John Calvin's contribution to the emergence of judicial review: Source of the judicial duty to disobey unconstitutional laws

摘要

For decades, legal historians have debated the historical origins of the judiciary's power to declare laws unconstitutional, a power that is known as judicial review. John Marshall is traditionally credited with having established judicial review in the 1803 case of Marbury v. Madison, but its prior origins remain unclear.;Scholars have not seriously considered the possibility that John Calvin's Institutes of the Christian Religion, the first edition of which was published in 1536, was a primary source of the emergence of judicial review. In the Institutes' concluding chapter, after emphasizing that private citizens have a duty to obey any ruler, however tyrannical, Calvin strenuously contends that government officials have a duty to disobey tyrannical rulers in order to protect the people from such injustice.;More than 275 years later, Chief Justice John Marshall, author of the Supreme Court's opinion in Marbury, cited no authoritative basis for the assertion of the power of judicial review. Careful historical investigation demonstrates, however, that Marshall drew upon an understanding of the judiciary's role developed by George Wythe, his former law professor at William and Mary. Wythe had proclaimed his views as a judge on Virginia's highest court in 1782 in the case commonly known as Commonwealth v. Caton. Wythe, in that case, drew upon the political theory of Englishman Lord Abingdon, who as a member of the House of Lords had opposed British treatment of the North American colonies during the Revolutionary period. Abingdon, it appears, acquired the principled basis for that opposition from Calvinist theorists during the years that Abingdon spent in Geneva as a young man. Abingdon also appears to have been shaped by the Calvinist political theorist Algernon Sidney, whose Discourses on Government were published posthumously in 1698.;All of these theorists, from Sidney and Abingdon to Wythe and Marshall, adhered to the principle that government officials have a duty to protect the people against tyranny. That principle that can be traced to their common heritage: John Calvin's theology of official disobedience.