Abstract

The practice that we now call judicial review and consider essential to American constitutionalism derives from two sources originally at odds with one another, the English common law and liberal political philosophy. I explore the first in the writings of Sir Edward Coke, examining in some detail his report of Doctor Bonham's Case, sometimes mentioned as an early precedent for judicial review but obscure in its import until one grasps what Coke means by "the artificial reason of the law." The liberal philosophy of Thomas Hobbes aims to establish, through scientific reasoning, that law originates in a sovereign will, a doctrine Hobbes forms in explicit opposition to the way of thinking characteristic of common lawyers. Refined by the writings of John Locke and Montesquieu, liberalism captures or complements common law, first in the Commentaries of William Blackstone, then in the doctrines of the American founding, as presented in the Declaration of Independence and as expounded in The Federalist Papers. This mixing of opposites--of common law and liberalism, or perhaps of judging and sovereignty simply--poses the problem of judicial review, and more generally, of American constitutionalism