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There Were Great Men Before Agamemnon

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Title: There Were Great Men Before Agamemnon
Author: Casto, William R.
Abstract: This essay theorizes that Supreme Court Justice James Iredell’s explanation and justification of the doctrine of judicial review is more masterful than that of Chief Justice Marshall’s. However, the movement towards legal positivism prevents us from fully realizing Iredell’s great explanation of judicial review. Because Iredell’s judicial review explanations were not found in a Supreme Court opinion, legal positivism does not give much weight to, or respect for, his explanations. This essay discusses the two Justices’ understanding of judicial review and the reasons why Marshall is viewed as greater than Iredell. Part A discusses both men’s reliance on the people’s sovereignty in supporting judicial review and how Iredell explained why judicial interpretation was preferable to legislative interpretation. Part B discusses Iredell’s belief that judicial review should be reserved only for statutes that are “unconstitutional beyond dispute.” Part C explains that Marbury’s preeminence is due, in part, to the rise of legal positivism. Marshall prevails over Iredell because he explained judicial review in a Supreme Court opinion. The author theorizes that courts have greater discretion in hearing matters because Marshall did not address the reasons judicial review was preferred to legislative review. Part D discusses Iredell’s rejection of the premise that judicial review could be used to read natural justice principles into the evaluation of a statute. But, his viewpoint is not followed because his explanation is not found in one of his Supreme Court opinions.
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Date: 2009

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