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Friday, February 3, 2012

The Origins of "Judicial Review"

If you ask the question of any America, or even those beginning their studies of law, like myself, where in the Constitution the theory of "Judicial Review"can be found, they will find that the express words judicial review are not in the Constitution, particularly in Article III, which outlines the judiciary branch.  This is entirely true.
In fact, many will point to the case of Marbury v. Madison as the origins of judicial review, or where and when the judiciary assumed this power.  However, I have found a passage in a history book, a biography of James Madison, written by Pulitzer Prize winning historian and Stanford professor, Jack Rakove, that I believe gives insight into the origins of judicial review that predate Marbury v. Madison, and indeed stem from the Philadelphia Convention of 1787.

The book is titled James Madison and the Creation of the American Republic.  It's a short enough book, very easy to read and almost story like.  In the book, Rakove talks about Madison's Virginia Plan and the differences between it in its original form and the formal draft of the finished Constitution.  Madison wanted the federal government to have an absolute, national veto on all state legislation.  This, of course did not bear well with most of the other delegates to the convention, and it was voted down 7 states to 3, Rhode Island of course being absent.  Madison and James Wilson wanted a council of revision, in which the national executive and part of the judiciary would review and revise all state legislation, all the while wielding the threat of veto.  However, the rest of the convention didn't agree to this either, and their attempts at this council of revision were shut down.  

The reason the rest of the convention delegates disliked a council of revision composed of the national executive and judiciary is because they felt "it was improper to involve the judges in the task of legislating.  Most members seemed to assume that judges would act ore effectively by declaring laws violating the constitution void-through what would come to be known as the power of judicial review."
(Chapter 6, pg. 73)

Thus, we see that the concept of judicial review was one the framers of the Constitution were already familiar with and expected to be the role of the judiciary under the new national government.  I believe this is what they intended as "the judicial power," as stated expressly in Article III, Section 2 of the Constitution.  They knew what the judicial power was, jus dicere, as it was known to them at the time, or in other words, "to declare the law" or state what the law says, either constitutionally, statutorily or via the Common Law, which was praised by the Americans.  Indeed, as early as 1764, James Otis, Jr. explained what the role of the courts would become after the ratification of the Constitution and the congress's Judicial Act, explicitly that of jus dicere, in his pamphlet titled The Rights of the British Colonists Asserted and Proved, which can be read in full here.

"The supreme power in a state, is jus dicere [to declare the law] only:-jus dare [to give or make the law], strictly speaking, belongs alone to God."  

Granted, Otis at this time wasn't speaking of the courts, especially because the Americans were yet independent and yet learned in the knowledge of politics and government they had in the 1770s and 1780s, knowledge gained from their experiences of the Revolution, especially experiences in government.  Rather, Otis was speaking of human government in general.  In his time, the lines between judiciary, legislature and executive branches were blurred, and each often assumed the roles of the others.  But jus dicere, I believe, is what the framers of the Constitutions had in mind as the "judicial power," as stated in Article III Section 2 of the Constitution and the role the courts would take in reviewing both national and state legislation.  Thus, I believe the concept of "judicial review" was existent from the beginning, or rather, since the very creation, debating, drafting, and ratification of the Constitution.


1 comment:

  1. I believe in judicial review, but I believe in Originalism. I think the Framers of the Constitution had it right from the beginning.