Expounding the law

George Washington Law Review

Volumn 78, Issue 6, 2010, Pages 1129-1144

  Bilder, Mary Sarah ^a  

^a BOSTON COLLEGE   (United States)

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EID: 78149355950     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (162)

1. Editorial, Supreme Court: Britain's October Revolution, GUARDIAN (London), Oct. 1, 2009, at 34.
2. See generally Constitutional Reform Act, 2005, c. 4 (Eng.) (establishing Britain's supreme court);
3. Constitutional Reform Act 2005 (Commencement No. 11) Order 2009, No. 1604, c. 83 (putting the supreme court provisions of the Constitutional Reform Act into effect on October 1, 2009).
4. Editorial, supra note 1, at 34.
5. Id.
6. PHILIP HAMBURGER, LAW AND JUDICIAL DUTY (2008).
7. Id. at 1.
8. Id.
9. Id. at 17.
10. Id. at 18.
11. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
12. See Mary Sarah Bilder, Idea or Practice: A Brief Historiography of Judicial Review, 20 J. POL'Y HIST. 6, 8 (2008).
13. Id.
14. See id. at 8-10 (discussing Horace Gray, who stressed the continuity between "the current Supreme Judicial Court and its colonial predecessor").
15. See id at 10-12 (describing political scientists' depiction of judicial review as an original doctrine grounded in American federalism).
16. See id. at 12-13 (discussing historians' placement of judicial review in the context of American colonialism).
17. Edward S. Corwin, The Supreme Court and the Fourteenth Amendment, 7 MICH. L. REV. 643, 660, 670 (1909);
18. see also Mary Sarah Bilder, The Corporate Origins of Judicial Review, 116 YALE L.J. 502, 505 n.5 (2006) (discussing Corwin's development of the term judicial review).
19. See Bilder, supra note 15.
20. Bilder, supra note 10, at 7.
21. This is especially true if one has argued that judicial review grows out of the colonial experience of an imperial constitution founded on the notion of repugnancy. See, e.g., MARY SARAH BILDER, THE TRANSATLANTIC CONSTITUTION: COLONIAL LEGAL CULTURE AND THE EMPIRE 10-11 (2004);
22. Bilder, supra note 15, at 508, 543 & n.219.
23. al-Kidd v. Ashcroft, 580 F.3d 949, 981 (9th Cir. 2009) (finding that the use of the federal material witness statute to detain suspected terrorists violated the Constitution);
24. see also Drake v. Portuondo, 553 F.3d 230, 240 (2d Cir. 2009) ("Since at least 1935, it has been the established law of the United States that a conviction obtained through testimony the prosecutor knows to be false is repugnant to the Constitution.").
25. See Mary Sarah Bilder, Colonial Constitutionalism and Constitutional Law, in TRANSFORMATIONS IN AMERICAN LEGAL HISTORY: ESSAYS IN HONOR OF PROFESSOR MORTON J. HORWITZ 28, 29 (Daniel W. Hamilton & Alfred L. Brophy eds., 2009) [hereinafter Bilder, Colonial Constitutionalism] (discussing the shift from England's "[a]ssemblage of [l]aws" to America's written Constitution).
26. For further discussion of some of these aspects, see Mary Sarah Bilder, English Settlement and Local Governance, in 1 THE CAMBRIDGE HISTORY OF LAW IN AMERICA 63, 64, 83-103 (Michael Grossberg & Christopher Tomlins eds., 2008) [hereinafter Bilder, English Settlement] (describing the institutional development of America's pre-Revolutionary colonial governance structure, including the role of the Privy Council and the imperial Constitution).
27. For elaboration on some of these aspects, see Bilder, English Settlement, supra note 20, at 88-103 (discussing the pre-1787 court system and colonial law).
28. For an account on the transformation of constitutional law, see generally Bilder, Colonial Constitutionalism, supra note 20.
29. Some of the most prominent cases include the Ten-Pound Act Cases (N.H. 1786), described in 2 WILLIAM WINSLOW CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES 968-71 (1953);
30. Rutgers v. Waddington (N.Y. City Mayor's Ct. 1784),
31. reprinted in 1 THE LAW PRACTICE OF ALEXANDER HAMILTON: DOCUMENTS AND COMMENTARY 392-419 (Julius Goebel Jr. ed., 1964);
32. Bayard v. Singleton, 1 N.C. (1 Mart.) 5 (1787);
33. Trevett v. Weeden (R.I. 1786),
34. described in JAMES M. VARNUM, THE CASE, TREVETT AGAINST WEEDEN (Providence, John Carter 1787);
35. and Commonwealth v. Caton, 8 Va. (4 Call) 5 (1782).
36. 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 529 n.32 (Boston, Little, Brown & Co. 1865) (appendix written by Horace Gray, Jr.).
37. William M. Meigs, The Relation of the Judiciary to the Constitution, 19 AM. L. REV. 175, 178-83 (1885).
38. GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787, at 453-63 (1969) (section entitled "The Enhancement of the Judiciary").
39. Darnel's Case (The Five Knights' Case), (1627) 3 How. St. Tr. 1 (K.B.).
40. Ship Money Case, (1637) 3 How. St. Tr. 825.
41. See, e.g., Fred Rodell, Goodbye to Law Reviews, 23 VA. L. REV. 38, 44 (1936).
42. HAMBURGER, supra note 4, at 406.
43. Id. at 407.
44. Id.
45. Holmes v. Walton (N.J. 1780),
46. described in Austin Scott, Holmes vs. Waltoa- The New Jersey Precedent, 4 AM. HIST. REV. 456 (1899).
47. For Hamburger's discussion, see HAMBURGER, supra note 4, at 407-22.
48. Materials from the case are available at http://njlegallib.rutgers.edu/ hw/.
49. For an account of the New Hampshire Ten-Pound Act Cases (N.H. 1786),
50. described in 2 CROSSKEY, supra note 23, at 968-71,
51. see Richard M. Lambert, The "Ten Pound Act" Cases and the Origins of Judicial Review in New Hampshire, 43 N.H. B.J. 37 (2002).
52. For Rutgers v. Waddington (N. Y. City Mayor's Ct. 1784),
53. reprinted in 1 THE LAW PRACTICE OF ALEXANDER HAMILTON: DOCUMENTS AND COMMENTARY, supra note 23, at 392-419,
54. see DANIEL J. HULSEBOSCH, CONSTITUTING EMPIRE: NEW YORK AND THE TRANSFORMATION OF CONSTITUTIONALISM IN THE ATLANTIC WORLD, 1664-1830, at 194-202 (2005).
55. For Trevett v. Weeden (R.I. 1786),
56. described in VARNUM, supra note 23,
57. see BILDER, supra note 18, at 188-91.
58. For Commonwealth v. Caton, 8 Va. (4 Call) 5 (1782),
59. see William Michael Treanor, The Case of the Prisoners and the Origins of Judicial Review, 143 U. PA. L. REV. 491 (1994).
60. In addition to Holmes, those interested in the judicial review precedents might focus on the Josiah Philips Case (Va. Gen. Ct. 1778),
61. discussed in 1 ST. GEORGE TUCKER, BLACKSTONE'S COMMENTARIES app. note D, at 293 (Lawbook Exch. 1996) (1803) (Hamburger chose not to include this Philips). I am aware of only two accounts of this bill of attainder case, both over a century old.
62. See W. P. Trent, The Case of Josiah Philips, 1 AM. HIST. REV. 444 (1896);
63. William Romaine Tyree, The Case of Josiah Philips, 16 VA. L. REG. 648 (1911);
64. see also Treanor, supra note 34, at 538 n.212. Who knows whether there is anything new to be written, but it would seem to represent one of the earliest possible post-1776 confrontations of the problem.
65. HAMBURGER, supra note 4, at 476-503 (chapter entitled "Not Holding Legislative Acts Unconstitutional").
66. Id. at 476-84 (discussing the series of unpublished Massachusetts decisions concerning the slave Quock Walker).
67. For prior discussions of the cases, see the sources listed in HAMBURGER, supra note 4, at 477 n.l.
68. Horace Gray wrote the leading scholarship on the cases. See 13 PROC. OF THE MASS. HIST. SOC'Y 292-99 (Boston, Mass. Hist. Soc'y 1874).
69. Gray had written the footnote suggesting cases in which judges had exercised judicial duty. See supra note 24 and accompanying text. For a brief discussion of Gray's role in promoting judicial review on the Supreme Court,
70. see Bilder, supra note 10, at 10.
71. HAMBURGER, supra note 4, at 482-84.
72. See, e.g., Mary Sarah Bilder, American Legal History Course Reader pt. 1 (Fall 2009) (unpublished course pack, on file with author).
73. See HAMBURGER, supra note 4, at 479.
74. Id. at 482-84.
75. See generally BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION (2009) (discussing the relationship between judicial review and the will of the people);
76. LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004) (rejecting the modern understanding that popular sovereignty is inapposite to judicial review);
77. John Phillip Reid, Another Origin of Judicial Review: The Constitutional Crisis of 1776 and the Need for a Dernier Judge, 64 N.Y.U. L. REV. 963 (1989) (arguing that judicial review emerged as a means to curb the abuse of a sovereign legislature).
78. HAMBURGER, supra note 4, at 655-58.
79. Daniel J. Hulsebosch, A Discrete and Cosmopolitan Minority: The Loyalists, the Atlantic World, and the Origins of Judicial Review, 81 CHI.-KENT L. REV. 825, 843-58 (2006) (discussing cases invalidating antiloyalist legislation that interfered with the Peace Treaty of 1783).
80. JOHN P. DAWSON, THE ORACLES OF THE LAW (1968).
81. Bilder, supra note 15 (discussing Horace Gray's role in the development of the concept of judicial duty);
82. see also Bilder, supra note 10, at 10 (discussing Gray's influence in promoting judicial review on the Supreme Court).
83. HAMBURGER, supra note 4, at 552-54 (discussing THE FEDERALIST NO. 78 (Alexander Hamilton)).
84. Id. at 464 ('"The duty of the [judicial] Power I conceive, in all cases, is to decide according to the Laws of the State'" (quoting An Elector [James Iredell], To the Public (Aug. 1786)));
85. see also id. at 473 ('"[A]ny Act inconsistent with the Constitution was void; [a]nd ... the Judges, consistently with their duties, could not carry it into effect.' "
86. (quoting Letter from James Iredell to Richard Dobbs Spaight (Aug. 26, 1787),
87. in 3 THE PAPERS OF JAMES IREDELL 307 (Donna Kelly & Lang Baradell eds., 2003))).
88. Id at 406-61.
89. Id at 197.
90. See Geoffrey R. Stone, The World of the Framers: A Christian Nation?, 56 UCLA L. REV. 1, 5 (2008) ("[I]t is quite striking, and certainly no accident, that... the U.S. Constitution made no reference whatsoever to God and cited as its primary source of authority not 'the word of God,' but 'We the People.'" (citation omitted));
91. see also Philip Hamburger, Beyond Protection, 109 COLUM. L. REV. 1823, 1850 (2009)
92. ("[Americans] increasingly preferred to think of themselves as citizens who created their government rather than as subjects of their ruler ...."). For a related argument that the American understanding of appeal has its origins in a much older conception of a hierarchy of authority, see Mary Sarah Bilder, The Origin of the Appeal in America, 48 HASTINGS L.J. 913 (1997).
93. See, e.g., ROBERT M. COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS 6-8 (1975) (discussing the tension between duty and morality in the role of the antislavery judge).
94. See, e.g., J. W. GOUOH, FUNDAMENTAL LAW IN ENGLISH CONSTITUTIONAL HISTORY (1955);
95. CHARLES HOWARD MCILWAIN, CONSTITUTIONALISM: ANCIENT AND MODERN (rev. ed. 1977) (1940);
96. J. W. TUBBS, THE COMMON LAW MIND: MEDIEVAL AND EARLY MODERN CONCEPTIONS (2000).
97. E.g., HAMBURGER, supra note 4, at 18.
98. See PAUL D. HALLIDAY, HABEAS CORPUS: FROM ENGLAND TO EMPIRE 140-47 (2010) (describing "laws of the ands");
99. HULSEBOSCH, supra note 34 (tracing the multiple authorities that informed New York's constitutional history);
100. Daniel J. Hulsebosch, Imperia in Imperio: The Multiple Constitutions of Empire in New York, 1750-1777, 16 LAW & HIST. REV. 319 (1998) (discussing the same).
101. photo, reprint 1979
102. THOMAS WOOD, AN INSTITUTE OF THE LAWS OF ENGLAND (London, Nutt & Gosling 1720).
103. 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND (photo, reprint 1979) (1765).
104. See Bilder, English Settlement, supra note 20, at 96-103 (discussing the difficulty of applying the diverse laws of England to the American colonies).
105. See Morton J. Horwitz, A Historiography of the People Themselves and Popular Constitutionalism, 81 CHI.-KENT L. REV. 813, 820 (2006)
106. ("Gordon Wood ... highlighted the shift on the eve of the constitutional convention to a theory of popular sovereignty," which became the basis for "an agency theory of separation of powers.").
107. Some years ago now, Morton Horwitz asked me about Gordon Wood's 1969 account of separation of powers. WOOD, supra note 26, at 608 ("The separation of this governmental power, rather than simply the participation of the people in a part of the government, became the best defense of liberty."). Horwitz asked about Wood's suggestion that the separation of powers model was fully developed prior to the adoption of the Constitution. I have puzzled over that question ever since. Indeed, Gordon Wood's latest book seems to describe a more gradual shift towards separation of powers and the independent judiciary.
108. See GORDON S. WOOD, EMPIRE OF LIBERTY: A HISTORY OF THE EARLY REPUBLIC, 1789-1815, at 400-32 (2009).
109. James Madison, Notes from the Constitutional Convention of 1787 (July 21, 1787), in
110. DEP'T OF STATE, DOCUMENTARY HISTORY OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA, 1786-1870, at 390, 390-403 (1900).
111. Id. at 395.
112. Bilder, English Settlement, supra note 20, at 65.
113. See id.
114. Id.
115. See Four Letters on Interesting Subjects, in 1 AMERICAN POLITICAL WRITING DURING THE FOUNDING ERA, 1760-1805, at 368, 387 (Charles S. Hyneman & Donald S. Lutz eds., 1983) (stating that "there is no more than two powers in any government... for the judicial power is only a branch of the executive").
116. ARTICLES OF CONFEDERATION art. IX (1777), reprinted in 1 THE FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS, AND OTHER ORGANIC LAWS OF THE STATES, TERRITORIES, AND COLONIES NOW OR HERETOFORE FORMING THE UNITED STATES OF AMERICA 9, 12 (Francis Newton Thorpe ed., William S. Hein & Co. 2002) (1909) [hereinafter THE FEDERAL AND STATE CONSTITUTIONS] ("The United States in Congress assembled shall also be the last resort on appeal.").
117. See, e.g., MASS. CONST, pt. 2, ch. III, reprinted in 3 THE FEDERAL AND STATE CONSTITU- TIONS,
118. supra note 67, at 1827,1905-06 (original text of 1780 amended in part in 1918 (art. I) and in 1964 (art. II)).
119. See STEWART JAY, MOST HUMBLE SERVANTS: THE ADVISORY ROLE OF EARLY JUDGES 144, 149-70 (1997) (discussing the 1793 debate over advisory opinions between the Washington Administration and the Court).
120. See Maeva Marcus, Judicial Review in the Early Republic, in LAUNCHING THE "EXTENDED REPUBLIC": THE FEDERALIST ERA 25, 36-41 (Ronald Hoffman & Peter J. Albert eds., 1996) (discussing the interplay between the judiciary, the Washington Administration, and Congress in the pension dispute known as Haybum's Case, 2 U.S. (2 Dall.) 409 (1792)).
121. See, e.g., BERNARD BAILYN, THE ORDEAL OF THOMAS HUTCHINSON (1974);
122. A. G. ROEBER, FAITHFUL MAGISTRATES AND REPUBLICAN LAWYERS: CREATORS OF VIRGINIA LEGAL CULTURE, 1680-1810 (1981).
123. G. EDWARD WHITE, THE AMERICAN JUDICIAL TRADITION: PROFILES OF LEADING AMERICAN JUDGES 24 (expanded ed. 1988).
124. HAMBURGER, supra note 4, at 218.
125. Id. at 218-25.
126. Id. at 220.
127. Id. at 543-48, 614-15.
128. Id. at 543.
129. My cursory and imprecise Lexis search hinted that perhaps by the 1890s, the word had largely fallen out of use as a way to describe what courts and judges do. A more precise search would establish clearer trends.
130. THE OXFORD ENGLISH DICTIONARY 581 (2d ed. 1989).
131. Id.
132. For example, when "expound*" is entered into the Eighteenth Century Collections Online database, it finds over 1500 works (including many reprints and subsequent editions) in the "Law" category. Again, a precise search would provide more specific results.
133. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
134. Id. at 177 (emphasis added).
135. See Raoul Berger, New Theories of "Interpretation": The Activist Flight from the Constitution, 47 OHIO ST. L.J. 1, 8-9 (1986) [hereinafter Berger, New Theories] (equating "ex- pounding" with "interpreting" and "interpreting" with plainly not "making law");
136. see also RAOUL BERGER, CONGRESS V. THE SUPREME COURT 49-56 (1969) (cataloging the 1787 Convention delegates' discussions about expounding and expositors).
137. See EDWARD S. CORWIN, THE DOCTRINE OF JUDICIAL REVIEW 42 (1914) (arguing that the Framers' rejection of the Council of Revision was based upon their desire to keep making law distinct from expounding law);
138. see also Berger, New Theories, supra note 84.
139. For a few recent examples, see generally LAWRENCE GOLDSTONE, THE ACTIVIST: JOHN MARSHALL, MARBURY V. MADISON, AND THE MYTH OF JUDICIAL REVIEW (2008) (analyzing Marbury using a textualist approach to discern whether the Court established judicial doctrine or exercised political will);
140. Michael Stokes Paulsen, The Irrepressible Myth of Marbury, 101 MICH. L. REV. 2706 (2003) (dispelling the myth that Marbury stands for judicial supremacy);
141. Jack N. Rakové, The Original Justifications for Judicial Independence, 95 GEO. L.J. 1061 (2007) (discussing the multiple origins of judicial independence);
142. Miguel Schor, Mapping Comparative Judicial Review, 1 WASH. U. GLOBAL STUD. L. REV. 257, 262 (2008) (stating that "Marbury did not found judicial review because the practice was well established before the case was decided");
143. William Michael Treanor, Judicial Review Before Marbury, 58 STAN. L. REV 455 (2005) (arguing that judicial review was a common practice before Marbury).
144. WOOD, supra note 60, at 442.
145. Cooper v. Telfair, 4 U.S. (4 Dall.) 14, 19 (1800) (Chase, C.J.) ("It is, indeed, a general opinion ... by all this bar . . . that the Supreme Court can declare an act of congress to be unconstitutional.");
146. see also Bilder, supra note 15, at 559-60;
147. Marcus, supra note 70, at 47.
148. See WILLIAM E. NELSON, MARBURY V. MADISON: THE ORIGINS AND LEGACY OF JUDICIAL REVIEW, at I (2000) (observing that "[fjollowing Marbury, the Supreme Court did not assert its power of judicial review for another 54 years").
149. See id. at 79-81 (discussing the ease with which the Court invalidated state legislation in takings cases).
150. See id. at 82-83 (discussing the tendency of early nineteenth-century courts to leave the resolution of conflicts to the legislature).
151. Mark A. Graber, The New Fiction: Dred Scott and the Language of Judicial Authority, 82 CHI.-KENT L. REV. 177, 177-79, 181 (2007);
152. Keith E. Whittington, Judicial Review of Congress Before the Civil War, 97 GEO. L.J. 1257, 1258-59 (2009).
153. See Whittington, supra note 92, at 1326-28.
154. See NELSON, supra note 89, at 81-82 (detailing state judicial review cases).
155. See Sanford Levinson, Why I Still Won't Teach Marbury (Except in a Seminar), 6 U. PA. J. CONST. L. 588 (2004) (describing the shortcomings of using Marbury as an introduction to constitutional law).
156. For discourse on the way in which Marbury has been discussed, see, for example, Tom Donnelly, Popular Constitutionalism, Civic Education, and the Stories We Will Tell Our Children, 118 YALE L.J. 948, 982-84 (2009) (reviewing the portrayal of Marbury in various high school textbooks);
157. Davison M. Douglas, The Rhetorical Uses of Marbury v. Madison: The Emergence of a "Great Case," 38 WAKE FOREST L. REV. 375 (2003) (arguing that Marbury did not become a seminal case until the late nineteenth century, when courts used it to justify the expansion of judicial power);
158. Miguel Schor, The Strange Cases of Marbury and Lochner in the Constitutional Imagination, 87 TEX. L. REV. 1463, 1463-64 (2009) (noting that, although Marbury is generally praised as the "fountain head of judicial review," some scholars have vilified the decision for being both politicized and undemocratic).
159. WALTER CARRUTHERS SELLAR & ROBERT JULIAN YEATMAN, 1066 AND ALL THAT: A MEMORABLE HISTORY OF ENGLAND, at vii (1931) (emphasis omitted) (subtitled "Comprising All the Parts You Can Remember, Including One Hundred and Three Good Things, Five Bad Kings, and Two Genuine Dates").
160. Compare ERWIN CHEMERINSKY, CONSTITUTIONAL LAW 8-9 (3d ed. 2009) (textbook espousing the view that Marbury creates the authority for judicial review),
161. with GEOFFREY R. STONE ET AL., CONSTITUTIONAL LAW 38-39 (6th ed. 2009) (textbook presenting the view that judicial review existed before Marbury).
162. See supra notes 15-16 and accompanying text.