Again JV, you fall short of the mark in your historical precedents.
Your synopsis of what Lord Coke said in Dr. Bonham's case is criminal--in fact, I'll straight up call it a lie. Here's what you claim Coke held:
in the absence of an express constitution, the common law is the constitution (derived from the defense of the common law in Magna Carta) which is still the interpretation in English courts to this day
Here is what Lord Coke actually said (he never held it, as this was just dicta, not an issue before the court):
[T]he common law will controul acts of parliament, and sometimes adjudge them to be utterly void: for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such act to be void
See how you used the word constitution twice, and Coke didn't use it once? Also, you claim it is still the interpretation in English courts to this day? Far from it. Coke was claiming that reason and tradition of the courts trumped act of parliament. What's telling is the fact that no English court has ever done what you suggest--taking Coke's words in Bonham's case and overruled an act of parliament as repugnant to the common law. No judge in English history has been dumb enough to take Coke's baseless assertion and use it as a principle of law--for about 50 years after his death, judges said "yeah! what Coke said!," but they were never foolish enough to actually try and use it, because they recognized it for what it was--Coke was feuding with James at the time, and he was talking a big game about how important the judiciary was....but it was hollow posturing. Coke was trying to insert the judiciary in the present debate in England about the respective roles of king and parliament in forming law--Bonham's case dealt with king-made law--not parliamentary. In addressing what is called Coke's "Myth of the Common Law Constitution" (it's never a good sign when something you rely upon as fact is considered a myth), Blackstone summarized the English position thusly:
if the parliament will positively enact a thing to be done which is unreasonable, I know of no power that can control it: and the examples alleged in support of this sense of the rule do none of them prove, that where the main object of a statute is unreasonable the judges are at liberty to reject it; for that were to set the judicial power above that of the legislature, which would be subversive of all government.
Oh wait....did Blackstone just say that would be subversive of all government? Doesn't sound like it's still the interpretation of English courts, and the following cases from England show how far off base you are:
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Edinburgh and Dalkeith Railway v Wauchope (1842), Lord Campbell holds the court cannot query an Act of Parliament.
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Lee v Bude and Torrington Junction Railway Company (1871), holds that âif an Act of Parliament has been obtained improperly, it is for the legislature to correct it... so long as it exists as law; the courts are bound to apply itâ
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Cockburn CJ also said, in Ex parte Cannon Selwyn (1872), held that "the validity of an Act of Parliament cannot be queried as legislation is superior in authority to any court of law. This rule is the enrolled act rule."
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Pickin v BRB [1974] Lord Reid said âIn earlier times many learned lawyers seem to
have believed that an Act of Parliament could be disregarded in so far as it was contrary to
the law...but since the supremacy of Parliament was finally demonstrated by the Revolution of 1688 any such idea has become obsolete.... All that a court may do is construe and apply the enactments of Parliament.
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Manuel v Attorney-General [1983], Sir Robert Megarry VC said, â...no
English court can refuse to obey or questionâ the validity of an Act of Parliament[/i]
--Even our own Supreme Court has piled on :
Hurtado v. California (1884)[N]otwithstanding what was attributed to Lord COKE in Bonham's Case, 8 Reporter, 115, 118a, the omnipotence of parliament over the common law was absolute, even against common right and reason. The actual and practical security for English liberty against legislative tyranny was the power of a free public opinion represented by the commons.
Perhaps most telling is the fact the Coke himself took an opposite tack later in life when he himself was a member of Parliament--either he was as a judge or lying as a legislator, but in either instance it shows his obsession with power that led to so much head-butting with King James (as a judge) and then King Charles (in parliament)--he had a history of making bold, unfounded assertions in attempts to bring the king down a notch.
So, in sum, Coke never referred to a constitution, Coke was just chest-thumping for the King, English courts never followed his assertion, and English courts today eschew the idea. You claim 600 years of history, but you've yet to point out an instance predating the Constitution.
You point out that some state courts exercised judicial review under the Articles of Confederation (there were seven of them). You fail to clarify that the states that did so were the states that
expressly gave their courts that power in their state constitutions. No court without judicial review explicit in their formative document purported to exercise the power. So, when the Framers got together, they had a number of different state constitutions and charters to work from, a number of which expressly gave their courts the power of judicial review, and a number of which did not--the Framers didn't make it express like the states who actually used it.
