1. Alesina, Alberto F. and Glaeser, Edward, Fighting Poverty in the U.S. and Europe: A World of Difference (New York: Oxford University Press, 2004)CrossRefGoogle Scholar.

2. Accounts emphasizing British legal inheritance include Corwin, E. S., The Doctrine of Judicial Review (Princeton, NJ: Princeton University Press, 1914)Google Scholar; Corwin, E. S., “The ‘Higher Law’ Background of American Constitutional Law,” Harvard Law Review 42 (1929): 365–409 Google Scholar; McIlwain, C. H., “The English Common Law, Barrier to Absolutism,” American Historical Review 49 (1943): 23–31 CrossRefGoogle Scholar; Dietze, Gottfried, “America and Europe—Decline and Emergence of Judicial Review,” Virginia Law Review 44 (1958): 1233–72Google Scholar; Hayek, Friedrich A., The Constitution of Liberty (Chicago: University of Chicago Press, 1960)Google Scholar; Beth, Loren P., “The Judicial Committee of the Privy Council and the Development of Judicial Review,” American Journal of Comparative Law 24 (1976): 22–42 CrossRefGoogle Scholar; Grey, Thomas C., “Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought,” Stanford Law Review 30 (1978): 843–93CrossRefGoogle Scholar; Sherry, Suzanna, “The Founders' Unwritten Constitution,” University of Chicago Law Review 54 (1987): 1127–77Google Scholar; Clinton, Robert Lowry, Marbury v. Madison and Judicial Review (Lawrence: University Press of Kansas, 1989)Google Scholar; Casto, William R., “James Iredell and the American Origins of Judicial Review,” Connecticut Law Review 27 (1995): 329–63Google Scholar; Boyer, Allen Dillard, “Understanding, Authority, and Will: Sir Edward Coke and the Elizabethan Origins of Judicial Review,” Boston College Law Review 39 (1997): 42–93 Google Scholar; Hamburger, Philip, “Law and Judicial Duty,” George Washington Law Review 72 (2003): 1–41 Google Scholar; Prakash, Saikrishna and Yoo, John, “The Origins of Judicial Review,” University of Chicago Law Review 70 (2003): 887–982 Google Scholar; Treanor, William Michael, “Judicial Review Before Marbury,” Stanford Law Review 58 (2005): 455–562 Google Scholar; Bilder, Mary, “The Corporate Origins of Judicial Review,” Yale Law Journal 116 (2006): 502–66Google Scholar; and Hamburger, Philip, Law and Judicial Duty (Cambridge, MA: Harvard University Press, 2008)CrossRefGoogle Scholar. Accounts emphasizing the intergovernmental conflicts engendered by federalism include Dietze, Gottfried, “Madison's Federalist: A Treatise for Free Government,” Georgetown Law Journal 46 (1957): 21–51 Google Scholar; Wood, Gordon S., The Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1969)Google Scholar; Rakove, Jack, “The Origins of Judicial Review: A Plea for New Contexts,” Stanford Law Review 49 (1997): 1031–64CrossRefGoogle Scholar; Wood, Gordon S., “The Origins of Judicial Review Revisited,” Washington and Lee Law Review 56 (1999): 787–809 Google Scholar; Harrington, Matthew P., “Judicial Review Before John Marshall,” George Washington Law Review 72 (2003): 51–94 Google Scholar; Prakash and Yoo, “The Origins of Judicial Review,” and Whittington, Keith E., “‘Interpose Your Friendly Hand’: Political Supports for the Exercise of Judicial Review by the United States Supreme Court,” American Political Science Review 99 (2005): 583–96CrossRefGoogle Scholar.

3. Ginsburg, Tom and Versteeg, Mila, “Why Do Countries Adopt Constitutional Review?” Journal of Law, Economics and Organization 30 (2014): 587–22Google Scholar. Comparative case studies of the adoption of judicial review include Shapiro, Martin, “The Success of Judicial Review,” in Constitutional Dialogues in Comparative Perspective, ed. Kenney, Sally J., Reisinger, William M., and Reitz, John C. (New York: St. Martin's Press, 1999)Google Scholar; Ginsburg, Tom, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (New York: Cambridge University Press, 2003)CrossRefGoogle Scholar; and Hirschl, Ran, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, MA: Harvard University Press, 2004)Google Scholar.

4. This work includes Acemoglu, Daron and Robinson, James A., “Why Did Western Europe Extend the Franchise? Democracy, Inequality, and Growth in Historical Perspective,” Quarterly Journal of Economics 115 (2000): 1167–99Google Scholar; Engerman, Stanley L. and Sokoloff, Kenneth L., “Factor Endowments, Inequality, and Paths of Development Among New World Economies,” Economia 3 (2002): 41–109 Google Scholar; Acemoglu, Daron and Robinson, James A., Economic Origins of Dictatorship and Democracy (New York: Cambridge University Press, 2006)Google Scholar; Acemoglu, Daron and Robinson, James A., Why Nations Fail: The Origins of Power, Prosperity, and Poverty (New York: Crown Business, 2012)Google Scholar.

5. Corwin, The Doctrine of Judicial Review; Corwin, “The ‘Higher Law’ Background of American Constitutional Law”; McIlwain, “The English Common Law”; Grey, “Origins of the Unwritten Constitution”; Clinton, Marbury v. Madison and Judicial Review; Boyer, “Understanding, Authority, and Will”; Hamburger, “Law and Judicial Duty”; Hamburger, Law and Judicial Duty.

6. Hayek, The Constitution of Liberty; Prakash and Yoo, “The Origins of Judicial Review.”

7. Beth, “The Judicial Committee of the Privy Council”; Bilder, “The Corporate Origins of Judicial Review.”

8. Dietze, “America and Europe—Decline and Emergence of Judicial Review”; Sherry, “The Founders' Unwritten Constitution”; Casto, “James Iredell and the American Origins of Judicial Review”; Treanor, “Judicial Review Before Marbury.”

9. Authors making this argument typically point to a handful of cases originating in state courts in the 1780s, wherein state judges appeared to assert something like the power of judicial review. The list of cases generally includes Holmes v. Walton (New Jersey 780), Commonwealth v. Caton (Virginia 1782)Google Scholar, Rutgers v. Waddington (New York 1784)Google Scholar, Trevett v. Weeden (Rhode Island 1786)Google Scholar, The Ten Pound Act Cases (New Hampshire 1786–1787)Google Scholar, and Bayard v. Singleton (North Carolina 1787)Google Scholar. See Crosskey, William Winslow, Politics and the Constitution in the History of the United States, vols. 1–3 (Chicago: University of Chicago Press, 1953)Google Scholar; Treanor, William Michael, “The Case of the Prisoners and the Origins of Judicial Review,” University of Pennsylvania Law Review 143 (1994): 491–570 Google Scholar; Hamburger, “Law and Judicial Duty;” Treanor, “Judicial Review Before Marbury.”

10. Dietze, “Madison's Federalist”; Wood, The Creation of the American Republic; Rakove, “The Origins of Judicial Review”; Wood, “The Origins of Judicial Review”; Prakash and Yoo, “The Origins of Judicial Review”; Harrington, “Judicial Review Before John Marshall”; Whittington, “‘Interpose Your Friendly Hand.’”

11. Wood, The Creation of the American Republic, 274–75, 277.

12. The Massachusetts constitution of 1780 directed that voters be asked in 1795 whether they wanted an amending convention, with a two-thirds popular majority required to call such a convention; this provision expired after 1795. The New Hampshire constitution of 1784 contained an analogous provision, with an expiration date of 1791. Georgia required supermajority amendment in its 1789 constitution, but reverted to ordinary majority amendment in its 1795 constitution.

13. Jefferson, Thomas, The Works of Thomas Jefferson, ed. Ford, Paul Leicester, vol. 4 (New York: G.P. Putnam's Sons, 1904–5), 20–37Google Scholar.

14. The Case of Elizabeth Rutgers versus Joshua Waddington (Morrisania: 1866), 41Google Scholar.

15. Harrison, John, “The Constitutional Origins and Implications of Judicial Review,” Virginia Law Review 84 (1998): 333–87Google Scholar.

16. Journals of the Continental Congress, 1774–1789, ed. Ford, Worthington C. et al. (Washington, DC, 1904–1937)Google Scholar, July 12, 1776.

17. The dominant federalism-based explanation for the appearance of entrenched judicial review in the 1789 Constitution emphasizes the post-1781 conflicts between the Confederation Congress and unchecked state legislatures. It is possible that there were other causal paths by which federalism affected the later adoption of entrenched judicial review. A more comprehensive comparative analysis of the effect of the presence of federalism on the adoption of entrenched judicial review is reported in a subsequent section.

18. Acemoglu and Robinson, “Why Did Western Europe Extend the Franchise?”; Engerman and Sokoloff, “Factor Endowments, Inequality, and Paths of Development”; Acemoglu and Robinson, Economic Origins of Dictatorship and Democracy; Acemoglu and Robinson, Why Nations Fail.

19. Theoretical models making this prediction include Meltzer, Allan H. and Richard, Scott F., “A Rational Theory of the Size of Government,” Journal of Political Economy 89 (1981): 914–27Google Scholar; Saint-Paul, Gilles and Verdier, Thierry, “Education, Democracy, and Growth,” Journal of Development Economics 42 (1993): 399–407 Google Scholar; Alesina, Alberto F. and Rodrik, Dani, “Distributive Politics and Economic Growth,” Quarterly Journal of Economics 109 (1994): 465–90Google Scholar; Persson, Torsten and Tabellini, Guido, “Is Inequality Harmful for Growth? Theory and Evidence,” American Economic Review 84 (1994): 600–21Google Scholar; Acemoglu and Robinson, “Why Did Western Europe Extend the Franchise?”; Acemoglu and Robinson, Economic Origins of Dictatorship and Democracy. Empirical evidence in support of the prediction has been reported by Sean P. Corcoran and William N. Evans, “Income Inequality, the Median Voter, and Support for Public Education,” National Bureau of Economic Research Working Paper #16097 (2010); and Boustan, Leah, Ferreira, Fernando, Winkler, Hernan, and Zolt, Eric, “The Effect of Rising Income Inequality on Taxation and Public Expenditures: Evidence from U.S. Municipalities and School Districts, 1970-2000,” Review of Economics and Statistics 95 (2013): 1291–302Google Scholar.

20. Acemoglu and Robinson, Economic Origins of Dictatorship and Democracy, 190.

21. Acemoglu and Robinson, “Why Did Western Europe Extend the Franchise?”; Acemoglu and Robinson, Economic Origins of Dictatorship and Democracy.

22. Acemoglu and Robinson, Economic Origins of Dictatorship and Democracy.

23. Hirschl, Towards Juristocracy.

24. Ginsburg, Judicial Review in New Democracies; Ginsburg and Versteeg, “Why Do Countries Adopt Constitutional Review?”

25. Marbury v. Madison, 5 U.S. 137 (1803, 177).

26. Harrison, “The Constitutional Origins and Implications of Judicial Review,” 365. Also see Greenawalt, Kent, “The Rule of Recognition and the Constitution,” Michigan Law Review 85 (1987): 621–71Google Scholar; Schwartzberg, Melissa, Counting the Many: The Origins and Limits of Supermajority Rule (New York: Cambridge University Press, 2013)Google Scholar.

27. Lijphart, Arend, Patterns of Democracy: Government Forms and Performance in Thirty-Six Democracies (New Haven, CT: Yale University Press, 2012), 219Google Scholar.

28. Marbury v. Madison, 5 U.S. 137 (1803, 177).

29. Lijphart, Patterns of Democracy, 204.

30. Lutz, Donald S., “Toward a Theory of Constitutional Amendment,” American Political Science Review 88 (1994): 355–70Google Scholar; Lorenz, Astrid, “How to Measure Constitutional Rigidity: Four Concepts and Two Alternatives,” Journal of Theoretical Politics 17 (2005): 339–61Google Scholar; Rasch, Bjorn Erik and Congleton, Roger D., “Constitutional Amendment Procedures,” in Democratic Constitutional Design and Public Policy: Analysis and Evidence, vol. 1, ed. Congleton, Roger D. and Swedenborg, Birgitta (Boston: MIT Press, 2006), 372–97Google Scholar; Elkins, Zachary, Ginsburg, Tom, and Melton, James, The Endurance of National Constitutions (Cambridge: Cambridge University Press, 2009)Google Scholar; Lijphart, Patterns of Democracy.

31. Pre-independence Gini coefficients and labor force demographics are reported in Lindert, Peter H. and Williamson, Jeffrey G., “American Incomes Before and After the Revolution,” Journal of Economic History 73 (2013): 725–65Google Scholar. Pre-independence suffrage laws are surveyed in Keyssar, Alexander, The Right to Vote: The Contested History of Democracy in the United States (New York: Basic Books, 2013)Google Scholar.

32. Lindert and Williamson, “American Incomes Before and After the Revolution,” pp. 756, 742.

33. Ibid., 756.

34. Ibid.

35. Adams, John, The Works of John Adams, vol. 2, ed. Adams, Charles Francis (Boston: Little, Brown and Co., 1856), 365–68Google Scholar.

36. Ibid.

37. Ibid., 367.

38. Ibid., 368.

39. South Carolinian Thomas Lynch declared, “I think [the voting rule] cannot be now settled,” while delegates from Virginia conceded majority voting by colony only “at this time,” and “at present.” Virginian Edmund Pendleton anticipated the modification of the rule “at some future time.” Ibid, 367. An entry was made in the Congress' journal “to prevent [the voting rule] being drawn into precedent in future.” Letter of the Connecticut Delegation, October 10, 1774, Letters of Delegates to Congress, 1774-1789, vol. 1, ed. Smith, Paul H. (Washington DC: Library of Congress, 1976)Google Scholar.

40. Adams, The Works of John Adams, 385.

41. Ibid., 481, 415.

42. “There can be no doubt that the members of the committee began their work with a copy of Benjamin Franklin's proposed Articles of Confederation before them. Several passages from Franklin's plan can be found verbatim in the Bartlett and Dickinson drafts, and many others survive with only slight variations.” Letters of Delegates to Congress, 253. For Franklin's draft, see Journals of the Continental Congress, vol. 2, 195–99.

43. Edward Rutledge to John Jay, June 29, 1776, Letters of Delegates to Congress, vol. 4, 338.

44. Farrand, Max, ed., The Records of the Federal Convention of 1787, vols. 1–3 (New Haven, CT: Yale University Press, 1911)Google Scholar, vol. 2, 364.

45. Thomas Lynch of South Carolina promised “an end of the confederation” were slavery questioned by the Congress. Adams, The Works of John Adams, 498.

46. Journals of the Continental Congress, vol. 2, July 12, 1776.

47. Farrand, The Records of the Federal Convention, vol. 1, 431.

48. By the time the council began to be debated on June 4, it had already been resolved that there would be a single executive; the inclusion of any number of judges that could guarantee the absence of ties on the council implied a judicial majority on that body. Ibid., vol. 2, 79.

49. Ibid., vol. 1, 21. South Carolina delegate Charles Pinckney also included a similarly constituted Council of Revision in his proposal to the convention on the same day that the Virginia Plan was proposed. Ibid., 23.

50. Ibid., 108

51. Ibid., 138.

52. Ibid., vol. 1, 98, 100, 108, 139, 140; vol. 2, 73, 74, 300.

53. Votes on the Council of Revision were held on June 4, June 6, and July 21. Madison proposed veto power in the Supreme Court on August 15. Ibid., vol. 2, 32–36, 198, 298.

54. Elbridge Gerry of Massachusetts. Ibid., vol. 1, 97. See also 109 and vol. 2 73, 76–78, 93.

55. Ibid., vol. 2, 399.

56. Ibid., vol. 1, 121–22.

57. Ibid., 123.

58. Ibid., vol. 2, 468.

59. Ibid., 469, 477.

60. Ibid., 450.

61. Ibid., 468.

62. Ibid., 558.

63. Ibid.

64. Ibid., 559.

65. Ibid., 630.

66. Ibid., 631.

67. Smith, J. Allen, The Spirit of American Government (New York: The Macmillan Company, 1907)Google Scholar.

68. Farrand, The Records of the Federal Convention, vol.1, 593.

69. Ibid., vol. 2, 364.

70. Ibid., vol. 1, 562.

71. Some might question whether Southern elites genuinely preferred entrenched judicial review, given the opposition of some prominent Southerners to federal judicial review during the 1790s. However, the dominance of the federal judiciary by Federalists during that decade provides a plausible explanation for this later opposition. See, for example, Mayer, David N., The Constitutional Thought of Thomas Jefferson (Charlottesville: University Press of Virginia, 1994)Google Scholar.

72. Acemoglu and Robinson, Why Nations Fail, 277–81. The first recorded Gini coefficient for Australia in the World Institute for Development Research (WIDER) dataset is .32 in 1967. Branko Milanovic, All the Ginis database (version Summer 2013), accessed at http://econ.worldbank.org/projects/inequality.

73. Delegates from West Australia were chosen by that province's elected legislature rather than directly elected by adult male colonists. Aroney, Nicholas, Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution (Cambridge, UK: Cambridge University Press, 2009)Google Scholar.

74. Ibid., 316.

75. Ibid., 318, 316.

76. Ibid., 162–64.

77. Milanovic, All the Ginis database.

78. Bastien, Frederic, “Britain, the Charter of Rights and the Spirit of the 1982 Canadian Constitution,” Commonwealth & Comparative Politics 48 (2010): 320–47CrossRefGoogle Scholar.

79. Milanovic, Branko, Lindert, Peter H., and Williamson, Jeffrey G., “Pre-Industrial Inequality,” The Economic Journal 121 (2011): 255–72Google Scholar.

80. M. Venkata Rangaiya, “The Indian Constituent Assembly,” Triveni (December 1946). Accessed at http://www.yabaluri.org/triveni/cdweb/theindianconstituentassemblydec46.htm.

81. Hansard HL Deb. May 16, 1946, vol. 141, cols. 271–87; Ghosh, Pratap Kumar, The Constitution of India: How It Has Been Framed (Calcutta: World Press, 1966), 19Google Scholar.

82. Rangaiya, “The Indian Constituent Assembly.”

83. Hansard HL Deb. May 25, 1946, vol. 141, cols. 321–23.

84. The British secretary of state for India observed on July 18, 1946, “they (the Indian Parties) cannot, of course, go outside the terms of what has been agreed to . . . it is on the basis of that agreed procedure that the British Government has said they will accept the conclusions of the Constituent Assembly.” Rangaiya, “The Indian Constituent Assembly.” Also see Ghosh, The Constitution of India, 19.

85. Rangaiya, “The Indian Constituent Assembly.”

86. Ibid.

87. Ibid.

88. Ghosh, The Constitution of India.

89. Milanovic, All the Ginis database.

90. Kelly, James B., “The Jamaican Independence Constitution of 1962,” Caribbean Studies 3 (1963): 18–83 Google Scholar, 47.

91. Ibid., 50.

92. Ibid., 51.

93. North, Douglass, Institutions, Institutional Change, and Economic Performance (New York: Cambridge University Press, 1990)Google Scholar.

94. Acemoglu, Daron, Johnson, Simon, and Robinson, James A., “The Colonial Origins of Comparative Development: An Empirical Investigation,” American Economic Review 91 (2001): 1369–401CrossRefGoogle Scholar; Acemoglu, Daron, Johnson, Simon, and Robinson, James A., “The Colonial Origins of Comparative Development: An Empirical Investigation: Reply,” American Economic Review 102 (2012): 3077–110Google Scholar; Acemoglu and Robinson, Why Nations Fail. In “The Colonial Origins of Comparative Development,” Acemoglu, Johnson, and Robinson suggested that the extent of pre-independence European settlement affected whether more “extractive” or more “European-like” economic and political institutions were established pre-independence (1370, 1374), but did not elaborate on these alternative institutional paths. In Why Nations Fail, Acemoglu and Robinson recharacterized these alternatives as “extractive” and “inclusive,” describing extractive economic institutions as those that secure “the concentration of wealth and power in the hands of a narrow elite” (95) and inclusive economic institutions as those that provide for “a more equitable distribution of resources” (82).

95. Logged pre-independence European mortality rates for former European colonies are reported by Acemoglu, Johnson, and Robinson in “The Colonial Origins of Comparative Development.” These mortality rates are generally from the first half of the nineteenth century. Because technologies for fighting the primary diseases contributing to these mortality rates (typically malaria and yellow fever) did not significantly improve until the twentieth century, early nineteenth-century mortality data should provide a good approximation of European mortality rates throughout the pre-independence period. While the original data used in “The Colonial Origins of Comparative Development” have been questioned in Albouy, David, “The Colonial Origins of Comparative Development: An Empirical Investigation: Comment,” American Economic Review 102 (2012): 3059–76Google Scholar, “The Colonial Origins of Comparative Development: Reply” reports a series of alternative measures of pre-independence European mortality that enable several robustness checks. Mortality rates are logged to reduce the influence of outliers.

96. “Northern” and “Southern” European mortality rates are reported in Curtin, Philip D., Death By Migration: Europe's Encounter with the Tropical World in the Nineteenth Century (New York: Cambridge University Press, 1989)Google Scholar; pre-independence labor force and inequality measures for the Southern and New England colonies are reported in Lindert and Williamson, “American Incomes Before and After the Revolution.”

97. Proportion European in 1900 is available from McEvedy, Colin and Jones, Richard, Atlas of World Population History (New York: Facts on File, 1975)Google Scholar; and Curtin, Philip D., Feierman, Steven, Thompson, Leonard, and Vansina, Jan, African History: From Earliest Times to Independence, 2nd. ed. (London: Longman, 1995)Google Scholar.

98. Milanovic, All the Ginis database.

99. Milanovic, Lindert, and Williamson, “Pre-Industrial Inequality.”

100. Cheibub, Jose Antonio, Gandhi, Jennifer, and Vreeland, James Raymond, “Democracy and Dictatorship Revisited,” Public Choice 143 (2010): 67–101 Google Scholar.

101. Constitution Act, 1982, as amended to 2009, Part I, Section 33, World Constitutions Illustrated, Hein Online.

102. All constitutions were accessed through Hein Online.

103. The pre-independence European mortality rate for the United States used in Tables 3 and 4 is that for the Southern colonies, as reported by Curtin, Death By Migration. However, using the mortality estimate for the Northern colonies does not appreciably change results.

104. Latitude data are reported by Porta, Rafael La, Lopez-de-Silanes, Florencio, Shleifer, Andrei, and Vishny, Robert W., “The Quality of Government,” Journal of Law, Economics, and Organization 15 (1999): 222–79Google Scholar. Regional dummies are as constructed by Acemoglu, Johnson, and Robinson, “The Colonial Origins of Comparative Development.”

105. Indicators for colonial origin are taken from La Porta et al., “The Quality of Government.”

106. Data on malarial incidence are reported by Gallup, John L. and Sachs, Jeffrey D., “The Economic Burden of Malaria,” American Journal of Tropical Medicine and Hygiene 64 (2001): 85–96 Google Scholar. Data on yellow-fever-friendly habitats are reported by Oldstone, Michael B. A., Viruses, Plagues, and History (New York: Oxford University Press, 1998)Google Scholar, while historical data on yellow fever epidemics are available from Curtin, Death By Migration; and Curtin, Philip D., Disease and Empire: The Health of European Troops in the Conquest of Africa (New York: Cambridge University Press, 1998)Google Scholar.

107. This indicator is reported by Cheibub, Gandhi, and Vreeland, “Democracy and Dictatorship Revisited.”

108. Proportion of Europeans in 1975 is from McEvedy and Jones, Atlas of World Population History. The index of ethnolinguistic fragmentation is reported by Easterly, William and Levine, Ross, “Africa's Growth Tragedy: Policies and Ethnic Divisions,” Quarterly Journal of Economics 112 (1997): 1203–50Google Scholar. Data on religious affiliation are reported by La Porta et al., “The Quality of Government.”

109. These alternative measures are available from Acemoglu, Johnson, and Robinson, “The Colonial Origins of Comparative Development: Reply.”

110. Acemoglu, Johnson, and Robinson, “The Colonial Origins of Comparative Development”; Acemoglu and Robinson, Why Nations Fail.

111. Alesina and Glaeser, Fighting Poverty in the U.S. and Europe.