Gerald Leonard has an interesting new paper on SSRN, just making the rounds on one of the email lists: Iredell Reclaimed: Farewell to Snowiss's History of Judicial Review. Here's the abstract:
Even after the publication of Larry Kramer's The People Themselves, the early history of judicial review suffers from the unfortunate influence of Sylvia Snowiss's Judicial Review and the Law of the Constitution. Snowiss misread, among other things, James Iredell's foundational argument in 1786 for the inevitability and necessity of judicial review. Snowiss claimed that early understandings of judicial review conceptualized it not as a legal doctrine but as a doctrine of political and revolutionary resistance. In fact, however, Iredell argued for judicial review as a straightforward, legalistic consequence of popular sovereignty. In Iredell's influential account, the transition from the British theory of legislative sovereignty to the American theory of popular sovereignty also brought a shift in the relations between legislative and judicial power (the separation of powers). The central implication for the courts was that they could no longer hide behind legislative authority. The judges now had to ensure their own authority to act by reference to the people's constitutions, lest they themselves illegally coerce the citizenry. Moreover, there was nothing in such a theory to suggest deference to the legislature when doing constitutional interpretation (Snowiss's doubtful case rule). When such a rule was embraced by Iredell and others, it seems not to have been a corollary of Snowiss's theory of early judicial review at all. Rather, it appears to have been a pragmatic concession to those who continued to resist Iredell's lawyerly logic.
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