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Idea or Practice: A Brief Historiography of Judicial Review

Published online by Cambridge University Press:  27 April 2009

Mary Sarah Bilder
Mary Sarah Bilder
Affiliation:
Boston College Law School
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Extract

Judicial review may be the most publicly contested aspect of American constitutionalism. When courts void legislation, they implicitly seem to strike at the heart of the principle of separation of powers. The act inherently suggests that the elected legislature is not always the legitimate representative of the people and that democratic majoritarianism is not the fundamental principle of American politics. Because judicial review can be described in opposition to ideas often deemed fundamental to American constitutionalism, the origins of judicial review have intrigued scholars of politics, history, and law. For the last century, the origins inquiry has started from the assumption that the origins of judicial review lie in an idea, an intellectual doctrine about judicial power. In fact, the origins of judicial review lie in a pre-Revolutionary practice and idea of limited legislative authority.

Type
Articles
Information
Journal of Policy History , Volume 20 , Issue 1 , January 2008 , pp. 6 - 25
Copyright
Copyright © The Pennsylvania State University, University Park, PA. 2008

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References

Notes

1. Recent articles with titles on the origins of judicial review include Bilder, Mary Sarah, The Corporate Origins of Judicial Review, 116 Yale L.J. 502 (2006) [hereafter Bilder, Corporate Origins]Google Scholar; Prakash, Saikrishna B. & Yoo, John C., The Origins of Judicial Review, 70 U. Chi. L. Rev. 887 (2003)Google Scholar; Symposium: The Constitutional Origins of Judicial Review, 72 Geo. Wash. L. Rev. 319 (2003)Google Scholar; Wood, Gordon S., The Origins of Judicial Review Revisited, or How the Marshall Court Made More out of Less, 56 Wash. & Lee L. Rev. 787 (1999)Google Scholar; Hobson, Charles F., The Origins of Judicial Review: A Historian's Explanation, 56 Wash. & Lee L. Rev. 811 (1999)Google Scholar; Rakove, Jack N., The Origins of Judicial Review: A Plea for New Contexts, 49 Stan. L. Rev. 1031 (1997).Google Scholar

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4. 2 TheRecords of theFederalConvention of 1787, at 93 (Max Farrand ed., rev. ed., 1966) (23 July).

5. Marbury, 5 U.S. at 176, 180.

6. The division appeared in the chartering of the American Historical Association (1884), the American Association of Law Schools (1900), and the American Political Science Association (1903). See White, G. Edward, The Arrival of History in Constitutional Scholarship, 88 Va. L. Rev. 485, 509 (2002).Google Scholar

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8. Id. at 474.

9. Id. at 55.

10. Id. at 395, 521. Otis reportedly argued that “As to Acts of Parliament. an Act against the Constitution is void: an Act against natural Equity is void.” Id. at 474. A new edition of the reports is forthcoming by Daniel R. Coquillette.

11. Id. at 527.

12. Id. at 521; see Dr. Bonham's Case (1610); 77 Eng. Rep. 646, 652 (K.B.) (“[I]t appears in our books, that in many cases, the 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”).

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14. Quincy, supra note 7, at 529.

15. Id. at 530.

16. Summary of Events, 8 Am. L. Rev. 159, 167 (1873).

17. See Portland Bank v. Apthorp, 12 Mass. 252, 253 (1815); see also Rosenthal, James M., Massachusetts Acts and Resolves Declared Unconstitutional by the Supreme Judicial Court of Massachusetts, 1 Mass. L.Q. 301–318 (1916) (discussing cases).Google Scholar

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19. A Day in a Massachusetts Court, 9 Alb. L.J. 283 (1874).Google Scholar

20. Parker, supra note 18, at 620.

21. Knowlton, Marcus Perrin, Memorial, 182 Mass. 622, 624 (1903).Google Scholar

22. The Civil Rights Cases, 109 U.S. 3 (1883).Google Scholar

23. Juilliard v. Greenman, 110 U.S. 421 (1884).

24. See Bloom, Robert, The Origin of the Supreme Judicial Court Law Clerk System (2002), http://sjclawclerks.socialaw.com/history.htm.Google Scholar

25. See Meigs, William M., TheLife ofCharlesJaredIngersoll (1897)Google Scholar; Meigs, William M., TheLife ofThomasHartBenton (1904)Google Scholar; Meigs, William M., TheLife ofJohnCaldwellCalhoun (1917).Google Scholar

26. Meigs, William M., TheGrowth of theConstitution in theFederalConvention of 1787, inserted between 316 and 317 (1900).Google Scholar

27. Id. at title page.

28. Meigs, William M., The Relation of the Judiciary to the Constitution, 19 Am. L. Rev. 175 (1885)Google Scholar (noting the recent decision in the Civil Rights Cases). Meigs was drawn to the topic in part because of Richard Street's controversial paper, “How Far Questions of Public Policy May Enter into Judicial Decisions,” presented at the American Bar Association meeting. See 6 Report of the … AnnualMeeting of theAmericanBarAssociation 179 (1883); Meigs, The Relation, supra note 28, at 198.

29. Id. at 176. He noted that the “doctrine of Coke” likely “had its part in the matter” but emphasized the judiciary's explicit assertion of the power in post–Revolutionary decisions. Id. at 177–78.

30. Id.

31. Id. at 177.

32. Id. at 178–82.

33. Id. at 182–83.

34. Id. at 183–84; see 5 Elliot, Jonathan, Debates on theAdoption of theFederalConstitution in theConvention held atPhiladelphia in 1787 (1845) (reprinting Madison's notes).Google Scholar

35. Id. at 184–85.

36. Id. at 185–87.

37. Id. at 188.

38. Id. at 199.

39. Id. at 202.

40. Id.

41. Brady, Tim, The Ph.D. and the Northeastern Fisheries, MinnesotaMagazine (5 05 2005) (http://www.alumni.umn.edu/Elliot.html).Google Scholar

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43. Id. at 229.

44. Id. at 239.

45. Id. at 230.

46. Id. at 252–58.

47. Adams, Brooks, TheEmancipation ofMassachusetts: TheDream and theReality302 (2d ed., 1886)Google Scholar. For discussion of Winthrop, see id. at 293–302. For the decree, see ThePublicRecords of theColony ofConnecticut, 1726–35, at 191–92, 571–79 (1873). For materials related to another appeal, Philips v. Savage, see Proceedings of theMassachusettsHistoricalSociety for 1860–1862, 64–80, 165–71.

48. Chamberlain, Mellen, Remarks on The Talcott Papers, 8 Proceedings of theMassachusettsHistoricalSociety, 1892–1894 (2d ser.) 123 (1894)Google Scholar; TheTalcottPapers: Correspondence andDocuments (ChieflyOfficial) DuringJosephTalcott'sGovernorship of theColony ofConnecticut, 1724–1741, ed. Mary Kingsbury Talcott (1892) (2 vols.). Chamberlain was a lawyer, Chief Justice of the Boston Municipal Court, antiquarian, and the Librarian for the Boston Public Library. Adams and Thayer both acknowledged his assistance in their works on the origins of judicial review.

49. Coxe, supra note 18. Coxe's book was an extensive reply to another Philadelphia lawyer, Richard McMurtrie. McMurtrie argued that the judicial power had been acquired solely as a “mere deduction of logic,” with no basis in the Constitution. McMurtrie, Richard C., Observations onMr. GeorgeBancroft'sPlea for theConstitution14 (1886)Google Scholar. In turn, McMurtie's pamphlet responded to George Bancroft's criticism of Gray's statement in Juilliard that congressional power included aspects belonging “‘to sovereignty in other civilized nations, and not expressly withheld from congress by the constitution.’” See Bancroft, George, A Plea for theConstitution of theUnitedStates: Wounded in theHouse of itsGuardians6 (1886)Google Scholar (quoting Juilliard, 110 U.S. at 450).

50. 2 Carson, Hampton L., A History of theHistoricalSociety ofPennsylvania 9 (1940).Google Scholar

51. Id. at 10. Corwin considered Coxe a “conservative.” Corwin, Edward S., TheDoctrine ofJudicialReview: ItsLegal andHistoricalBasis andOtherEssays2 (1914).Google Scholar

52. Id. at 12 (quoting proceedings of the memorial meeting in 1892).

53. Coxe, supra note 18, at 212; see also White, Thomas Reaburn, Some Recent Criticism of Gelpcke versus Dubuque, Part IV, 47 Am. L. Reg. 657, 665 (1899)Google Scholar (attempting to apply Coxe's discussion of Winthrop); Westlake, J., Judicial Power in the United States, 11 L. Q. Rev. 81, 84 (1895)Google Scholar (review of Coxe's book, noting that it traced “the environment in which the framers of the constitution of 1787 were placed”). Coxe struggled to fit the appeal into American constitutionalism's distinction of legislative versus judicial action despite recognizing that the distinction made no sense applied to the imperial relationship and the prerogative. Id. at 212–13.

54. Coxe, supra note 18, at 370–82; see also id. at 198–99 (reprinting attorney general and solicitor general opinion in the case).

55. Hazeltine, Harold D., Appeals from Colonial Courts to the King in Council, with Especial Reference to Rhode Island, 18 AnnualReport of theAmericanHistoricalAssn. for theYear 1894, at 299 (1895)Google Scholar. In November 1894, Charles M. Andrews published an extensive article on Winthrop but with little interest beyond the imperial relationship. Andrews, Charles McLean, The Connecticut Intestacy Law, 3 YaleRev. 261–294 (1894).Google Scholar

56. Hazeltine, supra note 55, at 299–300, 345. The Privy Council was the “supreme court of the colonies” and the “noble predecessor of a still nobler tribunal, the Supreme Court of the United States.” Id. at 345, 350.

57. Id. at 300.

58. Id. at 299.

59. Davis, Andrew McFarland, The Case of Frost v. Leighton, 2 Am. Hist. Rev. 229 (1897).Google Scholar

60. See 5 McMaster, John Bach, A History of thePeople of theUnitedStates, from theRevolution to theCivilWar 394 (New York, 1927) (1900)Google Scholar (explaining that judges “had assumed the right to set aside acts of legislation which in their opinion were unconstitutional” as the “slow outcome of circumstances”). Wilson also accepted the colonial practice claim as the origins of constitutional interpretation. See Wilson, Woodrow, TheState: Elements ofHistorical andPracticalPolitics462 (rev. ed., 1900).Google Scholar

61. See White, G. Edward, Revisiting James Bradley Thayer, 88 Nw. U. L. Rev. 48, 66 n. 71 (1993).Google Scholar

62. Thayer, James Bradley, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129 (1893)Google Scholar; see Levy, Leonard W., Editorial Note, in JudicialReview and theSupremeCourt: SelectedEssays43 (1967)Google Scholar (noting that Felix Frankfurter called it the “one piece of writing” on American constitutional law); Monaghan, Henry P., Marbury and the Administrative State, 83 Colum. L. Rev. 1, 7 (1983)Google Scholar (calling it “the most influential essay ever written on American constitutional law”); Introduction: One Hundred Years of Judicial Review: The Thayer Centennial Symposium, 88 Nw. U. L. Rev. [i] (1993).Google Scholar

63. Thayer, Origin, supra note 62, at 138; see Thayer, James B., Constitutionality of Legislation: The Precise Question for a Court, 38 Nation314 (1884)Google Scholar (discussing issue without historical inquiry). Thayer's essay in the Nation intriguingly foreshadowed later approaches to judicial review by distinguishing questions of “personal rights under the Constitution” from those “determining the constitutionality of legislative action” in which the courts should ask whether the legislative construction is unreasonable. Id.

64. Introduction, supra note 62, at v. For contemporary criticism of Thayer's thesis that “a judge should never declare an act of legislation unconstitutional, unless the constitutionality is beyond reasonable doubt,” see [Anon.], A Paper by Professor Thayer, 42 Am. L. Reg. 73, 74–75 (1894).Google Scholar

65. Thayer, James Bradley, Cases onConstitutionalLaw, withNotes (1895).Google Scholar

66. See Purcell, Edward, Learned Hand: The Jurisprudential Trajectory of an Old Progressive, 43 Buffalo L. Rev. 873, 884–885 (1995) (book review).Google Scholar

67. On Thayer, see Hook, Jay, A Brief Life of James Bradley Thayer, 78 Nw. U. L. Rev. 1 (1993)Google Scholar; White, supra note 63, at 48.

68. James Bradley Thayer, 15 Harv. L. Rev. 598, 601 (1902) (comments of John Chipman Gray).Google Scholar

69. Id. at 608 (comments of Samuel Williston).

70. J.B.T., Review, supra note 18, at 381 (noting that “Mr. Coxe abandons quite too readily the view that it involved a judicial declaration of the invalidity of the colonial Act”).

71. 1 Thayer, supra note 65, at 39–40 n. 1 (seemingly disagreeing on the Privy Council's decree as a “legislative, and not a judicial proceeding”); see Simeon E. Baldwin, Review, 1 Am. Hist. Rev. 163, 164–65, 167 (1895) (emphasizing inclusion of Winthrop).

72. Thayer, Origin, supra note 62, at 129; see Thayer, James B., Constitutionality of Legislation: The Precise Question for a Court, 38 Nation314 (1884) (discussing issue without historical inquiry).Google Scholar

73. Thayer, Origin, supra note 62, at 130–31.

74. Ibid.

75. He added that “doctrine” was “probably helped into existence by a theory which found some favor among our ancestors at the time of the Revolution” and repeated Gray's argument for a Coke–Otis connection. Id. at 133 and n. 2; see Thompson, Barton H. Jr., The History of the Judicial Impairment “Doctrine” and Its Lessons for the Contract Clause, 44 Stan. L. Rev. 1373, 1432 n. 361 (1992)Google Scholar (noting friendship). His casebook indeed included a number of the cases first discussed by William Meigs. 1 Thayer, supra note 65, at 40–154 (including Commonwealth v. Caton, Rutgers v. Waddington, Trevett v. Weeden, Bayard v. Singleton, The Federalist, Vanhorne's Lessee v. Dorrance, Cooper v. Telfair, Marbury v. Madison, Fletcher v. Peck, Martin v. Hunter's Lessee, Eakin v. Raub and Notes by Brinton Coxe and Thayer).

76. Thayer, Origin, supra note 62, at 132.

77. [Anon.], Editorial Notes and Comments: A Paper by Professor Thayer, 42 Am. L. Reg. 73, 74 (1894).Google Scholar

78. For more detailed historical interpretations of the article, see Tushnet, Mark, Thayer's Target: Judicial Review or Democracy? 88 Nw. U. L. Rev. 9 (1993)Google Scholar; White, G. Edward, Revisiting James Bradley Thayer, 88 Nw. U. L. Rev. 48 (1993).Google Scholar

79. Thayer, Origin, supra note 62, at 134, see id. at 152.

80. Id. at 152.

81. Id. at 136–38.

82. Meigs, William, Some Recent Attacks on the American Doctrine of Judicial Power, 40 Am. L. Rev. 641, 650 (1906)Google Scholar (emphasizing Coxe's book); see also Meigs, William M., TheRelation of theJudiciary to theConstitution15–47 (1919)Google Scholar (discussing additional evidence including South Carolina judge's discussion of whether colonial acts were void ab initio or only voidable by disallowance).

83. Meigs, Some Recent Attacks, supra note 82, at 650.

84. Id.

85. Id. at 669.

86. Id. at 669–70.

87. Trickett, William, Judicial Dispensation from Congressional Statutes, 41 Am. L. Rev. 65, 71 (1907).Google Scholar

88. Beard, Charles A., TheSupremeCourt and theConstitution1 (1912).Google Scholar

89. Id. at v (1938).

90. 1 Loss, Richard, Introduction, Corwin on theConstitution 17, 17 (1981).Google Scholar

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93. Id. at 630.

94. Corwin, Edward S., The Supreme Court and the Fourteenth Amendment, 7 Mich. L. Rev. 643, 660, 670 (1909)Google Scholar [hereafter Corwin, Supreme Court].

95. Corwin, Edward S., The Establishment of Judicial Review, 9 Mich. L. Rev. 102, 103 (1911).Google Scholar

96. McIlwain, Charles Howard, TheHighCourt ofParliament and itsSupremacy: AnHistoricalEssay on theBoundariesBetweenLegislation andAdjudication inEnglandvii (1910)Google Scholar. McIlwain stated that the contemporary debate over judicial power was of “utmost consequence.” Id. at viii–ix.

97. Corwin, The Establishment, supra note 95, at 103.

98. Id. at 102.

99. Id. at 103.

100. Id. at 104.

101. Id. at 103–4.

102. Id. at 106.

103. Id. at 103. Framers did refer to Privy Council practice. See, e.g., 1 Records of theFederalConvention, supra note 4, at 164 (8 June) (including Pinckney's statement that the “negative of the Crown had been found beneficial”); id. at 168 (presenting Madison's statement regarding “the practice in Royal Colonies before the Revolution”).

104. TheRecords of theFederalConvention of 1787, ed. Max Farrand (1911) [hereafter Records 1911 edition].

105. 3 Records 1911 edition, supra note 104, at 663, 665.

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