The Establishment of Judicial Review (I)

Authors

Edwin S. Corwin

Abstract

When Gladstone described the Constitution of the United States as "the most wonderful work ever struck off at a given time by the brain and purpose of man," his amiable intention to flatter was forgotten, while what was considered his gross historical error became at once a theme of adverse criticism. Their contemporaries and immediate posterity regarded the work of the Constitutional Fathers as the inspired product of political genius and essentially as a creation out of hand. Subsequently, due partly to the influence of the disciples of Savigny in the field of legal history, partly to the sway of the doctrine of evolution, and partly to a patriotic desire to claim for the Constitution a conformity to the historic spirit and needs of the American people like to that claimed for the English Constitution by English writers, and so inferentially, similar elements of durability, it has become the custom of writers to represent the Constitution as preeminently a deposit of time and event and to accord to the Fathers the substantial but more modest merit of having merely ratified the outcome of habit and usage. Tnis point of view, I am persuaded, has a large admixture of error and the other a correspondingly large element of truth. Because they were not utopists, because they had experienced some disillusionment from their earlier attempts at constitution-making, because they had some conception of the limits set by possibility, all this affords no adequate proof that the Fathers were not of their time and did not participate largely in its way of thinking. "The collected wisdom acquired from a long succession of years is laid open for our use in the establishment of our forms of government," wrote Washington in 1783. Here exactly is the attitude of eighteenth century rationalism: its confidence in the reasoned and sifted results of human experience; its belief in the efficacy of ideas for the remedying of institutions, its firm persuasion more particularly of the existence of an available political science and of its mastery of that science,-such was the point of view of the latter quarter of the eighteenth century-the greatest era of reform in government that modern history has seen-such was the point of view of the Constitutional Fathers. They believed that the human reason can of ten intervene successfully to arrest the current of unreflective event and divert it to provided channels. They drew no fallacious line between the "organic" and the "artificial," for their thinking admitted no such categories. Readers of Plutarch, they were confident of their ability to emulate the achievements of Lycurgus and Solon and leave a nation blessed with a polity accordant with its fundamental spirit and abiding necessities, a polity moreover which would be superior to all existing polities in that it would be founded upon nature and reason and not upon force or chance. But this being the point of view of the Fathers, it necessarily results that their indebtedness to the past was for ideas rather than for institutions. Whenever therefore they borrow from the past any of the really distinctive features of our constitutional system, for example Federalism, checks and balances, judicial review, they will be found to have taken them, not in the form of institutions tested and hammered into shape by practice, but as raw ideas.

Recommended Citation

Edwin S. Corwin, The Establishment of Judicial Review (I), 9 Mich. L. Rev. 102 (1910).
Available at: https://repository.law.umich.edu/mlr/vol9/iss2/2