We missed this one from earlier this year: Anthony B. Sanders (Institute for Justice, University of Minnesota) has posted "Parliament's American Shadow." The abstract:
In the first century after 1776 American courts repeatedly compared their constitutional system's understanding of sovereignty-where the people are sovereign and speak through written constitutions and where legislatures are subordinate-with the British system where Parliament itself was sovereign. This distinction was central to the invention of judicial review. In 1776 Americans rejected British rule and Parliamentary sovereignty. But that did not necessarily mean they had to embrace popular sovereignty and written constitutions. Yet they did, and that choice led to the rise of judicial review just a few years later. American judges understood this genealogy and therefore found the "omnipotent" Parliament an incredibly useful rhetorical device when justifying judicial review. At the same time, judges used "Parliament" in other contexts, including the exact opposite-justifying judicial restraint-and also to shame American legislatures for at times behaving worse than Parliament did.
This Article reviews the use of
"Parliament" as a rhetorical device in American courts from the
Republic's earliest days. After a review of the centrality of the Crown
in Parliament in the British constitutional system and the choices
Americans made in the Revolution to embrace a constitutional
architecture that would lead to judicial review, it examines various
cases where American judges repeatedly invoked what the Article calls
"Parliament's shadow." Two well known examples are Calder v. Bull and
Vanhorne's Lessee but there were numerous others. The review
demonstrates that this practice continued at around the same frequency
from the late eighteenth century through the mid-nineteenth century.
However, the Article then documents that Parliament's shadow ebbed,
steadily, in the late nineteenth and early twentieth centuries,
essentially had disappeared by the mid-twentieth century, and has never
rebounded. Although American courts today still sometimes compare the
British constitutional system to the American, it is extremely
uncommon.
Why after the repeated use of Parliament's shadow over
the first century of the United States did American courts slowly give
it up? There is no clear answer but the author offers some suggestions.
One is that after the Revolution passed out of living memory, although
judicial review itself was secure, the connection between it and the
Revolution's change in systems of sovereignty became less front of mind.
Another, and perhaps the most important, is that as the title of "top
nation" passed from Britain to America the shadow of Parliament
inevitably receded.
Read on here.
-- Karen Tani
