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10/10/2021

New Book: Robert Steinfeld on the Origins of Judicial Review
Michael Ramsey

Recently published, by Robert J. Steinfeld (State University of New York, Buffalo - History): 'To Save the People from Themselves' - The Emergence of American Judicial Review and the Transformation of Constitutions (Cambridge University Press 2021). Here is the book description from the publisher:

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.

Constitutional judicial review did not start with Marbury!  It would be great if this important work would finally dispose of that old error, though I'm not optimistic.  It's too entrenched, and too useful a tool to bash originalism.

(Via Dan Ernst at Legal History Blog.)