Coke, Corwin and the Constitution: The “Higher Law Background” Reconsidered

Abstract

In recent years the debate over the nature and extent of judicial power in the United States has been dominated by questions concerning moral theory, unwritten constitutions, and natural law. In a significant sense, the contemporary discussion is but the continuation of the theory of judicial review first put forth by Edward S. Corwin in 1910–1911; it was this theory that the “higher law background” of American constitutional law derived from the dicta of Sir Edward Coke's opinion inBonham's Case(1610) that was given its most complete expression in Corwin's famous two-part article in theHarvard Law Reviewin 1928–29. The fact is, the influence of Coke's opinion inBonham's Casecame from within the scholarly world; its significance stems not from history but from the historians; it was largely Corwin's creation. This paper seeks to correct the record and to show the deficiencies of Corwin's understanding about the relationship of the “higher law” to the American Constitution.