Monday, October 4, 2021

Steinfeld's "To Save the People From Themselves"

Published last month in Cambridge Historical Studies in American Law and Society: “To Save the People from Themselves”: The Emergence of American Judicial Review and the Transformation of Constitutions, by Robert J. Steinfeld, State University of New York, Buffalo:

In this expansive history, Robert J. Steinfeld offers a thorough re-interpretation of the origins of American judicial review and the central role it quickly came to play in the American constitutional system. Beginning with Privy Council review of American colonial legislation, the book goes on to provide detailed descriptions of the character of the first American constitutions, showing that they drew heavily on traditional Anglo/American constitutional assumptions, which treated legislatures as the primary interpreters of constitutions. Steinfeld then expertly analyses the central role lawyers and judges played in transforming these assumptions, creating the practice and doctrine of American judicial review in a half dozen state cases during the 1780s. The book concludes by showing that the ideas formulated during those years shaped critical decisions taken by the Constitutional Convention of 1787, which turned the novel practice into a permanent, if still deeply controversial, feature of the American constitutional system.
Here are two quite impressive endorsements:

‘In this meticulous study Robert Steinfeld examines how the distinctive US form of constitutional review emerged from a background tradition in which legislatures and executives assessed constitutionality in their regular work. Combining institutional, political, and intellectual history, Professor Steinfeld shows how the transformation was both rapid and strongly contested. Seeing judicial review as part of a conservative counterrevolution against the democratic excesses of post-Revolutionary legislatures, this is an important new contribution to long-standing discussions about judicial review in the United States.’

Mark Tushnet - William Nelson Cromwell Professor of Law Emeritus, Harvard Law School

‘This book is a major contribution to the historiography of American law from the 1750s through the first decade of the nineteenth century, representing an important advance in our understanding of the emergence of judicial review in America. The result of Steinfeld’s painstaking investigations is to open up a lost world of what might be called ‘pre-Constitutional’ jurisprudence, and the gradual disintegration of that world as Americans came to understand constitutions, including the US federal Constitution, as a distinctive form of ‘higher law’ authority that was capable of being interpreted in the same fashion as other ‘common law’ sources. Anyone interested in exploring the origins of judicial review in America will need to reckon with Steinfeld’s research and arguments.’

G. Edward White - David and Mary Harrison Distinguished Professor of Law, University of Virginia School of Law

–Dan Ernst