A Theory of U.S. Constitutional History
Constitutional interpretation and the role of the judiciary in American politics are often discussed as if the nature of judicial review has been fundamentally constant throughout our history. A more accurate understanding of the nature of judicial review in United States. Constitutional history, apart from being desirable simply for its own sake, will help to put discussions of judicial review in a much clearer perspective. Drawing on the Federalist and the great constitutional opinions of John Marshall, Story elaborates a set of rules for constitutional interpretation. Some of the distinguishing features of the traditional position on constitutional interpretation and judicial review are its emphasis on rules of interpretation, its search for "intelligible" standards, and the relative infrequency of judicial review. Modern constitutional interpretation may be described as the specification of vague constitutional generalities. The adaptive character of modern constitutional interpretation points clearly to the modern character of judicial review, i.e., its legislative character.