Idea or Practice: A Brief Historiography of Judicial Review

Abstract

Judicial review may be the most publicly contested aspect of American constitutionalism. When courts void legislation, they implicitly seem to strike at the heart of the principle of separation of powers. The act inherently suggests that the elected legislature is not always the legitimate representative of the people and that democratic majoritarianism is not the fundamental principle of American politics. Because judicial review can be described in opposition to ideas often deemed fundamental to American constitutionalism, the origins of judicial review have intrigued scholars of politics, history, and law. For the last century, the origins inquiry has started from the assumption that the origins of judicial review lie in an idea, an intellectual doctrine about judicial power. In fact, the origins of judicial review lie in a pre-Revolutionary practice and idea of limited legislative authority.

Contemporary constitutionalism and the dialectic of constituent power

“…To exemplify this, for instance, in revolutionary America the initial impulse towards the assertion of constituent power was shaped by a demand for subjective rights against the British parliament. The growth of constituent power drew its force from the argument that, in cases where imperial statutes were perceived as repugnant to an inherited common-law ideal of constitutional inviolability, rights could be invoked to strike down legislation, and, effectively, to constitute new laws (Morris 1940: 431; Bilder 2008). 33 In fact, the elementary space of constituent power, which evolved as the American colonies split apart from Britain, was opened by juridical actors insisting on rights, defined in the context of an implicit colonial constitution.…”

The formation of a European constitution: an approach from historical-political sociology

“…During the great crisis of imperial authority in the 1760s, courts on occasions appealed simultaneously to the colonial constitution, to notions of natural law, and to concepts of rights in order to criticise, overturn and even declare unconstitutional controversial acts of royal legislation (see Morris, 1940, p. 431; Williams, 1940, p. 126; Bilder, 2004, pp. 195–96; 2007, p. 542; 2008, pp. 7, 19; Grey, 1978, p. 880).…”