Wednesday, August 13, 2008

Johnson on Judicial Review: An American Graft on English Root Stock

Judicial Review: An American Graft on English Root Stock is a new paper by Herbert A. Johnson, University of South Carolina. Here's the abstract:
This paper examines the two major English legal institutions that contribute to the American doctrine of judicial review as it developed after Independence. Examining the imperial use of written forms of government, Privy Council review of colonial legislative and judicial action, it demonstrates colonial familiarity with doctrines of superior law, and the legal profession's approach to concepts of repunancy, and non-conformity with English common law and statutes. Turning to the English Revolution, the Commonwealth period, and the Restoration, the paper examines English pamphlet literature and its contributions to principles of fundamental law and the rights of Englishmen. While a portion of these ideas were incorporated in the Glorious Revolution of 1688-89, the protections of the rights of Englishmen were denied to colonial subjects. This resulted in a two-tiered subjectship, which ultimately led to severe constitutional tension between Britain and her colonies, and finally the Declaration of Independence.

Johnson explains in the paper's introduction:

Inspired by the 1976 bicentennial celebrations of the American Revolution, historians have shown new interest in both the continuities and the contrasts between Britain and America that either contributed to, or emerged from, that conflict. Despite my indebtedness to these distinguished studies, I believe that many suffer from too narrow a periodization in their chronological coverage. That is particularly the case when dealing with political theory and constitutional development. We must look back well before 1776 or 1763, and take seriously the events of the English Civil War, the period of the Restoration, and finally, the so-called Glorious Revolution. This paper is merely an initial foray into the complexities that will be involved in such an analysis.