Judicial Review and the Law of the Constitution

Sylvia Snowiss

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In this original and thought-provoking book, Sylvia Snowiss presents a new interpretation of the origin of judicial review.  Snowiss traces the development of judicial review from American independence through the tenure of John Marshall as Chief Justice, showing that Marshall’s role was far more innovative and decisive than has yet been recognized.  According to Snowiss, all support for judicial review before Marshall contemplated a fundamentally different practice from that which we know today.  Marshall did not simply reinforce or extend ideas already accepted but, in superficially minor and disguised ways, effected a radical transformation in the nature of the constitution and the judicial relationship to it.
Snowiss argues that originally constitutional limits were understood to be a statement of first political principles committed to writing.  Through carefully crafted opinions and without public recognition Marshall transformed these principles into supreme written law.  Simultaneously he changed judicial review from the defense of principle in circumstances of clear violation into routine application and interpretation of constitutional text.  In her last chapter Snowiss probes the implications of this analysis for contemporary controversies about judicial review.  Her reinterpretation offers a new perspective on assumptions about intent and the status of constitutional text made both implicitly and explicitly by contending sides in the fundamental rights debate.  More important, it reopens and recasts the most basic and enduring problem of American constitutional law—the relationship between its legal and political components.

"This important book will be read and cited by all students of judicial review. It will become a major element in the never-ending controversy about the role of the Supreme Court."—Martin Shapiro, University of California, Berkeley

"A superb work that elevates the discussion of the origins of judicial review to a new plane. And unlike so many of the recent revisionist studies, it doesn't appear to have a political ax to grind. I have learned a lot from it."—Gordon Woo

"A valuable review and analysis of the development of judicial review. . . . Well documented and indexed."—Choice

"Judicial Review and the Law of the Constitution is a spirited, scholarly and sympathetic defense of Marshall's chief justiceship. Through careful reading and analysis, Snowiss has demonstrated, in clear and elegant prose, the manner in which Marshall was far more formidable judicial tactician than modern scholars have commonly believed. Equally importantly, she has revealed with consummate subtlety the legacy which Marshall has bequeathed to the practice of modern judicial review."—Neil Duxbury, American Journal of Legal History

"A good read. [Snowiss'] insights into the problem of judicial review in a democratic republic are acute and important for any serious student of the subject."—Robert L. Clinton, Policy Studies Journal

"Snowiss offers a fresh vantage on Marshall, the Supreme Court, and judicial review. . . . [An] ingenious work. . . . Snowiss makes distinctions that clarify things long familiar and proposes an interpretation that . . . is closely reasoned and persuasive."—Francis N. Stites, Journal of American History

"A critical examination of the debate over the origins of judicial review in the United States. . . . Persuasive. Those interested in the early political history of the United States, and the Supreme Court in particular, will wish to get to grips with it."—Robert J. McKeever, American Politics Review

"Full of surprises. . . . Snowiss' clear exposition of the development of the federal judicial branch will be much read and appreciated. It certainly will be a fine supplement to constitutional law classes, but practitioners who want to comprehend the current controversies which surround the Court will find the book most helpful as well. The author's special contribution will be in separating out the various eras of judicial review and her challenge to the Court to use wisely this vast power."—Henry S. Cohn, Connecticut Bar Journal

"A serious and thoughtful contribution to the continuing controversy over the nature and extent of judicial review. . . . An excellent book that would be indispensable for graduate students or scholars who want to challenge their views of judicial review and reach beneath the surface to examine this elusive issue."—Dennis Stevens, Perspectives on Political Science

"Well researched and well written."—Frank J. Macchiarola, Political Science Quarterly

"A bold thesis argued with intelligence and considerable force. It will, and should, enter into the heated scholarly debate now raging about the origins of judicial review."—R. Kent Newmyer, Constitutional Commentary
ISBN: 9780300046656
Publication Date: September 26, 1990
224 pages, 5 1/2 x 8 1/4

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