The Historical Origins of Judicial Review, 1536-1803 : The Duty to Resist Tyranny

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.