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So, prior to the British being driven out of the colonies British law applied. I would think that when the Brits left, the colonists then started with a clean slate. But in doing so is it the case that the Americans decided how their laws would work but they used the parts of British (English) law they thought were beneficial?

So, was judicial review embedded in the new American law? Another question is, was it "found" in Marbury?

British law is still featured in American legal system. While different, the British influence is very clear in US government. A written Constitution was obviously a departure. Getting rid of Parliamentary system another. Funny thing about the US Constitution, if one just reads it, for all intents and purposes it appears to be a 'strong legislature' framework. It also appears to limit the federal gov't by enumerating it's powers, while 'leaving all else to states or people.'
Two clauses, "Necessary and proper," (elastic clause), and "Common Welfare" allow for the changes that were anticipated by the framers.

Marbury V Madison:

Marbury v. Madison (1803)

"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each."

— Chief Justice John Marshall​

That both the Federalist and Anti- Federalists knew and anticipated that judicial review would apply to judiciary: See Federalist 78, Hamilton and Anti-Federalist XV, Brutus
 
And judicial review applies to the US legislature? If so then that was a significant departure from English law and a significant claim to authority by the US Supreme Court. I'm guessing now but the existence of a written constitution may have given the Court some sort of authority which the English courts, even the High Court, doesn't have, that is to review primary legislation. But then in England the House of Lords, an unelected chamber, is the supreme court in English law - but I don't know if it has a power of judicial review either, at least I don't think it does.

So, was the fact of the written constitution important?
 
And judicial review applies to the US legislature? If so then that was a significant departure from English law and a significant claim to authority by the US Supreme Court. I'm guessing now but the existence of a written constitution may have given the Court some sort of authority which the English courts, even the High Court, doesn't have, that is to review primary legislation. But then in England the House of Lords, an unelected chamber, is the supreme court in English law - but I don't know if it has a power of judicial review either, at least I don't think it does.

So, was the fact of the written constitution important?

How do we get on these things?

Digging a bit on judicial review I came across this, since I found a reference to it in colonial America to it. Seems colonial privy councils referred to it, including Otis Warren and John Adams in a few cases, which does show that the colonists, at least the lawyers, were aware of what developed with 17th C English law:

https://jla.hup.harvard.edu/index.php/jla/article/viewArticle/5/9

BTW, my class went fine. ;)
 
Well once one starts on a subject, seems it keeps popping up:

Public Discourse, Constitutional Disorder in the Era of Judicial Supremacy: The Founders' Understanding of the Court, by Matthew J. Franck

It's pretty long and will probably make you run to Findlaw to read at least the majority opinions in several cases:

Constitutional Disorder in the Era of Judicial Supremacy: The Founders' Understanding of the Court
by Matthew J. Franck
July 07, 2009
Judicial supremacy is inimical to the separation of powers, to republicanism, and even to constitutionalism and the rule of law. The upcoming confirmation hearings for Sonia Sotomayor should force citizens to reconsider the place of the Court in our political life. The first in a two-part series.

With confirmation hearings around the corner for Judge Sonia Sotomayor’s nomination to the Supreme Court, it’s a good time to take stock of some fundamental issues regarding the place of the Court in our political life. What should we expect of the justices as they perform their duties under the Constitution? What are the appropriate modes of interaction between the Court and the other branches of our government?

A good place to start is with the Supreme Court’s self-understanding—the justices’ own understanding of their power under the Constitution—which turns out to be ahistorical and self-serving. In a unanimous 1958 ruling in Cooper v. Aaron regarding the desegregation of schools in Little Rock, Arkansas, the justices went out of their way to declare as “settled doctrine . . . the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution.” The Court traced this doctrine back to the landmark 1803 decision of Marbury v. Madison and said that its “supreme” authority to answer constitutional questions, putatively announced in that case, had “ever since been respected by this Court and the country as a permanent and indispensable feature of our constitutional system.” The Cooper opinion travelled the rest of the way to the logical conclusion: that Supreme Court decisions are “the supreme law of the land,” indistinguishable from the Constitution itself and as binding on other political actors as the charter of government they take an oath to uphold.

Nothing the Court has done or said in the last half century has deviated from this understanding of its unrivalled authority to interpret the Constitution, and the Cooper doctrine was a long time gestating before the justices delivered it in 1958. But it is, or ought to be, a shocking view to take of our constitutional order. Judicial supremacy—the doctrine that the nation’s governing charter means whatever a majority of Supreme Court justices say it means—is profoundly inimical to the separation of powers, to republicanism, and even to constitutionalism and the rule of law themselves. If the Court that gave us Cooper was right about Marbury v. Madison, then we would be entitled to hope that Marbury was wrong about the Constitution. And if Marbury, understood as the Cooper justices put it, was right about the Constitution, we would be entitled to grave misgivings about the goodness of our constitutional order.

The good news is that the Cooper opinion was wrong about Marbury, which in fact set forth a far more limited understanding of judicial power, consistent with the framers’ republicanism and separation of powers. The bad news is that our political system suffers from the disordering effects of judicial supremacy with no easy or obvious way out of the disorder. Both the good news and the bad require some explaining...
 
Interesting article and it seems to be pretty objective. It's going to take me several readings though.

Forgot to add - will also need to read up on republican theory (again).
 
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Interesting article and it seems to be pretty objective. It's going to take me several readings though.

Forgot to add - will also need to read up on republican theory (again).

Marbury v Madison was back in early 19th C., no 'Republicans' as now perceived. Pretty much Federalists v Anti-Federalists.
 
Small "r" republican theory Annie, not that I know much about it. I think though that it has something to do with it being an antonym towards parliamentarian type of democracies. Again this is just faint knowledge, parliament (in English law) is supreme (probably as a reaction to having wrested power from absolute monarchy) and even the high court can't touch it (don't know if that's a good or bad thing). In republican theory - I think - that all branches of government, following Montessqieu (who may have borrowed the idea from someone else) - are equal and none are stronger than the other. How that works in practice I have no idea. So with the US Supreme Court laying claim to being able to interpret the Constitution, it apparently upsets the balance.

I can see this spinning off into a discussion of unwritten v written constitutions.
 
Small "r" republican theory Annie, not that I know much about it. I think though that it has something to do with it being an antonym towards parliamentarian type of democracies. Again this is just faint knowledge, parliament (in English law) is supreme (probably as a reaction to having wrested power from absolute monarchy) and even the high court can't touch it (don't know if that's a good or bad thing). In republican theory - I think - that all branches of government, following Montessqieu (who may have borrowed the idea from someone else) - are equal and none are stronger than the other. How that works in practice I have no idea. So with the US Supreme Court laying claim to being able to interpret the Constitution, it apparently upsets the balance.

I can see this spinning off into a discussion of unwritten v written constitutions.

The Constitution did not give much direction on the courts, pretty much had set it up to be weak, but with checks & balances on the other branches. However, since they had no power of enforcement, well...

Something Jackson took advantage of with the Indian 'policy' he instituted, that broke the treaties. The SCOTUS ordered him the administration to cease, Jackson basically said that Marshall could enforce whenever he wished.

However, for the most part the court has been smart about not overplaying their hand. Judicial Review was a big power grab that has been fully incorporated into our system. It doesn't mean that it's still not controversial, especially when it's seen as 'making law.'
 
It seems that Judicial Review is more powerful in the US than in the British-style parliamentary systems where that supremacy of parliament rule applies. Interesting discussion though, I'm still reading that article about Coke, it's really interesting. Oh and just in case you might need a link to some of the reeeeaalllly old English common law cases at any time:


English Reports
 
It seems that Judicial Review is more powerful in the US than in the British-style parliamentary systems where that supremacy of parliament rule applies. Interesting discussion though, I'm still reading that article about Coke, it's really interesting. Oh and just in case you might need a link to some of the reeeeaalllly old English common law cases at any time:


English Reports

It is more powerful in US system from what I can gather, probably because of all the 'borrowing' from parliamentary system and an awareness of what was 'good and bad' about what had gone before. As the Japanese during Meiji or both Japan and Germany after WWII, it's certainly easier and 'more perfect' to build upon a past, while by necessity starting 'new.' Although once again, 'more perfect' often falls far short of 'perfect.' ;)
 
are you still not finished? you should have had this done and over with by now?

The 'homework' done long ago, this is just a conversation now. Seems that basically D and I find it interesting, can't imagine many would. ;)
 

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