The origins of judicial review

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1976

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While few people would question the authority of the courts to exercise the power of judicial review, there is considerable controversy over the question of how far a court should go in the exercise of that power. Polemicists are multiple on every side. Some argue that judicial review means and necessitates judicial supremacy; others argue that judicial review is restricted to cases and controversies where there is an irreconcilable variance with fundamental law; still others argue that while judicial review is an important component in the system of checks and balances, no court must be allowed to thwart popular majorities in the final analysis. In virtually every instance, those who argue over the power of judicial review agree on one point: the "intention" of the framers is critical for a proper understanding of that power. The purpose of this thesis, then, is to explore the nature and origin of judicial review in an attempt to resolve some of the conflicts found in the secondary literature on the meaning and authority of judicial review. In doing so, it is rny intention to examine some of the basic presumptions and convictions which controlled the fashioning of the American political system (more specifically, the concepts of higher law, limited government, and separation of powers), as well as the Constitutional Convention of 1787, the State Ratifying Conventions, and national and state case law. Let me say a word about each of these in turn before launching into the enterprise at hand. In the case of the presumptions, higher law, limited government and separation of powers, we will ascertain the manner and extent of the commitment of Americans to each concept. No definitive treatment is contemplated: the goal is merely to set the parameters of American thought on these matters at the time of our nation's founding. A cursory examination of these concepts suggests that these issues are critical components of the American mind. Once aware of these influencial notions we will be prepared to examine carefully the primary material starting with the Constitutional Convention of 1787. There is no better place to start a search for the origins of a particular power in our political system than with the origins of the system itself. The specific debates and the positions taken by the delegates in these debates will bring an insight into how the men who constructed our political system sought to institutionalize the thought of Americans. Similar queries will be directed at the State Ratifying Conventions because here the Federalists pursued in more detail how the new Constitution was to operate. Finally, given the nature and multiple concerns of the framers, the judicial branch, like the other branches, played a critical role in defining the scope of its powers. In scrutinizing the cases not only will we be able to trace the path of judicial review, but also guage the reaction to the decisions, giving a greater understanding of the American attitude toward judicial review.

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