THE ORIGINS OF JUDICIAL-REVIEW - A PLEA FOR NEW CONTEXTS

In this article, Professor Rakove argues that a critical history of th e origins of judicial review would begin by recognizing that far too m uch importance has been ascribed to the famous case of Marbury v. Madi son and the handful of cases that anticipate it. He suggests that a be tter account would locate the origins of this crucial doctrine of Amer ican constitutionalism in three other contexts. First, judicial review has always been much more concerned with policing the boundaries of f ederalism than with the task of maintaining the separation of powers w ithin the national government alone. Second, the original appeal of ju dicial review reflected a new appreciation and critique of the positiv e lawmaking activity of republican legislatures-an appreciation that w ould have been difficult to obtain before the Revolutionary era. Third , before Americans could accept the legitimacy of judicial review, the y first had to form a new conception of the benefits of an independent , professional judiciary.