Portland State University. Department of History
Term of Graduation
Date of Publication
Master of Arts (M.A.) in History
1 online resource (xii, 361 pages)
The unique and antidemocratic power of judicial review by the United States Supreme Court is not a bug, but a feature. Its role was critical in establishing and affirming a separation of powers horizontally among the federal branches as well as vertically between the federal government and the individual states. More than this, the Court's power of judicial review acts as an instrument of rights theory and is informed by a rich and rarely-discussed intellectual history. Though judicial review as a mode of constitutional law and the legal history surrounding it has been discussed by various legal scholars, political scientists, and historians over the past century, the intellectual history and political philosophy that informs it has received short shrift in recent decades. This work thus bridges the divide between the rights values that exemplified the American Revolution and the design of governance established in the early American republic with the constitutional and judicial supremacy that the Court's power to nullify legislation exemplifies. The North American colonies that became independent states differed from their British predecessors not merely in their ultimate rejection of monarchy. Nor was the separation due solely to a priority of local governance and autonomy over the whims of a distant empire, crucial as those impulses no doubt proved to be. American resistance, followed by American independence, followed by a new form of American constitutionalism, were all influenced by a remarkable philosophical disparity from that of England. This difference was a rejection of legislative supremacy. The rise of the British Parliament during England's Glorious Revolution toward the end of the seventeenth century was reformulated a century later in North America following the American Revolution. Whereas legislative supremacy marked England's revolutionary age in the late 1680s, a rejection of legislative supremacy for republican constitutionalism and the rule of law was embraced instead in the United States. Through its championing of judicial review, the United States rejected concepts of majoritarian tyranny, prioritized fidelity to founding charters over that of common legislation, and created a judicial system that acted as a guardian of the rights of the people. The emergence of judicial review can be seen in the history preceding the Marbury v. Madison decision (often, and erroneously, referred to as the first recognizable moment of the legal assertion in 1803), the ratification of the United States Constitution, and even prior to the American Revolution. The philosophical distinction that there is a notable difference between the people's representatives and the people themselves, that the people are the sovereign, and that rights belong to the individual and precede government, separated the intellectual thought between the English and Americans long before actual revolution began. Establishing that the judicial power was to include the power to nullify laws passed by the duly-elected representatives of the people marked one of the last and most significant intellectual breaks between Americans and their forebears. The American Revolution and the United States Constitution did not fully establish judicial review. Complications arising from the institution of slavery, Indian relations, the original scope and jurisdiction of the Bill of Rights, and disagreement regarding constitutional interpretation placed obstacles against affirming a reliable system of jurisprudence. Only after the Civil War, and with the ratification of the Fourteenth Amendment, would the judicial power slowly begin to express itself as it had been seen by notable Americans for generations. For the next century and a half, and largely between 1920 and 2020, the Court finally utilized judicial review in the way American founders including James Wilson and Oliver Ellsworth had asserted would be its most recognizable feature: as an instrument of rights values and protector of individual rights.
© 2021 James M. Masnov
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Masnov, James M., "Judicial Review as an Instrument of Natural Rights Theory: An Intellectual History" (2021). Dissertations and Theses. Paper 5712.
Available for download on Friday, June 30, 2023