(Page 10 of 28) - Judgement, Force, and Will - James Wilson & Alexander Hamilton on Judical Review and Judical Supremacy authored by Geisler, William.

Wilson finds this problematic: “What! Are we bound to transgress it? ― And are the courts of

justice forbidden to reject it? Surely, these positions are inconsistent and irreconcilable.”

Wilson points to the obvious conflagration that would occur in a society whose citizens rightly

refused to comply with unreasonable laws, but then had no recourse to the courts of justice when

rightly arrested by the executive whose function and duty it is to enforce the law.

Thus,

Wilson’s conclusion is that the mere presence unjust standing law will likely lead to the unjust

treatment of the citizenry.

Even though Blackstone’s remedy is problematic, Wilson is sensitive to Blackstone’s

desire to preserve the integrity of republican government. For while Wilson and Blackstone

disagree about the propriety of judicial review, they can agree about the danger of a judiciary

that in fact is controlling the legislature, who are, after all, the representatives of the people. And

at the very least they can agree upon the danger of the appearance of judicial control of the

legislative. However, Wilson notes that while no human authority can rightfully control the

legislature, unquestionably the legislative power can

. . . be controlled by natural or revealed law, proceeding from divine authority. . . . Is not this
superiour authority binding upon the courts of justice? When repugnant commands are delivered

Ibid., Wilson, Lectures on Law.

Thomas Tudor Tucker analyzes this problem. His argument is that without a nullifying judiciary, the

legislature’s “privileges are indefinable, because it is impossible to say, how far they may be extended without
rousing the people to a tumultuous opposition or civil war; for with them there is no other remedy against tyranny
and oppression.” Tucker also says that legislative transgressions of the Constitution can only be avoided if the
constitution “expressly declare[d] that no act of the legislature contravening it should be of force” in the courts of
law. Thomas Tudor Tucker, Conciliatory hints, attempting, by a fair state of matters, to remove party-prejudices, in
American Political Writing During the Founding Era 1760-1805, ed. Charles S. Hyneman and Donald S. Lutz
(1784; Indianapolis: Liberty Press, 1983). Leslie Goldstein comments, “Judicial review might serve as the peaceful
alternative to resolution and also the institutional guardian as the institutional guardian of the people’s sovereignty.”
Leslie Friedman Goldstein, “Popular Sovereignty, the Origins of Judicial Review, and the Revival of Unwritten
Law,” Journal of Politics 48, no. 1 (February 1986): 62. The arrest of individuals refusing to obey an unjust law is
not necessarily certain. If the corruption evident in the legislature were not present in the executive department, the
executive would rightly claim that they were under no obligation to enforce manifestly unjust laws.

Although Blackstone’s view of legislative prerogative was widely held, he did have opposition in his

own legal tradition prior to the arguments of James Wilson. Sir Edward Coke held that natural law was a perfectly
acceptable basis under which to void law. Moreover, while not to the extent of Blackstone, Coke’s Institutes were
widely used by lawyers and judges, especially in America. See Charles Grove Haines, The American Doctrine of
Judicial Supremacy (New York: Russell & Russell, 1959), 222.