Early American Constitutionalism and the Supreme Court Usurpation of Judicial Review Power

The birthing and early American state is based on a mixed government with a written Constitution. The founders created a Republic based on Montesquieu’s division of powers. The Constitutional Convention of 1787 took up the matter of judicial review, but never “explicitly” wrote this power into the American Constitution. It was debated and discussed at the Convention but dropped at some point. The Supreme Court, under Chief Justice John Marshall, usurped this power of judicial review for the judiciary. The property connection in the United States is almost synonymous with divine or natural rights protection. It is protected within the Constitution under the Bill of Rights that removes it from any democratic control. That is, majority rule has no access to interfere with property rights. Property protection is the cornerstone of the United States. Alexander Hamilton, James Madison, and Thomas Jefferson played important roles in the protection of property generally. But it was ultimately Alexander Hamilton that out maneuvered both of them in securing the power of the judiciary, as the central authority and least democratic institution, as the powerhouse of constitutional interpretation. That is, the non-elected body to form the center of property protection and the diminution of any democratic rights and freedoms that might be found elsewhere in the Constitution. Tocqueville visited the United States while the country was in its infancy. Still under the influence of Rousseau and Montesquieu he may not have exactly found what he was looking for in the wilderness of North America. What he found under Jacksonian America was another thing. It must have occurred to him that lands were being cleared and the natives of North America, not only displaced, but eliminated by Western Civilization. How he was able to square the emergency of democracy in America side to side with slavery and Native-American elimination, we will leave for another day. It is also unclear how Tocqueville was able to reconcile the wild west, the tough battles of political parties, at each other’s throats, with the ideology and emergence of democracy in America. His major solution was that, since Americans are “joiners” of all sort of civic organizations, that these civic organizations will eventually have a taming and civilizing effect on them. That joining associations is bound to domesticate and make less brutal these people now living and occupying the lands of North America.