This essay provides a historiographical context for Nelson’s work on judicial review. It argues that Nelson’s integration of intellectual and legal history not only rebutted the instrumentalist historiography that prevailed when he undertook his work on Marshall and judicial review, but also fostered an appreciation of the need to place legal actors in the intellectual context in which they acted. Highlighting the influence of Bernard Bailyn’s pathfinding work on popular sovereignty upon Nelson’s development of his consensus theory, the essay contends that Nelson’s work changed the course of academic readings of Marshall’s jurisprudence to be consistent with a broader acceptance of intellectual history. Nelson’s work retains special significance in the twenty-first century as a basis for considering restrictions on judicial review without the overt politicization of the arguments on the topic that have surfaced since the Bush v. Gore decision in 2000.
That Elusive Consensus: The Historiographic Significance of William E. Nelson's Works on Judicial Review,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol89/iss3/5