Three kinds of innovation are commonly associated with the early federal courts: establishing the institution of judicial review without any clear authorization for doing so, using judicial review to define property rights more expansively than would have been anticipated by contemporaries, and employing fundamental principles derived from natural or "higher" law for this purpose. I will argue that the early federal courts were far less innovative in these three respects than most scholars have supposed. First, the Framers of the Federal Constitution seem to have anticipated that the new federal courts would exercise the power of judicial review, and to have understood judicial review as a judicial practice that did not require specific authorization in a written constitution. Second, the Framers expected that in exercising the power of judicial review the federal courts would protect certain conventional property rights not stated in constitutional provisions. Third, as the Framers expected, the federal courts of this era neither relied on nor endorsed using higher law as a basis for determining the validity of statutes affecting property rights.
John F. Hart,
Human Law, Higher Law, and Property Rights: Judicial Review in the Federal Courts, 1789-1835,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol45/iss3/10