Polity

, Volume 38, Issue 3, pp 345–368

Judicial Review without a Constitution

Authors

  • Douglas E Edlin
    • Dickinson College
Article

DOI: 10.1057/palgrave.polity.2300065

Cite this article as:
Edlin, D. Polity (2006) 38: 345. doi:10.1057/palgrave.polity.2300065

Abstract

In the United States, judicial review is understood, since Marbury v. Madison (1803), as judicial evaluation of government action to ensure compliance with the Constitution. But before and after Marbury, state and federal courts developed and practiced a form of judicial review in which common law principles, along with or instead of a canonical document, were the foundational body of legal doctrine against which public actions were assessed. This article carefully examines the cases in which this alternative form of judicial review emerged, and corrects certain misconceptions that Marbury must be the only form of judicial review that has existed or can exist in this country. More particularly, the article clarifies a failure by certain writers to distinguish properly between common law and natural law as matters of legal theory and legal doctrine. In correcting some of these theoretical and historical errors, the article outlines an understanding of judicial review that more fully captures its development during the formative period of American constitutional thought.

Keywords

judicial reviewcommon lawnatural lawMarburyconstitution

Copyright information

© Palgrave Macmillan Ltd 2006