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The Origins of Judicial Review

by mary bilder

Judicial review is controversial. As two leading scholars, Daniel Farber and Suzanna Sherry, explain, much of the angst comes from “a sense of innate conflict between democracy and judicial review.” But, as a matter of history, not everyone has seen judicial review this way. This sense of angst arises in part from the way we in law schools have told the story of the origins of judicial review.

The standard account of judicial review is that Chief Justice John Marshall in Marbury v. Madison invented judicial review. But he didn’t. Indeed, the origins of judicial review do not lie in the history of review by judges but in the commitment to limited legislative authority. Not until 1910 did “judicial review” become the name for the practice of courts voiding legislation contrary to the Constitution. For decades, what we think of as “judicial review” was once described in terms of review under a standard that legislation could not be repugnant to the Constitution.

Did the generation that framed the Constitution intend judicial review to be part of the constitutional scheme?

Judicial review was initially taken for granted and presumed to exist. Many members of the Framing generation presumed that courts would declare void legislation that was repugnant or contrary to a constitution.

Why did the Framing generation presume that judicial review was to exist?

They held this presumption because of colonial American history. In England, the by-laws of corporations had been subject to the requirement that they not be repugnant to the laws of the nation. The early English settlements in Virginia and Massachusetts were originally corporations. Eventually, legislation from all the English colonies was limited by the principle that it could not be repugnant to the laws of England. Under this standard, colonial lawyers appealed around 250 cases from colonial courts to the English Privy Council and the crown reviewed over 8,500 colonial acts.

In 1787, the Framers of the Constitution simply presumed that judges would continue this practice by voiding legislation repugnant to the Constitution. A few Framers worried about the power; however, they expected it would exist. As James Madison stated, “A law violating a constitution established by the people themselves, would be considered by the Judges as null & void.” In fact, the word “Constitution” in the Supremacy Clause and the clause describing the Supreme Court’s jurisdiction appeared to give textual authorization for judicial enforcement of constitutional constraints on state and federal legislation. Indeed, before Marbury, Justice Chase noted that, although the Court had never adjudicated whether the judiciary had the authority to declare laws contrary to the constitution void, general opinion, all the Supreme Court bar, and some of the Supreme Court justices had so decided.

By 1803, as Chief Justice Marshall acknowledged in Marbury, “long and well established” principles answered “the question, whether an act, repugnant to the constitution, can become the law of the land.” Marshall concluded that “a law repugnant to the constitution is void; and that courts . . . are bound by that instrument.” Accepting the well-established and long-practiced idea of limited legislative authority, American constitutional law recommitted itself to a practice over four centuries old.

This account suggests new boundaries with respect to what history can tell us about the modern practice of judicial review. Because the practice presumed by the Founders emphasized the bounded nature of legislation limited by the laws of the nation, this history casts doubt on arguments that general “natural law” was regularly accepted as a legitimate basis for review. This history also helps to explain why federal courts embraced review of state courts relatively easily while the implications of review of congressional legislation were less well contemplated.

Equally important, other modern concerns may be hard to resolve by looking to the history of the Founding era. The ambiguity and certainty of “repugnant to the Constitution” meant that judges did not have to confront whether they were engaged in what we would call narrow or broad constructions of the Constitution. Similarly, because judicial review arose out of a prior practice rather than an idea about separation of powers, it was easy to accept judicial power but less clear whether the judiciary alone was the ultimate interpreter of the Constitution—the modern issues of judicial supremacy and departmentalism. As separation of powers became increasingly accepted as the highest constitutional principle, these questions came into focus. While the Founding history can provide a guide to some concerns, others we must wrestle with unaided.

Modern discussions of judicial review often may dwell too much on judicial review as imposed by judges on democratic politics. The Founders believed deeply that American constitutionalism was based, first and foremost, on constraining legislation by the laws of the nation and, most importantly, the Constitution. This history can remind us that both legislative and judicial power are legitimated by the belief that the Constitution delegates the power of the people—an entity that exists over time—and thus may reinforce a bounded, yet changing, Constitution.

This history of the repugnancy practice also presents a challenge to originalism. History matters—not because it tells us what we should think about the Constitution but because it suggests how we might think about it. We can care about constitutional history without being constitutional originalists. If we replace the originalist search for intent with a historical appreciation of assumptions, we might see that certain structures and ideas were assumed to be part of the constitutional framework but were not fully articulated or conceived. We might come to accept that, while history can go far in assisting in the interpretation of constitutional questions, there are inherent limits to the inquiry. Rather than desire to know with unattainable certainty the Framing generation’s intent, we would perhaps do better to seek to understand the more attainable boundaries of their assumptions.

Professor Bilder teaches in the areas of property and American legal and constitutional history at BC Law School. The article upon which this column is based will appear in Yale Law Journal.