Judicial review has run the gauntlet of criticism ever since John Marshall declared in Marbury v. Madison that “It is emphatically the province and duty of the judicial department to say what the law is….”

The critics have emphasized the incompatibility of judicial review with democratic values. In doing this, they have sometimes drawn, for effect, on the contrasting evolution of England and the U.S. on the issue. It is noted that the doctrine and practice of judicial review as they obtain in the contemporary U.S. were known “only in very attenuated form” in late sixteenth century and early seventeenth century England (Huntington 1968, 112), and were based on the need to guarantee that the King would no longer influence English judges “to support royal claims to the detriment of the liberties of the people” (Melone and Mace 1988, 207–08). Furthermore, by the eighteenth century the doctrine and the practice were extinct to the point where Blackstone

could flatly state that no court could declare invalid an act of Parliament however unreasonable it might be. To admit such a power, he said, “were to set the judicial power above that of the legislature, which would be subversive of all government.” (Huntington 1968, 112)

Since at the time of the Philadelphia Convention there was no hereditary monarch in America “with a vested interest in maintaining power at the expense of liberty,” and since government officials were elected by the people and were “consequently controlled by them,” it was argued, to no avail, by the likes of Robert Yates, that there was no need to repose virtually uncontrolled power in the judiciary “unless the goal is autonomy, not from a despotic King, but from the democratic tendencies of a free people” (Melone and Mace 1988, 207–08).