THE HISTORICAL ORIGINS OF JUDICIAL REVIEW, 1536-1803
The Duty to Resist Tyranny

Author: Ball, David T.
Year:2005
Pages:408
ISBN:0-7734-6009-8
978-0-7734-6009-6
Price:259.95
Awarded the Adele Mellen Prize for Distinguished Contribution to Scholarship

The thesis of this book is that the origins of the constitutional power of judicial review lie in the historical development and application of the duty to resist tyranny, beginning with its discussion by early Reformation leader John Calvin. The duty to resist tyranny burst the bonds that Calvin sought to impose upon it in the political theory of the Marian exile, after which it played a prominent role in British political discourse from the Elizabethan era through the English Revolution, the Glorious Revolution and into the Eighteenth Century. By the end of the Eighteenth Century, it had crossed the Atlantic and figured in the deliberations of a post-Revolutionary Virginia courtroom, where it was explicitly mentioned as the basis for the judiciary’s duty of judicial review. Ultimately, it provided the foundation for John Marshall’s proclamation of the power of judicial review in the 1803 case of Marbury v. Madison.

This analysis of the development of the duty to resist tyranny and its ultimate influence on the emergence of judicial review provides a much more satisfactory account of the emergency of judicial review than previous attempts. While previous attempts have sought in various ways to account for how judicial review came to be accepted as legitimate, as something that was permissible for courts to do, none have explained why or how judicial review became, as it was for John Marshall in Marbury, the courts’ duty, something it had to do.

Reviews

“Judicial review is, as we learn in this book, one of the non-violent ways of fulfilling a duty to resist tyranny. Yet, to find its roots in post-Reformation theories of resistance, as Professor Ball does, is to present us with a paradox. Resistance in early modern thought and practice was, above all else, an act of real or threatened violence. How could it serve, then, as a source for one of the techniques by which modern polities can avoid violence and ensure the peaceful maintenance of accountable government? How can a book on the history of resistance theory in England contribute to our understanding of the origins of judicial review? These questions are best answered by a reading of this book.”– (from the Preface) Professor Glenn Burgess, The University of Hull

“Arising from an impressive array of primary and secondary sources, Dr. Ball’s argument embodies not only a careful reading of texts and a fine sense of distinction between particular ideas, but an acute awareness of the historical and political contexts within which such ideas came to the fore…this is a book that will not only challenge many conventional accounts of Marbury v. Madison, of the reasoning put forward by the Court opinion’s author, and of the federal courts’ role in the American political system, it will as well help to re-establish an appreciation among scholars generally of the full and constant interplay between religious and political ideas within the larger Anglo-American tradition. Among scholars in American constitutional law and in the history of political ideas in particular, Dr. Ball’s work here should enjoy both wide recognition and deep gratitude.” – Professor William R. Stevenson, Jr., Calvin College

“Dr. Ball has produced a learned and lively tract based on a careful and cogent reading of the primary sources. He surveys accurately the well-known resistance theories of John Calvin and later sixteenth-century Huguenots, Presbyterians, and Puritans. He shows astutely how these teachings were both reformed and radicalized in seventeenth-and eighteenth-century theories of democratic revolution. And he suggests provocatively that these earlier political theories of judicial review of unconstitutional laws. This work is a faithful exposition and novel expansion of scholarship on Calvinist contributions to Western constitutionalism.” – Professor John Witte, Jr., Emory University

Table of Contents

Foreword
Preface
Acknowledgements
Introduction: The Great Unanswered Question of the History of Constitutional Law
1. “To Restrain the Willfulness of Kings”: John Calvin’s Theology of Official Disobedience
2. “To the Uttermost of Your Powers”: The Marian Exile and the Broadening of the Duty to Resist Tyranny
3. Into “the Intellectual Cupboard”: The Duty to Resist Tyranny in Elizabethan England
4. The Duty to Resist Tyranny during the English Revolutionary Period
5. The Duty to Resist Tyranny from the Restoration through the Glorious Revolution
6. Into the Long Eighteenth Century
7. From the Classroom into the Courtroom
8. The Duty to Resist Tyranny and the Establishment of Judicial Review
Conclusion: The Duty to Resist Tyranny and the Origins of Judicial Review
Bibliography
Index