Authorizing memories: Political readings of Marbury v. Madison.

详细信息   

• 作者：Fjelstad ; Per Even Tor.
• 学历：Doctor
• 年：1995
• 导师：Benson,Thomas W.,eadvisor
• 毕业院校：The Pennsylvania State University
• CBH：9600173
• Country：USA
• 语种：English
• FileSize：5895221
• Pages：157

文摘

The dissertation argues that late-nineteenth-century readings of Marbury v. Madison implied an organicist theory of judicial authority. The Supreme Court,according to this theory,initiated changes in constitutional law that instituted nascent understandings of the countrys political identity. Organicist theory construed judicial authority as the unusual communicative act of performed inaction,as the assertion of a new order within a narrative of fate. The dissertation reviews the circumstances that prompted readers to review Marbury as an exemplar of judicial initiative. The Court cited Marbury in 1895 as a precedent for its decision to reject a popular federal law. Defenders and critics of the Courts action reconstructed the historical context of Marbury,and they discussed the implications such judicial initiative had for the countrys political inheritance and vitality. While disagreeing about most political implications of judicial initiative,readers agreed that John Marshall,author of Marbury,was an ingrained partisan,a cunning thinker,and a strategically inclined communicator. Readings of Marbury reveal a shift in thought about the politics of judicial authority. All readers held the Court to the standard of historical fidelity； the Court should respect the constitutional intentions of the countrys founders. Yet numerous practical complications made this standard difficult to apply. The Court took up problems at the end of the nineteenth century about which the founders and later amenders of the Constitution could have had no intentions. Still more problematic,many intentions were not explicitly stated or written in the text of the Constitution. While Court granted textual status to some implicit intentions,it denied that status to others. This determination required political judgment. At issue was a theory of judicial authority that could allow the Court to adjust constitutional law,at least to elaborate it,while leaving the presumption of institutional continuity viable. Readers of Marbury eventually elaborated an organicist theory of judicial authority. They advocated standards for making and obeying such constitutional pronouncements,standards that were more explicitly political than standards of "formal" legal reasoning. They suggested that a judicial pronouncement of authority should incorporate the existing spectrum of political opinion,should claim the status of a processual stage,and should link the direction of its processual development to an orientation latent in the countrys cultural tradition.