Judicial Review

“When the Frenchman Alexis de Tocqueville visited America in the 1830s, he pointed out that lawyers had come to constitute whatever aristocracy America possessed, at least in the North.  Through their influence on the judiciary, they tempered America’s turbulent and unruly majoritarian governments and promoted the rights of individuals and minorities.  ‘The courts of justice,’ Tocqueville said, ‘are the visible organs by which the legal profession is enabled to control the democracy.’  It is still a shrewd judgment.” –Gordon Wood, Power and Liberty, p. 148

Discussion Questions

  • How did frustrating experiences with state legislatures and various failed attempts to codify American law contribute to the movement for establishing a strong national judiciary in the 1787 constitution?
  • How did applying doctrines of “common law” become controversial and partisan during the days of the early republic?
  • What does the concept of “judicial review” mean and why was its development in American jurisprudence so uncertain and complicated?

Article III

Section 1

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Annotated resources via The Founders’ Constitution

1. William Blackstone, Commentaries 1:259–60; 3:23–24, 1765 1768
2. Declaration of Independence, 4 July 1776
3. Delaware Declaration of Rights and Fundamental Rules, sec. 22, 11 Sept. 1776
4. Virginia Constitution of 1776
5. Maryland Constitution of 1776, ART. 40
6. Massachusetts Constitution of 1780, CH. 3, ARTS. 1, 2
7. Records of the Federal Convention
8. Debate in Pennsylvania Ratifying Convention, 4, 11 Dec. 1787
9. Federal Farmer, no. 15, 18 Jan. 1788
10. Brutus, no. 15, 20 Mar. 1788
11. Alexander Hamilton, Federalist, no. 78, 521–30, 28 May 1788
12. Alexander Hamilton, Federalist, no. 79, 531–34, 28 May 1788
13. House of Representatives, The Judiciary, 29, 31 Aug. 1789
14. John Jay, Draft of Letter from Justices of the Supreme Court to George Washington, 15 Sept. 1790
15. James Wilson, Government, Lectures on Law, 1791
16. John Jay et al., Letters on Reorganization of the Supreme Court, 1792
17. Kentucky Constitution of 1799, ART. 4, SEC. 3
18. John Jay to John Adams, 2 Jan. 1801
19. Respublica v. Passmore
20. Alexander Hamilton, The Examination, no. 6, 2 Jan. 1802
21. Senate, Judiciary System, Jan. 1802
22. Alexander Hamilton, The Examination, no. 12, 23 Feb. 1802
23. Alexander Hamilton, The Examination, no. 13, 27 Feb. 1802
24. An Act to Repeal Certain Acts respecting the Organization of the Courts
25. Alexander Hamilton, The Examination, no. 16, 19 Mar. 1802
26. St. George Tucker, Blackstone’s Commentaries 1:App. 350–61; 4:App. 23–30, 1803
27. Stuart v. Laird
28. William Cranch, Preface
29. An Act concerning Contempts of Court, 3 Apr. 1809
30. Yates v. Lansing
31. House of Representatives, Removal of Judges, 31 Jan. 1811
32. Dupy v. Wickwise
33. United States v. Jacobson
34. Edward Livingston, System of Penal Laws, tit. 5, C. 11, 51–52, 1824
35. William Rawle, A View of the Constitution of the United States 199–201, 274–80 1829 (2d ed.)
36. An Act Declaratory of the Law concerning Contempts of Court
37. Livingston v. Moore
38. Joseph Story, Commentaries on the Constitution 3:§§ 1568–71, 1574–78, 1583–84, 1591, 1593, 1601–21, 1627, 1629–30, 1833
39. Ex parte Poulson

The Past and Future of the Political Supreme Court

“Today, the court has far more power to shape American life than it did in the 19th century.”  –Rachel Shelden, Washington Post, May 7, 2022

poster

Understanding the next crisis…

Independent leg