The beginnings of scholarship on judicial review
Miguel Schor
mschor at suffolk.edu
Sat Feb 21 13:54:59 PST 2009
When it comes to the "origins" of judicial review,
I agree with Scott that Mary Sarah Bilder's work on
this is terrific. My question is a little different
and and could have been framed more happily. It
strikes me that a systematic scholarship regarding
how judicial review should best be exercised began
in earnest in the latter part of the 19th century as
political actors, judges, and scholars grappled with
the idea of what might constitute illegitimate
judicial activity. This idea (the ramifications of
illegitimate judicial behavior) was also,
interestingly, picked up, by scholars, constitution
makers, and political actors abroad. Now I may need
to qualify my assertion (which is certainly the
thrust of Paul Finkelman's and Mark Graber's posts)
but I think the question of when this scholarship
began is an important one. Many of the debates on
this list, after all, revolve around the issue of
what constitutes illegitimate judicial behavior.
Miguel
Miguel Schor
Associate Professor of Law
Suffolk University Law School
120 Tremont St.
Boston, MA 02108
617-305-6244
SSRN Webpage http://ssrn.com/author=469730
---- Original message ----
Date: Sat, 21 Feb 2009 15:59:06 -0500
From: "Gerber, Scott" <s-gerber at onu.edu>
Subject: RE: The beginnings of scholarship on
judicial review
To: "Sean Wilson"
<whoooo26505 at yahoo.com>,<conlawprof at lists.ucla.edu>
>I read Miguel's post to be asking for the
beginnings of _academics'_ writings about judicial
review. The origins of judicial review itself is a
separate question (Hamburger's book is about that;
Mary Bilder wrote about it in Yale a few years
ago, etc.).
>Scott
>
>*****************************
>Scott Douglas Gerber
>Ella & Ernest Fisher Chair in Law
>Professor of Law
>Ohio Northern University
>Ada, OH 45810
>419-772-2219
>http://www.law.onu.edu/faculty_staff/faculty_profiles/scottgerber.html
>
>________________________________
>
>From: conlawprof-bounces at lists.ucla.edu on behalf
of Sean Wilson
>Sent: Sat 2/21/2009 2:04 PM
>To: conlawprof at lists.ucla.edu
>Subject: Re: The beginnings of scholarship on
judicial review
>
>
>.. actually, as to the real origin, one would
look at
>
>(a) Hamilton,
>(b) Otis and the Writs of Assistance Cases,
>(c) the evolution of legal philosophy as it went
from the enlightenment period of intellectual
history and into moral sciences period, and the
resulting legalization of fundamental law as being
exposited through professional orthodoxy and
craft;
>(d) the intellectual transformation of
"constitutions" as being metaphysical ideation
common to political organization of peoples, to
being a higher form of legalism in a positivistic
regime; and
>(e) the organization and systemic differences of
parliamentary and constitutional systems
>
>I have always wondered how it is that scholars
still say that England had a "constitutional"
monarchy after William and Mary. In an American
tongue, it seems that all they had was a
"separation of powers" monarchy that had a
democratic component. I mean to say otherwise, one
would have to say that prior to the rise of
Parliament, they had a "constitutional divine
right," because their bedrock ideas -- their
"constitution" -- was chain of being and so forth.
>
>This gets back to the colorful way the English
talk about legality over which Austin was trying
place order.
>
>Judicial Review really begins with understanding
Bonham, English "constitutionalism," and what the
American experiment accidentally did with respect
to design engineering. Thank goodness Madison's
plan was rejected.
>
>
>
>
>Dr. Sean Wilson, Esq.
>Assistant Professor
>Wright State University
>New Website: http://seanwilson.org
<http://seanwilson.org/>
>Daily Visitors:
http://seanwilson.org/homepagelucy.html
>SSRN papers: http://ssrn.com/author=596860
<http://ssrn.com/author=596860>
>
>
>________________________________
>
>From: Paul Finkelman <paul.finkelman at yahoo.com>
>To: CONLAWPROF at lists.ucla.edu; mschor at suffolk.edu
>Sent: Saturday, February 21, 2009 11:32:10 AM
>Subject: Re: The beginnings of scholarship on
judicial review
>
>
>I think you want to start with Dred Scott. Look
at the scholarly response by people like Lincoln,
whose Cooper Union speech is pretty damn
scholarly. Or his debates with Douglas. This was
in an age when some politicians were actually
thoughtful. But there were also comments on Dred
Scott in the law reviews of the time and in other
scholarly journals and in pamphlets.
>
>
>
>
>Or of you want the real origin, look at the
states' rights response to McCulloch, which
certainly attacks judicial review for striking
down valid state laws. Marshall's controversial
judicial review was over state laws not federal,
and it was very controversial. The RIchomond Junto
was pretty scholarly as were professors like Henry
St. George Tucker (son of St. George Tucker).
>
>
>
>----
>Paul Finkelman
>President William McKinley Distinguished
Professor of Law
>Albany Law School
>80 New Scotland Avenue
>Albany, NY 12208
>
>518-445-3386 (p)
>518-445-3363 (f)
>
>pfink at albanylaw.edu
>
>www.paulfinkelman.com
<http://www.paulfinkelman.com/>
>
>--- On Sat, 2/21/09, Miguel Schor
<mschor at suffolk.edu> wrote:
>
>
>
> From: Miguel Schor <mschor at suffolk.edu>
> Subject: The beginnings of scholarship on
judicial review
> To: CONLAWPROF at lists.ucla.edu
> Date: Saturday, February 21, 2009, 10:57 AM
>
>
> When did scholars first begin to write
systematically about judicial review? I've assumed
it began during the Lochner era as this is the
first time that judges, political actors, and
scholars first grappled in a sustained fashion
with the problem of judicial power. Am I wrong?
Any help would be appreciated. Miguel
>
> Miguel Schor
> Associate Professor of Law
> Suffolk University Law School
> 120 Tremont St.
> Boston, MA 02108
> 617-305-6244
> SSRN Webpage http://ssrn.com/author=469730
>
>
>
>
>
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>
>
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