The Rejection of Horizontal Judicial Review During America’s Colonial Period

Abstract

What we now call judicial review in the United States became part of the American constitutional system during the 1780s. There had been an earlier English tradition of review, which subjected the “legislative” enactments of inferior jurisdictions to reevaluation, but this English tradition rested on the idea that review was an inherently “vertical” enterprise. Only a “superior” jurisdiction was entitled to review and void the enactments of another “legislative” body. The great innovation that American state judges introduced during the 1780s was subjecting the enactments of their own legislatures to review, initiating a constitutionally controversial form of “horizontal” review. This article examines an earlier (failed) effort to introduce “horizontal” judicial review into one American colony. The debate that grew out of this attempt reveals a good deal not only about the underlying ideas upon which judges could draw--even at that time--to justify such a practice, but also about the dominant assumptions of English constitutionalism that worked against this form of judicial review. Significant changes would have to take place in political and constitutional conditions before the case for “horizontal” judicial review could succeed in America.