The Corporate Origins of Judicial Review

Mary Sarah Bilder, Boston College Law School


This article argues that the origins of judicial review lie in corporate law. Diverging from standard historical accounts that locate the origins in theories of fundamental law or the American structure of government, the article argues that judicial review was the continuation of a longstanding English practice of constraining corporate ordinances by requiring that they be not repugnant to the laws of the nation. Reclaiming the history of this practice explains why constitutional framers presumed the existence of judicial review. While resolving certain debates over judicial review, this history equally importantly establishes that other modern controversies over judicial review are unanswerable by the history of the founding era.