Judicial Review without a Constitution

In the United States, judicial review is understood, since Marbury v. Madison (1803), as judicial evaluation of government action to ensure compliance with the Constitution. But before and after Marbury, state and federal courts developed and practiced a form of judicial review in which common law principles, along with or instead of a canonical document, were the foundational body of legal doctrine against which public actions were assessed. This article carefully examines the cases in which this alternative form of judicial review emerged, and corrects certain misconceptions that Marbury must be the only form of judicial review that has existed or can exist in this country. More particularly, the article clarifies a failure by certain writers to distinguish properly between common law and natural law as matters of legal theory and legal doctrine. In correcting some of these theoretical and historical errors, the article outlines an understanding of judicial review that more fully captures its development during the formative period of American constitutional thought

Constitution · Habeas corpus · Judicial review · Political science · Politics · Politics of the United States · American Constitutional Law and Politics · Judicial and Constitutional Studies · Law · Multicultural Socio-Legal Studies

• The American Supreme Court

  Carl Brent Swisher, Robert G Mccloskey•The Mississippi Valley Historical…•1961

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• Origins of the Unwritten Constitution

  Thomas C Grey•Stanford Law Review•1978

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