The Struggle Over Marshall and the Politics of Constitutional History

Dados Bibliográficos

ID6340232
AutoresHoward Gillman (University of Southern California, autor correspondente)
Ano1994
Volume47
Fascículo4
Páginas877-886
Data de publicação1994-12-01
Peer ReviewedSim
Open AccessSim
TipoARTICLE
PeriódicoPolitical Research Quarterly (JOURNAL)
Identificadores do periódicoISSN: 1065-9129 • E-ISSN: 1938-274X
EditoraSAGE Publications Inc (PUBLISHER)
DOI10.1177/106591299404700405
OpenAlexW1987843314
IdiomaEN
Citações recebidas4
Referências citadas13

A struggle is underway over the legacy of John Marshall. For some time a number of political scientists (Mendelson 1982; Wolfe 1986; Clinton 1989; Goldstein 1991) have been waging a battle to rescue Marshall from those who presumably have been claiming that the great Chief Justice not only established the precedent for judicial review but also established the precedent of the activist use of judicial power-with activist in this context referring to result-oriented decisionmaking that is not supported by a fair reading of the constitutional text.' There are important differences separating these writers but they share a belief that Marshall's decisions reflected a commitment to a careful reading of the constitutional text (as opposed to conceptions of natural law or a judge's extraconstitutional policy preferences) and that this practice is to be preferred over what is presumed to be a more modem and less legitimate notion, traced to the turn-of-the-century Court, that judicial decisions should be based on more abstract and atextual conceptions of political morality. There is much to be admired in the work produced by these scholars. They have contributed to our understanding that Marshall viewed the Constitution as positive law and not as a gateway to decisions based on natural justice (see also Snowiss 1990). They have also helped remind political scientists that it is often misleading to characterize SupremeCourt decisionmaking as governed by the justices' idiosyncratic policy preferences. A careful reading of texts and contexts often uncovers a process that more closely resembles principled (albeit politically charged) acts of interpretation than unrestrained acts of legislation.2

Law and economics · Political economy · Political science · Politics · Sociology · American Constitutional Law and Politics · Judicial and Constitutional Studies · Law · Legal and Constitutional Studies