Opinion | Ketanji Brown Jackson Has Her Work Cut Out for Her

Otis published his views in a pamphlet, “The Rights of the British Colonies Affirmed and Proven,” which became influential throughout the colonies during the Stamp Act crisis several years later, when judges and juries used their arguments to declare the law invalid, if not a violation of those “Fundamental Principles” of British law.

“Lawyers from all over the Atlantic seaboard made this argument during the fall, winter, and spring of 1765-1766,” writes Nelson. “And every court that accepted the argument made it less fringe and brought it more and more into the mainstream of American constitutional thought.”

Judicial review continued to take shape in the years after independence. Several cases, in Virginia, New Jersey, and North Carolina, addressed the question of what to do when a legislature’s law appeared to violate the state constitution. In a case involving the pardoning of three loyalists who had been convicted of treason, George Wythe of the Virginia Court of Appeals expressed his opinion that he had a “duty to protect a solitary individual against the rapacity of the sovereign”, as well as to “protect one branch of the legislature, and consequently the whole community, against usurpations by the other.” If the time came to repeal a law, he would say: “I will feel the duty; and, without fear, carry it out.”

By the time of the Philadelphia Convention in 1787, judicial review was an established part of American jurisprudence. It was also controversial, with opposition on democratic grounds. One delegate, John Dickinson of Pennsylvania, thought that “no power should exist.” John Mercer of Maryland likewise said that he “disapproved of the Doctrine that Judges as expositors of the Constitution should have the authority to declare a law null and void.” And James Madison, the most influential figure at the convention, thought the practice would make “the Judicial Department paramount in fact to the Legislature, which was never intended and can never be appropriate.”

Madison’s push for a federal “negative” of state legislation, a congressional veto of any state law that contravened “in the opinion of the national legislature, the articles of union,” was in essence an attempt to put power of judicial review in the hands of an elected and representative body, rather than an unelected court. This was also true of his plan for a “review board” that would have the authority to review and possibly veto every act of the national legislature. (Both plans, for what they’re worth, are testament to the deep hostility Madison felt toward state governments at this point in his life.)

The convention rejected both proposals in favor of what would become the Supremacy Clause of the Constitution, which elevated federal law above state law and gave the federal judiciary the power to enforce the law. And while delegates did not discuss judicial review at length during the convention, it was this decision that essentially guaranteed that the Supreme Court would develop something similar.

“Once the framers decide to go to court to ensure the supremacy of federal law over state law,” Nelson writes, “they inevitably delegate to those courts the jurisdiction to determine the meaning of federal law. And in determining the meaning of federal law in the event of a conflict between an act of Congress and the Constitution, the courts should have the power to give effect to the Constitution and invalidate the act of Congress.”

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