New York University Public Law and Legal Theory Working Papers

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Article

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Chicago-Kent Law Review, vol. 74, 2006

Abstract

Historical interest in popular constitutionalism has enlivened the search for the origins of judicial review. Several precursors of judicial review in the state courts during the 1780s, in particular, demand explanation. If early modern Anglo-Americans did not perceive courts as enforcers of constitutional limits on legislatures, what explains these attempts by judges to curtail legislation in the critical period before the Philadelphia Convention? This essay argues that anti-antiloyalism -- the reaction of some lawyers and judges against the antiloyalist legislation passed in the states during and just after the Revolution -- created the occasion and inspired the justifications for the earliest examples in American courts of what is now called judicial review of legislation. Precedents existed for the practice of courts and especially conciliar bodies of superior jurisdictions reviewing the legislative outputs of inferior ones in the Anglo-American world. And during the late colonial period, colonists penned countless protests in defense of customary fundamental law, usually called the liberties of Englishmen. But the proposition that one jurisdictions courts could nullify the legislative output of the highest lawmaking power in that same jurisdiction was a dubious one in the late eighteenth-century Anglophone world. Nonetheless, a handful of state courts in the 1780s began to innovate upon these diverse traditions and invoked the fundamental law of their own state constitutions and/or the Treaty of 1783 with Britain to minimize, revise, and even nullify state legislation targeting loyalists and interfering with transatlantic commerce. They did so primarily to help facilitate the integration of the United States into the Atlantic world of diplomacy, trade, and ideas.

Date of Authorship for this Version

9-7-2006

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