Academic

Bilder on the Historiography of Judicial Review

By Lawrence Solum

Mary Sarah Bilder (Boston College - Law School) has posted Idea or Practice: A Brief Historiography of Judicial Review (Journal of Policy History, Vol. 20, No. 1,pp. 6-26, 2008) on SSRN. Here is the abstract:

Judicial review may be the most publicly contested aspect of American constitutionalism. The conventional beliefs that judicial review should be understood as an idea and American constitutionalism studied as a new rationalistic, political science are largely due to the influential scholarship of Edward Corwin. This brief essay recovers the pre-Corwin discussion about the origins of judicial review to demonstrate the way in which the approach to judicial review as an idea has been, itself, historically constructed by scholarly inclination, disciplinary identification, and the availability of historical materials.

And from the text:

As this brief historiography suggests, the conception of judicial review as an idea developed from the approach taken to the question rather than because it was the inherently correct answer. Cases and Convention records could be read as textual evidence in a closed intellectual system that revealed a coherent idea about judicial power. It was much harder to prove definitively that everyday colonial political practices had formed a set of assumptions about limited legislative authority. These differing conclusions about the origins of judicial review also rested on larger disciplinary assumptions. The influence of Dr. Bonham?s Case presumed a certain autonomy of legal ideas across time and space; the claim of colonial practice presumed a certain degree of continuity despite American independence; the argument for a new political science presumed a certain discontinuity and rejection of English and colonial constitutionalism.

The recovery of the importance of colonial practices to the origins of judicial review does not need to result in the abandonment of the importance of legal ideas and doctrines. Discussing judicial review as practice, however, demonstrates that at least some ideas of American constitutionalism have their origins in political and legal experience rather than the legal imagination. Reconstructing the origins of judicial review in English and colonial practice resurrects an earlier idea about limited legislative authority and thus enriches contemporary discussions of American constitutionalism. Finally, the recognition that American constitutionalism is the result of new political ideas and the adaptation of older legal and political practices demonstrates that aspects arising from the adaptation of colonial constitutionalism coexist in tension with those arising from post-Revolutionary theories of governance. As a historical matter, American constitutionalism was not a single, coherent political science.

Judicial review was not invented by historians, political scientists, or law professors. Because judicial review arose from a colonial practice, history has something to contribute. Because judicial review was rationalized as compatible with a written constitution and separation of powers, political science has something to contribute. Because judicial review involves interpreting the boundary between legitimate legislative power and unconstitutional authority, law has something to contribute. We may not be able to stop calling the practice judicial review, but scholars can begin to think more critically and constructively about the ways in which the story of its origins has often been the story of ourselves and our unspoken disciplinary assumptions.

If you are not already familiar with Bilder's work and are interested in constitutional history, this essay is a must.  Highly recommended.

Full post as published by Legal Theory Blog on May 23, 2008 (boomark / email).