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Vol 23 No 5 May/June 2018

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Judicial Review and the Law of the Constitution

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ISBN13: 9780300046656
ISBN: 0300046650
Published: November 1990
Publisher: Yale University Press
Country of Publication: USA
Format: Hardback
Price: Out of print

In this book, the author presents a new interpretation of the origin of judicial review. She traces the development of judicial review from American independence through the tenure of John Marshall as Chief Justice, showing that Marshall's role was far more innovative and decisive than has yet been recognized. According to the author all support for judicial review before Marshall contemplated a fundamentally different practice from that which we know today. Marshall did not simply reinforce or extend ideas already accepted but, in superficially minor and disguised ways, effected a radical transformation in the nature of the constitution and the judicial relationship to it. The author argues that originally constitutional limits were understood to be a statement of first political principles committed to writing. Through carefully crafted opinions and without public recognition Marshall transformed these principles into supreme written law. Simultaneously he changed judicial review from the defense of principle in circumstances of clear violation into routine application and interpretation of consititional text. The last chapter probes the implications of this analysis for contemporary controversies about judicial review.