PREFACE In the preparation of another volume, not yet published, I have encountered a number of questions involving controversies important to the student of American Constitutional History, an extended consideration of which however in those pages I felt to be out place. The following studies present my conclusions with regard to these questions, and the grounds of them. In the principal essay, I have endeavored to present judicial review as the outcome of a view of legislative power which arose in consequence of the astonishing abuse of their powers by the early State legislatures but which was first appreciated for its full worth by the Convention that framed the Constitution of the United States. Incidentally I have, I trust, laid to rest that most inconclusive "explanation" of judicial review which dwells on the idea that a legislative measure contrary to the constitution is not law and never was. The alleged explanation totally ignores the crucial question, which is, Why is it the judicial view of the constitution that legislative measures have to conform to? The article on the Dred Scott Decision treats of the most dramatic episode in the history of judicial review, though one that is by no means the best illustrative of the spirit of the institution. The study entitled "We, the People," approaches the time-honored controversy over Secession and Nullification from what is shown to be, I submit, the point of view of 1787. But the verdict arrived. at with reference to the rights of the States in relation to the Constitution is not without import for some present-day issues, as is shown in the paper on Some Possibilities of Treaty-Making. The paper on the Pelatiah Webster Myth deals with a question of less practical significance, but yet one of real ethical importance. For if history has any function to perform it is that of endeavoring at least to make correct assessment of the motives and services of men. In the preparation of this little volume I have become the debtor of Professor Evans Holbrook, editor of the Michigan Law Review, for valuable editorial assistance in putting the first study into final shape. My especial thanks are also due to Mr. Walter Cottrell of the Princeton University Library staff and Mr. B. A. Finney of the University of Michigan Library for numberless courtesies. I should also take this occasion to point out to the reader that when the word "constitution" is capitalized in the following pages it refers to the national Constitution, but that at other times it refers to this or that State constitution or signifies constitution in the generic sense. The distinction becomes at times of some importance. Ypsilanti, Michigan EDWARD S. CORWIN. |