Debate: Is the Historic Case Marbury v. Madison All It's Cracked Up To Be?
From: Cliff Sloan
To: Akhil Reed Amar, Dahlia Lithwick, Eric Posner, and Kenji Yoshino
Akhil, Eric, Kenji, and Dahlia—
Thanks for joining me in this discussion on The Great Decision, my new book (written with David McKean)....
Marbury is the bedrock of our constitutional law. The Supreme Court has invoked it in moments of national crisis and constitutional greatness—for example, in enforcing Brown v. Board of Education against defiance in Little Rock, Ark., or in ordering President Nixon to turn over his tapes. Justice Sandra Day O'Connor has correctly observed that, in light of Marbury, we all have rights that no president and no Congress—no political majority—can take away. Justice John Paul Stevens told David and me that he finds Marbury a continuing inspiration and cites it whenever he can. Nations around the world look to Marbury as they build institutions that will protect the rule of law.
This is Marbury on a pedestal. Our book argues that it richly deserves that lofty perch. But, as I'm sure you all know, many academics love to castigate Marbury.
Some say its role is exaggerated. Others say the decision was simply a manipulative power grab by John Marshall. Still others say, no, it was abject capitulation—that Marshall invented the unconstitutionality of the statute to avoid a confrontation with Jefferson, which the Supreme Court surely would have lost.
Akhil, Eric, Dahlia, Kenji, what do you think? Does Marbury warrant its iconic role, as our book maintains? Or do the revisionists and detractors have the better of the argument?...
Read entire article at Slate
To: Akhil Reed Amar, Dahlia Lithwick, Eric Posner, and Kenji Yoshino
Akhil, Eric, Kenji, and Dahlia—
Thanks for joining me in this discussion on The Great Decision, my new book (written with David McKean)....
Marbury is the bedrock of our constitutional law. The Supreme Court has invoked it in moments of national crisis and constitutional greatness—for example, in enforcing Brown v. Board of Education against defiance in Little Rock, Ark., or in ordering President Nixon to turn over his tapes. Justice Sandra Day O'Connor has correctly observed that, in light of Marbury, we all have rights that no president and no Congress—no political majority—can take away. Justice John Paul Stevens told David and me that he finds Marbury a continuing inspiration and cites it whenever he can. Nations around the world look to Marbury as they build institutions that will protect the rule of law.
This is Marbury on a pedestal. Our book argues that it richly deserves that lofty perch. But, as I'm sure you all know, many academics love to castigate Marbury.
Some say its role is exaggerated. Others say the decision was simply a manipulative power grab by John Marshall. Still others say, no, it was abject capitulation—that Marshall invented the unconstitutionality of the statute to avoid a confrontation with Jefferson, which the Supreme Court surely would have lost.
Akhil, Eric, Dahlia, Kenji, what do you think? Does Marbury warrant its iconic role, as our book maintains? Or do the revisionists and detractors have the better of the argument?...