Posted: 30 May 2009
Date Written: May, 29 2009
There is a standard story about the exercise of the power of judicial review by the U.S. Supreme Court before the Civil War. In this story, judicial review of Congress was exceptional and idiosyncratic, with Marbury and Dred Scott and little else. The standard story is wrong. This paper shows that the U.S. Supreme Court was more active in exercising the power to interpret the Constitution and limit the legislative authority of Congress than is conventionally recognized. In doing so, Court made itself available as a forum for resolving constitutional disputes and enforcing constitutional limits in low salience cases in the course of ordinary litigation, establishing judicial review of Congress as a regular if politically minor feature of the constitutional system. Uncovering this history not only corrects the historical records, but it contributes to our understanding of the politics of judicial review and the ways in which the Court often acts in partnership with political leaders.
Keywords: Marbury, Dred Scott, judicial review, judicial supremacy, constitutional history, judicial politics
Suggested Citation: Suggested Citation
Whittington, Keith E., Judicial Review of Congress Before the Civil War (May, 29 2009). Georgetown Law Journal, Vol. 97, No. 5, 2009. Available at SSRN: https://ssrn.com/abstract=1411734