>>> Item number 989, dated 95/01/10 08:51:05 -- ALL
Date: Tue, 10 Jan 1995 08:51:05 -0600 Reply-To: H-Net and ASLH Legal History Discussion list <H-LAW@UICVM.BITNET> Sender: H-Net and ASLH Legal History Discussion list <H-LAW@UICVM.BITNET> From: Chris Waldrep <cfcrw@uxa.ecn.bgu.edu> Subject: Judicial Review in the States
From: "Mark Graber" <MGRABER@bss2.umd.edu>
Does anyone know any good sources on the establishment of the power of judicial review in the states?
Also as a means of starting a discussion, what do people think of the thesis advanced by Sylvia Snowiss in JUDICIAL REVIEW AND THE LAW OF THE CONSTITUTION. Snowiss claims that judicial review was only intended to apply to the clearly unconstitutional law, that Marshall made a dramatic innovation when he insisted that judges could interpret the Constitution as ordinary law.
Mark A. Graber
mgraber@bss2.umd.edu
"Onward We Fall"
>>> Item number 990, dated 95/01/10 11:27:55 -- ALL
Date: Tue, 10 Jan 1995 11:27:55 -0600 Reply-To: H-Net and ASLH Legal History Discussion list <H-LAW@UICVM.BITNET> Sender: H-Net and ASLH Legal History Discussion list <H-LAW@UICVM.BITNET> From: Chris Waldrep <cfcrw@uxa.ecn.bgu.edu> Subject: Judicial Review in the States
From: RPalmer@UH.EDU (Robert C. Palmer)
The problem of judicial review is very difficult, and I don't pretend to
have resolved all the questions I have.
I. Part of the answer must depend on whether there was a real difference in
nature between federal and state government. If there was not, if
government was basically evolutionary as between the early state governments
and the federal Constitution (as one would believe from Wood), then judicial
review could plausibly be very constrained. Hamilton's radical national
position thus shows in many things, but in this context his perception of
the federal government as only different in concern from the state
governments shows in his assertion that judicial review would only be in
clear cases.
II. If the federal government as a government only of delegated powers is
different in nature, then the standards for assessment of judicial review
must likewise be different. Federalism dictated that the central government
be kept in line and be restrained from undermining the states. Part of that
restraint came from the state appointment of senators; another came from
judicial review. Mind you, no one had terrifically high expectations that
justices would remain independent and capable of operating in a strict
fashion, but I think that the structure dictated it.
III. We consider the necessary and proper clause today only as an
empowerment of Congress. If there had not been a Bill of Rights, however,
the necessary and proper clause would probably have been just as much as a
limitation and basis of judicial review as it would have been an
empowerment. A certain amount of counterfactual thought is necessary here.
Robert C. Palmer
From: csegal@Onramp.NET (Caryl Lynn Segal)
Bernard Schwartz's recently published THE HISTORY OF THE SUPREME COURT discusses judicial review and its use prior to Marbury by lower courts.
Electronic Seminars & Training
Inherent Technologies Inc.
Legal Information Systems Technologists
Portland, OR. Boulder, CO. Waltham, MA.
caryl@inherent.com
//http:www.inherent.com
>>> Item number 1003, dated 95/01/11 12:45:08 -- ALL
Date: Wed, 11 Jan 1995 12:45:08 -0600 Reply-To: H-Net and ASLH Legal History Discussion list <H-LAW@UICVM.BITNET> Sender: H-Net and ASLH Legal History Discussion list <H-LAW@UICVM.BITNET> From: Chris Waldrep <cfcrw@uxa.ecn.bgu.edu> Subject: Re: Judicial Review in the States
From: "Mark Graber" <MGRABER@bss2.umd.edu>
First, thank you to all who responded to my question. Second, an
apology. Lost in my own project, I wrote a query asking for the
wrong information. I am not primarily interested in the debate over
the power of the federal judiciary to declare state laws
unconstitutional. Rather, I am interested in debates over the power
of state courts to declare that state laws violated the state (or
federal) constitution. As the numerous sources cited indicated, this
power was quite controversial in the late eighteenth century, but
seems to have become relatively uncontested in a short period of time
(I may be wrong here). What's been written on this issue? (some
comments do deal with this matter) (Nelson, "Changing Conceptions of
Judicial Review: The Evolution of
Constitutional Theory in the States, 1790-1860, 120 UNIVERSITY OF
PENNSYLVANIA LAW REVIEW 1166 (1972) is quite good, but I am also
looking for studies that tie political conditions to the growing
acceptance of judicial review). A related issue: to what extent did
the practice of judicial review by the Supreme Court reinforce
judicial review by state courts under state constitutions and vica
versa?
P.S. Doesn't anyone have ideas about Snowiss?
>>> Item number 1008, dated 95/01/13 13:48:37 -- ALL
Date: Fri, 13 Jan 1995 13:48:37 -0600 Reply-To: H-Net and ASLH Legal History Discussion list <H-LAW@UICVM.BITNET> Sender: H-Net and ASLH Legal History Discussion list <H-LAW@UICVM.BITNET> From: Chris Waldrep <cfcrw@uxa.ecn.bgu.edu> Subject: Re: Judicial Review in the States
From: WTREANOR@LAW.FORDHAM.EDU
Contrary to Snowiss' thesis, I think there was a range of attitudes about the appropriate standard of judicial review. At least some thought judges should be able to invalidate statutes if they were inconsistent with the spirit of the constitution. For example, in the 1782 Virginia case, the Case of the Prisoners, St. George Tucker, who eventually became a judge and the American editor of Blackstone, appeared as an amicus and his argument reflects a broad conception of judicial review. Similarly, in the 1794 Virginia case Kamper v. Hawkins, Tucker (now on the bench) and Judge Spencer Roane both invoked the spirit of the constitution as the basis for aggressive judicial review. I have an article entitled The Case of the Prisoners and the Origins of Judicial Review which will appear in the University of Pennsylvania in the next week or so that discusses Snowiss and expands on these points (with particular attention to the arguments in the Case of the Prisoners of Tucker and Edmund Randolph, who appeared on behalf of the state; the notes of these arguments -- Randolph's and Tucker's -- are unpublished).
Bill Treanor
Fordham Law School
>>> Item number 1017, dated 95/01/16 08:33:47 -- ALL
Date: Mon, 16 Jan 1995 08:33:47 -0600 Reply-To: H-Net and ASLH Legal History Discussion list <H-LAW@UICVM.BITNET> Sender: H-Net and ASLH Legal History Discussion list <H-LAW@UICVM.BITNET> From: Chris Waldrep <cfcrw@uxa.ecn.bgu.edu> Subject: Re: Judicial Review in the States
From: "R. Ben Brown" <RBBLAF@nuls.law.nwu.edu>
The third chapter of my dissertation, The Southern Range,
University of Michigan 1993, contains a discussion of a series of
Northeastern cases where the state courts used the "fundamental
law" to strike down state statutes that required landowners to fence
their land before they could sue animal owners for damages that animals
free-ranging animals caused. The courts that adopted this line of
reasoning felt no need to refer to the state constitutions but
assumed an inherent power to invalidate state laws the violated their
notion of property rights. This line of authority continued to be
argued throughout the antebellum period, but was rejected by
states south and west of New York.
Ben Brown
Northwestern Univesity School of Law