Malcolm on the Origins of Judicial Review

Joyce Lee Malcolm, George Mason School of Law, has posted Whatever the Judges Say It Is: The Founders and Judicial Review, which is forthcoming in the Journal of Law and Politics. Here is the abstract:

Judicial review of federal and state legislation is the most distinctive and probably the most controversial aspect of American government. Yet the Constitution is silent on whether the Founders intended federal courts to assume that authority. This essay tackles that question, taking an original, holistic approach that sets the legacy of judicial constraints on government in its proper place as part, but only part, of the strategies of community review with which the Founders were familiar from English practice. It then examines whether the judicial review of legislation as it developed conforms to the principles set by the Founders’ much-admired political guides, Montesquieu and Blackstone. Lastly the essay tracks review of legislation and the concept of judicial review through the colonial experience, the first state constitutions and the Convention’s effort to decide where the responsibility to determine the constitutionality of legislation ought to be lodged. The conclusion finds that many Founders were adamantly against that review being centered in the judiciary, while even those who agreed it belonged to the judiciary, saw judicial review as only one strategy for curbing legislative or executive over-reach. They saw juries, not judges, as the ultimate protection for liberty. To restore some checks and balance to constitutional interpretation, it is necessary to shift from the notion that the Constitution is what the judges say it is, and accept more general responsibility for the protection of constitutional limits.