Judicial Review: An American Graft on English Root Stock

Abstract

This paper examines the two major English legal institutions that contribute to the American doctrine of judicial review as it developed after Independence. Examing the imperial use of written forms of government, Privy Council review of colonial legislative and judicial action, it demonstrates colonial familiarity with doctrines of superior law, and the legal profession's approach to concepts of repunancy, and non-conformity with English common law and statutes. Turning to the English Revolution, the Commonwealth period, and the Restoration, the paper examines English pamphlet literature and its contributions to principles of fundamental law and the rights of Englishmen. While a portion of these ideas were incorporated in the Glorious Revolution of 1688-89, the protections of the rights of Englishmen were denied to colonial subjects. This resulted in a two-tiered subjectship, which ultimately led to severe constitutional tension between Britain and her colonies, and finally the Declaration of Independence.