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Judicial Review

Aided by this conceptual breakthrough concerning the locus of sovereignty, the states amended their constitutions to enhance the executive and judicial branches while reducing the authority of the legislature. The power and independence of the executive was enhanced by giving the governor veto power over legislation, by having the governor elected by the people instead of by the legislature, and by lengthening the governor’s term of office. Moreover, state judiciaries began to assert themselves as a check against legislative abuse. With growing frequency, state courts declared that there were judicially enforceable limits to the kinds of laws the legislature could enact. If lawmakers enacted measures that were unconstitutional, courts might declare them null and void. As Elbridge Gerry noted at the Constitutional Convention, “[i]n some States the Judges had actually set aside laws as being ag[ainst] the Constitution. This was done too with general approbation.” 1 Farrand, The Records of the Federal Convention of 1787, at 97 (1911). In this way, judicial review made its appearance on the American scene. This device was unknown to England, for since the Parliament there was supreme and sovereign, the common law courts lacked authority to review the validity of parliamentary acts. In America, on the other hand, by the time the federal Constitution was adopted in 1787, judicial review was viewed by many as an indispensable tool for curbing legislative abuse and maintaining the principle of separation of powers.

§1.2.4 Creating a New National Government

Despite these structural changes in state governments, the dissatisfaction with American politics only worsened. The amended state constitutions, however perfect in form, were unsatisfactory in practice. Those elected to state office tended to be incompetent and corrupt. They pursued narrow self-interests instead of the republican ideal of “civic virtue” by promoting the common good. In short, it appeared that the people were unable to select those who were best suited to be their leaders.

In response to this failure of self-government, two quite different solutions were proposed. Some critics believed that through religion and education, men and women could acquire the civic virtue necessary to make republican government a success. Others were less sanguine about the ability of mankind to perfect itself and believed that an institutional remedy was necessary. They recommended that the Articles of Confederation be replaced with a true national government that would partially supplant the authority of the states. Federalists, like Alexander Hamilton, had long been urging that the confederation should be given more power, particularly in the areas of finance, war, and commerce. The Federalists’ ranks were now swelled by those who believed that creating a new national government was the only way to redress the apparent failure of self-government in the states.

The efforts of the Federalists led to the Constitutional Convention that assembled at Philadelphia in 1787. The draft Constitution that emerged from the Convention in September 1787 benefited greatly from the experiments in constitution making conducted by the states during the previous decade. In fact, the structure of the proposed national government was similar to that of New Hampshire and Massachusetts, states that had amended their constitutions in the early 1780s to incorporate the principle of separation of powers as a check against legislative supremacy.

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