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Judicial Review

    When the former colonies created new constitutions in the period after 1776, they responded to their experience under the royal charters by making the legislature dominant while radically curtailing the executive and judicial branches. Under most of the new constitutions, the office of governor or president was stripped of its independence and authority. The governor was typically chosen by the legislature for a term of only one year, and governors usually were no longer allowed to veto legislation. The judiciary was likewise made subservient to the legislature. Judges in most states were now appointed by the legislature, rather than by the governor, and typically served for a term of years instead of for life. Even when judges held their positions “during good behavior,” the legislature could remove them at will or adjust their salaries and fees.

    Through these new constitutions under which the legislative branch was made supreme, the people of the newly sovereign states hoped to create democratic governments that would be free of the tyranny and injustice that had characterized the colonial system. Yet within a few years it was widely felt that these initial experiments in self-governance had proved a failure. As James Madison later wrote, “[e]xperience in all the States had evinced a powerful tendency in the Legislature to absorb all power into its vortex.” 2 Farrand, The Records of the Federal Convention of 1787, at 74 (1911). This should not have been surprising since the people had deliberately elevated the legislature at the expense of the other branches. Less expected perhaps was what Madison described as the lack of “wisdom and steadiness” on the part of the new state legislatures. In particular, these popularly elected bodies had enacted a host of laws for the relief of debtors, often in patent disregard of the rights of creditors. Laws were enacted suspending the means of collecting debts, closing the courts to creditors, or forcing creditors to accept payment in badly depreciated currency. In addition, property was confiscated without payment of just compensation, statutes were adopted for the benefit of specific individuals, and ex post facto laws were passed. Needless to say, dissatisfaction with this state of affairs was particularly acute among the propertied and creditor classes against whom many of these measures were aimed.

    This widespread “corruption” of the legislative process revealed the unsettling truth that power could be as easily abused by a popularly elected government as it had been by the English Crown. During the colonial era it had been assumed that the evils of government stemmed from the fact that the colonial governments did not represent the people. Yet in the period after 1776 it soon became evident that even governments that reflected the wishes of the community could act in a tyrannical and oppressive manner.

    §1.2.3 The Emergence of Judicial Review

    In an effort to correct this democratic tyranny, the states embarked upon a second round of constitution making. By the early 1780s, New York, Massachusetts, and New Hampshire had amended their initial constitutions to increase significantly the power of the executive and judicial branches at the expense of the once-omnipotent state legislatures. By more completely separating the functions and powers of government among the three branches it was hoped that the pattern of legislative abuse might be checked.

    This effort to bring about a true separation of powers was made possible by a new understanding about the nature of sovereignty. The colonists had originally inherited the English conception that sovereignty resided with Parliament, for in England it was only in Parliament that the nation’s three estates or social orders—the monarchy, the nobility, and the people—were all represented. When the colonists severed their ties with Britain, the new state constitutions reflected the English practice of making the legislative branch supreme. However, the English concept of sovereignty did not fit the American social landscape where there was neither a monarchy nor a nobility, but only the people. It gradually became clear that sovereign power resided with the people themselves and not with any other body. This being the case, there was no reason why the legislative branch had to be supreme. Since each branch of the government, including the legislature, was composed of the people’s agents or servants, the people could grant their agents in each branch as much or as little power as they wished. If the first state constitutions had concentrated too much power in the hands of the legislature, then the solution was to more evenly allocate the powers of government among three branches.

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