Edward S. Corwin and “Judicial Review,” a Century Later

by Matthew J. Franck

One hundred years ago, Princeton University Press published a little book so influential that today it is almost forgotten.  Yes, that sounds strange, but I’ll explain.  It was a collection of essays with the unassuming title The Doctrine of Judicial Review: Its Legal and Historical Basis and Other Essays.  The author was a young Princeton professor, Edward S. Corwin, who would go on to occupy the chair of the McCormick Professor of Jurisprudence once held by Woodrow Wilson (and now held by Robert P. George, familiar to readers here).  This was not Corwin’s first book, but it was his first to make a big splash, and its enduring influence came in his critique of Marbury v. Madison, which has been mimicked endlessly in the last century, and his historical and theoretical account of the power of “judicial review,” which has likewise gone into conventional wisdom.  That phrase “judicial review,” though not invented by Corwin, was not yet in common use as shorthand for “power of the federal judiciary to hold legislation unconstitutional.”  The expression had never been in the vocabulary of the founders or of the justices of the Supreme Court’s first century.  After Corwin’s book the use of the phrase spread like wildfire, but no one ever gave him credit for popularizing that crucial expression, whose adoption had a signal impact on the way people thought about the Supreme Court.  That was the influence to which I alluded above.  Corwin went on to one of the most distinguished careers in the twentieth century academic study of the Constitution and constitutional law, with many important books and articles to his credit, and the building on Princeton’s campus where the Politics department is housed is named for him.

Two weeks ago, Transaction Publishers published a new centennial edition of Corwin’s Doctrine of Judicial Review, which has long been out of print, with my new introduction–a critical review of Corwin’s whole career, tracing the evolution of his thought on the crucial subject of “judicial review,” what influence this phrase has had, and the enduring issues of the Supreme Court’s power that are papered over by conventional views of the subject.  I hope this new edition–both Corwin’s historically important work and my discussion of it–will be of interest to scholars, teachers, and students of constitutional law.