Empire of Liberty: A History of the Early Republic, 1789-1815 (76 page)

“Judicial review” is the usual name given to this sweeping judicial authority. But if judicial review means only the power of the Supreme Court to set aside legislative acts in violation of the Constitution, then the term is too narrow, for voiding legislation is only the most prominent part of broader manipulative or interpretative power exercised by the Court over wide areas of American life.
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Historians and constitutional scholars have often emphasized some early examples of judges restricting legislatures in the immediate aftermath of the Revolution. As a consequence of what some saw as legislative tyranny in the 1780s, judges in some states—New Jersey, Virginia, New York, and North Carolina, and perhaps in several others as well—gingerly and ambiguously began moving in isolated but important decisions to impose restraints on what these legislatures were enacting as law. They attempted to say to the legislatures, as Judge George Wythe of Virginia declared in 1782, “Here is the limit of your authority, and, hither, shall you go, but no further.”
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Yet cautious and tentative as they were, such attempts by the judiciary, like Wythe’s opinion in Virginia, “to declare the nullity of a law passed in its forms by the legislative power, without exercising the power of that branch,” were not easily justified; they raised, in the words of Wythe’s Virginia colleague Judge Edmund Pendleton, “a deep, and important, and . . . tremendous question, the decision of which might involve consequences to which gentlemen may not have extended their ideas.”
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Even those who agreed that many of the laws passed by the state legislatures in the 1780s were unjust and even unconstitutional could not agree that judges ought to have the authority to declare such legislation void. Allowing unelected judges to declare laws enacted by popularly elected legislatures unconstitutional and invalid seemed flagrantly inconsistent with free popular government. Such judicial usurpation, said Richard Dobbs Spaight, delegate to the Constitutional Convention from North Carolina, was “absurd” and “operated as an absolute negative on the proceedings of the Legislature, which no judiciary ought ever to possess.” Instead of being governed by their representatives in the assembly, the people would be subject to the will of a few individuals in the court, “who united in their own persons the legislative and judiciary powers,” making the courts more despotic than the Roman decemvirate or of any monarchy in Europe.
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“This,” said a perplexed James Madison in 1788, “makes the Judiciary Department paramount in fact to the Legislature, which was never intended and can never be proper.”
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Yet judicial review of some form did develop in these early decades of the new Republic. What was it? And how did it arise?

The first and most conspicuous source of something as significant and forbidding as judicial review lay in the idea of fundamental law and its embodiment in a written constitution. Almost all eighteenth-century Englishmen on both sides of the Atlantic had recognized something called fundamental law as a guide to the moral rightness and constitutionality of ordinary law and politics. Nearly everyone repeatedly invoked Magna Carta and other fundamental laws of the English constitution. Yet all these theoretical references to fundamental law could not have much day-to-day practical importance. For most this fundamental or natural law of the English constitution was seen as a kind of moral inhibition or conscience existing in the minds of legislators and others. It was so basic and primal, so imposing and political, that it was really enforceable only by the popular elective process or ultimately by the people’s right of revolution. Eighteenth-century Englishmen had difficulty calling upon this fundamental law in their everyday political and legal business.
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The written constitutions of 1776–1777, however, gave Revolutionary Americans a concrete handle with which to grasp this otherwise insubstantial
fundamental law. Suddenly, with these written documents the fundamental law and the first principles that Englishmen had referred to for generations gained a new degree of explicitness and reality. The constitution in America, said James Iredell of North Carolina in 1787, had therefore become not “a mere imaginary thing, about which ten thousand different opinions may be formed, but a written document to which all may have recourse, and to which, therefore, the judges cannot witfully blind themselves.”
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But were the judges to have an exclusive authority to examine these fundamental laws and to determine what was constitutional and what was not? All Americans agreed that the written constitution, as Edmund Pendleton conceded in 1782, “must be considered as a rule obligatory upon every department, not to be departed from on any occasion.”
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It was not immediately evident to Pendleton or to others, however, that the judiciary had any special or unique power to invoke this obligatory rule in order to limit the other departments of the government, particularly the legislatures. In other words, it was clear by the 1780s that legislatures in America were bound by explicitly written constitutions in ways that the English Parliament was not. But it was not yet clear that the courts by themselves were able to enforce those boundaries upon the legislatures.
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Members of the Philadelphia Convention, according to Madison’s notes, “generally supposed the jurisdiction given [to the Court] was constructively limited to cases of a Judiciary nature.” Madison later admitted that “in the ordinary course of Government” the judiciary might interpret the laws and the Constitution, but surely, he said, it had no more right to determine the limits of the Constitution than did the executive or legislature. Both Jefferson and Madison remained convinced to the end of their lives that all parts of America’s government had equal authority to interpret the fundamental law of the Constitution—all departments had what Madison called “a
concurrent
right to expound the constitution.”
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And when the several departments disagreed in their understanding of the fundamental law, wrote Madison in
Federalist
No. 49, only “an appeal to the people themselves . . . can alone declare its true meaning,
and enforce its observance.” Written constitutions, including the Bill of Rights, remained for Jefferson and Madison a set of great first principles that the several governmental departments, including the judiciary, could appeal to in those extraordinary occasions of violation. But since none of these departments could “pretend to an exclusive or superior right of settling the boundaries between their respective powers,” the ultimate appeal in these quasi-revolutionary situations had to be to the people themselves.
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In other words, many Revolutionaries and Founders still thought that fundamental law, even when expressed in a written constitution, was so fundamental, so different in kind from ordinary law, that its invocation had to be essentially an exceptional and delicate political exercise and not a part of routine judicial business.
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This is why many of the delegates to the Philadelphia Convention in 1787 had regarded judicial nullification of legislation with a sense of awe and wonder, impressed, as Elbridge Gerry was, that “in some States, the Judges had actually set aside laws as being against the Constitution.” This is also why many others in the Convention, including James Wilson and George Mason, wanted to join the judges with the executive in a council of revision (modeled on that of New York) and thus give the judiciary a double negative over the laws.
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They considered that the power of the judges alone to declare unconstitutional laws void was too extreme, too exceptional, and too fearful an act to be used against all those ordinary unjust, unwise, and dangerous laws that were nevertheless not “so unconstitutional as to justify the Judges in refusing to give them effect.”
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This is also why some congressmen in 1792 debated establishing a regular procedure for federal judges to notify Congress officially when they declared a law unconstitutional—so nervous were they over the gravity of such an action.
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When the federal circuit court of Pennsylvania in 1792 in
Hayburn’s Case
declared the federal Invalid Pension Act unconstitutional on the grounds that it violated the separation of powers, it did so in a hesitant and apologetic manner. What they did, the judges said, “was far from being pleasant. To be obliged to act contrary, either to the obvious directions of Congress, or to a constitutional principle, in our judgment equally
obvious, excited feelings in us, which we hope never to experience again.” Congress quickly modified the Pension Act in order to avoid the crisis that would result if the Supreme Court declared the act unconstitutional.
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One newspaper that favored judicial review in
Hayburn’s Case
nonetheless suggested that perhaps all the circuit court justices should be consulted before a law could be declared unconstitutional.
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Everyone thus sensed that setting aside legislative acts could be no ordinary matter. As Justice Samuel Chase said in
Hylton v. United States
(1796), if the constitutionality of a federal law had been “
doubtful
,” he would have been bound “to receive the construction of the legislature.”
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As late as 1800 in
Cooper v. Telfair
Associate Justices Bushrod Washington and William Paterson agreed that judicial review was an exceptional act, to be only infrequently exercised. “The presumption . . . must always be in favour of the validity of laws, if the contrary is not clearly demonstrated,” declared Washington. For the Supreme Court “to pronounce any law void,” said Paterson, there “must be a clear and unequivocal breach of the constitution, not a doubtful and argumentative implication.”
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Thus for many Americans in the 1790s judicial review did exist, but it remained an extraordinary and solemn political action, akin to the interposition of the states suggested by Jefferson and Madison in the Kentucky and Virginia Resolutions of 1798–1799—something to be invoked only on the rare occasions of flagrant and unequivocal violations of the Constitution. It was not to be exercised in doubtful cases of unconstitutionality and was not yet accepted as an aspect of ordinary judicial activity.

T
HE IDEA OF FUNDAMENTAL WRITTEN LAW
, important as it was, could not by itself have led to the development of America’s judicial review. What in the final analysis gives significance to Americans’ unusual notion of a constitution is not that it is written or that it is fundamental, but rather that it runs and is litigated in the ordinary court system. America’s federal and state constitutions may be higher laws, special acts of the people in their sovereign capacity, but they are just like lowly legislative statutes in that they are implemented through the normal practice of adversarial justice in the regular courts.

Thus the source of judicial review lay not in the idea of fundamental law or in written constitutions, but in the transformation of this written fundamental law into the kind of law that could be expounded and construed in the ordinary court system. This transformation was made possible by Americans’ exploiting the discretionary authority that English common law judges and their own colonial judges had always exercised.
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American jurists were well aware of the complex set of rules for construing statutes that eighteenth-century English jurists, especially William Blackstone and Lord Mansfield, had created in order to fit the plethora of confused and ill-drafted parliamentary legislation into the body of the common law.
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American judges took these rules—rules that Hamilton in
Federalist
No. 83 called “rules of
common sense
, adopted by the courts in the construction of the laws”—and applied them to both the state and federal constitutions. They in effect collapsed the earlier distinction between fundamental and ordinary law and turned constitutions into a species of statutes, super-statutes, no doubt, but statutes nonetheless. American judges could now construe the all-too-brief words of the Constitution in relation to subject matter, intention, context, and reasonableness, as if they were the words of an ordinary statute. The result was the beginning of the creation of a special body of textual exegeses and legal expositions and precedents that Americans have come to call constitutional law.

Considering the Constitution as a kind of law that was cognizable in the regular courts (and not, as in some other countries, in special constitutional courts) permitted American judges not only to expound and construe the Constitution according to existing rules of statutory construction but also to expect regular enforcement of the Constitution as if it were a simple statute.
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The implications of this transformation were momentous. Once the Constitution became a legal rather than a political document, judicial review, although not judicial supremacy, became inevitable.
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The secret
of Marshall’s success in his
Marbury
decision was his unquestioned assumption that the Constitution was simply a law.
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Because, as he said, it was “emphatically the province and duty of the judicial department to say what the law is,” treating the Constitution as mere law that had to be expounded and interpreted and applied to particular cases like a statute suggested that American judges had a special authority to interpret constitutions that other branches of the government did not possess.
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