Idea or Practice: A Brief Historiography of Judicial Review

Journal of Policy History

Volumn 20, Issue 1, 2008, Pages 6-25

  Bilder, Mary Sarah ^a  

^a BOSTON COLLEGE   (United States)

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[No Author keywords available]

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EID: 78149296811     PISSN: 08980306     EISSN: 15284190     Source Type: Journal    
DOI: 10.1353/jph.0.0008     Document Type: Article

References (114)

1. Recent articles with titles on the origins of judicial review include Mary Sarah Bilder, The Corporate Origins of Judicial Review, 116 YALE L.J. 502 (2006) [hereafter Bilder, Corporate Origins]
2. Saikrishna B. Prakash & John C. Yoo, The Origins of Judicial Review, 70 U. CHI. L. REV. 887 (2003)
3. Symposium: The Constitutional Origins of Judicial Review, 72 GEO. WASH. L. REV. 319 (2003)
4. Gordon S. Wood, The Origins of Judicial Review Revisited, or How the Marshall Court Made More out of Less, 56 WASH. & LEE L. REV. 787 (1999)
5. Charles F. Hobson, The Origins of Judicial Review: A Historian's Explanation, 56 WASH. & LEE L. REV. 811 (1999)
6. Jack N. Rakove, The Origins of Judicial Review: A Plea for New Contexts, 49 STAN. L. REV. 1031 (1997).
7. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
8. see, e.g. NORMAN REDLICH et al. CONSTITUTIONAL LAW 1 (4th ed. 2002)
9. ERWIN CHEMERINSKY, CONSTITUTIONAL LAW 1-9 (2d ed. 2005)
10. JESSE H. CHOPER ET AL. CONSTITUTIONAL LAW: CASESCOMMENTS- QUESTIONS 1 (9th ed. 2001) (all beginning with Marbury).
11. Brief mentions of Privy Council review and Dr. Bonham's Case appear in KATHLEEN SULLIVAN & GERALD GUNTHER, CONSTITUTIONAL LAW 15 (15th ed. 2004)
12. CALVIN MASSEY, AMERICAN CONSTITUTIONAL LAW: POWERS AND LIBERTIES 17 (2d ed. 2005)
13. RONALD D. ROTUNDA, MODERN CONSTITUTIONAL LAW: CASES AND NOTES 13 (7th ed. 2003).
14. See Bilder, Corporate Origins, (containing extended version of this argument)
15. see also MARY SARAH BILDER, THE TRANSATLANTIC CONSTITUTION: COLONIAL LEGAL CULTURE AND THE EMPIRE (2004).
16. THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 93 (Max Farrand ed. rev. ed. 1966) (23 July).
17. Marbury, 5 U.S. at 176, 180.
18. 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 G. Edward White, The Arrival of History in Constitutional Scholarship, 88 VA. L. REV. 485, 509 (2002).
19. JOSIAH QUINCY, JR. REPORTS OF CASES ARGUED AND ADJUDGED IN THE SUPERIOR COURT OF JUDICATURE OF THE PROVINCE OF MASSACHUSETTS BAY, BETWEEN 1761 AND 1772, app. 1, at 395, 521 (Boston: Little, Brown & Co. 1865) (appendix written by Horace Gray Jr.) (discussing Paxton's Case [the Writs of Assistance Case]).
20. See 2 GEORGE RICHARD MINOT, CONTINUATION OF THE HISTORY OF THE PROVINCE OF MASSACHUSETTS BAY FROM THE YEAR 1748 TO 1765, at 98 (1803)
21. CHARLES FRANCIS ADAMS, THE WORKS OF JOHN ADAMS, SECOND PRESIDENT OF THE UNITED STATES 124–25 n. 1, 521–25 (1850) (discussing argument but not judicial review)
22. see also 4 GEORGE BANCROFT, HISTORY OF THE UNITED STATES 414, 416 n. 1 (1856) (recounting argument as “the opening scene of American resistance” and the origin of the “revolutionary doctrine. which esteemed reason and the constitution superior to an act of parliament”).
23. Summary of Events, 8 AM. L. REV. 159, 167 (1873).
24. See Portland Bank v. Apthorp, 12 Mass. 252, 253 (1815)
25. see also James M. Rosenthal, Massachusetts Acts and Resolves Declared Unconstitutional by the Supreme Judicial Court of Massachusetts, 1 MASS. L.Q. 301–18 (1916) (discussing cases).
26. [HORACE GRAY AND JOHN LOWELL], A LEGAL REVIEW OF THE CASE OF DRED SCOTT 26 (1857)
27. see also THOMAS BENTON, HISTORICAL AND LEGAL EXAMINATION OF. THE DRED SCOTT CASE, WHICH DECLARES THE UNCONSTITUTIONALITY OF THE MISSOURI COMPROMISE ACT. 4 (1857) (criticizing decision, but not because of lack of authority over congressional acts). Gray belonged to the Free Soil party and opposed slavery.
28. See Herbert Parker, Memorial, 182 Mass. 613, 615 (1903). Whether Dred Scott was an example of judicial review intrigued others.
29. See 131 U.S. ccxxxv (1888) (omitting case from list of examples of review of congressional legislation)
30. BRINTON COXE, AN ESSAY ON JUDICIAL POWER AND UNCONSTITUTIONAL LEGISLATION 10 (1893) (arguing for inclusion as the “first in which an act of Congress was decided by the court to be unconstitutional for reasons not relating to its own judicial department of the government”)
31. J.B.T. Review, 7 HARV. L. REV. 380, 381 (1894) (reviewing Coxe's essay and stating that there “are reasons for omitting that case to which he does not advert, but there was at least as much reason for inserting it as in the case of two or three others that are there”).
32. A Day in a Massachusetts Court, 9 ALB. L.J. 283 (1874).
33. Marcus Perrin Knowlton, Memorial, 182 Mass. 622, 624 (1903).
34. The Civil Rights Cases, 109 U.S. 3 (1883).
35. Juilliard v. Greenman, 110 U.S. 421 (1884).
36. See Robert Bloom, The Origin of the Supreme Judicial Court Law Clerk System (2002), http://sjclawclerks.socialaw.com/history.htm.
37. See WILLIAM M. MEIGS, THE LIFE OF CHARLES JARED INGERSOLL (1897)
38. WILLIAM M. MEIGS, THE LIFE OF THOMAS HART BENTON (1904)
39. WILLIAM M. MEIGS, THE LIFE OF JOHN CALDWELL CALHOUN (1917).
40. WILLIAM M. MEIGS, THE GROWTH OF THE CONSTITUTION IN THE FEDERAL CONVENTION OF 1787, inserted between 316 and 317 (1900).
41. William M. Meigs, The Relation of the Judiciary to the Constitution, 19 AM. L. REV. 175 (1885) (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.
42. See 6 REPORT OF THE. ANNUALMEETING OF THE AMERICAN BAR ASSOCIATION 179 (1883)
43. Meigs, The Relation, at 198.
44. Tim Brady, The Ph.D. and the Northeastern Fisheries, MINNESOTA MAGAZINE (5 May 2005) (http://www.alumni.umn.edu/Elliot.html).
45. Charles B. Elliott, The Legislatures and the Courts: The Power to Declare Statutes Unconstitutional, 5 POL. SCI. QTLY. 224, 230 (1890).
46. BROOKS ADAMS, THE EMANCIPATION OF MASSACHUSETTS: THE DREAM AND THE REALITY 302 (2d ed. 1886). For discussion of Winthrop, see id. at 293-302.
47. For the decree, see THE PUBLIC RECORDS OF THE COLONY OF CONNECTICUT, 1726–35, at 191-92, 571-79 (1873).
48. For materials related to another appeal, Philips v. Savage, see PROCEEDINGS OF THE MASSACHUSETTS HISTORICAL SOCIETY FOR 1860-1862, 64–80, 165-71.
49. Mellen Chamberlain, Remarks on The Talcott Papers, 8 PROCEEDINGS OF THE MASSACHUSETTS HISTORICAL SOCIETY, 1892–1894 (2d ser.) 123 (1894)
50. THE TALCOTT PAPERS: CORRESPONDENCE AND DOCUMENTS (CHIEFLY OFFICIAL) DURING JOSEPH TALCOTT'S GOVERNORSHIP OF THE COLONY OF CONNECTICUT, 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.
51. 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. RICHARD C. MCMURTRIE, OBSERVATIONS ON MR. GEORGE BANCROFT'S PLEA FOR THE CONSTITUTION 14 (1886). 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.’”
52. See GEORGE BANCROFT, A PLEA FOR THE CONSTITUTION OF THE UNITED STATES: WOUNDED IN THE HOUSE OF ITS GUARDIANS 6 (1886) (quoting Juilliard, 110 U.S. at 450).
53. HAMPTON L. CARSON, A HISTORY OF THE HISTORICAL SOCIETY OF PENNSYLVANIA 9 (1940).
54. Thomas Reaburn White, Some Recent Criticism of Gelpcke versus Dubuque, Part IV, 47 AM. L. REG. 657, 665 (1899) (attempting to apply Coxe's discussion of Winthrop)
55. J. Westlake, Judicial Power in the United States, 11 L. Q. REV. 81, 84 (1895) (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.
56. Harold D. Hazeltine, Appeals from Colonial Courts to the King in Council, with Especial Reference to Rhode Island, 18 ANNUAL REPORT OF THE AMERICAN HISTORICAL ASSN. FOR THE YEAR 1894, at 299 (1895).
57. Charles McLean Andrews, The Connecticut Intestacy Law, 3 YALE REV. 261–94 (1894).
58. Andrew McFarland Davis, The Case of Frost v. Leighton, 2 AM. HIST. REV. 229 (1897).
59. See 5 JOHN BACH MCMASTER, A HISTORY OF THE PEOPLE OF THE UNITED STATES, FROM THE REVOLUTION TO THE CIVIL WAR 394 (New York, 1927) (1900) (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.
60. See WOODROW WILSON, THE STATE: ELEMENTS OF HISTORICAL AND PRACTICAL POLITICS 462 (rev. ed. 1900).
61. See G. Edward White, Revisiting James Bradley Thayer, 88 NW. U. L. REV. 48, 66 n. 71 (1993).
62. James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129 (1893)
63. see Leonard W. Levy, Editorial Note, in JUDICIAL REVIEW AND THE SUPREME COURT: SELECTED ESSAYS 43 (1967) (noting that Felix Frankfurter called it the “one piece of writing” on American constitutional law)
64. Henry P. Monaghan, Marbury and the Administrative State, 83 COLUM. L. REV. 1, 7 (1983) (calling it “the most influential essay ever written on American constitutional law”)
65. Introduction: One Hundred Years of Judicial Review: The Thayer Centennial Symposium, 88 NW. U. L. REV. [i] (1993).
66. Thayer, Origin, at 138
67. see James B. Thayer, Constitutionality of Legislation: The Precise Question for a Court, 38 NATION 314 (1884) (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.
68. see [Anon.], A Paper by Professor Thayer, 42, AM. L. REG. 73, 74-75 (1894).
69. JAMES BRADLEY THAYER, CASES ON CONSTITUTIONAL LAW, WITH NOTES (1895).
70. See Edward Purcell, Learned Hand: The Jurisprudential Trajectory of an Old Progressive, 43 BUFFALO L. REV. 873, 884-85 (1995) (book review).
71. On Thayer, see Jay Hook, A Brief Life of James Bradley Thayer, 78 NW. U. L. REV. 1 (1993)
72. James Bradley Thayer, 15 HARV. L. REV. 598, 601 (1902) (comments of John Chipman Gray).
73. see Simeon E. Baldwin, Review, 1 AM. HIST. REV. 163, 164-65, 167 (1895) (emphasizing inclusion of Winthrop).
74. James B. Thayer, Constitutionality of Legislation: The Precise Question for a Court, 38 NATION 314 (1884) (discussing issue without historical inquiry).
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 Barton H. Thompson Jr. The History of the Judicial Impairment “Doctrine” and Its Lessons for the Contract Clause, 44 STAN. L. REV. 1373, 1432 n. 361 (1992) (noting friendship).
76. His casebook indeed included a number of the cases first discussed by William Meigs. 1 THAYER, 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).
77. [Anon.], Editorial Notes and Comments: A Paper by Professor Thayer, 42 AM. L. REG. 73, 74 (1894).
78. For more detailed historical interpretations of the article, see Mark Tushnet, Thayer's Target: Judicial Review or Democracy? 88 NW. U. L. REV. 9 (1993)
79. G. Edward White, Revisiting James Bradley Thayer, 88 NW. U. L. REV. 48 (1993).
80. William Meigs, Some Recent Attacks on the American Doctrine of Judicial Power, 40 AM. L. REV. 641, 650 (1906) (emphasizing Coxe's book)
81. see also William M. Meigs, THE RELATION OF THE JUDICIARY TO THE CONSTITUTION 15-47 (1919) (discussing additional evidence including South Carolina judge's discussion of whether colonial acts were void ab initio or only voidable by disallowance).
82. Meigs, Some Recent Attacks, at 650.
83. William Trickett, Judicial Dispensation from Congressional Statutes, 41 AM. L. REV. 65, 71 (1907).
84. CHARLES A. BEARD, THE SUPREME COURT AND THE CONSTITUTION 1 (1912).
85. RICHARD LOSS, Introduction, CORWIN ON THE CONSTITUTION 17, 17 (1981).
86. G. Edward White, The Constitutional Journey of Marbury v. Madison, 89 VA. L. REV. 1463, 1532 (2003)
87. see L. B. Boudin, Government by Judiciary, 26 POL. SCI. Q. 238 (1911).
88. Edward S. Corwin, The Supreme Court and Unconstitutional Acts of Congress, 4 MICH. L. REV. 616, 622, 625 (1906).
89. Edward S. Corwin, The Supreme Court and the Fourteenth Amendment, 7 MICH. L. REV. 643, 660, 670 (1909) [hereafter Corwin, Supreme Court].
90. Edward S. Corwin, The Establishment of Judicial Review, 9 MICH. L. REV. 102, 103 (1911).
91. CHARLES HOWARD MCILWAIN, THE HIGH COURT OF PARLIAMENT AND ITS SUPREMACY: AN HISTORICAL ESSAY ON THE BOUNDARIES BETWEEN LEGISLATION AND ADJUDICATION IN ENGLAND vii (1910). McIlwain stated that the contemporary debate over judicial power was of “utmost consequence.” Id. at viii-ix.
92. THE RECORDS OF THE FEDERAL CONVENTION OF 1787, ed. Max Farrand (1911) [hereafter RECORDS 1911 EDITION].
93. BEARD, at 115; see also HORACE A. DAVIS, THE JUDICIAL VETO 43 (1914) (discussing same evidence for opposite conclusion)
94. BEARD, at 15-16; see Frank E. Melvin, The Judicial Bulwark of the Constitution, 8 AM. POL. SCI. REV. 167, 172 (1914) (noting that debate and Constitutional Convention evidence should be revisited in light of Farrand's publication).
95. ANDREW C. MCLAUGHLIN, THE COURTS, THE CONSTITUTION, AND PARTIES: STUDIES IN CONSTITUTIONAL HISTORY AND POLITICS 102 (1912)
96. see Herman Belz, Andrew C. McLaughlin and Liberal Democracy: Scientific History in Support of the Best Regime, 19 REVIEWS AM. HIST. 445, 447-48 (1991) (discussing McLaughlin's interpretation of “federalism as the product of the British empire”).
97. McLaughlin's student Arthur P. Scott had apparently searched for the early material. Id. at vi. He later published The Constitutional Aspects of the “Parson's Cause,” 31 POL. SCI. Q. 558, 575 (1916) (arguing that the three principles on which the power to declare a law unconstitutional rests were “clearly discernible” in Virginia cases relating to the two-penny act of 1758). For the transitional shift toward fundamental law
98. see CHARLES GROVE HAINES, THE AMERICAN DOCTRINE OF JUDICIAL SUPREMACY 60 (1914) (describing colonial practices, but focusing on fundamental law as “overruling law of nature or law of God”).
99. Edward S. Corwin, Marbury v. Madison and the Doctrine of Judicial Review, 12 MICH. L. REV. 538, 538 (1914).
100. CORWIN, DOCTRINE OF JUDICIAL REVIEW, at title page, 74-75. Corwin continued to explore the fundamental law claim into the 1920s.
101. See EDWARD S. CORWIN, THE “HIGHER LAW” BACKGROUND OF AMERICAN CONSTITUTIONAL LAW (1955) (republishing Harvard Law Review articles of 1928-29).
102. Arthur Meier Schlesinger, Colonial Appeals to the Privy Council, 28 POL. SCI. Q. 279–97, 433-50 (1913).
103. ELMER BEECHER RUSSELL, THE REVIEW OF AMERICAN LEGISLATION BY THE KING IN COUNCIL 227 (photo reprint 1976) (1915)
104. see also GEORGE A. WASHBURNE, IMPERIAL CONTROL OF THE ADMINISTRATION OF JUSTICE IN THE THIRTEEN AMERICAN COLONIES, 1684–1776, at 189 (1923) (concluding that the Privy Council's “function” became “the precedent for that power of judicial annulment of legislation exercised at the present time. by the Supreme Court.”). Beecher and Russell were students of Herbert Osgood.
105. See JOSEPH HENRY SMITH, APPEALS TO THE PRIVY COUNCIL FROM THE AMERICAN PLANTATIONS (1950)
106. see also Julius Goebel Jr. ANTECEDENTS AND BEGINNINGS TO 1801 (HISTORY OF THE SUPREME COURT OF THE UNITED STATES) (1971), 1–142.
107. EDWARD S. CORWIN, COURT OVER CONSTITUTION: A STUDY OF JUDICIAL REVIEW AS AN INSTRUMENT FOR POPULAR GOVERNMENT 16, 17 (Gloucester, 1957 [1938]). Corwin struggled to reconcile his growing perception that modern judicial review was a practice and the more extensive colonial evidence with his declaration that the colonial practices could not have the “force of precedents” because no Framer discussed them. Id. at 17-25.
108. For recent scholarship on the origins reflecting this tension between an awareness of earlier practices and the continued focus on legal ideas, see William Michael Treanor, Judicial Review before Marbury, 58 STAN. L. REV. 455, 468 n. 45 (2005)
109. LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW 7 (2004)
110. Philip Hamburger, Law and Judicial Duty, 72 GEO. WASH. L. REV. 1, 17 (2003).
111. LAWRENCE G. SAGER, JUSTICE IN PLAINCLOTHES: A THEORY OF AMERICAN CONSTITUTIONAL PRACTICE (2004).
112. RICHARD H. FALLON, IMPLEMENTING THE CONSTITUTION (2001).
113. Barry Friedman, The Politics of Judicial Review, 84 TEX. L. REV. 259 (2005)
114. see also Friedman, The Sedimentary Constitution, 147 U. PA. L. REV. 1, 90 (1998) (suggesting a theory of sedimentary constitutionalism that sees “the creation of constitutional law as a gradual societal process”).