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Judicial Review Without a Constitution


Douglas Edlin


Dickinson College


Polity, Vol. 38, No. 3,2006

Abstract:     
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.

Number of Pages in PDF File: 39

Keywords: judicial review, common law, natural law, Marbury, constitution

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Date posted: April 25, 2008  

Suggested Citation

Edlin, Douglas, Judicial Review Without a Constitution. Polity, Vol. 38, No. 3,2006. Available at SSRN: http://ssrn.com/abstract=1124590

Contact Information

Douglas E. Edlin (Contact Author)
Dickinson College
PO Box 1773
Carlisle, PA 17013
United States
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