And Democracy: an Introduction
- Judicial Review, History,
And Democracy: An Introduction
Leonard W. Levy
Much of the literature on the Supreme Court reflects the principle of the gored ox. Attitudes toward the Court quite often depend on whether its decisions are agreeable. More reflective commentators, however, seek to transcend their own immediate policy preferences and confront the basic and most perplexing questions which speak to the legitimacy of judicial review, its function and character in cases of constitutional law, and its harmony with democratic principles of government.
The legitimacy of judicial review as measured by the original intent of the framers of the Constitution merits discrete investigation, but few are attracted to a sheerly antiquarian issue for its own sake. They rummage through the wisdom of the past for a lineage that will authenticate either some present vision of the role of the Supreme Court in a political democracy, or some theory of the function of judicial review and the nature of the judicial process. The question whether judicial review was originally intended, in other words, is usually a dowsing rod to guide the wellsprings of judgment on whether the Court should have the power which, in loose and sometimes mischievous phrases, has resulted in “judicial supremacy,” or “judicial policy-making,” or “judicial legislation.” The scope of that power, the conditions for its exercise, and the criteria for judging its practice have also attracted considerable attention.
Kipling in his Just So stories described how the alligator gave the elephant his trunk. Charles Beard in his Supreme Court and the Constitution (1912) told how the framers of the Constitution gave the high tribunal its power of judicial review even over acts of Congress. Children find the story about the elephant enchantingly believable. Scholars and jurists read Beard’s tale and say, “just so.” But history has not really settled whether judicial review was originally intended, because decisive evidence cannot be marshaled to prove what the framers had in mind. Nor is it possible to show that judicial review was a normal function of courts at the time of the Constitutional Convention. Indeed, the evidence goes the other way.
The problem of legitimacy begins, of course, with the fact that the framers neglected to specify that the Supreme Court was empowered to exercise judicial review. If they intended the Court to have the power, why did they not provide for it? Since 1787 when Richard Dobbs Spaight, one of the framers, angrily denounced judicial review as “usurpation,”[1] the cry that judges have usurped the power has echoed down the corridors of time. In 1924, Professor Felix Frankfurter exasperatedly declared, “Lack of historical scholarship, combined with fierce prepossessions, can alone account for the persistence of this talk. One would suppose that, at least, after the publication of Beard’s The Supreme Court and the Constitution, there would be an end to this empty controversy.”[2] The charge of usurpation most certainly cannot be proved; it is without merit. The difficulty is that the legitimacy of judicial review in terms of the original intent cannot be proved either; it may forever remain obscure, a seductive issue to those who would lift the veil.
In Beard’s self-congratulatory preface to a reissue of his book in 1938, he declared that he had “settled” the great controversy over the legitimacy of the Court’s most awesome power. The book had been favorably cited many times by expert witnesses before the Senate Judiciary Committee’s hearings on the Roosevelt court-packing plan, and the committee itself seemed to accept the book as authoritative. “The ghost of usurpation,” Beard announced, “was fairly laid. Whatever controversies may arise in the future over the exercise of judicial power, it is not likely that this historic right of the Supreme Court to pass upon acts of Congress will again be seriously challenged.” As Alan F. Westin wryly observed in his introduction to a 1962 reprint of the book, despite Beard’s prophecy the “ghost of usurpation” continued to clank its chains through legislative chambers, historical meetings, and publishing houses. Since the first edition of 1912, said Westin, several dozen books and perhaps a hundred articles “have persisted in treating this as still as a debatable proposition, and not all of the commentators can be dismissed as incompetents or outraged partisans deprived of reason.”[3]
“Judicial review is a matter of inference,”[4] wrote Edward S. Corwin, Beard’s sharpest and most formidable critic, though never one to endorse the charge of usurpation. One might add that interferences and insights will lead to any conclusions required by presuppositions. Beard’s thesis on judicial review, as a matter of fact, was a foil for the book that he published in the following year, An Economic Interpretation of the Constitution. Chapter four of the 1912 volume, on “The Spirit of the Constitution,” foreshadows the 1913 volume. In Beard’s opinion, judicial review over Congress must have been intended because it was part of the system of checks and balances by which the Convention
safeguarded the interests of property against attacks by majorities. . . This very system of checks and balances, which is undeniably the essential element of the Constitution, is built upon the doctrine that the popular branch of the government cannot be allowed full sway, and last of all in the enactment of laws touching the rights of property.
He concluded that it was incumbent upon opponents of this thesis “to show that the American federal system was not designed primarily to commit the established rights of property to the guardianship of a judiciary removed from direct contact with the popular electorates.”[5] Divination, or reading the minds of the framers from a very incomplete and extraordinarily ambiguous record, may be an intriguing pastime; but it lacks empirical warrant.
The record of Corwin’s vacillations testifies to the confusing and inconclusive nature of the evidence. In an unsympathetic review of Beard’s book, published in 1913, Corwin argued that of the twenty-five framers whom Beard claimed supported “some form” of judicial review over Congress, only eight did so in the Constitution Convention. Although the idea was challenged by only four members, “yet popular discussion previous to the Convention had shown their point of view to have too formidable backing to admit of its being crassly overridden.”[6] Corwin concluded that the question was an open one when the Convention adjourned. Within a year, however, he was substantially in Beard’s corner. In a little book which produced no new evidence whatever, Corwin asserted that the Convention undoubtedly did intend judicial review over Congress: “. . .it cannot be reasonably doubted.” His 1913 figure of eight rose in 1914 to seventeen.[7] By 1937, however, it had fallen to only “five or six,” and in blunt language he declared, “The people who say the framers intended it are talking nonsense”―to which he hastily added, “and the people who say they did not intend it are talking nonsense.” In the same vein he remarked, there is “great uncertainty.”[8] A close textual and contextual examination of the evidence will not result in an improvement on these propositions. Beard, to put it charitably, saw what he wanted to see. The same may be said of the eccentric studies made by Louis B. Boudin[9] and William Winslow Crosskey[10] in 1932 and 1953 respectively. They destroy credibility in Beard’s work, but lend little to their own. The value of their work on judicial review and the Constitutional Convention, like Corwin’s final statement in 1938,[11] is that it inspires an unredeemed skepticism.
Even a skimpy review of the remarks of Madison and Hamilton will suggest how treacherous is any generalization about their commitment to judicial review. Here, for example, is a complete sentence from a speech by Madison on July 23, 1787, wrenched out of context to give the misleading impression that Madison supported judicial review over Congress: “A law violating a constitution established by the people themselves, would be considered by the Judges as null and void.”[12] The full context of the statement shows that Madison was referring to the possibility that state judges would declare unconstitutional a state act in violation of the federal Constitution. Moreover, the state act to which he was referring was an act of secession. On August 27, 1787, when the Convention considered a proposal to extend the jurisdiction of the Supreme Court to cases arising under the Constitution, Madison expressed doubt about “going too far” and advocated that jurisdiction over such cases by “limited to cases of a Judiciary Nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that Department.”[13] In 1788, Madison said that neither the state nor federal constitutions provided a means of settlement for the case of a disagreement in expounding the law; the courts, usually the last to decide, might stamp a law with its final character by refusing to execute it: “This makes the Judiciary Department paramount in fact to the Legislature, which was never intended and can never be proper,”[14] On June 8, 1789, however, when advocating a Bill of Rights in the First Congress, Madison declared:
If they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of these rights; they will be an impenetrable bulwark against every assumption of power in the Legislature or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.[15]
Yet, eight days later in a debate on the President’s removal power, after acknowledging the duty of the judiciary to expound the laws and Constitution, Madison declared :“. . but I beg to know upon what principle it can be contended that any one department draws from the Constitution greater powers than another, in marking out the limits of the powers of the several departments.” No provision had been made, he contended, “for a particular authority to determine the limits of the constitutional division of power between the branches of government.”[16] Beard, incidentally, did not use either the first of the Madison quotations given above nor the one on the Bill of Rights which is the only one that would justify his assertion that Madison’s belief “in judicial control over legislation is unquestionable.” Madison “was in no little confusion,” Beard added.[17]
Hamilton contributed greatly to the ratification, not to the framing, of the Constitution. His views on judicial review are significant, however, because his Federalist #78 is second only to Marshall’s Marbury opinion as the classic utterance on the subject. Beard simply quotes at length from #78 to demonstrate Hamilton’s commitment to judicial review over Congress. It is not irrelevant, though, to recall that Hamilton offered to the Convention a complete plan for a new constitution, no part of which remotely provided for any sort of judicial review.[18] In Federalist #33 where he discussed the necessary and proper clause, which anti-ratificationists regarded as vesting carte blanche powers in Congress, Hamilton asked who was to judge if Congress “should overpass the just bounds of its authority.” Not once in his answer did he allude to the Supreme Court. Congress is the first instance and the people in the last would judge. How then is Federalist #78 to be explained? It was a response to Robert Yates’s “Letters of Brutus,” an anti-ratificationist series which sought to discredit the Constitution by magnifying the powers of the federal judiciary into an engine for consolidating national powers at the expense of the states.[19] Federalist #78, in other words, was an attempt to quiet the fears stimulated by Yates; turning the latter’s argument against him. Hamilton tried to convince his readers that the Court’s power was intended to hold Congress in check, thereby safeguarding the states against national aggrandizement. A few other advocates of the Constitution, like Oliver Ellsworth and John Marshall, sought in the same manner to allay popular apprehensions that Congress might exceed its power, especially in the absence of a Bill of Rights to protect the people.[20] Their remarks, like Hamilton’s in #78, are evidence of shrewd political tactics, not of the framers’ intention to vest judicial review in the Supreme Court over acts of Congress.
The legitimacy of judicial review does rest on history, but not on the words of the Constitution nor of the framers during the 1787-89 period. It was an historical outgrowth of the constitutional theory of the era of the American Revolution. Federalist #78 and Marshall’s Marbury opinion were, significantly, arguments from general principles. Andrew C. McLaughlin wrote that judicial review is
The last word, logically and historically speaking, in the attempt of a free people to establish and maintain a non-autocratic government. It is the culmination of the essentials of Revolutionary thinking, and, indeed, of the thinking of those who a hundred years and more before the Revolution called for a government of laws and not of men.[21]
That judicial review was “the natural outgrowth of ideas that were common property when the Constitution was established” was also asserted by Corwin. “In short,’” he wrote, “we are driven to the conclusion that judicial review was rested by the framers of the Constitution upon certain general principles which in their estimation made specific provision for it unnecessary . . . “[22]
Corwin and McLaughlin were thinking of the theory of limited or constitutional government according to which an act of government in excess of its powers, which are held in subordination to a supreme law, is void. The difficulty with this theory is that it does not account for the definitive power of the judiciary to interpret finally the supreme law, nor does it account for the binding effect of court decisions on equal and coordinate branches of the same government. Articles III and VI of the Constitution, together with the Judiciary Act of 1789, established or made inevitable judicial reviews by the Supreme Court over the acts of the states, the subordinate agencies within the federal system, but not over the President and Congress. On the other hand, if judicial review was a normal function of courts at the time of the establishment of the national government under the Constitution, there was no need for specific provisions. Beard, Corwin, McLaughlin, Charles Warren, and Charles Grove Haines head a list of distinguished historians who believed that judicial review was so well known and normal a function of courts that it was taken for granted by the framers.[23]
One difficulty with this view is that the evidence is so sparing. If judicial review was a normal function of courts at the time of the Constitutional Convention, we might expect to find a considerable number of precedents in which legislation was invalidated on ground of repugnance to some higher law, either natural law or the written provisions of some constitution. The entire colonial period is without a single precedent. Although Virginia county courts announced in 1776 that the Stamp Act was unconstitutional, there was no case before those courts; their statements were gratuitous dicta.[24] Although many real precedents might be expected after the establishment of thirteen state governments, each with its own judiciary, what is striking is that there were so few. In the various books and articles which have been written to exhume the precedents, there are mythical cases that bring to mind the entries in Appleton’s Cyclopaedia of American Biography with its forty-seven lives of men who never existed. The most influential and exhaustive of all works on the precedents is The American Doctrine of Judicial Supremacy by Charles Grove Haines. “By 1775,” he concluded, “the principle had taken such a firm hold upon the minds of lawyers and judges that decisions were rendered in rapid succession in which was maintained the authority of courts, as guardians of a fundamental law, to pass upon the acts of coordinate departments. This authority was steadily asserted after the colonies became states, and by an irresistible process was made one of the prime features of the new federal system established by the Constitution of 1787. The state cases in which the American doctrine was first announced, and which were accepted as precedents in its development and extension, have an important role in the legal history of the United States.”[25]
It is something of a letdown to discover that Haines lists only seven state precedents for the period 1776-1787, a number hardly warranting the confident statement that judicial review was such a widely practiced, normal function of American courts that no provision for it had to be made in the Constitution. But there is an additional problem concerning these seven precedents. Several of them are spurious, while others fudge the facts somewhat like William James when he was a young instructor assisting a lecturer on the physiology of the heart. The lecturer used a turtle’s heart supporting an “index straw” which projected an enlarged moving shadow across a screen to show the heart beat. To James’s consternation, the turtle’s heart failed to function, jeopardizing the demonstration. “There was no time for deliberation,” he recalled, “so with my forefinger under a part of the straw that cast no shadow, I found myself impulsively and automatically imitating the rhythmical movements which my colleague had prophesized the heart would undergo. I kept the experiment from failing, . . . and established in the audience the true view of the subject.”[26] Haines also supplied a finger to demonstrate the “true view of the subject,” or, more likely, did not realize that someone else had done so.