Brad DeLong's Semi-Daily Journal: A Weblog

Marbury v. Madison: America's democratic experiment was silent on which branch had final say on questions of consitutionality. Marbury creates out of whole cloth that power in the judiciary....a case whcih, had it gone the other way, Dred Scoot, Brown, and Miranda, for example, would not exist....

What the hell happened to Bush vs. Gore?

Of course, the effects of that "decision" are still unfolding, but just four years of it ought to be enough to convince anybody.

Read: The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President.
by Vincent Bugliosi.

The argument is made that this will stand out as one of the worst court decisions of all time on many different levels, including legally unsupportable and in violation of basic judicial canons.

Important by what measure? impact on judicial systems? course of history? numbers of people?

1) Jesus before the Sanhedrin and then Pilate - the seeming triumph of religious orthodoxy and secular acquiescence led to Jesus' crucifixion and resurrection and the beginnings of Christianity as a movement

2) Nuremberg trials - establishing the notion that governments themselves can be called to account for injustice and crimes against humanity [a layman's interpretation]

I agree on Marbury -- it represented a broad interpretation of the Constitution, which enabled other borad readings, such as the borad interpretation of Commerce in Gibbons v Ogden. More importantly, it prevented a true constitutional crisis. Hd Marshall ruled totally in favor of Marbury (issuing the writ of mandamus) Jefferson and madison would have ignored and moved to impeach and remove Marshall and the other Federalist members of the Court, and the nation would have come apart -- you think we're polarized now, take a look at some of the rhetoric and actions of those days, and read the very partisan papers.

Marshall's opinion is brilliant at splitting hairs -- Marbury was entitled to his commission, but the Court had no power to give him his relief since his case was filed on an origianl jurisdiction not listed in the Constitution.

Of course, nowadays Marshall couldn't even sit on the case, since it was his failure as loutgoing Secretary of State to give Marbury et al their commissions that started the entire case. Conflict of itnerest anyone???

Bush v Gore doesn't deserve to be in the same room as these others.

Plessy has a good shot, because the Civil War probably would have happened without Dred Scott, but the freedmen didn't have to go through three more generations of near-slavery. (Worcester v. State of Georgia, too.)

How about The People of Athens v. Socrates? Okay, maybe not--but it does deserve to be better known.

Keeping in the theme of cases important because of their negative, then I nominate the "Five Knights" case, without which we may never have seen the Petition of Right.

I'm glad that the Dred Scott case isn't taught in much detail in the public schools. Dred Scott's owner had the same first and last name as I do. (No relation. No, not "Zizka".)

Stretching the word "trial" just a bit, one strong candidate is Lorenzo Valla's "La false donazione de Costantino" (1440), a spectacular piece of forensic analysis demonstrating that the fourth-century document on which rhe Roman Catholic Church based its claims to temporal power was in fact a forgery dating from the eight century. The destabilizing impact of this finding is incalculable, and it advanced two basic reforms at one and the same time: the science of philology, and the Protestant Reformation (reformers like Erasmus and Luther owe almost everything to Valla's findings, and say so in unequivocal terms).

I think you're overstating consequences in these cases. If Dred Scott had gone the other way, at least the lower South would have still seceded, though not perhaps in 1861: if the union wasn't going to protect their property, why should they stay in the union? Nor, I think, could Strafford have won the English Civil War for Charles (unless he'd kept Charles bound and gagged somewhere he could do no harm). And one theologian does not a religion make.

A couple of other English cases which ought to be mentioned:

The trial of the man Charles Stuart. Had an enormous psychological effect.

Pipe Roll, 12 Hen. II, p. 65 (the reference is from Pollock and Maitland--I haven't gone to the Pipe Rolls). The first recorded use of the Assize of Novel Disseisin.

Marbury is the most important US case ... without it, Dred Scott (or Bush v. Gore, for that matter) doesn't happen.

The most important international case is the Tokyo War Crimes trials (not Nuremburg). At least Nuremburg had the pretense of trying the Nazis for murder. Tokyo tried the generals for "Aggressive War", a concept woven out of whole cloth by the prosecuting nations, and an idea that provides justification for the kind of actions being taken by the Bushies today.

paul

bush-haters.blogspot.com

Marbury. The doctrine Jefferson favored would have produced anarchy sooner or later. It's impressive that Marshall had only a few months of formal legal education at W&M before joining the Revolution, yet came up with such a subtly reasoned opinion. To get there, he had to violate several canons of interpretation and sidestep some facts, but ends sometimes justify the means. It was Marshall's greatness to recognize the opportunity and seize it, staying within bounds of judicial propriety (but just barely).

Dred Scott depends on a hypothetical. By 1850 or so, the South was as out of step on slavery as South Africa on apartheid. Slavery and the slave trade were outlawed everywhere. It was in total violation of the feeling of nationalism centered on the rights in the founding documents. By every political and informal means the North tried to cmoounicate that it just wasn't acceptable. But it was integral to the South's property structure and "modes of production", and there was no institutional structure for unwinding it short of war. However, all the economic and political trends favored the North. If the Civil War could have been postponed by 4 or 8 years it might have been shorter and less destructive, and the aftermath less dismal.

Most trials deal with fairly narrow questions, which explains why it is so difficult to think of trials of the magnitude of those in the post.

One way to think about the question is to ask which trials demonstrate something about the way things are changing in the society in which the trial takes place. This points to trials like the trial of Socrates, where we can see the beginning of the contest between liberals (Socrates, with his insistence that the important thing is the question) and conservatives (people who don't like questions that challenge their status).

In this vein, I suggest cases like Heart of Alabama Motel, which pointed to the idea that local concerns have to fall in the face of national imperatives, an idea that is currently out of favor, as shown by another case, the one throwing out a statute making it a federal offense to carry a firearm near a school.

Dreyfus?

(Which involves more than one trial, of course.)

Buck v. Bell (1926)

(The low point in Oliver Wendell Holmes' career)

hmmmm, looks like the commenting is stripping out double returns for spacing purposes.

Nothing to discuss - Marbury. why? Cuz there would not have been any other imprtant cases otherwise.

I'm not familiar enough with international judicial history -- and certainly not with events of centuries ago -- to comment in that direction. But in the U.S., it seems to me there are three ways to take it: "Most significant decision ever", being the one with the biggest impact positive or negative; "Most important decision ever", which my admittedly-subjective ear hears as a "positive" case (that is, the judgment of history is that it went the best way); "Worst decision ever" is self-explanatory. All three offer potentially different answers.

"Most significant decision ever" is almost surely Marbury v. Madison, for all the reasons stated above. Above all, without it, none of the other candidate decisions could have even occurred. I'm inclined to think it is also the leading contender for "Most important decision" because, by general agreement, it's clear the decision was a good one.

"Worst decision" ever depends a little: by what measure? If we mean in terms of sheer legal incompetence -- a decision pulled from thin air, representing a direct assault on basic American legal principles (not to mention violating the stated lifetime beliefs of those who wrote it), then Bush v. Gore wins hands down. If we mean in terms of the broader historical impact, then the Dred Scott decision since it may well have been a precursor to the Civil War (remember: Bush v. Gore was outrageous, but had the court declined to accept the case, OR had found for Gore, the GOP-dominated Florida legislature, and the GOP-dominated federal House, had both made clear they would likely vote to put Bush into office anyhow).

What happens if Jesus's trial before Pilate goes the other way? He's not crucified. And how does the central tenet of Christianity -- that Jesus is the personal savior of everyone who accepts him, by virtue of dying for that person's, and everyone's, sins -- get established then? By the criterion of what would have happened if the trial went the other way, that strikes me as hands down the most significant trial in history.

I might add that I make no claims about the truth of the central tenet of Christianity; I merely claim that without that central narrative it's hard to see Christianity establishing itself as a major religion. And that, in turn, has major implications for the transition from the Roman Empire to medieval civilization, and for all subsequent history.

I've no particulalr point of view on the relative importance of your third example, but I do find your knee-jerk interpretation of the merits of the case to be tiresome, especially from someone who is obviously as broadly and deeply educated as you.

Critics of traditional religious belief (and Brad, you quite often seem to be in that camp) will often rail against this or that doctine because its implications are unpleasent. But the believer, in chossing whether to believe proposition A or mutually exclusive proposition B does not typically ask the question "Which of these two do I WANT to be true," nor the question "Which of these two, IF TRUE, has implications that will create a better world," but rather, simply, "Which of these two IS true?"

You yourself may not be a Christian generally, or an orthodox Christian specifically, and so you may consider it untrue that some beings will spend eternity in torment. But its not a odd thing to believe for those who take the truth-claims of Christianity seriously. Indeed, Jesus himself taught things that make it very hard not to believe that for some souls Hell is the ultimate resting place. You may find that unture; you may find that unpleasent if true. But you seem to suggest that intellectual dishonesty on the part of ancient theologians would have been a good thing because it would have created a more harmonious state of affairs.

It was most definitely not Marbury v. Madison. Judicial review wasn't clearly established when the constitution was written, but it was almost universally agreed on before Marbury. Marbury wasn't generally regarded as an important case until about 100 years after it was decided when it somehow became seen as having single-handedly established judicial review. For the past few years legal scholars have been much less impressed with the importance of Marbury than the general public.

Another good choice would be Lochner. The direct effect wasn't very important, but it's an important symbol of pre-New Deal substantive due process. The early cases upholding the New Deal like West Coast Hotel and Butler are pretty important too (horribly wrong IMHO, but important).

Tom: You may not be assuming that Jesus actually was the son of god, but you are assuming that the trial and execution of Jesus actually happened. I'm not so sure it did. I have seen some evidence that Jesus was loosely (if at all) based on an real historical figure.

sd, if you set aside the (likely true) assumption that Brad would prefer a more tolerant medieval Christianity to the actual article, do you think he is wrong on the history? (I myself am unconvinced that there was ever much possibility of the medieval church adopting universalism, but honestly I'm not entitled to an opinion.)

Too soon to know how it will play out in the longer run, but I might suggest the assorted cases (including Santa Clara County v. Southern Pacific Railroad Company) that have established state-created limited-liability corporations as legal "persons" with all the attendant rights and privileges. Since they are potentially immortal,can accumulate great wealth (hence power), and allow the people controlling them to make decisions knowing that their own wealth and freedom are insulated from the consequences, failure to keep such entities under very tight control may prove to be, and some will say already is, instrumental in where real power resides in the future.

Has any state ever revoked a corporation's charter because their activities were not in the best interests of that state?

Michael Cain suggest a very strong batch of cases for consideration. Perhaps, the most significant aspect stemming from the cases is that legal "persons" were granted free speech. How many of our present serious problems can be traced to the free speech granted corporations? I have always thought it would be a good idea to limit free speech to human beings.

Jefferson complained about the outcome in Marbury for years afterward, suggesting there was some respectable opinion disapproving of judicial review. And like some other cases mentioned in this thread, it stands for a complex of decisions giving the SC review over actions of the States.

Charles I is a fascinating case. I think that a lot of minds have been prematurely made up on the issues surrounding the English Civil War.

It is cheaply easy to cast Charles' character and actions in an extremely bad light, but once the collision course was set, and one looks at the character and actions of the likes of Pym and Prynne and Cromwell, seeing in them all the seeds of the totalitarian impulse that has deprived all subsequent human endeavor of hope or point, it is impossible not to wish that the King had won, and taken upon his opponents (and their supporters) the truly shocking and comprehensive vengeance that they deserved.

For an interesting look at the relative significance of Marbury, see this exchange: http://www.law.upenn.edu/journals/conlaw/issues/vol6/num3/levinson.pdf and here http://www.law.upenn.edu/journals/conlaw/issues/vol6/num3/segall.pdf

I'm unconvinced on Strafford. The fact that the Stuarts were restored, and then thrown out again, suggests that there were underlying historical forces at work and not merely contingent historical factors like the generalship of Cromwell.

The trial of the man Charles Stuart. Had an enormous psychological effect.

And quite a significant physiological effect on Charles himself.

I suppose it is time someone put in a word for the trial of Socrates. And re Charles II, recall:

King Louis was the king of France
Before the revolution...
Way, haul away, we'll haul away, Joe!
But then he got his head cut off
Which spoiled his constitution...
Way, haul away, we'll haul away, Joe!

The trial of Gallileo is a good candidate. It's roughly the turning point where science and religion come into conflict, and the harbinger of much of the political conflict in the West for the next few centuries (and into the current day).

The February 26 Incident, in which prewar Japanese moderates are executed for treason and militarists gained unchallenged control, could be considered a "trial".

There's no getting around the trial of Jesus. How about the charges against Alcibiades of impious satire and statue vandalism? If it hadn't been for that, the Syracuse expedition probably would have gone better, and the Athenian Empire might have lasted a few more centuries.

Two nominees, both in general terms:

The many law cases of Cicero who virtually invented the practice of law in many of the aspects that would be familiar to us even today.

Sir Edward Coke, if I recall correctly, as Lord chief justice of the King's Bench, argued in a ruling that the King in his own person had no competency to judge cases and that his majesty, for a host of good reasons, properly delegated that authority to men learned in the law.

I can't recall the particulars but it was an important precedent for the idea of a) judicial independence from the executive and b)that no man is above the law. The King was less than pleased with Coke.

It's Marbury. The power of the Supreme Court as we understand it today was underscored, if not created, by that decision.

My off-the-wall favorite is Plessy. There are still any number of wingnuts, including our current Chief Justice, who feel that was correctly decided.

Origen and the 2nd Council of Constantinople?? I think that meant more in the West than the East, even if Justinian was the main person all gung-ho to get rid of some of Origen's more extreme speculations. I think Origen is an official Father of the Orthodox Church.

I find DeLong's take rather odd though. What I mean is, sinners in this life get to sit through gazillions of spiritual reincarnations in a kind of heavenly Sunday School. Many people would consider that a very very scary kind of hell in itself.

And I know some Buddhist teachers try to make their students very afraid. Buddhists have very Christian-like hells, it's just that you don't have to stay there absolutely forever, just a trillion billion super-gazillion years. That is not scary? Or spending the next billion years working your way up from second class liver fluke?

Finally, the Origenist beliefs condemned were more in evidence in some of his extreme followers, almost 200 years after his death, than in Origen himself. Origen's writings are so incomplete it can be difficult to figure out what he believed.

And would an Origen-based Christianity really be more tolerant than what we had? Origen was really into martyrdom, and very much opposed to anyone who comprimised or equivocated, and I find it hard to believe he wouldn't have approved persecuting equivocators (though if anyone knows about his actual views on this, please inform me of them). He was very much opposed to Gnosticism, and I imagine he would have been horrified to learn the some of his followers' beliefs may have strayed into that territory 150 years after his death.

So, in conclusion, another vote for Marbury vs Madison. Anyone know how influential that ruling has been for subsequent developments in constitutional law in other countries? If it has been influential, then I think it certainly deserves to be mentioned.

Fascinating. The three cases you mention are three in which the court ruled in a way that was obviously and tremendously wrong. One is tempted to conclude that the most important court cases are the ones that were truly epic fuckups.

Can we carry this into other areas -- say, the presidency?...

"History should not judge John too harshly, for the the rights of the common man of England owe far more to the vice of John than to the virtue of many a more competent monarch." - paraphrased from Churchill

Straford's attainder wasn't a trial, but rather was an act of Parliament. The whole point of the procedure of attainder was that it WASN'T a trial--Parliament just passed a statute declaring the defendant guilty . . .

I'd want the Trial of the Seven Bishops up there.

http://www.jacobite.ca/documents/16880630a.htm

The birth of James's heir was the immediate cause of the Glorious Revolution, but the Trial established some of the key principles defining sovereignty in the Bill of Rights. Without that basis for the Williamite monarchy and the Whig ascendency, who knows what would have happened to Locke's ideas? And we all know where that leads...

Bush v Gore meant the end of elections as the deciding factor in who rules us. Though judicial review was enshrined by Marbury, courts thereafter clearly stayed away from matters which were properly to be decided by voters. Now we have a court which rules that we should not count the votes that were cast. This is quite new, quite different from anything that ever happened before and is the first step away from democracy.

Regarding Origen; perhaps it could be better understood if, instead of using theological terms one used economic ones.
Origen was a socialist, believing everyone had the same share of salvation, that is, all were equally saved or potentially equally saved. Origen was the first major systematic theologian and he based much of his theology on the notion of free will or the freedom of the created being.
Grace, the gift from God, was freely accepted and
enabled the individual person to freely choose salvation.

His opponents were more like defenders of capitalism, insisting that salvation was the result of hard ascetic labor. Grace was "free" but only given to those who ascetically worked hard. Salvation was given in degrees with those who were truly ascetic rewarded with "more" salvation than lazy louts.

Part of the condemnation was the result of too many resenting the fact that asceticism,for Origen, in itself, was ultimately useless. Asceticism is only good if it leads to freedom. That freedom, achieved through ascetism, is not an end in itself but leads to making a free choice of salvation, freely and equally given to all.

Jerome is interesting in this. He originally was quite an enthusist of Origen but became more antagonistic once he encountered the notion of apatheia, or passionlessness, which is the result of asceticism. Unable to see this as a human-divine state of preparation for contemplative union, ( salvation), he attacked it as advocating that people become like stones, that is, insensitive. His writings on asceticism focus purely on the physical, having little psychological insight. Further, he disliked the notion of universal grace and preferred the notion of ascetically accumulated grace,
(capital).He also did not understand the notion of free cooperation with grace. To him, as for Augustine, grace was an overwhelming force that could not be refused.

Augustine, in his notions on grace, especially in his arguments with Pelagius, ended up creating the Western notion of grace, one which echoes down to this day, as something that can be accumulated like capital. He also elucidated the notion of pre-destination which essentially destroys the notion of creation as a free act and as free in itself, ( the condition of creation- the freedom is given by God and is dependent on God).

Origen is not an official father of the Church but his influence is deep and wide. Eastern Orthodoxy owes more to him than it's willing to admit. Eastern Orthodoxy is far more "socialist" than the western branches of Christianity, even now.