'To Save the People from Themselves'
The Emergence of American Judicial Review and the Transformation of Constitutions

A far-reaching re-interpretation of the origins of American judicial review.

Robert J. Steinfeld (Author)

9781108839235, Cambridge University Press

Hardback, published 30 September 2021

431 pages
23.5 x 15.8 x 3.2 cm, 0.84 kg

'This book is a major contribution to the historiography of American law from the 1750s through the first decade of the nineteenth century, representing an important advance in our understanding of the emergence of judicial review in America. The result of Steinfeld's painstaking investigations is to open up a lost world of what might be called 'pre-Constitutional' jurisprudence, and the gradual disintegration of that world as Americans came to understand constitutions, including the US federal Constitution, as a distinctive form of 'higher law' authority that was capable of being interpreted in the same fashion as other 'common law' sources. Anyone interested in exploring the origins of judicial review in America will need to reckon with Steinfeld's research and arguments.' G. Edward White, David and Mary Harrison Distinguished Professor of Law, University of Virginia School of Law

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.

Introduction. Part I. Legislatures and Legislation under the First American Constitutions: 1. The largely 'legislative' character of the ('Horizontal' and 'Vertical') constitutional checks placed on colonial legislatures
2. The traditional nature of the first written constitutions and the role of legislatures as their primary expounders
3. Restoring 'legislative' review of the laws: the New York Constitution of 1777
Part II. The Emergence Of American Judicial Review: 1779-1787: I. 1779-1782
4. Supplementing traditional legislative 'revision' with judicial review: the New Jersey case of Holmes V. Walton, 1779-1780
5. The debate over judicial review in the Virginia court of appeals: the case of the prisoners, 1782
II. 1784-1787: 6. The reappearance of 'vertical' judicial review in the case of Rutgers v. Waddington, New York, 1784
7. The successful battle to establish judicial review in New Hampshire: the ten pound act cases, 1786-87, and their aftermath
8. Judicial review and legislative supremacy in Rhode Island: the case of Trevett v. Weeden, 1786, and its aftermath
9. The struggle between traditional constitutionalism and the constitution of judicial review in North Carolina: the case of Bayard v. Singleton, 1786-87, and its aftermath
Part III. Judicial Review at the Federal Convention: 10. Judicial review and the fate of traditional constitutionalism at the federal convention.

Subject Areas: History of the Americas [HBJK], Regional & national history [HBJ], History [HB], Humanities [H]