1.
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
1
Spaight to Iredell, Aug. 12, 1787, in G.J. McRee, Life and Correspondence of James Iredell (New York,
1858), II, 168.
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 courtpacking 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.
Frankfurter, “A Note on Advisory Opinions,” Harvard Law Review, XXXVI (1924), 1003, note 4.
Charles A. Beard, The Supreme Court and the Constitution, Spectrum edition (Englewood Cliffs, N.J.,
1962), with an introduction by Alan F. Westin. Beard’s introduction to the 1938 edition is at pp. 35-36; the
quote from Westin is at p. 2.
4
Reorganization of the Federal Judiciary. Hearings before the Committee on the Judiciary, United States
Senate, 75th Cong., 1st Session on S. 1392, Part 2, March 17 to 20, 1937, p. 184.
2
3
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. Boudin9 and William Winslow Crosskey10 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
5
Beard, Supreme Court and Constitution, Spectrum edition, pp. 95-96, and 117.
Edward S. Corwin, Book review in American Political Science Review, VII (May 1913), p. 330.
7
Corwin, The Doctrine of Judicial Review (Princeton, N.J., 1914), p. 10.
8
Reorganization of the Federal Judiciary, pp. 175, 176, 172.
9
Government by Judiciary (New York, 1932), 2 vols.
10
Politics and the Constitution in the History of the United States (Chicago, 1953), 2 vols.
11
Court over Constitution: A Study of Judicial Review as an Instrument of Popular Government
(Princeton, 1938).
12
Max Farrand, ed., The Records of the Federal Convention (New Haven, 1911), II, 93. Beard neither
quoted nor misused this statement. Among those who did were Farrand, The Framing of the Constitution
(New Haven, 1913), pp. 156-157; Charles Warren, The Making of the Constitution (Boston, 1928), pp. 3336
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
334; and Corwin, Doctrine of Judicial Review, p. 43. Corwin did not repeat the error in his Court over
Constitution., p. 32.
13
Farrand, ed., Records of the Federal Convention, II, 430. What Madison meant by “cases of a Judiciary
Nature,” is not clear, but he seems to have meant cases involving the special province or jurisdiction of the
Supreme Court. Marbury v. Madison, which turned on the power of the Court to issue a writ of mandamus
in a case of original jurisdiction was a case of “a Judiciary Nature.”
14
“Remarks on Mr. Jefferson’s Draft of a Constitution,” Oct. 1788, in Gaillard Hunt, ed., The Writings of
James Madison (New York, 1900-1910, 9 vols.), V. 294.
15
The Debates and Proceedings of the Congress of the United States [Annals of Congress], comps. By
Joseph Gales (Washington, 1934), 1st Cong., 1st Session, I, 439.
16
Ibid, I, 500.
17
Beard, Supreme Court and Constitution, p. 55.
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
Five versions of Hamilton’s speech of presentation and his “Plan of Government,” all dated June 18,
1787, are in The Papers of Alexander Hamilton, eds. Harold C. Sayrett and Jacob E. Cooke [New York,
1962), IV, 178-211.
19
The three “Letters of Brutus” on judicial review are reprinted in the Appendix to Corwin’s Court over
Constitution, pp. 231-262.
20
Beard combed the state ratifying convention debates and found only five statements endorsing judicial
review over Congress. In addition to those by Marshall and Ellsworth, he quoted Luther Martin and
William Grayson, who opposed ratification, and Edmund Pendleton. In the newspaper and pamphlet
literature he found only Hamilton’s statement in Federalist #78. Beard, Supreme Court and Constitution,
pp. 80-83.
21
McLaughlin, A Constitutional History of the United States, p. 310.
18
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
22
Doctrine of Judicial Review, pp. 2 and 17.
In addition to Warren’s Making of the Constitution, p. 332, see his Congress, the Constitution, and the
Supreme Court (Boston, 1925), pp. 41-57, 64-74, and 91-93. Haines’s The American Doctrine of Judicial
Supremacy (New York, 1914) is discussed below.
24
David John Mays, Edmond Pendleton (Cambridge, 1952), II, 169-172.
25
Haines, American Doctrine, p. 73.
23
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.
What is interesting about several of the spurious precedents, as distinguished from
the mythical cases, is that the court decisions were either deliberately or mistakenly
misrepresented for the purpose of discrediting the judges. The Constitution was framed
at a time when the Blackstonian concept of legislative supremacy was dominant. As the
judge himself said in Rutgers v. Waddington, one of the alleged precedents, if the
legislature “think fit positively to enact a law there is no power which can controul them. .
. the judges are not at liberty, although it appears to them to be unreasonable, to reject it:
for this were to set the judicial above the legislative, which would be subversive of all
government.”27 There were cases in Haines’s list in which disappointed parties, in an
effort to inflame opposition to the court, alleged baselessly that it had voided an act.
Holmes v. Watson, decided by the New Jersey Supreme Court in 1780, was such a case.
It is not likely that the framers cold have taken the misrepresentation for the fact because
David Brearley, one of the delegates to the Constitutional Convention, had been chief
justice of the court which decided the case.28
In other instances state legislatures, sensitive to even imagined slights on their
sovereignty, condemned state courts in the mistaken belief that they had invalidated an
act. Trevett v. Weeden, which was well known to the framers, was such a case. The
outraged legislature of Rhode Island summoned the judges as if they were suspected
criminals and demanded their reasons for an unprecedented holding against the
constitutionality of a legislative act. The judges flatly denied the charge. 29 In Rutgers,
26
James, Memories and Studies, quoted by Jerome Frank, Fate and Freedom (Boston, rev. ed., 1953), p.
181.
27
Rutgers v. Waddlington, 1784. Mayor’s Court of New York City, opinion by James Duane, Mayor and
Chief Judge, reprinted in entirety by Julius Goebel Jr., ed. The Law Practice of Alexander Hamilton:
Documents and Commentary. (New York, 1964), I, ch. 3; the quotation is at p. 415.
28
See Boudin, Government by Judiciary, I, 536-555; Crosskey, Politics and the Constitution, II, 948-952;
and Haines, American Doctrine, pp. 80-83.
29
Crosskey, Politics and the Constitution, II, pp. 965-968; Haines, American Doctrine, pp. 88-92; Boudin,
Government by Judiciary, I, 58-62.
despite the court’s endorsement of legislative supremacy, the construction given to the
act defeated the legislature’s purpose. As a result there were mass meetings, the governor
called a special session of the legislature, the legislature censured the court, and there
were impeachment threats.30 In the Virginia “precedent” of 1782, two judges declared
themselves in favor of the power of judicial review, one took a contrary position, and the
rest of the court took none at all; the statute was sustained by a vote of six to two.31 The
mythical cases aren’t worthy of mention.
There are but two legitimate precedents, both reported in the Philadelphia press
when the Convention was in session. In the “Ten Pound Case” in New Hampshire, the
court courageously voided an unconstitutional act in the face of threats from the
legislature. An abortive attempt to impeach the judges failed by a vote of 35 to 21. 32
Very much the same thing happened in North Carolina in the case of Bayard v. Singleton,
the only other legitimate precedent. The court took jurisdiction of a case contrary to a
statute directing dismissal. The legislature then summoned the judges to explain their
audacious disregard of its supreme authority. A committee which included William R.
Davie and Richard Dobbs Spaight, shortly delegates to the Constitutional Convention,
found the judges guilty as charged, but recommended no disciplinary action. The court in
unmistakable terms then held the disputed statute unconstitutional.33
Such are the pre-Convention precedents, few as they are. Taken as a group, the
spurious as well as the legitimate, they scarcely show that judicial review was a normal
function of courts. On the contrary, they show that it was nowhere established, indeed
that it seemed novel, controversial, and an encroachment on legislative authority. Its
exercise, even when imagined, was disputed and liable to provoke the legislature to
retaliation. If the framers intended judicial review, would they have omitted a provision
for it, allowing it to rest on so precarious a foundation? They might have, on the
supposition that an explicit provision might not have aided the cause of ratification but
the thought lacks evidentiary basis. Louis B. Boudin who did much of the spadework in
exposing the fraudulent character of some of the precedents, and W.W. Crosskey who
followed his lead, observed that the precedents tended to arise in certain types of cases –
those in which the legislatures had interfered with the normal jurisdiction of the courts or
the trial procedures by which they normally did business. Such cases in Madison’s
phrase, were “of a Judiciary Nature,” as was Marbury v. Madison. Judicial review
emerged, in other words, mainly in cases relating to the province of the judicial
department or trial by jury. The precedents tend not to show that the courts could pass on
the constitutionality of the general powers of the legislatures. As Corwin concluded, in
30
Crosskey, Politics and the Constitution, II, 965-968; Boudin, Government by Judiciary, I, 58-62; Haines,
American Doctrine, pp. 85-88.
31
Commonwealth v. Caton, 4 Call’s Virginia Reports 5 (1782), discussed in Mays, Edmund Pendleton, I,
196-201 and 387, note 65; Crosskey, Politics and the Constitution, II, 952-960; Haines, American
Doctrine, 83-85.
32
Crosskey, Politics and the Constitution, II, 968-970.
33
Trevett v. Weeden, l Martin (N.C.) 42 (1787), discussed in Haines, American Doctrine, pp. 92-94;
Crosskey, Politics and the Constitution, II, 971-973; and Boudin, Government by Judiciary, 1, 63-66.
his last word on the subject, “the case that could be made for judicial review in 1787 on
either the ground of proved workability or of ‘precedent’ was a shadowy one at best.”34
The idea of judicial review was nevertheless, rapidly emerging, a fact which adds
retrospective significance to the few precedents, even to the scattered judicial dicta and
lawyers’ arguments. Federalism hastened the emergence, supported by Section 25 of the
Judiciary Act of 1789, the ratification controversy and the demand for a Bill of Rights
also quickened the spread of the idea. Madison’s remark about the Supreme Court as
protector of the Bill of Rights, quoted above, echoed Jefferson, Sam Adams, John
Hancock, Patrick Henry, Richard Henry Lee, and others.35 No less important in
contributing to a wide-spread acceptance of the idea of judicial review was the
emergence of party politics. Charles Warren’s study of the records of Congress during its
first decade shows that the parties, with little consistency or adherence to principle,
argued the constitutionality of bills they liked and the unconstitutionality of those they
disliked, but Federalists and Republicans alike “were united in one sentiment at least, that
under the Constitution it was the Judiciary which was finally to determine the validity of
an Act of Congress.” Nor did they endorse judicial review in cases of a departmental or
judiciary nature only. Republicans, for example, wanted the Supreme Court to strike
down as unconstitutional such legislation as the Bank Act, the Carriage Tax, and the
Alien and Sedition Acts.36 The Court considered favorably the constitutionality of
several congressional acts during its first decade and there were a number of circuit cases
in which the justices voided state legislation.37 As late as 1800, Justice Chase observed
that while an act in direct opposition to the prohibitions of the Constitution was void, “yet
it still remains a question where the power resides to declare it void.” The “general
opinion” of the bar, he added, supported judicial review over acts of Congress.38 In short,
the path to Marbury v. Madison was wide open and it was never shut off by the people of
the country after the Supreme Court under Marshall decided Chase’s question.
Long acquiescence by the people and their representatives has legitimated judicial
review. It was “not imposed by self-anointed fiat on an unwilling people.”39 Despite
periodic and sometimes intense attacks on the Court by Congress or the White House,
judicial review attacks on the Court by Congress or the White House, judicial review has
survived unscathed for over a century and a half. Even the brief and unique encounter
with Congress’s controlling power over the Court’s appellate jurisdiction during
Court over Constitution, p. 25. Henry M. Hart, Jr., “Professor Crosskey and Judicial Review,” Harvard
Law Review, LVII (June 1954), 1463, disputes Crosskey’s contention that the precedents emerged in cases
of legislative invasion of judicial prerogatives. His article, ibid, pp. 1456-1486, is a running critique,
generally sound but overstated, on the point that Crosskey’s evidence is suspect. He believes that the
Constitutional Convention “repeatedly and with complete inconsistency” showed its understanding that the
Court should have the power of judicial review over Congress, thus indicating that his own use of the
evidence is also suspect. On the matter of the precedents Hart counts Trevett v. Weeden among the “square
holdings” in favor of judicial review, despite the denial by the judges in that case.
35
See warren, Congress, Court and Constitution, pp. 91-93.
36
Ibid., pp. 97-127; the quotation is at p. 99.
37
See Warren, The Supreme Court in United States History (Boston, 1923), I, 65-84, 145-149.
38
Cooper v. Telfair, 4 Dallas 14, 16 (1800).
39
Charles L. Black, The People and the Court: Judicial Review in a Democracy (New York, 1960), p. 178.
34
Reconstruction was only a glancing blow.40 Within a year or so, the Court handed down
a series of unprecedented decisions holding unconstitutional Congressional statutes
which made greenbacks legal tender, exceeded the commerce power, and taxed state
instrumentalities.41 Judicial review would never have flourished had the people been
opposed to it. They have opposed only its exercise in particular cases, but not the power
itself. They have the sovereign power to abolish it outright or hamstring it by
constitutional amendment. The President and Congress could bring the Court to heel
even by ordinary legislation. The Court’s membership, size, funds, staff, rules of
procedure, and enforcement agencies are subject to the control of the “political”
branches. Judicial review, in fact, exists by the tacit consent of the governed.
40
Ex parte McCardle, 7 Wallace 700 (1869), discussed in Warren, The Supreme Court, III, 187-210.
Hepburn v. Griswold, 8 Wallace 603 (1870); De Witt v. U.S., 9 Wallace 41 (1870); and Collector v. Day,
11 Wallace 113 (1871).
41