Judicial Review

Members of the Philadelphia Convention, according to Madison’s notes, “generally supposed the jurisdiction given [to the Court] was constructively limited to cases of a Judiciary nature.” Madison later admitted that “in the ordinary course of Government” the judiciary might interpret the laws and the Constitution, but surely, he said, it had no more right to determine the limits of the Constitution than did the executive or legislature. Both Jefferson and Madison remained convinced to the end of their lives that all parts of America’s government had equal authority to interpret the fundamental law of the Constitution—all departments had what Madison called “a concurrent right to expound the constitution.”37

Wood, Gordon S. (2009). Empire of Liberty: A History of the Early Republic, 1789-1815 (Oxford History of the United States) (Kindle Locations 8154-8159).

I think it is fair to argue that the notion that the courts have the final say on the matter of the constitutionality of a law or other government action is a largely 20th century judicial gloss.  The thing about a judicial gloss is that really only takes some consistent push-back from another branch to call the judicial gloss into question.

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1 Comment

  1. Gary Gunnels said,

    June 30, 2011 at 9:17 PM

    Clarification: This isn’t an argument against judicial review (I don’t know how anyone could interpret it that way, but so be it); it is an argument against the notion that judicial review has a long historical pedigree. The judiciary tried to create a usable history for itself that doesn’t really match up to the countervailing evidence.


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