Otis published his views in a pamphlet, “British Colonial Rights Affirmed and Proved”, which became influential throughout the colonies during the Stamp Act crisis many years later as judges and juries used his arguments to declare the act void, otherwise. a breach of these “fundamental principles” of British law.
“Lawyers all along the Atlantic coast advanced this argument during the fall, winter, and spring of 1765-1766,” Nelson writes. “And each court that accepted the argument made the argument less marginal and brought it more and more into the mainstream of American constitutional thought.”
Judicial review continued to take shape in the years following independence. A number of cases – in Virginia, New Jersey and North Carolina – involved the question of what to do when a legislature’s act appeared to violate the state constitution. In a case involving the pardoning of three loyalists who had been convicted of treason, George Wythe of the Virginia Court of Appeals said he had a “duty to protect a lone individual from the rapacity of the sovereign” as well as to “to protect one branch of the legislature, and therefore the whole community, against the usurpations of the other. If the moment came to overthrow a law, he would say: “I will feel the duty to do so; and, without fear, execute it.
By the time of the Philadelphia Convention in 1787, judicial review was an integral part of American jurisprudence. It was also controversial, opposed for democratic reasons. One delegate, John Dickinson of Pennsylvania, thought “no power should exist”. John Mercer of Maryland likewise said he “disapproved of the doctrine that judges, as exponents of the Constitution, should have the power to declare a law void”. And James Madison, the convention’s most influential figure, thought the practice would make “the judicial department in effect paramount to the legislature, which was never intended and can never be appropriate.”
Madison’s push for a federal “negative” on state legislation—a congressional veto of any state law that “in the opinion of the national legislature contravened the Articles of Union”—was essentially an attempt to place the power of judicial review in the hands of an elected and representative body, rather than an unelected court. So was his plan for a “review board” that would have the power to review and possibly veto every act of the national legislature. (Both shots, for what it’s worth, speak to the deep hostility Madison felt for state governments at this point in her life.)
The convention rejected both proposals in favor of what would become the Constitution’s Supremacy Clause, which elevated federal law above state law and gave the federal judiciary power to enforce the law. And while delegates didn’t discuss judicial review at length during the convention, it was this decision that essentially ensured that the Supreme Court would develop something like judicial review.
“Once drafters decide to look to the courts to ensure the supremacy of federal law over state law,” Nelson writes, “they inevitably delegate to those courts jurisdiction to determine the meaning of federal law. And to determine the meaning of federal law in the event of a conflict between an act of Congress and the Constitution, the courts had to have the power to give effect to the Constitution and invalidate the act of Congress.