Idea or Practice: A Brief Historiography of Judicial Review

Abstract

Judicial review may be the most publicly contested aspect of American constitutionalism. The conventional beliefs that judicial review should be understood as an idea and American constitutionalism studied as a new rationalistic, political science are largely due to the influential scholarship of Edward Corwin. This brief essay recovers the pre-Corwin discussion about the origins of judicial review to demonstrate the way in which the approach to judicial review as an idea has been, itself, historically constructed by scholarly inclination, disciplinary identification, and the availability of historical materials.