The Online Library of Liberty

A project of Liberty Fund, Inc.

• Foreword
• Preface to the Second Edition
• Acknowledgments
• Abbreviations
• Part I
• 1: Introduction
• Supplementary Note On the Introduction
• 2: “privileges Or Immunities”
• Supplementary Note On the Civil Rights Act and the Fourteenth Amendment: Fundamental Rights
• 3: The “privileges Or Immunities of a Citizen of the United States”
• 4: Negro Suffrage Was Excluded
• Supplementary Note On Suffrage
• 5: Reapportionment
• 6: The “open-ended” Phraseology Theory
• 7: Segregated Schools
• Supplementary Note On Segregated Schools
• 8: Incorporation of the Bill of Rights In the Fourteenth Amendment
• Supplementary Note On Incorporation
• 9: Opposition Statements Examined
• 10: “equal Protection of the Laws”
• 11: “due Process of Law”
• 12: Section Five: “congress Shall Enforce”
• 13: Incorporation of Abolitionist Theory In Section One
• Supplementary Note On Abolitionist Influence
• Part Ii
• 14: From Natural Law to Libertarian Due Process
• Supplementary Note On Natural Law and the Constitution *
• 15: “the Rule of Law”
• 16: The Judiciary Was Excluded From Policymaking
• Supplementary Note On Exclusion of the Judiciary
• 17: The Turnabout of the Libertarians
• 18: Liberals and the Burger Court
• 19: The Legitimacy of Judicial Review
• Supplementary Note On the Role of the Court
• 20: Why the “original Intention”?
• Supplementary Note On Original Intention
• 21: Arguments For Judicial Power of Revision
• 22: “trial By Jury”: Six Or Twelve Jurors?
• 23: Conclusion
• Supplementary Note On the Conclusion
• Appendix A: Van Alstyne’s Critique of Justice Harlan’s Dissent
• Appendix B: Judicial Administration of Local Matters

15

“The Rule of Law”

For a generation the constitutional basis for the “revolutionary” changes wrought by the Warren Court has gone virtually unchallenged.1 Justice Black, to be sure, unremittingly attacked decisions which to his mind rested on supraconstitutional authority, but his views could be heavily discounted because he himself was guilty of wholesale importation and participated in some of the Court’s most debatable constitutional revisions. In a perceptive essay, Thomas C. Grey noticed a turning of the tide, the joinder of distinguished commentators in Black’s criticisms; although he dissents, he called for a clear statement and adequate defense of the position.2 With Grey, I consider the question whether the Court may “enforce principles of liberty and justice” when they are “not to be found within the four corners” of the Constitution as “perhaps the most fundamental question we can ask about our fundamental law,” excluding only “the question of the legitimacy of judicial review itself.” 3 The issue may for present purposes be stated more concretely: given that the Fourteenth Amendment plainly left suffrage and segregation to the States, may the Court “interpret” it in exact contradiction of the framers’ design—to take control away from the States? Where is the constitutional authority for a power so awesome?

It is important to make clear at this point what Part II of this study is not about. It does not deal with the interpretation of amorphous constitutional provisions such as “commerce,” 4 which, unlike “due process,” have no historical content; nor with the weight to be accorded “enigmatic” history. As Part I demonstrated, the framers of the Fourteenth Amendment made their intention abundantly plain: to exclude suffrage and segregation from the ambit of its terms. For me those terms, “equal protection” and “due process,” illuminated by clear history, are neither “vague” nor “ambiguous.” Nor will I deal with whether or not judicial review is antidemocritarian,5 for if judicial review of the Warrenite scope was authorized by the Constitution, its antidemocratic nature has constitutional sanction. Nor will the craftsmanship of the Court, about which rivers of ink have been spilled, come into question.6 If judicial intervention with respect to suffrage, for example, is without constitutional warrant, it cannot be excused by the most elegant craftsmanship. Nor will consideration be given to the extensive debate about “neutral principles,” because I concur with John Ely that if a “neutral principle” “lacks connection with any value the Constitution marks as special,” that is, if it is not rooted in the Constitution, “it is not a constitutional principle and the Court has no business imposing it.” What is of paramount importance, as Ely stresses, is that the Court “is under obligation to trace its premises to the charter from which it derives its authority.” 7 Finally, the “subjectivity” involved in making value choices8 plays no role in my view of the meaning of the Fourteenth Amendment, for it was not given to the courts to prefer federal judicial control of suffrage to the State control the Amendment deliberately left untouched. The Justices’ value choices may not displace those of the Framers,9 or, as Chief Justice Marshall stated, the words of the Constitution are not to be “extended to objects not . . . contemplated by its framers” 10 —let alone to those which unmistakably were excluded.

Intoxicated by the Warren Court’s libertarian breakthrough, academicians have dismissed such restrictions. Fred Rodell exulted that Chief Justice Warren “brush[ed] off pedantic impedimenta to the results he felt were right,” that he was not a “look-it-up-in-the-library” intellectual, and that he was “almost unique” in his “off-hand dismissal of legal and historical research from both sides and in [his] pragmatic dependence on the present day results of separate schools.” 11 On this view the Constitution itself is a superfluous, even obstructive, “scrap of paper.” Leonard Levy labeled this approach as “anti-intellectual,” 12 but Rodell merely expressed in pungent terms what is more decorously phrased by his fellow “instrumentalists.” 13 The underlying reality, as another Warren enthusiast, Edmond Cahn, stated, was that “as a practical matter it would have been impossible to secure adoption of a constitutional amendment to abolish ‘separate but equal,’ only the Court possessed effective power to relieve American education of this incubus,” thereby assuming that it had constitutional warrant.14

Inquiry into the source of power to set aside Article V of the Constitution, “which prescribes the Amendment process,” 15 and to impose a solution on the people that confessedly could not have obtained their assent is hardly a sheerly antiquarian exercise.16 Given a Constitution designed to “limit” the exercise of all delegated power,17 it is a response to the admonition contained in the Massachusetts Constitution of 1780, drafted by John Adams and paralleled in a number of early State constitutions, that “A frequent recurrence to the fundamental principles of the constitution . . . [is] absolutely necessary to preserve the advantages of liberty and to maintain a free government . . . The people . . . have a right to require of their law givers and magistrates an exact and constant observance of them.” 18 Such provisions evidence what Willard Hurst considers to be “a very basic principle of our constitutionalism . . . a distrust of official power,” 19 as Jefferson’s insistence on binding officials “with the chains of the Constitution” attests.20

Constitutionalism and the Rule of Law

When Howard Jay Graham acknowledged that the framers excluded segregation from the compass of “equal protection,” but concluded that we dare not be bound by their “imperfect understanding,” 21 he premised that the Court, as it had done in Brown v. Board of Education (1954), should strike the “chains of the Constitution.” The demands of justice, in short, must rise above the law, or, as libertarians put it, humanitarian goals must override what they regard as arid legalism. To dismiss adherence to “the rule of law,” observance of the limitations imposed by a written Constitution, is to strike at the very root of our democratic system.22 History confirms Justice Black’s statement that the struggle for a written constitution was “to make certain that men in power would be governed by law, not the arbitrary fiat of the man or men in power,” “according to the ‘law of the land,’ ” not by the “law of judges.” 23 The Framers, as will appear, had no stomach for the dispensation of “justice” by a kadi under a tree. Justice, to be sure, is the aim of a democratic state, but there can be no justice without a government of laws, least of all when power is uncurbed. It is for this reason, I suggest, that judges are not required by Article VI, §3, to take an oath to do justice but rather “to support this Constitution.” Our system is committed to “Equal Justice Under Law,” not to “Justices Above the Law.” 24 They were not authorized to revise the Constitution in the interests of “justice.”

Mechanical repetition over the years—like a child’s unthinking daily pledge of allegiance—has dulled the significance of the rule of law; it has been called a “useful fiction.” 25 For the Framers, however, it was the essence of constitutional government. “The government of the United States,” said Chief Justice Marshall in one of his earliest decisions, “has been emphatically termed a government of laws and not of men.” 26 That the judiciary, too, was meant to stay within bounds was spelled out in the 1780 Massachusetts Constitution, which ordained that the legislature should never exercise judicial power, and never should the judiciary exercise legislative power, so that this may be a “government of laws and not of men.” 27 Even more plainly, judges were not left free to exercise the supreme “legislative power” of the people, to revise the Constitution in accordance with their own predilections. As the Massachusetts House wrote to the Earl of Shelburne in 1768, “There are, my Lord, fundamental rules of the Constitution . . . which neither the supreme Legislative nor the supreme executive can alter. In all free states, the constitution is fixed; it is from thence, that the legislative derives its authority; therefore it cannot change the constitution without destroying its own foundation.” 28 This was addressed to an “omnipotent” Parliament and the Crown under an unwritten Constitution; it was an article of faith among the colonists and Founders.29 In substituting a written Constitution and expressly providing for change by amendment, they evidenced that they had created a “fixed” Constitution, subject to change by that process alone.30 That “fixity” was meant to serve as a bulwark for cherished liberties, not a mere parchment. “Our peculiar security,” Jefferson declared, “is the possession of a written Constitution. Let us not make it a blank paper by construction.” 31 The written Constitution was thus the highest expression of the “rule of law,” designed to limit the exercise of power and to make the agents of the people accountable. Once limits are prescribed, Chief Justice Marshall stated, they may not “be passed at pleasure.” It was because constitutions were bulwarks against oppression that, in his words, “written constitutions have been regarded with so much reverence.” 32

The Constitution represents fundamental choices that have been made by the people, and the task of the Courts is to effectuate them, “not [to] construct new rights.” 33 When the judiciary substitutes its own value choices for those of the people it subverts the Constitution by usurpation of power. No dispensation was given to the Court to step outside its powers; it is no less bound by constitutional limits than are the other branches, as the historical evidence makes plain. First, it was clearly excluded from participation in the making of policy, the function of the legislature.34 No agent, said Hamilton, “can new-model his commission,” 35 and the most benign purpose does not authorize the judiciary to remodel its powers. Indeed, we need to be rid of “the illusion that personal power can be benevolently exercised.” 36 The Founders knew, in Jacob Burckhardt’s phrase, that “Power is of its nature evil, whoever wields it.” 37 They knew, as Madison stated, that all “power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.” 38 “Judicial power,” Justice Frankfurter remarked, “is not immune against this human weakness”;39 and the Court’s progressive intrusion over the years into the domain of policymaking, from which it was plainly excluded, points the moral. Second, as Chief Justice Warren recognized, “We are oath-bound to defend the Constitution. This obligation requires that congressional enactments be judged by the standards of the Constitution.” 40 Substituted judicial made-to-order “standards” are not really the “standards” of the Constitution,41 as the State “reapportionment” cases plainly evidence. The significance of the judicial oath is illuminated by that of the President, who does not swear to defend the nation, but to “preserve and defend the Constitution,” 42 on the inarticulate premise that the life of the nation hangs on the preservation of the Constitution. Third, conclusive evidence that the judiciary was designed only to police constitutional boundaries, not to exercise supraconstitutional policymaking functions, was furnished by Hamilton. In Federalist No. 78 he stressed that the courts were to serve as “bulwarks of a limited Constitution against legislative encroachments” —a note repeatedly sounded in the subsequent Ratification Conventions.43 The word “encroachments” posits prior legislative action; it excludes judicial policymaking initiatives on ground of legislative inaction. This is confirmed by Hamilton’s statement that the judiciary “can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment.” 44 Chief Justice Marshall rephrased this in unmistakable terms: the Court was only to give “effect to the will of the legislature.” 45 Hamilton rejected the argument that the courts were empowered “to construe the laws according to the spirit of the Constitution”;46 “penumbras formed by emanations” 47 were not for him. What he meant is made quite clear by his rejection of the notion “that the courts on the pretence of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature,” 48 a statement, Louis Lusky notes, that “is hard to square with anticipation of judicial constitution-making power.” 49 Finally, well aware that there existed considerable distrust of the proposal for judicial review, Hamilton sought to allay it in Federalist No. 81 by calling attention to the

These were no idle words, for both the English and the Founders regarded “usurpation” or subversion of the Constitution as the most heinous of impeachable offenses.51

Today there is a tendency to reduce the Constitution to the status of a “symbol” of continuity and unity,52 but for the Founders it was a living reality. They swore the President to “preserve and defend the Constitution” because it represented a “bulwark” of their liberties, not a mere symbol. They indited a charter which delegates power to the “servants and agents of the people,” 53 with “limits,” “checks and balances” to guard against its abuse. It bears witness to the creation of a government by consent of the sovereign people; “just government,” stated the Declaration of Independence, “is founded on the consent of the governed.” The terms of that consent are spelled out in the Constitution. “The people,” averred James Iredell, one of the ablest of the Founders, “have chosen to be governed under such and such principles. They have not chosen to be governed or promised to submit upon any other.” 54 Substitution by the Court of its own value choices for those embodied in the Constitution violates the basic principle of government by consent of the governed. We must therefore reject, I submit, Charles Evans Hughes’ dictum that “the Constitution is what the Supreme Court says it is.” 55 No power to revise the Constitution under the guise of “interpretation” was conferred on the Court; it does so only because the people have not grasped the reality—an unsafe foundation for power in a government by consent.

Too much discussion of constitutional law is centered on the Court’s decisions, with not enough regard for the text and history of the Constitution itself. We need to recall Justice Gibson’s great statement in 1825:

Like Chief Justice Burger and Justices Douglas and Frankfurter, I assert the right to look at the Constitution itself stripped of judicial incrustations,57 as the index of constitutional law and to affirm that the Supreme Court has no authority to substitute an “unwritten Constitution” for the written Constitution the Founders gave us and the people ratified.

Constitutionalism—limited government under the rule of law—was a paramount aim, not to be warped in order to achieve some predilection of any given bench. Solicitor General, later Justice, Robert H. Jackson, perceived, as Chief Justice Warren did not, that “the rule of law is in unsafe hands when courts cease to function as courts and become organs for control of policy.” 58 Even a celebrant of the Warren era, Thurman Arnold, stated that without a continuing pursuit of “the ideal of the rule of law we would not have a civilized government.” But although he labeled it as of “tremendous importance,” he viewed it as “unattainable.” 59 That is a romantic view which can be invoked to shirk the attainable. Effectuation of the Fourteenth Amendment’s decision to leave suffrage to the States, for example, was not “unattainable”; attainment was balked only by the Court’s drive to restructure the Constitution. For the Founders “the rule of law” was no “unattainable” ideal, but a basic imperative. And so it must remain. As Charles McIlwain wrote, “The two fundamental correlative elements of constitutionalism for which all lovers of liberty must yet fight are the legal limits to arbitrary power and a complete responsibility of government to the governed.” 60

If this be arid legalism, it was shared by Washington, who stated in his Farewell Address:

It is because Americans continue to regard the Constitution as the bulwark of their liberties that they hold it in reverence. “ [E]very breach of the fundamental laws, though dictated by necessity,” said Hamilton, “impairs the sacred reverence which ought to be maintained in the breasts of the rulers towards the constitution.” 62

16

The Judiciary Was Excluded From Policymaking

The Council of Revision

It is a singular fact that the most significant single piece of evidence that the Framers excluded the judiciary from policymaking—rejection of their participation in a Council of Revision of legislation—went unnoticed by bench and bar until it was called to their attention by a political scientist, Benjamin F. Wright.1 Not the least remarkable aspect of judicial neglect of this history is that it should finally be invoked by Justices Black (1965)2 and Douglas (1968),3 oblivious to the shattering effect that it has on their own sweeping policymaking decisions.

Edmund Randolph proposed in the Convention that the President, “and a convenient number of the National Judiciary, ought to compose a council of revision” to examine every act of Congress and by its dissent to constitute a veto.4 When his fellow Virginian George Mason argued for judicial participation in the presidential veto, he recognized that judges already

A similar differentiation was drawn by James Wilson:

Despite the fact that the proposal had the support of Madison, and, therefore, of perhaps the most influential trio in the Convention, it was rejected for reasons that unmistakably spell out the exclusion of the judiciary from even a share in policymaking. Nathaniel Gorham saw no “advantage of employing the Judges in this way. As Judges they are not to be presumed to possess any peculiar knowledge of the mere policy of public measures.” 7 Elbridge Gerry, one of the most vigorous advocates of judicial review, opposed judicial participation in the Council:

Charles Pinckney also “opposed the interference of the Judges in the Legislative business.” 9 Rufus King joined in the opposition on the ground that as “the judges must interpret the Laws they ought not to be legislators.” 10 Roger Sherman “disapproved of Judges meddling in politics and parties.” 11 It is reasonable to infer that John Dickinson expressed a widely shared view in cautioning that “The Justiciary of Aragon . . . became by degrees the law-givers.” 12 Plainly the Framers refused to make the judiciary “law-givers,” even to the extent of allowing them to share in the legislative making of law, let alone finally to decide on policy, an exclusive legislative function.13 They drew a line between the judicial reviewing function, that is, policing grants of power to insure that there were no encroachments beyond the grants, and legislative policymaking within those bounds. “Dangerous” and “destructive” as such policies might be, they were yet to be the exclusive province of the legislature. That is the inescapable inference from the facts, and, as will appear, it is fortified by still other historical facts.

Justice Douglas therefore stood on solid ground in stating that “when the Court used substantive due process to determine the wisdom or reasonableness of legislation, it was indeed transforming itself into the Council of Revision which was rejected by the Constitutional Convention.” 14 In a remarkable example of compartmentalized thinking he went on to say, “we no longer exercise that kind of power,” just as he had earlier stated in Griswold v. Connecticut that the Court no longer acts as a “super legislature” —except in a case touching the “right of privacy.” 15

The history of the Council of Revision also serves to refute the view that judicial review is an expression of “distrust in popular government,” 16 or, in Corwin’s oft-quoted phrase, having bet on democracy, the Framers then “covered their bet.” 17 The “cover,” however, went no further than to prevent the legislature from “overleaping its bounds.” In fact the judiciary was excluded from halting “dangerous . . . destructive” legislation that was within those bounds. If the Framers “covered their bet,” they gave the last trump to Congress: judges who usurped power, for example, exercised a power withheld, said Hamilton, could be impeached. The Founders unequivocally rejected the judiciary as “guardians of the people”; they preferred, in Gerry’s words, to put their trust in “the Representatives of the people.” For judicial review was an innovation by no means universally admired; it was a departure from Blackstone’s “omnipotent parliament.” 18 Having “smarted” under the “omnipotent power of the British parliament,” said James Iredell, we should “have been guilty of . . . the grossest folly” had we “established a despotic power among ourselves.” 19 If this could be said of a legislature that could be turned out of office periodically, constitution-makers were even less ready to entrust unlimited power to an untried, unelected judiciary appointed for life.

The judicial role, it cannot be unduly emphasized, was limited to policing constitutional boundaries. James Wilson said it is necessary that Congress be “kept within prescribed bounds, by the interposition of the judicial department.” 20 The courts, said Oliver Ellsworth, were a “check” if Congress should “overleap their limits,” “make a law which the Constitution does not authorize.” 21 Judges, John Marshall stated in the Virginia Convention, could declare void “a law not warranted by any of the powers enumerated.” 22 Hamilton stressed that the courts were to serve as “bulwarks of a limited Constitution against legislative encroachments.” 23 But “within those limits,” Madison said, there were “discretionary powers.” 24 The exercise of that discretion, as we have seen, is for the branch to whom it has been confided. No one, so far as my search of the several convention records uncovered, looked to the Court for “leadership” in resolving problems that Congress, the President, or the States failed to solve. That view is a product of post-Warren euphoria. The courts were expected to “negative” or set aside unauthorized action, to “check” legislative excesses, to “restrain” Congress within its prescribed “limits,” to prevent the “usurpation” of power. The Court, in other words, was to act as nay-sayer, not as initiator of policy. Justice Stephen Field, supreme activist of his time, stated upon his retirement in 1897 that “This negative power, the power of resistance, is the only safety of a popular government.” 25

When, therefore, James Bradley Thayer and Learned Hand insisted that the role of the Court was to police the boundaries of constitutional grants, not to interfere with the exercise of legislative or executive discretion within those boundaries,26 they rested firmly on the authority of Hamilton and the preponderant view of the Founders. For 150 years the Court was content with this policing function;27 even the headstrong laissez-faire Court merely acted as a nay-sayer. It fell to the Warren Court to initiate policy when the legislative and executive failed to act, to take the lead in deciding what national policy ought to be.28 But the failure of Congress to exercise legislative power does not vest it in the Court.

Judicial “Discretion” in 1787

A common historicist fallacy is to import our twentieth-century conceptions into the minds of the Founders. At the adoption of the Constitution the notion that judges, for example, could make law as an instrument of social change was altogether alien to colonial thinking. “Instrumentalism” was yet to come. In a valuable essay Morton J. Horwitz observed that “fear of judicial discretion had long been part of colonial political rhetoric” and described the prevalent jural conceptions that combined to circumscribe the judicial function in the eighteenth century.29 There was first the fact that the common law rules—that is, judicially enunciated rules in the field of contracts and the like— “were conceived of as ‘ founded in principles, that are permanent, uniform and universal.’ ” Consequently, judges “conceived their role as merely that of discovering and applying preexisting legal rules” and derived “the rule of strict precedent” from such “preexisting standards discoverable by judges.” It followed that “judicial innovation itself was regarded as an impermissible exercise of will.” 30 Horwitz cites the statement of Chief Justice Hutchinson of Massachusetts in 1767: “the Judge should never be the Legislator: Because then the Will of the Judge would be the Law: and this tends to a State of Slavery.” 31 Not long afterward Edward Gibbon wrote, “the discretion of the judge is the first engine of tyranny.” 32 Horwitz concluded that “In eighteenth century America, common law rules were not regarded as instruments of social change; whatever legal change took place generally was brought about through legislation . . . American judges . . . almost never self-consciously employed the common law as a creative instrument for directing men’s energies towards social change.” 33 Those who would rest an implied power of judges to act as such instruments of social change in the field of constitutional law have the burden of producing evidence that the Framers intended to depart from these norms. The exclusion of judges from the Council of Revision alone points to the contrary.

“Instrumentalism,” Horwitz shows, largely began to develop in the early nineteenth century—after the adoption of the Constitution; the examples he cites are all drawn from application of common law; not once is a judicial claim of power to alter a statute, let alone a constitution, asserted. To such negative implications may be added Hamilton’s statement in the very context of judicial review (Federalist No. 78), that the judicial role is one of “judgment” not “will,” that “to avoid arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” 34 What could be further from the current freewheeling conception of judicial review than these words by the foremost apologist for judicial review, designed to reassure opponents of ratification? Courts were not merely to be “bound down” by the “chains of the Constitution,” but by “strict rules and precedents” as well. Even when the tide began to turn toward instrumentalism, Judge William Cranch of the Circuit Court for the District of Columbia stated in his preface to 1 Cranch of the Supreme Court’s decisions (1803): “In a government which is emphatically stiled a government of laws, the least possible range ought to be left for the discretion of the judge.” 35

There are also contemporary judicial statements that display the circumspection with which the judges approached the novel task of judicial review. In one of the earliest State cases, Commonwealth v. Caton (1782), Edmund Pendleton, president of the highest Virginia court, stated: “how far this court . . . can go in declaring an act of the Legislature void, because it is repugnant to the Constitution, without exercising the Power of Legislation, from which they are restrained by the same Constitution? is a deep, important, and I will add, an awful question” 36 —which, he rejoiced, he had no occasion to decide. Subsequently, Pendleton served as the presiding officer of the Virginia Ratification Convention, and it is unlikely that he translated the examples furnished by his colleagues, all addressed to checking encroachments on reserved powers, into unlimited power of review. No one remotely intimated that there would be judicial power to rewrite the Constitution.37 Nothing could have been better calculated to defeat ratification than a claim of judicial power that would leave the States altogether at the mercy of the federal courts;38 and such State jealousy was met by the Judiciary Act of 1789 which withheld from the inferior federal courts jurisdiction of cases “arising under” the Constitution.

Even with respect to the policing function, Justice James Iredell, who had been one of the most cogent advocates of judicial review, stated in 1798 that the power to declare a legislative act “void is of a delicate and awful nature, [hence] the Court will never resort to that authority but in a clear and urgent case.” 39 In M’Culloch v. Maryland Chief Justice Marshall indicated that something like a “bold and plain usurpation to which the constitution gave no countenance” was required “to invoke the judicial power of annulment.” 40 And in 1824 he averred that “judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature.” 41 For Chief Judge Cardozo, Marshall’s statement was the expression “of an ideal,” which “Marshall’s own career” illustrates “is beyond the reach of human faculties to attain.” 42 It would be more accurate to say, as Charles L. Black pointed out, that it reflected the colonists’ conception that “ Law is a body of existing and determinate rules,” which “ is to be ascertained ” by the judge by consulting “statutes, precedents and the rest,” and that “the function of the judge was thus placed in sharpest antithesis to that of the legislator,” who alone was concerned “with what the law ought to be.” 43 So Marshall understood the judicial role: “Courts are mere instruments of the law and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law ” 44 —that is, by the legislators or the people gathered in Convention.

Marshall, it needs always to be remembered, had fought on behalf of judicial review in the Virginia Ratification Convention and was well aware of the views entertained by the Founders. His 1824 statement confirms that among the presuppositions the Founders brought to the several conventions was a bias against judicial discretion and policymaking. There is no evidence whatsoever that these presuppositions were thrown overboard in the creation of the judiciary. To the contrary, the established presumption is that the Founders created a judiciary in familiar terms, except insofar as they envisaged its “policing” function. Judicial alteration of the fundamental law ran counter to their belief in a “fixed Constitution”; it was altogether outside their contemplation, as Hamilton made plain.45 Justice Frankfurter, therefore, was close to the mark in stating that the Framers were on guard “against the self-will of the courts.” 46

[1.]“The 15 years since [Warren] became Chief Justice have been years of legal revolution. In that time the Supreme Court has brought about more social change than most Congresses and most Presidents.” Anthony Lewis, “A Man Born to Act, Not to Muse,” The New York Times Magazine, June 30, 1968, in Levy, Warren 151. Justice Douglas complained that one decision entailed a “vast restructuring of American law.” Johnson v. Louisiana, 406 U.S 356, 394 (1972), dissenting opinion. Professor Lusky refers to “a revolutionary change in the criminal process.” Lusky 161. A. T. Mason, The Supreme Court: Palladium of Freedom 170 (1962): “On May 17, 1954, the Court initiated the greatest social revolution of this generation.” See also supra Chapter 14 note 136.

[2.]“Do We Have an Unwritten Constitution?,” 27 Stan. L. Rev. 703–705 (1975).

[3.]Id. 703.

[4.]Professor Frankfurter commented on Marshall’s “use of the commerce clause” to subject state authority “to such limitations as the Court finds it necessary to apply for the protection of the national community” as an “audacious doctrine, which, one may be sure, would hardly have been publicly avowed in support of the Constitution. Indeed The Federalist in effect denied it.” The Commerce Clause Under Marshall, Taney and Waite 18–19 (1937). Had it been avowed it would have wrecked adoption of the Constitution. For the Founders’ jealous attachment to State sovereignty, see Raoul Berger, Congress v. The Supreme Court 260–264 (1969). That attachment was made explicit by the Tenth Amendment. That Marshall’s views have carried the day is of no moment in a discussion that seeks to build on first principles. See infra at note 15, infra at notes 29–30, 56–57.

[5.]I consider that Eugene V. Rostow failed to meet Henry Steele Commager’s attack on the antidemocratic administration of judicial review up to 1937. Rostow, “The Democratic Character of Judicial Review,” 56 Harv. L. Rev. 193 (1952); Commager, “Judicial Review and Democracy,” 19 Va. Quarterly Rev. 417 (1943). See infra Chapter 17 at note 69.

Leonard Levy finds the Rostow argument unconvincing and comments, it is “of comparatively recent vintage, raising the suspicion that the arguments have been concocted to rationalize a growing satisfaction with judicial review among liberal intellectuals and scholars.” Judicial Review and the Supreme Court 24 (Leonard Levy ed. 1967).

[6.]“Assessment of the Nixon Court’s craftsmanship is as subjective as the art of judging, and experts will doubtless disagree, as they have about the Warren Court’s craftsmanship.” Levy, Against the Law 438.

[7.]“The Wages of Crying Wolf: A Comment on Roe v. Wade,” 82 Yale L.J. 920, 949 (1973). Bruce M. Claggett suggests a “neutral principle,” the “intent of the framers which, where knowable, surely should be conclusive.” “Book Review,” 27 Harv. L. Sch. Bull. 3, 4 (1976).

[8.]A. S. Miller and R. F. Howell, “The Myth of Neutrality in Constitutional Adjudication,” 27 U. Chi. L. Rev. 661 (1960).

[9.]See infra Chapter 17 at notes 34–35, 62.

[10.]Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 332 (1827), dissenting opinion.

[11.]Fred Rodell, “It Is the Warren Court,” The New York Times Magazine, March 13, 1966, in Levy, Warren 137, 142, 138–139. In both Brown v. Board of Education (desegregation) and Reynolds v. Sims (reapportionment), Rodell takes pleasure in recounting, “Warren was quite unworried that legislative history, dug from a library, might not support his reading.” Id. 142.

[12.]Levy, Warren 188.

[13.]E.g., “judicial decisions should be gauged by their results and not by . . . their coincidence with a set of allegedly consistent doctrinal principles.” Miller and Howell, supra note 8 at 690–691. Warren, said Paul Murphy, “had utilized the judiciary as a constructive policy-making instrument . . . Intent more upon social ends than upon legal subtleties and refinements, and candidly prepared to say so, he had pushed the nation, through his Court’s legal rulings, to take public actions that Congress was unprepared to recommend and the executive was incapable, unilaterally, of effectively securing.” Murphy, The Constitution in Crisis Times, 1918–1969 457 (1972). Apparently this meets with his approval, id. 466 et seq. He states that McCune (Nine Young Men 83 [1947]), praises the Black-Douglas-Murphy bloc because it “ ‘would seldom let red tape [!] stand in its way of arriving at an end it felt desirable.’ ” Id. 194.

[14.]Edmond Cahn, “Jurisprudence,” 30 N.Y.U.L. Rev. 150, 156–157 (1955). In the same way, Martin Shapiro assumed the existence of such power when he adverted to “Learned Hand’s eloquent plea for judicial abdication of most of the power of judicial review,” Law and Politics in the Supreme Court 24 (1964), when in fact Hand entertained grave doubts about its legitimacy and therefore would confine it to a narrow compass.

[15.]Lusky 79; see infra Chapter 17 at notes 15–22.

[16.]Although poles removed from Rodell’s uncritical subjectivity, Leonard Levy lends credibility to such views by his reference to “an antiquarian historicism that would freeze [the Constitution’s] original meaning . . . and was not intended to.” Levy, Judgments: Essays in American Constitutional History 17 (1972). The remarks of Jefferson and Madison plainly look the other way. See infra Chapter 20 at notes 5 and 18.

[17.]Supra Chapter 1 note 4; Berger, supra note 4 at 13–16.

[18.]Article XVIII, 1 Poore 959; New Hampshire (1784), Article 38, 2 Poore 1283; North Carolina (1776), Article XXI, 2 Poore 1410; Pennsylvania (1776), Article XIV, 2 Poore 1542; Vermont (1777), Article XVI, 2 Poore 1860.

[19.]“Discussion,” in Supreme Court and Supreme Law 75 (Edmond N. Cahn ed. 1954). James Iredell, who fought against great odds in North Carolina for adoption of the Constitution, stated, “The only real security of liberty . . . is the jealousy and circumspection of the people themselves. Let them be watchful over their rulers.” 4 Elliot 130. In Virginia, Randolph said, “I hope that my countrymen will keep guard against every arrogation of power.” 3 Elliot 207. Iredell stated that “unlimited power . . . was not to be trusted without the most imminent danger, to any man or body of men on earth.” 2 G. J. McRee, Life and Correspondence of James Iredell 145–146 (1857–1858). See also Corbin, supra Chapter 14 note 16. The Supreme Court adverted to “Fear of unchecked power, so typical of our State and Federal Governments.” Duncan v. Louisiana, 391 U.S. 145, 156 (1968).

[20.]Supra Chapter 14 at note 16.

[21.]Supra Chapter 14 at note 9.

[22.]Supra at note 11. Miller and Howell, supra note 8 at 683, label regard for the “intention of the framers” as a “filiopietistic notion.” Cf. Levy, Judgments supra note 16. Earlier McDougal and Lans gave vent to a string of spluttering expletives: “absolute artifacts of verbal archeology,” “strictly, a matter of concern only to rhetoricians,” “the idiosyncratic purposes of the Framers.” “Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy,” 54 Yale L.J. 181, 239 note 104, 291, 212 (1945). If laws were “scorned,” John Adams wrote, “in God’s name what is ever to be respected? What is there worth living for?” 2 Page Smith, John Adams 690 (1962).

[23.]In re Winship, 397 U.S. 358, 384 (1970), dissenting opinion. Chief Justice Waite declared in 1874 that “Our province is to decide what the law is, not to declare what it should be.” Minor v. Happersett, 88 U.S. (21 Wall.) 162, 178 (1874). In Houston v. Moore, 18 U.S. (5 Wheat.) 1, 48 (1820), Justice Story declared that the Court was “not at liberty to add one jot of power to the national government, beyond what the people have granted by the constitution,” dissenting opinion. For similar expressions by Chief Justice Marshall see infra Chapter 21 at notes 12–19.

[24.]Cardozo wrote that judges do not have “the right to ignore the mandate of a statute, and render judgment in despite of it.” Benjamin N. Cardozo, The Nature of the Judicial Process 129 (1921). It is said that when Holmes left the Massachusetts Court for the Supreme Court, “he was admonished to do justice. He responded thoughtfully that his job was merely to enforce the law.” Wallace Mendelson, Justices Black and Frankfurter: Conflict in the Court 116 (1961). Holmes wrote, “I have said to my brethren many times that I hate justice, which means that I know that if a man begins to talk about that, for one reason or another he is shirking thinking in legal terms.” The Mind and Faith of Justice Holmes 435 (M. Lerner ed. 1943). See also supra Chapter 14 at notes 37 and 103.

Writing of self-conscious judicial activism, Dean Acheson stated that a judge “may conscientiously be seeking to administer justice, but it is personal justice—the justice of Louis IX or Harun-al-Rashid—not that described on the lintel of the Supreme Court Building, ‘Equal Justice Under Law.’ ” Morning and Noon 69 (1965). Lusky suggests that some of the Court’s decisions may be inexplicable “except on the premise that the Justices consider themselves to be above the law —to be wholly unconstrained by pre-existing principle.” Lusky 101. Precisely this won praise from admirers of the Warren Court. Supra at note 11, and notes 11 and 13. See also Levy, supra Chapter 14 at note 136.

In defense of President Ford’s pardon of Richard Nixon, Assistant Secretary of Transportation Roger W. Hooker, Jr., stated, “I have never been entirely comfortable with the shibboleth [!] that ours is a nation of laws, not of men. It is true that for the most part it is and should be, but in times of extreme moral crisis throughout history, strong leadership has emerged to supersede the letter of the law and deliver us from the evils of vindictiveness.” Hooker, “A ‘Quiet, Undramatic’ Leader,” N. Y. Times, August 19, 1976, at 39. In short, Ford acted above the law to save us from an “extreme moral crisis”!

[25.]Miller and Howell, supra note 8 at 695.

[26.]Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).

[27.]Massachusetts Constitution of 1780, Article XXX, 1 Poore 960, more fully quoted supra Chapter 14 note 5. The Framers made plain that the judiciary was not to exercise legislative power. Infra Chapter 16 at notes 8–12.

[28.]Documents of American History 65 (Henry Steele Commager ed. 7th ed. 1963).

[29.]“The colonials shared Bolingbroke’s belief in the fixity of the constitution.” Julius Goebel, Antecedents and Beginnings to 1801, History of the Supreme Court of the United States, vol. 1, p. 89 (1971). “The principle that government must be conducted in conformity with the terms of the constitution became a fundamental political conception.” Id. 95.

In 1785 Madison stated that rulers “who overleap the great barrier which defends the rights of the people . . . are tyrants.” 2 James Madison, Writings of James Madison 185 (G. Hunt ed. 1900–1910). In the Connecticut Convention Oliver Ellsworth stated, Congress may not “overleap their limits.” 2 Elliot 196. For other citations see Berger, supra note 4 at 13–14.

[30.]Madison stated in the Convention that “it would be a novel and dangerous doctrine that a legislature could change the constitution under which it held its existence.” 2 Farrand 92. See infra Chapter 17 at notes 15–22.

[31.]8 Writings of Thomas Jefferson 247 (P. L. Ford ed. 1892–1899).

[32.]Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803).

[33.]Robert J. Bork, “Neutral Principles and Some First Amendment Problems,” 47 Ind. L.J. 1, 8 (1971); see infra Chapter 17 at notes 34–35.

[34.]See infra Chapter 16 at notes 8–13.

[35.]“Letters of Camillus,” 6 Alexander Hamilton, Works of Hamilton 166 (H. C. Lodge ed. 1904). This was said of the President by the foremost advocate of a “strong” presidency. See also supra note 30.

[36.]Thurman Arnold, “Professor Hart’s Theology,” 73 Harv. L. Rev. 1298, 1311 (1960). [Speaking of the substitution “of the individual sense of justice,” Cardozo said, “That might result in a benevolent despotism if the judges were benevolent men. It would put an end to the reign of law.” Benjamin N. Cardozo, The Nature of the Judicial Process 136 (1921). See also id. 133, 152, 160.]

[37.]Quoted in Gertrude Himmelfarb, Victorian Minds 185 (1968).

[38.]Federalist No. 48 at 321, quoted more fully supra Chapter 14 note 7.

[39.]Trop v. Dulles, 356 U.S. 86, 119 (1958), dissenting opinion. Justice Black stated, “The history of governments proves that it is dangerous to freedom to repose such [law-making] powers in courts.” Katz v. United States, 389 U.S. 347, 374 (1967), dissenting opinion. See also supra Chapter 14 note 7, and John Dickinson, infra Chapter 16 at note 12.

[40.]Trop v. Dulles, 356 U.S. at 103.

[41.]“ [T]he choice was made by the Framers,” Justice Douglas declared, “a choice which sets a standard . . . The Framers made it a standard.” Rochin v. California, 342 U.S. 165, 178–179 (1952), concurring opinion. Justice Black stated that “when a ‘political theory’ embodied in our Constitution becomes outdated . . . a majority of the nine members of this Court are not only without constitutional power but are far less qualified to choose a new constitutional theory than the people of this country proceeding in the manner provided by Article V.” Harper v. Virginia Bd. of Elections, 383 U.S. 663, 678 (1966), dissenting opinion. Yet both Black and Douglas joined in the “reapportionment” decisions.

[42.]Article II, §1(8). Note John Adams’ insistence on “exact” observance of the “fundamental principles of the constitution,” supra at note 18, by which he surely included the text and the Framers’ explanations.

[43.]Federalist at 508; Berger, supra note 4 at 12–16.

[44.]Federalist No. 78 at 504.

[45.]Infra Chapter 16 at note 41.

[46.]Federalist No. 81 at 524.

[47.]Griswold v. Connecticut, 381 U.S. 479, 484 (1965). Justice Douglas held that “specific guarantees of the Bill of Rights have penumbras, formed by emanations from those guarantees, that give them life and substance.” Webster, as A. T. Mason points out, “defines penumbra as a ‘marginal region or borderland of partial obscurity.’ ” “The Burger Court in Historical Perspective,” 47 N.Y. State Bar J. 87, 89 (1975). It is an odd conceit that “obscure borderland regions” lend “life and substance” to explicit guarantees. Nor does a region of “partial obscurity” offer the solid footing required for a novel intrusion into the relations of a State with its citizens that the Tenth Amendment protects.

[48.]Federalist No. 78 at 507. Justice Frankfurter explained that “The reason why from the beginning even the narrow judicial authority to nullify legislation has been viewed with a jealous eye is that it serves to prevent the full play of the democratic process.” Board of Education v. Barnette, 319 U.S. 624, 650 (1943), dissenting opinion.

[49.]Lusky 72.

[50.]Federalist at 526–527. When I first considered this provision in 1969, it was in the context of the congressional power to make “exceptions” to the Supreme Court’s appellate jurisdiction, while arguing that that power could not have been designed to curb judicial “excesses,” citing Hamilton’s statement that the impeachment provision “is the only provision on the point which is consistent with the necessary independence of the judicial character.” Federalist No. 79 at 514. When I went on to quote James Wilson’s statement that judges were not to be “impeached, because they decide an act null and void, that was made in defiance of the Constitution,” Berger, supra note 4 at 290–291, I did not, because the point was not involved, draw the distinction between an exercise by the Court of its jurisdiction to police constitutional boundaries (infra Chapter 16 at notes 5–6, 26–27), which neither the impeachment nor the “exceptions” power can correct, and the usurpation of “legislative power,” which is an impeachable offense. The meaning of usurpation was made clear by Iredell: “If Congress, under pretense of executing one power, should in fact usurp another, they will violate the Constitution.” 4 Elliot 179. A congressional usurpation can be set aside by the Court; a judicial usurpation, as Hamilton stated, can be met by impeachment.

[51.]Raoul Berger, Impeachment: The Constitutional Problems 33, 39, 86 (1973). [Protesting against a congressional resolution that he had usurped power, President Andrew Jackson declared that the charge that “the President has usurped authority and power not conferred upon him by the Constitution and laws, and that in doing so he violated both . . . (such an act would constitute) a high crime—one of the highest indeed, which the President can commit—a crime which justly exposes him to impeachment by the House.” 3 James D. Richardson, comp., Messages and Papers of the Presidents 73 (1889–1905).]

[52.]Bickel, The Least Dangerous Branch 31 (1962).

[53.]“Those in power,” said Iredell, are “servants and agents of the people.” 4 Elliot 9. Archibald Maclaine stated in the North Carolina Convention that the people can “delegate power to agents.” Id. 161. See Hamilton, supra at note 35.

[54.]2 McRee, supra note 19 at 146. This was powerfully stated in the First Congress by Alexander White of Virginia: “This is a Government constituted for particular purposes only; and the powers granted to carry it into effect are specifically enumerated . . . If these powers are insufficient . . . it is not . . . within our power to remedy. The people who bestowed them must grant further powers . . . This was the ground on which the friends of the Government supported the Constitution . . . [otherwise] the Constitution would never have been ratified” in Virginia. 1 Annals of Congress 514–515.

[55.]Embarrassed by this incautious remark, Hughes explained that he was not picturing interpretation “as a matter of judicial caprice.” The Autobiographical Notes of Charles Evans Hughes 143 (D. J. Danielski and J. S. Tulchin eds. 1973). One need not charge Justices Field and Pierce Butler with “caprice”; it suffices that they sincerely identified their own predilections with constitutional dogma. Professor Frankfurter wrote to President Franklin Roosevelt that it is the Justices “who speak and not the Constitution.” Roosevelt and Frankfurter: Their Correspondence 1928–1945 383 (M. Freedman ed. 1967).

[56.]Eakin v. Raub, 12 S. & R. 330 (Pa. 1825), dissenting opinion. That view was expressed by Justice Holmes and quoted by Justice Brandeis in Erie Ry. Co. v. Tompkins, 304 U.S. 64, 79 (1938), when the doctrine of Swift v. Tyson, 40 U.S. (16 Pet.) 1 (1842), was branded “an unconstitutional assumption of power by courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct.” [Acquiescence for no length of time can legalize a clear usurpation of power.” Thomas Cooley, A Treatise on the Constitutional Limitations 106 (8th ed. 1927).

There “can be no doubt that an unconstitutional practice, no matter how inveterate, cannot be condoned by the judiciary.” Zweifon v. Mitchell, 516 F.2d 594, 616 (D. C. Cir. 1975). “No one acquires a vested or protected right in violation of the Constitution by long use.” Walz v. Tax Comm’n, 379 U.S. 664, 678 (1970). In constitutional questions, “when convinced of former error, this Court has never felt constrained to follow precedent.” Smith v. Allwright, 321 U.S. 619, 665 (1944).]

Justice Gibson’s opinion is often regarded as impugning judicial review in the federal courts; but Gibson was careful to distinguish between the Pennsylvania Constitution (of 1790, 2 Poore 1548), which contained neither a “supremacy clause” (Article VI, §2), nor an “arising under” clause (Article III, §2), and the federal Constitution, which does. 12 S. & R. at 345, 346, 347, 356, 357. Although Gibson spoke in the context of state powers and duties, federal judges too are “bound” only by “laws” of Congress that are “consistent with the Constitution.” Infra Chapter 19 at notes 18–21. Moreover, Gibson made no reference to expressions by the Founders in both the Federal and State Conventions that judicial review was contemplated, infra Chapter 19 at notes 25–28, presumably because they were not germane to the Pennsylvania Constitution under adjudication, and because they had not yet been published.

[57.]Chief Justice Burger “categorically” rejected the “thesis that what the Court said lately controls over the Constitution . . . By placing a premium on ‘recent cases’ rather than the language of the Constitution, the Court makes it dangerously simple for future Courts using the technique of interpretation to operate as a ‘continuing Constitutional Convention.’ ” Coleman v. Alabama, 399 U.S. 1, 22–23 (1970). Justice Douglas wrote, a judge “remembers above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put upon it.” “Stare Decisis,” 49 Colum. L. Rev. 735, 736 (1949). Justice Frankfurter stated that “the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.” Graves v. O’Keefe, 306 U.S. 466, 491–492 (1939), concurring opinion.

[58.]Jackson, The Struggle for Judicial Supremacy 322 (1941). And as Justice, one of the most gifted that served on the Court, Jackson “took the notion of a rule of law seriously,” G. E. White, The American Judicial Tradition 248 (1976); he deemed it inappropriate for judges “to seize the initiative in shaping the policy of the law.” And he “attacked the ‘cult of libertarian judicial activists’ on the Court whose attitude, he felt, ‘encourage[d] a belief that judges may be left to correct the results of public indifference to the issues of liberty.’ ” White, id. 246.

To “engage in result-oriented jurisprudence,” Leonard Levy wrote, is to leave “far behind the idea of the rule of law enforced by impersonal and impartial judges.” Levy, Against the Law 438. Wallace Mendelson stated, “we must begin again the unending struggle for the Rule of Law, for government by something more respectable than the will of those who for the moment hold high office.” The Supreme Court: Law and Discretion 40 (1967).

[59.]Arnold, supra note 36 at 1311.

[60.]Constitutionalism: Ancient and Modern 146 (rev. ed. 1947).

[61.]35 George Washington, Writings 228–229 (J. Fitzpatrick ed. 1940).

[62.]Federalist No. 25 at 158.

[1.]Benjamin F. Wright, The Growth of American Constitutional Law 18–20 (1942); see also A. T. Mason, The Supreme Court: Palladium of Freedom 67–70 (1962).

[2.]Griswold v. Connecticut, 381 U.S. 479, 514 note 6 (1965).

[3.]Flast v. Cohen, 392 U.S. 83, 107 (1968); Justice Frankfurter had cited it in Board of Education v. Barnette, 319 U.S. 624, 650 (1943): the Framers “denied such legislative powers to the federal judiciary [and] chose instead to insulate the judiciary from the legislative function.”

[4.]1 Farrand 21.

[5.]2 Farrand 78 (emphasis added).

[6.]2 id. 73 (emphasis added).

[7.]Id.

[8.]1 Farrand 97–98; 2 Farrand 75 (emphasis added). Wright stated, “Gerry is not alone in this, for the same point of view is expressed by almost every man who says anything at all on this subject in the Convention and in the ratification controversy.” “The judiciary,” Wright concluded, “would not be concerned with the policy, the reasonableness or arbitrariness, the wisdom of legislation.” Supra note 1 at 18, 244; see also id. 19–20.

[9.]2 Farrand 298.

[10.]1 Farrand 108; cf. id. 98.

[11.]2 Farrand 300.

[12.]Id. 299.

[13.]Mason, The Supreme Court, supra note 1 at 70, 94, 117; 1 Julius Goebel, Antecedents and Beginnings to 1801, History of the Supreme Court of the United States 238 (1971).

[14.]Flast v. Cohen, 392 U.S. at 107. Through the due process clauses, A. T. Mason stated, the Court “became the final arbiter of public policy . . . the very authority the framers deliberately refused to confer under the proposed council of revision.” Mason, The Supreme Court, supra note 1 at 117. Yet Rodell could write that those who complain talk in “abstract phrases” — “judicial usurpation of legislative functions.” “The ‘Warren Court’ Stands Its Ground,” The New York Times Magazine, September 27, 1964, in Levy, Warren 208, 211.

[15.]Supra Chapter 14 at note 74.

[16.]Wallace Mendelson, Justices Black and Frankfurter: Conflict in the Court 126 (1961).

[17.]Quoted in Mason, The Supreme Court, supra note 1 at 63: “Judicial review represents an attempt by American Democracy to cover its bet.”

[18.]Raoul Berger, Congress v. The Supreme Court 38–42, 29 (1969).

[19.]2 G. J. McRee, Life and Correspondence of James Iredell 145–146 (1857–1858).

[20.]2 Elliot 445.

[21.]Id. 196.

[22.]3 Elliot 553. For additional citations, see Berger, supra note 18 at 13–16.

[23.]Federalist No. 78 at 508. At another point he stated that the courts were an “excellent barrier to encroachments and oppressions of the representative body.” Id. 503.

[24.]1 Annals of Congress 438 (1789). “The Legislative powers,” Madison stated, “are vested in Congress, and are to be exercised by them uncontrolled by any of the Departments, except the Constitution has qualified it otherwise.” Id. 463.

[Story extolled the common law because it “controls the arbitrary discretion of judges, and puts the case beyond the reach of temporary feelings and prejudices.” James McClellan, Joseph Story and the American Constitution 98 (1971).

Madison stated in the Convention that “the collective interest and security were much more in the power belonging to the Executive than to the Judiciary department . . . in the adminstration of the former much greater latitude is left to opinion and discretion than in the administration of the latter.” 2 The Records of the Federal Convention of 1787 34 (Max Farrand ed. 1911).]

[25.]Letter to the Court, October 12, 1897, 168 U.S. 713, 717 (1897). Gouverneur Morris stated that it was the judicial function to reject a “direct violation of the Constitution.” 2 Farrand 299. The Court “gained its power as an agency trusted to establish and enforce constitutional limitations on the excessive use of governmental authority,” i.e., in excess of granted authority. Paul Murphy, The Constitution in Crisis Times, 1918–1969 154 (1972).

[26.]J. B. Thayer, “The Origin and Scope of the American Doctrine of Constitutional Law,” 7 Harv. L. Rev. 129, 135 (1893); Learned Hand, The Bill of Rights 66, 31 (1962). That control of executive discretion lies beyond the judicial function was held in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 169–170 (1803), and in Decatur v. Paulding, 39 U.S. (14 Pet.) 497, 515 (1840).

[27.]Cf. Murphy, supra note 25 at 154. Professor Kurland stated, “the Court would remain true to its function of preserving the original meaning of the Constitution if it were to act more aggressively to prevent the executive from overreaching his constitutionally limited function.” Politics, the Constitution and the Warren Court 17 (1970). “Throughout most of our history the form of the Supreme Court’s contributions to public policy was negative.” Archibald Cox, “The New Dimensions of Constitutional Adjudication,” 51 Wash. L. Rev. 791, 813 (1976).

[28.]“ [T]here were outrages in American life . . . no other arm of government was doing anything about them.” Anthony Lewis, “A Man Born to Act, Not to Muse,” The New York Times Magazine, June 30, 1968, in Levy, Warren 151, 159 (1968). See also Martin Shapiro, Law and Politics in the Supreme Court 247–248 (1964). In the words of Professor Lusky, the Court is “acting as a prime mover rather than a modulator of efforts at change initiated elsewhere . . . As a prime mover . . . it has demanded a number of changes which do not command majoritarian support.” Lusky 227. See also supra Chapter 14 note 136. For the transformation of the judicial function this has entailed, see Appendix B. See also infra Chapter 20 note 8.

[29.]“The Emergence of an Instrumental Conception of American Law, 1780–1820,” in 5 Perspectives in American History 287, 303 (1971).

[30.]Id. 296, 297, 298. Zephaniah Smith, Chief Justice of Connecticut, stated, “Judges have no power to frame laws—they can only expound them.” 1 Z. Smith, A System of Laws of the State of Connecticut 93–94 (1795–1796). Lord Mansfield’s reforming work “convinced Thomas Jefferson that a check need be established on the common law powers of judges.” Horwitz, supra note 29 at 310. This in the field of commercial, not constitutional, law.

[31.]Horwitz, id. 292. For additional materials illustrating the Founders’ aversion to judicial discretion, see Gordon Wood, The Creation of the American Republic 1776–1789 301–302 (1969). As one writer put it, if the judges “put such a construction on matters as they think most agreeable to the spirit and reason of the law . . . they assume what is in fact the prerogative of the legislature.” Wood, id. 302.

[32.]4 Edward Gibbon, The History of the Decline and Fall of the Roman Empire 518 (Nottingham Soc. undated). Blackstone had written, “law, without equity, though hard and disagreeable, is much more desirable for the public good than equity without law; which would make every judge a legislator, and introduce most infinite confusion.” 1 Blackstone, Commentaries on the Laws of England 62 (1765–1769). Wendell Phillips quoted Lord Camden: “The discretion of a Judge is the law of tyrants . . . In the best of times it is often times caprice—in the worst, it is every vice, folly and passion, to which human nature is liable.” Quoted in Robert Cover, Justice Accused: Antislavery and the Judicial Process 152 (1975).

[33.]Supra note 29 at 287.

[34.]Horwitz, supra note 29 at 309–326; Federalist No. 78 at 504, 510. Kent stated that without the common law, i.e., the precedents, “the courts would be left to a dangerous discretion to roam at large in the trackless field of their own imaginations.” 1 James Kent, Commentaries on American Law 373 (9th ed. 1858).

[35.]5 U.S. (1 Cranch) iii (1803). Cranch was a nephew of, and appointed by, President John Adams, and a classmate and esteemed friend of his cousin John Quincy Adams. Life in a New England Town: 1787, 1788. Diary of John Quincy Adams 21 note 2 (1903). Horwitz quotes an unpublished opinion on circuit by Justice William Johnson (1813) that to invite “judicial discretion” would “increase the oddity of the state of things” in that the judiciary “would be left at large to be governed by their own views on the Fitness of things.” Supra note 29 at 306–307.

[36.]Commonwealth v. Caton, published in 2 Letters and Papers of Edmund Pendleton 416, 422 (D. J. Mays ed. 1967).

[37.]For citations to Madison, Marshall, and Nicholas, see Berger, supra note 18 at 77, 140, 15.

[38.]Cf. id. 263.

[39.]Calder v. Bull, 3 U.S. (3 Dall.) 386, 399 (1798); Justice Chase said, “a very clear case.” Id. 395. Earlier, Iredell, rebutting criticism of judicial review by Richard Spaight (then a delegate to the Convention), had stressed that an Act “should be unconstitutional beyond dispute before it is pronounced such.” 2 McRee, supra note 19 at 175.

[40.]17 U.S. (4 Wheat.) 316, 402 (1819).

[41.]Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 866 (1824).

[42.]Benjamin N. Cardozo, The Nature of the Judicial Process 169–170 (1921). It is not merely an “ideal” but a requirement of the separation of powers, supra Chapter 15 at notes 27, 43–49. Marshall recognized judicial limits in his pseudonymous defense of M’Culloch v. Maryland, to meet stormy charges of judicial usurpation. See infra Chapter 21 at notes 12–19. Least of all can the judiciary say one thing and do another; it cannot afford conflicts between word and deed. Nor does Marshall’s disregard of constitutional bounds legitimate his displacement of the Framers’ “will” by his own.

[43.]Black, The People and the Court 160 (1960).

[44.]Osborn v. Bank, 22 U.S. at 866 (emphasis added).

[45.]The foregoing materials, to my mind, refute Bickel’s view that the Framers “certainly had no specific intent relating to the nature and range of the power” of judicial review. The Least Dangerous Branch 104 (1962).

[46.]National Ins Co. v. Tidewater Co., 337 U.S. 582, 647 (1949), dissenting opinion.