Judicial Review Before Marbury

While scholars have long probed the original understanding of judicial review and the early judicial review case law, this Article presents a study of the judicial review case law in the United States before Marbury v. Madison that is dramatically more complete than prior work and that challenges previous scholarship on the original understanding of judicial review on the two most critical dimensions: how well judicial review was established at the time of the Founding and when it was exercised. Where prior work argues that judicial review was rarely exercised before Marbury (or that it was created in Marbury), this Article shows that it 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. This Article further shows that all the cases in which statutes were invalidated fell into one of three categories: courts invalidated statutes affecting the powers of courts or juries, even when the legislation could plausibly be squared with constitutional text and prior practice; state courts Earlier versions of this Article were presented over a period of more than a decade at workshops at the at conferences sponsored by the American Society of Legal History and the Law and Society Association, and at a meeting of Washington, D.C.-area legal historians organized by Mel Urofsky and Maeva Marcus. I thank all those who participated in these events for their helpful comments. I am especially grateful to Bob Frankel provided invaluable comments drawing from their work on The Documentary History of the Supreme Court. I would also like to express my gratitude for the very thoughtful comments of Dean Larry Kramer. While he and I disagree about many questions concerning early judicial review, this Article has been greatly sharpened by my discussions with him. I wish to acknowledge the staff of the Fordham Law School library, particularly Laurence Abraham, for expert research help. My assistants, Marilyn Force and Mary Hannigan, provided secretarial assistance with great efficiency and enthusiasm. I am also grateful for Fordham's extraordinarily supportive and vibrant academic environment. This Article has been immeasurably strengthened by the countless conversations I have had with my colleagues over the years concerning this work. Liam and Katherine Treanor, now ten and eight, did not make many substantive suggestions, but they have made the past few years particularly enjoyable and always enjoy seeing their names in …