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The Importance of Being Elegant, 42 Ohio State Law Journal 427 (1981)

Abstract

The informed citizen—and he need not be a lawyer—may find it extraordinary that in 1980 two distinguished constitutional scholars have written books on judicial review. It was in 1803, after all, that Marbury v. Madison recognized, established, or usurped—depending on one's viewpoint—that particular corner of the sovereign's prerogative. And that precedent has stood firm these one hundred and seventy-eight years. Not only that, judicial review has been well rehearsed in the literature. Indeed, in the late 1950s and early 1960s the informed citizen was inundated with superb scholarship on the same subject. Why must each generation reinvent the wheel?

The answer, I think, is that judicial review is not a wheel. It is a powerful method of governance, and new situations arise from time to time to test the justifications offered earlier in support of the method's legitimacy. To speak only of the recent past: many students rejected Lochner, embraced Brown, and needed supporting scholarship; and many students approved the work of the Warren Court, had trouble with Roe v. Wade, and again needed scholarship to get it all straight. Ely and Choper, in books being celebrated in this Symposium, help serve this need. But paradoxically their writing makes clear that there is room for more; the subject probably can never be closed.

Date of Authorship for this Version

1981

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