Marbury v. Madison and Judicial Review by Robert Lowry Clinton (review)

126 Shorter Book Reviews Robert LowryClinton. Marburyv. Madison andJudicialReview. Lawrence: University Press of Kansas, 1989. xii + 332 pp. Marburyv. Madison is the sort of book in which a serious scholar pursues a single question of fact in all of its possible ramifications and thereby illuminates many more aspects of national history than the usual academic effort, which begins with a large organizing hypothesis and ends by claiming authority for "fmdings"that were implicit in it from the beginning. Clinton is interested in establishing an accurate rendering of the issues Chief Justice John Marshall addressed in the famous case of 1803, on which hundreds of commentators have grounded the Supreme Court's power to veto Congressional legislation. His search for an answer leads him to examine every conceivable datum: the issues adjudicated and the decisions arrived at in all of the cases (both foreign and domestic) which scholars and jurists have viewed as precedents for judicial review, the principles of legal interpretation taken for granted at the end of the eighteenth century, the deliberations of the federal Constitutional Convention and the state ratifying conventions, early debates in and out of Congress touching on the power of the judiciary, the issues and decisions in early Supreme Court cases related to it, the Marburycase proper and the subsequent cases in which the Supreme Court has invoked it, early legal treatises, and the research both the friends and the enemies of judicial review have undertaken into its origins. Considered simply as exposition, the book sometimes suffers from the range of the issues it raises, but it ends by having amassed an immense amount of highly persuasive evidence that John Marshall did not mean what his successors have taken his opinion in Marburyto mean. Clinton's achievement is the more striking in that he does not allow his unmistakable sympathy for judicial review to affect his historical judgment; he would have it used as he says Marshall intended it to be used, but he rejects the mythology that has made it something he holds it was not intended to be. His argument centers upon a distinction, rooted in Blackstone, briefly articulated in the Philadelphia Convention, and expressed from time to time by the Supreme Court, between the limited role the Court may exercise in dealing with cases involving issues of public policy--"political" issues, in the language of the Court--and its pre-eminent role in deciding what James Madison described as cases "of a judiciary nature," meaning those involving the administration of justice and the protection of individual rights, which the framers of the Constitution visualized as beyond the reach of legislative Shorter Book Reviews 127 action. Virtually every page of his early chapters shows how this distinction makes sense of otherwise incompatible statements; the later pages demonstrate how, when and, presumably, why all but a handful of later commentators and jurists forgot it. Examining what seems to have been virtually everything published on the subject since 1894, newspaper accounts and editorials excepted, Clinton shows that only a handful of authorities avoided conflating the two realms of jurisdiction. (Significantly, however, this handful consisted of men whose reputations as scholars of the law tower above those of their contemporaries.) Nevertheless, the most telling evidence that Clinton adduces for his thesis emerges from his study of the Supreme Court cases in which the Court has cited Marbury. He shows that it first invoked the case on behalf of an expanded judicial review only in 1884, in a context in which it was selfevidently irrelevant, and next in 1894 in Pollockv. Famier'sLoan & TrnstCo., where Marbury was potentially relevant but (Clinton holds) improperly applied. After that the Court cited it for this purpose only occasionally until the 1950s, when it clearly embraced a rendering it had largely avoided for a century and a half. This is a major re-interpretation of American history, the more striking because Clinton has no apparent axe to grind but the question of what actually happened. Rush Welter Bennington College Vermont Harriet Hyman Alonso. The Women's Peace Unionand the Outlawryof War, 1921-1942. Knoxville: University of Tennessee Press, 1989. xiv + 224 pp. Illus. The Women's Peace Union of the Western...