From Fundamental Law to the Supreme Law of the Land: A Reinterpretation of the Origin of Judicial Review

Abstract

For a long time the question of whether the framers of the U.S. Constitution intended to establish judicial review of legislation was the subject of extensive and repeated investigation. The issue, however, was never definitively resolved, a consequence, it is widely agreed, of ambiguities and internal contradictions in the early record. More recently, interest in this basic question has declined, and it has simply been assumed that some form of judicial review was contemplated by the framers. At the same time support for the practice has deepened, and the debate, although still heated, has shifted to different grounds.