Founding Father

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Finally, he was one of the earliest and most articulate proponents of judicial review, the theory that Chief Justice Marshall enshrined in Marbury v. Madison and a practice that on more than one occasion has proved to be a bulwark of liberty against government encroachment. A constitution doesn’t amount to much if the legislature is free to disregard it. Still, if Wilson deserves credit for pointing out the benefits of judicial review, he was less conscious of its dangers. He envisioned the Supreme Court as a kind of “council of revision,” in which justices would act as veritable philosopher-kings and strike down laws not only for constitutional reasons but on policy grounds as well. Such an approach anticipated the kind of antidemocratic judicial activism that the Harvard law professor James Bradley Thayer warned against more than a century ago. A man with many good ideas and a couple of bad ones, James Wilson is one Founder who ought to be better known.