Publisher's Synopsis
Excerpt from The Doctrine of Judicial Review, Its Legal and Historical Basis, and Other Essays
In the preparation of another volume, not yet pub lished, I have encountered a number of questions involving controversies important to the student of American Constitutional History, an extended con sideration of which however in those pages I felt to be out place. The following studies present my conclusions with regard to these questions, and the grounds of them. In the principal essay, I have en deavored to present judicial review as the outcome of a view of legislative power which arose in consequence of the astonishing abuse of their powers by the early State legislatures but which was first appreciated for its full worth by the Convention that framed the Con stitution of the United States. Incidentally I have, I trust, laid to rest that most inconclusive explana tion of judicial review which dwells on the idea that a legislative measure contrary to the constitution is not law and never was. The alleged explanation totally ignores the crucial question, which is, W hy is it the judicial view of the constitution that legislative measures have to conform to? The article on the Dred Scott Decision treats of the most dramatic epi sode in the history of judicial review, though one that is by no means the best illustrative of the spirit of the institution. The study entitled We, the People, ap proaches the time-honored controversy over Secession and N ullification from what is shown to be, I submit.
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