The Aristocracy of the Long Robe: The Origins of Judicial Review in America

About the Book

Is judicial review constitutionally required or even authorized? Can it be said whether the federal courts exercise this power with the consent of the electorate? Sosin addresses these challenging questions in the broad context of the Anglo-American historical experience. He examines the evolution of courts of judicature and legislatures and the contests for power that were waged from the seventeenth to eighteenth century.

The origins of the English court system and the establishment of common law are first described. The author traces the rise in judicial and parliamentary power that occurred with the erosion of the royal prerogative and discusses the constitutional and legal heritage that provided the framework for law, courts, and legislatures in colonial America. Following an examination of political, legislative, and legal development during the colonial period, Sosin looks at the philosophical and ideological controversies that influenced the framing of the Constitution, particulary the conflicting views of the proper relationship between the legislature and judiciary. Despite the emphatic opposition voiced by some framers to giving judges the power to overturn legislative action by ruling on the constitutionality of federal laws, the Supreme Court was able to declare itself the final arbiter and ultimate interpreter of the Constitution as early as the first decade of the nineteenth century. The author's analysis indicates that the Court's assumption of the power of judicial review was neither inevitable politically nor the logical result of the founders desire to limit government and protect the rights of individuals against interferences by public authority. Echoing early English and American political figures, Sosin asks whether this expanded, arbitrary judicial power can be considered appropriate in a representative democracy. The product of meticulous research and careful historical analysis, this provocative study will be relevant reading for a variety of courses in American government, political science, and history.

Table of Contents:

Introduction
Institutional Origins of Anglo-American Courts
Common Law and Its Early Practitioners
Rivals of the Common Law
Coke and the Nature of Judicial Power
Judges, Parliament, and Royal Prerogative, 1603-1649
Restoration Monarchy and the Judiciary
The Glorious Revolution: Constitutional and Legal Heritage During the Age of Colonization
Law and Courts in Colonial America: Institutional Framework
Review of Colonial Legislation
Colonial Lawyers and Judges: The Political Dimension
Judicial Tenure, Salaries, and Impeachment: The Colonial Experience
Revolutionary Ideology and Constitutions
The Judicial Challenge to Legislative Supremacy, 1780-1787
The Federal Constitution Drafted
Judicial Review and the Constitution: Analysis and Ratification
The Supreme Court of the United States, 1789-1800: Problems and Personnel
Federal Judiciary and Party Politics, 1800-1807
Epilogue: Toward "Transcendently Omnipotent" Court
Select Bibliography
Index

About the Author :
J.M. SOSIN is a History Professor at the University of Nebraska, Lincoln. He is the author of several books dealing with the American Revolution and the administrative and political history of the English empire in the seventeenth and eighteenth centuries.

Review :
?Sosin has written a perplexing book. Its title is indicative of the historical, as opposed to juridical or legalistic, methodological approach to the study of the origins of American judicial review, which in fact is the focus of the book. This orientation helps explain the extended chapters on English judicial and legal history that focus on the relations and conflicts among law, lawgivers, and judges. Successive chapters trace legislative-judicial practice and conflict in Colonial America and, later, the US. Yet Sosin announces at the outset that his book is not an attempt at legal history but rather a study in politics.' Indeed it is. On the basis of a survey of English practice and American Colonial case law and legal controversies, the author engages in a sometimes heated complaint against the emergence of a Transcendently Omnipotent' Court' in opposition to the historical evidence that no precedent for such a Court can be found in English or Colonial American practice. Paradoxically, his review of Colonial controversies goes a considerable distance toward establishing that judicial review was an early topic of controversy and thus not without precedent in American constitutional development. Useful for the discussions of early practice. . . . Very full notes, a limited bibliography, and an index of names round out the work. For well-informed students of American constitutionalism at upper-division undergraduate and graduate level.?-Choice ?Sosin traces the origins of the English court system and the establishment of common law; the rise in judicial and parliamentary power that accompanied the erosion of the "royal perogative"; and the constitutional and legal heritage that shaped the development of law, courts and legislatures in colonial America. He argues that the power of judicial review was neither politically inevitable or theoretically logical, in light of the founders' desire to protect individuals against the arbitrary exercise of public authority.?-Law and Social Inquiry ?This study of the relationship of courts and legislatures over several hunderds of years of Anglo-American development will almost certainly become one of the essential sources for those who want to understand more thoroughly the burning issues surrounding the legitimacy of judicial review in America. In 17 chapters and hundreds of footnotes, the author has tracked down virtually every bit of evidence that exists on the history, scope, purpose, and validity of judical review. The author maintains an admirable detachment from all ideology and presents the vast material he has accumulated with clarity and balance.?-Law Books in Review "Sosin traces the origins of the English court system and the establishment of common law; the rise in judicial and parliamentary power that accompanied the erosion of the "royal perogative"; and the constitutional and legal heritage that shaped the development of law, courts and legislatures in colonial America. He argues that the power of judicial review was neither politically inevitable or theoretically logical, in light of the founders' desire to protect individuals against the arbitrary exercise of public authority."-Law and Social Inquiry "This study of the relationship of courts and legislatures over several hunderds of years of Anglo-American development will almost certainly become one of the essential sources for those who want to understand more thoroughly the burning issues surrounding the legitimacy of judicial review in America. In 17 chapters and hundreds of footnotes, the author has tracked down virtually every bit of evidence that exists on the history, scope, purpose, and validity of judical review. The author maintains an admirable detachment from all ideology and presents the vast material he has accumulated with clarity and balance."-Law Books in Review "Sosin has written a perplexing book. Its title is indicative of the historical, as opposed to juridical or legalistic, methodological approach to the study of the origins of American judicial review, which in fact is the focus of the book. This orientation helps explain the extended chapters on English judicial and legal history that focus on the relations and conflicts among law, lawgivers, and judges. Successive chapters trace legislative-judicial practice and conflict in Colonial America and, later, the US. Yet Sosin announces at the outset that his book is not an attempt at legal history but rather a study in politics.' Indeed it is. On the basis of a survey of English practice and American Colonial case law and legal controversies, the author engages in a sometimes heated complaint against the emergence of a Transcendently Omnipotent' Court' in opposition to the historical evidence that no precedent for such a Court can be found in English or Colonial American practice. Paradoxically, his review of Colonial controversies goes a considerable distance toward establishing that judicial review was an early topic of controversy and thus not without precedent in American constitutional development. Useful for the discussions of early practice. . . . Very full notes, a limited bibliography, and an index of names round out the work. For well-informed students of American constitutionalism at upper-division undergraduate and graduate level."-Choice