Skeptics of the federal judiciary’s authority to declare laws unconstitutional have expressed doubts and concerns ever since the Supreme Court, in Marbury v. Madison (1803), first exercised the awesome power of judicial review when it declared unconstitutional a section of the Judiciary Act of 1789. In his landmark opinion for the Court, Chief Justice John Marshall declared that the reviewing authority is grounded in the judicial responsibility to “say what the law is.”
Critics of the assertion of judicial authority to interpret the Constitution have 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 ghosts of usurpation occasionally clank their chains, the debate about the legality, and thus the legitimacy, of judicial review has largely disappeared from the scene, except in those remote outposts where advocates of constitutional conspiracies dwell.
Still, the citizenry is entitled to understand the sources of the constitutional power in question. In 1924, Justice Felix Frankfurter attributed the occasional eruptions of controversy about judicial review to a “lack of historical scholarship combined with fierce prepossessions” and stamped it as an “empty controversy.” Americans’ shared curiosity about constitutional foundations, especially one as important as judicial review, may be satisfied with a little “historical scholarship” that should sweep away doubts about the legitimacy of Chief Justice Marshall’s assertion of the reviewing power.
The founders did not invent judicial review from whole cloth. As keen students of legal history, they were familiar with the doctrine as it emerged in England in the early 17th Century in Dr. Bonham’s Case in 1610, and evolved in the writings and remarks of jurists, lawyers and scholars across a vista of two centuries. They admired its articulation in the passionate and eloquent words of the great colonial lawyer, James Otis, in 1761, in the celebrated Writs of Assistance Case. On the eve of the Constitutional Convention in 1787, delegates’ conversations were punctuated with details about recent cases involving the exercise of judicial review by several state courts.
The earliest expression of the power of judicial review can be traced to Bonham’s Case and the words of the magisterial jurist, Sir Edward Coke, justly viewed by colonial American leaders as the great champion of the common law and parliamentary authority. Coke declared: “When an Act of Parliament is against common right and reason, the common law will control it and adjudge such act to be void.”
Coke’s observations never took root in England. They were uttered in the period of monarchical sovereignty, which itself was replaced by parliamentary sovereignty, in the Glorious Revolution of 1688. But Coke’s dictum was embraced by other distinguished English judges and lit a flame for Otis, a brilliant, young American lawyer who forever changed the constitutional landscape of our nation in his argument before a court comprised of English judges in The Writs of Assistance Case.
Otis quoted from Coke’s dictum in Bonham’s Case and told the court that Parliament had violated the English Constitution in its authorization of English officials to search colonial business and homes without a proper search warrant. Otis lost his case, of course, since no court could thwart parliamentary sovereignty.
But Otis’ achievement was real and substantial. Most immediately, he delivered both a powerful legal and political tool for the colonists in their effort to diminish England’s authority. In the long run, he introduced a new conception of a Constitution, one that is superior to government and thus requires accountability to its terms and provisions. It is Otis’ conception that provided the foundation for American Constitutionalism, including the power of judicial review to hold officials in check.
The framers’ overall commitment to checks and balances — in every way, shape and form — includes the role and power of judicial review. Their view of the capacity of the reviewing authority emerges in Convention debates around James Madison’s proposal to create a Council of Revision, which would include the president and a “convenient number of judges,” empowered to sweep through U.S. laws and strike them down on grounds that they are unconstitutional, dangerous or unwise.
The Convention defeated Madison’s proposal for two chief reasons. First, judges ought not to be able to review statutes on grounds of policy concerns, for that is a legislative responsibility. If judges were empowered to overturn laws because of the relative wisdom of the measures, that would convert judges into legislators — unelected legislators at that. The second reason behind the defeat of the Council of Revision lay in the fact that, as delegates explained, judges would have the opportunity to review measures in their capacity as judges and determine their constitutionality. As a consequence, they should not possess a seat on the Council and exercise that judgment before a law came before their court.
The rejection of the proposed Council, and the explanation that judges would, as part and parcel of the business of judging, enjoy the authority to declare measures unconstitutional, represents a straight line of thought from Bonham’s Case through the Writs of Assistance Case, state court rulings and the Constitutional Convention, to Marbury v. Madison. The exercise of the power of judicial review by federal courts, then, was fully anticipated by the framers of the Constitution. Indeed, supporters and opponents of the reviewing power agreed. Proof of this contemporaneous understanding can be glimpsed in both Federalist and anti-Federalist writings. We turn to these papers next week.