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Title: The British background of the American theory of judicial review
Author: Chapin, L. T.
Awarding Body: University of Edinburgh
Current Institution: University of Edinburgh
Date of Award: 1938
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Since 1803 there has been discussion over the powers of the Supreme Court of the United States. Those who favor judicial review of legislative acts regard the Justices of the Supreme Court as the guardians of the Constitution; those who oppose it speak of " judicial usurpation of executive and legislative powers." When Sir Henry Maine stated, " The success of this experiment (judicial review) has blinded men to its novelty. There is no precedent for it, either in the ancient or in the modern world, "he accredited the founders of American constitutionalism with too much originality. Certainly none other than the American nation can be held responsible for its success or failure in the United States, yet it is of contemporary interest to understand the contributions which other countries, and in particular, Great Britain have made to this doctrine. Whenever judicial review has been attacked, the supporters of the theory have claimed that its foundation is deeply rooted in the past. For example, in the records of the New York State Ear Association Reports for 1915 one reads: The American Revolution was a lawyers' revolution to enforce the principle laid down in Lord Coke's, Lord Hobart's and Lord Holt's decisions that acts of Parliament against common right or in violation of the natural liberties of Englishmen were void, It is submitted that when such astounding statements are made by a committee of lawyers of the New York Bar, the evidence to support such statements should be investigated and evaluated. When and where did Lord Coke, Lord Hobart, and Lord Holt lay down such a principle? Chief Justice Marshall stated that the written constitution was the fundamental law of the land. Is there British authority for this statement? What is the British background of the doctrine of judicial review? The writer realizes that the British people are beginning to tire of the tendency upon the part of Americans to justify their customs and institutions on the ground that the customs and institutions originated in Great Britain. Recently newspapers reported that the new American Ambassador was well liked because he did not look for his ancestors' tombstones the day after he arrived at Southampton.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available