Skeptics of the power of the federal judiciary to declare laws unconstitutional have expressed doubts and concerns ever since the Supreme Court, in Marbury v. Madison (1803), first exercised the incredible power of judicial review when she declared unconstitutional a section of the Judicial Act of 1789. In his landmark opinion for the court, Chief Justice John Marshall said that review authority is based on the judicial responsibility to “say what the law is”.
Critics accused the court of usurping legislative authority. They ask: What is the source of this power? The Constitution, they note, makes no mention of judicial review. While the phantoms of usurpation occasionally rattle their chains, debate over the legality, and therefore legitimacy, of judicial review has largely faded from the scene, except in those remote outposts where supporters of constitutional conspiracies dwell.
Yet citizens have the right to understand the sources of the constitutional power in question. In 1924, Judge Felix Frankfurter attributed the occasional eruptions of controversy over judicial review to a “lack of historical scholarship combined with fierce prejudice” and called it an “empty polemic”. Americans’ common curiosity about constitutional foundations, especially one as important as judicial review, can be content with a little “historical scholarship” that should dispel doubts about the legitimacy of asserting the power of review by Chief Justice Marshall.
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The founders did not invent judicial review from scratch. As keen students of legal history, they knew the doctrine as it emerged in England in the early seventeenth century in the case of Dr. Bonham in 1610, and evolved in the writings and remarks of jurists, of lawyers and scholars through a two-century perspective. . They admired its articulation in the impassioned and eloquent words of the great colonial lawyer, James Otis, in 1761, in the famous Writs of Assistance case. On the eve of the 1787 Constitutional Convention, the delegates’ conversations are punctuated with details of recent cases involving the exercise of judicial review by several state courts.
The earliest expression of the power of judicial review dates back to the Bonham case and the words of the masterful jurist, Sir Edward Coke, rightly regarded by American colonial leaders as the great champion of common law and parliamentary authority. Coke said: “Where an Act of Parliament is contrary to the common law and to reason, the common law will review it and declare that Act void.”
Coke’s observations never took hold in England. They were pronounced at the time of monarchical sovereignty, itself replaced by parliamentary sovereignty, during the Glorious Revolution of 1688. But Coke’s saying was embraced by other distinguished English judges and lit a flame for Otis, a brilliant young American lawyer who forever changed our nation’s constitutional landscape as he argued before a court of English judges in The Writes of Assistance case.
Otis quoted Coke’s saying in the Bonham case and told the court that Parliament breached the English Constitution by allowing English officials to search Colonial businesses and homes without a proper search warrant. Otis lost his case, of course, because no court could thwart parliamentary sovereignty.
But Otis’ achievement was real and substantial. More immediately, it provided both a powerful legal and political tool to the colonists in their effort to diminish England’s authority. In the long term, it introduced a new conception of a Constitution, which is superior to the government and therefore requires accountability for its terms and provisions. It was Otis’ conception that laid the foundations of American constitutionalism, including the power of judicial review to control public officials.
The overall commitment of editors to checks and balances includes the role and power of judicial review. Their view of the ability of the review authority emerges in the Convention debates around James Madison’s proposal to create a Board of Review, which would include the president and a “suitable number of judges” empowered to sweep the U.S. laws and strike them down on the grounds that they are unconstitutional, dangerous, or reckless.
The Convention rejected Madison’s proposal for two main reasons. First, judges should not be able to revise laws for policy reasons, as this is a legislative responsibility. If judges were empowered to strike down laws because of the relative wisdom of the measures, that would turn judges into legislators — in addition to unelected legislators. The second reason for the Review Board’s defeat is that, as the delegates explained, the judges would have the ability to review the measures in their capacity as judges and determine their constitutionality. Accordingly, they should not possess a seat on the Council and exercise that judgment before a law is brought before their court.
The rejection of the proposed advice and the explanation that judges would have the power to declare measures unconstitutional in the course of adjudicative activity represents a straight line of thought from the Bonham case to the writs of assistance, state court rulings and the Constitutional Convention, in Marbury v. Madison. The exercise of the power of judicial review by the federal courts was therefore fully anticipated by the framers of the Constitution. Indeed, supporters and opponents of the power of revision were in agreement. Evidence of this contemporary understanding can be seen in federalist and anti-federalist writings. We move on to these logs next week.
David Adler is President of the Alturas Institute. This “We the People” series is provided by the North Dakota Newspaper Association and Humanities North Dakota.