| This Dissertation is a study of the early judicial review case law in the United States, beginning with the assertions of the power of judicial review in the revolutionary era and concluding with Marbury v. Madison. It uses that case law to analyze how well judicial review was established at the time of the Founding, how it was justified, and when it was exercised.;There is already a substantial body of scholarship on the early history of judicial review, and scholars have either argued that judicial review was rarely exercised before Marbury or that the doctrine was created in Marbury. This Dissertation shows, in contrast, that judicial review was far more common than previously recognized: there are more than six times as many cases from the Early Republic as the leading historical account found. The number of these cases and the justifications offered for judicial review indicate that the exercise of judicial review was seen by courts as following logically from the adoption of written constitutions; constitutions, like statutes, were written laws to be applied by courts, and, in instances of conflict, the constitution had superior authority.;The Dissertation further shows that all of the cases in which statutes were invalidated fell into three categories: courts invalidated statutes that affected the powers of courts or juries; state courts invalidated state statutes for inconsistency with the federal constitution; federal courts invalidated state statutes that implicated national powers.;This approach reflected a law-politics distinction, in which courts deferred to political judgments of legislatures and Congress, but intervened to protect what they saw as the basic structure of the constitutional system.;Set in context, Marbury does not reflect a departure. It applied judicial review, but did so after it had become a conventional legal device. Its close scrutiny of - and invalidation of - a congressional statute expanding its original jurisdiction accords with the closely scrutiny courts repeatedly gave statutes affecting structural matters; Chief Justice Marshall's justification of judicial review, rather than being novel, accorded with justifications advanced by judges and advocates in previous cases. |
