitution. It was the first time that the Court struck down an act of Congress as unconstitutional, thus establishing the doctrine of judicial review, which designates the Court as chief interpreter of the Constitution.
Nelson relates the story behind Marbury and explains why it is a foundational case for understanding the Supreme Court. He reveals how Marshall deftly avoided a dangerous political confrontation between the executive and judicial branches by upholding the rule of law. He also shows how by asserting that the task of courts was one of discovering rather than making law, Marshall managed to shore up the Court's prestige and power rather than have it serve partisan political agendas.
Nelson clarifies how the Marshall court sought to preserve what was best in eighteenth-century constitutionalism while accommodating nineteenth-century political realities, and also traces the gradual transformation of Marbury-style judicial review since Marshall's time.
Although the Supreme Court did not assert its power of judicial review for another fifty-four years after Marbury, it has since then invalidated numerous acts of Congress. From Marshall's modest bid for consensus to what some consider the modern Court's "activist" excesses, judicial review has been a cornerstone in the edifice of the federal judiciary. Nelson's analysis helps us better understand how this fundamental principle emerged and why it still matters.
This book is part of the Landmark Law Cases and American Society series.
Reviews
Its an account of how the tyranny of the courts developed over
time and how they gained the power they have today. The writer
is mostly wrong in his conclusions, but he is a good source for
more serious writers on this subjects in that he at least gets
some of the facts right.
Judicial Review is the self-given unconstitutional power of the
federal courts to oversee the other branches of government and
to make laws for the country. While such powers were talked
about in the federalist papers, they were explicitly excluded
from the constitution and did not appear until 1803 when
John Marshall launched his politically motiviated coup against
the other branches while they were weak and divided.
The book clearly shows that the power of judicial review is
unconsitutional and how it was only created as a personal
decision made by Marshall. What is not mentioned was the
part secular humanism played in its creation. In a secular
humanist society, judges control the meaning of the law and
act as aribrary rulers over normal people. Elected leaders
are pushed to the side in favor of unelected judges who use
power in the name of the law to impose their will.
Chapter 1 makes the argument for a secular humanist government.
Chapter 2 shows how the conflict between the Federalists and
the liberals resulted in political gridlock which allowed the
courts to grab for power. The third chapter gives a biased
and wrong portrait of John Marshall. In Chapter 5, we see
how the liberals chipped away at the constitution a little bit
at a time with their new power. How they subverted the system
slowly and built up the power of the judges is in the next
chapter.
In Chapter 7, the book starts to look at the Crisis of democracy
in America during the 1930s. The socialist Franklin Roosevelt
was attempting to implement an anti-constitutional socialist
agenda on the country. The court attempted to stand up to
him, but after going eye-to-eye backed down. The writer doesn't
properly deal with events, but what happened was that democracy
failed for a time and the court itself was subverted by liberal
justices who entrenched themselves for a battle against freedom
that has lasted until today. The liberals used the conservative
attempt to defend the constitution with judicial review as an
excuse (when they gained power) to overthrow the whole
constitution and establish the judicial tyranny that exists
today. What that fight shows is that judicial review is useless
to those who would defend the constitution. It is only useful
in the hands of liberals who would destroy it.
The writer at this point shows his liberal hand of cards. He
comes out in favor of so-called minority rule against the
constitution and democracy. Minority rule is really rule by
secular humanist judges who want to be tyrants over ordinary
Americans. These are the people who want to give americans
rights they don't want while they take all our freedoms away.
A civil or a constitutional right is the creation of a government
of man. It has no meaning and no value. Freedom is the creation
of a strong people and the laws of nature. There is nothing more
precious than freedom and freedom is worth more than the entire
bill of rights and every decision by every judge who ever lived.
Rather than undemocratic minority government by judges, America
needs to restore the constitution and begin to trust its leaders
again. Congress and the President under our system should have
an equal opinion with the court on what the constitution means
and what is constitutional. In fact, since they are elected
by the people, their opinion should matter more than that of
the court.
At the end of the book, the liberal writer goes all out in
support of judicial tyranny. People and their elected leaders
can't be trusted. We need a living constitution where judges
rewrite it at will and our very lives can be taken away by
judges (see what happened this year in Florida).
Unelected judges can not be trusted with our freedom. They
are too easily corrupted by power and unaccountability. Nelson
fails, in particular to deal with the right to life and the law.
The right to life and being on the side of life is key to any
real system of law. Its in every document the founders wrote
and yet judges ignore it every day while presiding over murder
from the bench.
Nelson also plays the race card toward the end. He calls for
the preservation of the liberal status quo established in the
1930s and suggests that any attempt to restore the real american
law that existed before socialism put its claws into the country
under FDR will lead to racism. In fact, just the opposite is
true. Judges have been at the forefront of establishing
segregation and race in the law since the 1890s. True freedom
means what it says. It scares liberals, but restoring real
freedom would be worth more than any liberal promises of rights.
Disregarding the liberal nonsense at the end of the book, this
book clearly makes the case that judical review is
unconstitutional and can only lead to evil. He also establishes
(without knowing it) the case for fundemental reform of the
courts and the law. But rather than his world of secular
humanist liberalism, reform means making judges accountable,
restoring the right to life and property, ending the
anti-constitutional invention known as judicial review and
restoring the balance in government such that courts consider
the views of the president and congress in making decisions.