Came across another article, this time from 1953, where the author makes the point that there were historical antecedents for judicial review in England, and also that the issue was debated both at Philadelphia and in the ratifying conventions, notably Virginia’s, where Marshall, amongst others, spoke in favour of the doctrine: J.R. Saylor, “Judicial Review Prior to Marbury v. Madison” (1953), 7 SMU Law Review 88.
He gives the quotation from Madison which I mentioned earlier, about the need for ratification by state conventions to establish the Constitution as the supreme law:
And here’s another article from the sixties, that does a similar review. What I found interesting was the last section, which included contemprorary comments, for and against. Thomas Jefferson was the strongest critic; even though his administration won in Marbury v Madison!
With the utmost respect, I find it a sad commentary on the USA that the two folks most interested in, and informed about, SCOTUS’s powers to invalidate law are … Canadian.
Thank you for being so informed and intelligent and civil. Maybe we should just surrender our government and become a colony of Canada. Not that you’d have us. Heck many of us don’t want to have us either. At least not all of us.
Just for the record let me reiterate that I am an American-born, ex-pat who has lived in Canada for 52 years but became a citizen only 13 years ago. In a sense I still understand the US government better than the Canadian government.
Bumping an old thread because I recently came across an article that explores cases of judicial review of colonial statutes by the Privy Council in Britain, on appeal from colonial courts, in the first half of the 18th century.
Also gives an example from 1774 of an English court holding that an order passed by the king-in-council exceeded the king’s authority.
Author argues that these pre-revolutionary cases show that the concept of judicial review was known to the drafters of the US Constitution.
Thought you might find it interesting, Hari.
Dudley Odell McGovney, “The British Origin of Judicial Review of Legislation”, University of Pennsylvania Law Review vol. 93, no. 1, 1–49.
More plausibly, it was because it was easier to get a single convention to approve than a bi-cameral legislature.
Under the Articles of Confederation, changes needed to be unanimously approved by the legislatures:
George Washington was an illegitimate president, at least in his first term, because he was inaugurated before all thirteen states ratified. But you just reminded me that the ratifications were done by those illegal conventions, not properly by the legislatures. Has there ever been a do-over there? If not, and if Trump wins in November 2024 (or November 2028!), and decides to defy the Supreme Court, he can use this as an excuse.
Article VII
The ratification of the conventions of nine states, shall be sufficient for the establishment of this Constitution between the states so ratifying the same.