For an excellent study of the historical and cultural roots of American constitutional thought and attitudes, see Michael Kammen, A Machine That Would Go
of Itself ( New York: Alfred A. Knopf, 1986).
William Manning, quoted in Kammen, A Machine That Would Go of Itself
( 1986) at xxiii.
For a discussion of the issue whether slavery was incompatible with the Constitution, see William M. Wiecek, The Sources of Antislavery Constitutionalism in
America, 1760-1848 ( Ithaca: Cornell University Press, 1977).
Carl Bode, The American Lyceum: Town Meeting of the Mind ( New York: Oxford University Press, 1956).
CBS Reports, " Mr. Justice Douglas," September 6, 1972.
Frederick Douglass, "The Constitution of the United States: Is It Pro-Slavery
or Anti-Slavery?" ( 1860), in
Philip Foner, ed., The Life and Writings of Frederick
Douglass ( New York: International Publishers Co., 1950 at 467.
Such controversies are at least a century old. James Bradley Thayer famously
argued in 1893, for example, that federal courts should reject congressional enactments only if the law's unconstitutionality cannot reasonably be doubted. See James Bradley Thayer, "The Origin and Scope of the American Doctrine of Constitutional Law,"7 Harvard Law Review ( 1893).
Indeed, given the picture of constitutional theory I will defend, it would be
quite surprising if the most attractive views were not familiar to the legal and political tradition.
Judicial review of state law had been exercised prior to Marbury v. Madison.
See, for example, Ware v. Hylton, 3 U.S. (3 Dall.) 199 ( 1796) along with the Judiciary Act of 1789 giving the Supreme Court appellate jurisdiction over federal issues decided initially in state courts. But federal judicial protection against state
violation of individual rights such as religion, speech, and criminal due process
did not become accepted political practice until this century and was based on the
Questia, a part of Gale, Cengage Learning. www.questia.com
Book title: Words That Bind:Judicial Review and the Grounds of Modern Constitutional Theory.
Contributors: John Arthur - Author.
Publisher: Westview Press.
Place of publication: Boulder, CO.
Publication year: 1995.
Page number: 191.
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