"Gibbons v. Ogden," Law, and Society in the Early Republic, and: Law and Judicial Duty, and: Legislating the Courts: Judicial Dependence in Early National New Hampshire (review)
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Keywords

Law, U.S. Constitution, Federal judiciary, Judicial review, Originalism, Judicial activismn

"Gibbons v. Ogden," Law, and Society in the Early Republic. By Thomas H. Cox. (Athens: Ohio University Press, 2009. Pp. 262. Cloth, $44.95; Paper, $26.95.)
Law and Judicial Duty. By Philip Hamburger. (Cambridge, MA: Harvard University Press, 2008. Pp. 686. Cloth, $51.50.)
Legislating the Courts: Judicial Dependence in Early National New Hampshire. By John Phillip Reid. (DeKalb: Northern Illinois University Press, 2008. Pp. 224. Cloth, $34.00.)

The three books under consideration here continue a debate that has long preoccupied American historians and political scientists: If the framers of the Constitution wanted to create an independent federal judiciary, why did they not include in Article III the courts' authority to review legislative and executive actions to determine their constitutionality? For many scholars and commentators, the power of federal judges, especially members of the Supreme Court, to declare state and federal laws and executive actions unconstitutional is simply undemocratic. Federal judges are unelected and unaccountable to the people: After the president nominates them, only the Senate confirms or rejects their nomination. Over the past several years, scholars have debated whether the founders in Philadelphia in 1787 presumed that the courts would have the power of judicial review or would simply defer to the political branches of government.

Many studies of judicial review begin, therefore, with the period of [End Page 313] the American founding. While they often, but not always, offer a glimpse at Sir William Blackstone's Commentaries on the Laws of England (1787-88) as a foundation for judicial authority, their ultimate focus is less on British antecedents than on the period after American independence, when James Iredell wrote in favor of judicial review in 1786, or two years later when Alexander Hamilton vigorously supported it in Federalist 78, or when James Wilson applauded it in his 1790-92 Lectures on the Law. Thus years before Marbury v. Madison (1803), when John Marshall famously wrote that "the province and duty of the judicial department is to say what the law is," there was a strong record of support for judicial review. There were detractors, of course: Undermining the view of expansive judicial review was James Bradley Thayer's 1897 seminal article, "The Origin and Scope of the American Doctrine of Constitutional Law," in which he argued that the courts should intervene to negate laws or actions only when there was a "clear mistake."

In the twenty-first century, discussion of the courts' role has centered on the debate between Originalism (the theory that says we can divine the original meaning of the words of the Constitution from the perspective of those who wrote its provisions) versus the Living Constitution (the idea that we can use the words of the document as a starting point, but that we must update their meaning to fit our contemporary time). The most vocal proponents of Originalism have been Justice Antonin Scalia and Christopher Wolfe's The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law (New York, 1986), while Justices William Brennan, Thurgood Marshall, and William O. Douglas were preeminent architects of the Living Constitution model, which had its roots in the early twentieth-century Legal Realist School of Karl Llewellyn.

The debate often boils down to the differences between judicial activism and judicial restraint. Justices Hugo Black, generally regarded as progressive, and Felix Frankfurter, a conservative, were frequently at odds with one another when they served on the mid twentieth-century Supreme Court. Conservative judicial commentators Alexander Bickel, in The Least Dangerous Branch (Indianapolis, IN, 1962), and Raoul Berger, in Government by Judiciary (Cambridge, MA, 1977), argued in favor of judicial restraint as a means to maintain a democratic order. More recently, a liberal or progressive judicial ideology has been promoted by Ronald Dworkin, Edwin Chemerinsky, and to a limited extent John Hart Ely. In Judicial Review and the Law of the Constitution (New [End Page 314] Haven, CT, 1990), Sylvia Snowiss argues that the framers intended the courts to have the power of judicial review. While she cites Hamilton's Federalist 78 among other sources, the key...