Front Page Titles (by Subject) 19: The Legitimacy of Judicial Review - Government by Judiciary: The Transformation of the Fourteenth Amendment
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19: The Legitimacy of Judicial Review - Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 
Government by Judiciary: The Transformation of the Fourteenth Amendment, Foreword by Forrest McDonald (2nd ed.) (Indianapolis: Liberty Fund, 1997).
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The Legitimacy of Judicial Review
The most fundamental question of all, as Thomas Grey rightly stated, is “the legitimacy of judicial review itself,” 1 a question that goes beyond the scope of the power to its very existence, however limited. After remarking, “Whether this enormous power can fairly be deduced from the language of the Constitution, and whether the framers of that instrument intended to confer it on the Justices, has been the subject of vast learned controversy . . . unlikely ever to be resolved,” Joseph Bishop reassuringly stated, “No matter; the power exists.” 2 It is true that the power has long been exercised, but whether it “exists” —has constitutional warrant—is something else again. Edmond Cahn, however, opined that “it is too late to reopen the question of whether the Court ought to determine constitutional issues.” 3 On the contrary, it is never too late to challenge the usurpation of power; one gains no title by prescription against the government,4 still less against the sovereign people. Power reserved to the people by the Tenth Amendment cannot be taken over by “squatter sovereignty.” “It will not be denied,” Chief Justice Marshall stated, “that a bold and daring usurpation might be resisted, after an acquiescence still longer and more complete than this.” 5 In Erie Ry. Co. v. Tompkins the Court, per Justice Brandeis, branded its own course of conduct stretching over one hundred years as “unconstitutional,” 6 in a situation not nearly as important as the “enormous power” to impose the judicial will upon the nation. Usurpation—the exercise of power not granted—is not legitimated by repetition.7 The people, as John Adams inscribed in the Massachusetts Constitution of 1780, are ever entitled to demand of their magistrates an “exact and constant observance” of the principles of the Constitution,8 above all, to exercise no powers not granted. We may not, therefore, shut our eyes to the issue of legitimacy.
In the course of a penetrating summary of the issues posed by judicial review, Leonard Levy states: “The charges 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.” 9 This attempt at even-handed analysis overlooks the fact that under a Constitution which delegates and limits power, the burden is on a claimant to point to the source of his power—failing which, it is a usurpation.9a After dwelling on the materials which led him to conclude that the framers left a “very incomplete and extraordinarily ambiguous record,” 10 Levy comments on Charles Black’s argument that judicial review has been “legitimized by popular acquiescence, and therefore popular approval, over the course of American history.” In Black’s own words, “the people have, precisely through the political process, given the stamp of approval in the only way they could give approval to an institution in being—by leaving it alone.” To this Levy retorts: “The simple fact is that at no time in our history have the American people passed judgment, pro or con, on the merits of judicial review over Congress. Consent freely given, by referendum, by legislation, or by amendment is simply not the same as failure to abolish or impair.” 11 If in fact no provision for judicial review was made by the Constitution, Black’s argument would substitute for the constitutional machinery for change by amendment revision by tacit acquiescence. Neglect or inaction would excuse noncompliance with the amendment provision; usurpation would be legitimized by inertia. But, as Hamilton stated in Federalist No. 78, the Constitution is “binding” — “until the people have, by some solemn and authoritative act, annulled or changed the established form.” 12 The Black argument, which takes little or no account of historical roadblocks, is, as Willard Hurst said in an analogous context, “a way of practically reading Article V out of the Constitution.” 13
To read popular acquiescence in judicial vetoes as ratification of a judicial power to change the Constitution offends against still another requirement: complete disclosure. The people could rely on Hamilton’s rejection in Federalist No. 78 of the possibility that “the courts on the pretense of repugnancy, may substitute their own pleasure to the constitutional intention of the legislature,” on his representation that the judges had no warrant to depart from the Constitution. As Lusky put it, the people expect the Justices to view the Constitution as expressing “the will of those who made” it and “to ascertain their will.” 14 Until the Court candidly discloses—as Justice Jackson vainly urged—that it is “making new law for a new day,” the people can hardly be held to acquiesce in what they have not been told. They have been told that the Court speaks with the voice of the Constitution;15 they are constantly told that “the Constitution (not the Justices) requires.” And that cannot be converted into ratification of progressive judicial violation of its limits.
On Levy’s view that judicial review has no sure constitutional basis16 and that it has not been “approved” by the American people, it is, like Mahomet’s coffin, suspended in midair. Thus, the awesome power of judicial review is left altogether without footing. My own studies, set forth in Congress v. The Supreme Court (1969), convinced me that judicial review was contemplated and provided for by the Framers, albeit limited to policing constitutional boundaries and divorced from participation in policymaking. The fundamental importance of legitimacy impels me to comment briefly on Levy’s objections to the evidence avouched for it.
Levy begins by asking, if the Framers “intended the Court to have the power, why did they not provide for it?” 17 In my view they did. Article III, §2, extends the judicial power to cases “arising under this Constitution”; one who claims that a constitutional right was invaded presents such a case. Article VI, §2, provides that “This Constitution and the Laws . . . which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.” Federal judges and all federal and State officials were no less “bound” than State judges by the “supreme Law.” 18 If a judge is “bound” only by a law “in pursuance” of the Constitution, that is, consistent therewith, by necessary implication he is not bound by an inconsistent law.19 Obviously a judge would be required to make a preliminary decision whether or not he was “bound” by the law, exercising the judicial power to decide lodged in a federal judge by Article III.20 As said by Herbert Wechsler, federal judges “enforce the Constitution” because “they must decide a litigated issue that is otherwise within their [Article III] jurisdiction and in doing so must give effect to the supreme law of the land.” 21 In other words, a judicial issue is presented by the question whether a statute is the “supreme Law of the Land” and the Article III “judicial power” embraces such questions. Read together, Articles III and VI therefore confer the power of judicial review. Those who find it difficult to draw these deductions should bear in mind that the Framers so understood the two provisions, the evidence for which I have supplied in 86 heavily documented pages.22
Next Levy turns to “Corwin’s vacillations” which allegedly testify “to the confusing and inconclusive nature of the evidence.” 23 Undeniably Corwin swung like a pendulum, but the important question is not what he thought but what are the facts. Now the facts, set forth by Charles Beard, criticized by Corwin in 1913, but richly confirmed by Corwin in 1914,24 are in the words of his 1914 summary:
That the members of the Convention of 1787 thought the Constitution secured to the courts . . . the right to pass on the validity of acts of Congress under it cannot reasonably be doubted. Confining ourselves simply to the available evidence that is strictly contemporaneous with the framing and ratifying of the Constitution, as I think it only proper to do, we find the following members of the Convention that framed the Constitution definitely asserting that this would be the case . . . True these were only seventeen names out of a possible fifty-five, but let it be considered whose names they are. They designate fully three-fourths of the leaders of the Convention.25
Only two men, Gunning Bedford and John Mercer, who carried little weight, expressed a contrary view.26 As Corwin stated, “on no other feature of the Constitution with reference to which there has been any considerable debate is the view of the Convention itself better attested.” 27 To these seventeen are added a number of prominent Founders, such as Oliver Ellsworth of Connecticut and John Marshall of Virginia, who spoke in the Ratification Conventions. After painstakingly sifting all the evidence I concluded that Beard and the 1914 Corwin evaluation were fully supported.28
A few comments seriatim on the selected items Levy would discredit will suffice. When the Convention discussed the “arising under” clause, Madison “expressed doubt about ‘going too far’ and advocated that jurisdiction over such cases be ‘limited to cases of a Judiciary Nature.’ ” 29 This merely sought to obviate a roving commission to declare legislation unconstitutional and to confine that function to properly litigated cases. Levy himself explains that the Court “cannot strike down an act at will, however unconstitutional, it must wait passively for a zealous litigant to raise a real case or controversy over which it has jurisdiction.” 30 The Convention did not see need to act on Madison’s suggestion because of the general belief that “the jurisdiction given was constructively limited to cases of a Judiciary Nature” 31 —to “cases or controversies.” Levy also stresses Madison’s inconsistent positions.32 Undoubtedly Madison was inconsistent over the years. Who is not? But if we look to what he said in the Federal and State Conventions—the proper frame, as Corwin noted, because those utterances were meant to influence fellow delegates—there is actually little or no inconsistency. On July 23, 1787, Madison declared that “A Law violating a constitution established by the people themselves, would be considered by the judges as null and void,” 33 a view often expressed by other Founders, including Marshall in the Virginia Convention.34 On August 27 Madison stated: “The right of expounding the Constitution in cases not of this [Judiciary] nature ought not to be given to that Department.” 35 By plain implication, if the right was of a Judiciary Nature, “the right of expounding” was given, and “expounding” had been employed by the Members to include decisions on constitutionality, which embraced “laws of the United States [congressional acts] . . . in pursuance” of the Constitution.36
Then Levy turns to Hamilton: “it is not irrelevant” that Hamilton’s own plan made no provision “for any sort of judicial review.” 37 I suggest that it is utterly irrelevant. Hamilton did not propose to submit a complete scheme of government, but merely “to suggest the amendments which he should probably propose to the plan of Mr. R[andolph] in the proper stages of its future discussion.” The Randolph plan provided for a judiciary as a “check” on the legislature.38 Levy also depreciates Hamilton’s exposition of judicial review in Federalist No. 78 because it adopted Robert Yates’ demonstration (in opposition to adoption of the Constitution) that it provided for judicial review.39 Adoption of an opponent’s argument generally is a tacit tribute to its force. Levy explains that
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 [?] 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 . . . 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.40
If they did not mean what they were saying (as to which there is no evidence whatever),41 they were guilty of false representations to “allay” fears on which votes depended. Those who voted for adoption of the Constitution were entitled to rely on such representations; consequently, the Constitution is to be construed, in Jefferson’s words, in accordance with the “meaning contemplated by the plain understanding of the people at the time of its adoption—a meaning to be found in the explanation of those who advocated it.” 42 Let it be assumed that the remarks of Madison and Hamilton are open to Levy’s doubts, they cannot tip the scales against the clear recognition of judicial review by 15 members who spoke to the issue in the Convention, plus 6 or 7 delegates who spoke thereafter.43
Finally, Levy finds it “striking . . . that there were so few State precedents prior to the Convention.” 44 That is not surprising in view of the short span between 1776 and 1787, during most of which the States were fighting for survival. If some “precedents” are “spurious” in light of present-day research, the important fact is that they were thought to exemplify judicial review.45 What men think the facts are is more influential than the actual facts.46 Levy himself says, “The idea of judicial review was, nevertheless, rapidly emerging, a fact which adds retrospective significance to the few precedents.” 47 The decade preceding adoption of the Constitution was one of great intellectual ferment in which, Gordon Wood has shown, a revolution in political thinking was taking place.48 The postulate, for example, that sovereignty was in the people, that rights need not flow from the Crown, was far more revolutionary than judicial review.49 The Founders, as Corwin emphasized, took “Federalism, checks and balances, judicial review . . . not in the form of institutions tested and hammered into shape by practice, but as raw ideas.” 50 What has since become obscure to this generation was clear enough to a great contemporary, James Wilson, second only to Madison as an architect of the Constitution and chief advocate in Pennsylvania of its adoption. In 1790–1791 he was a Justice of the Supreme Court as well as a professor of law in Philadelphia. In the course of a series of Lectures on Law he declared that under the Constitution the effect of legislative “extravagancies may be prevented . . . by the judicial authority.” “Every transgression” of the constitutional “bounds of legislative power” shall thus be “adjudged and rendered vain and fruitless.” 51
Were the evidence that judicial review was contemplated and provided for by the Framers far less weighty, it should yet be preferred to a theory which rests judicial review on no evidence at all, for that represents a naked usurpation of power nowhere granted. If, however, judicial review is in fact derived from the text and history of the Constitution, it must be within the compass envisaged by the Framers—policing of boundaries and exclusion of policymaking reserved to the legislature. History cannot be invoked to establish the power, then discarded when seen to limit its scope.
Supplementary Note on the Role of the Court
Thus the framers of the Fourteenth Amendment were altogether unlikely to enlarge the jurisdiction of the federal courts.
[1.]“Do We Have an Unwritten Constitution?,” 27 Stan. L. Rev. 703 (1975).
[2.]“The Warren Court Is Not Likely to Be Overruled,” The New York Times Magazine, September 7, 1969, in Levy, Warren 93–94. See also E. V. Rostow, “The Democratic Character of Judicial Review,” 66 Harv. L. Rev. 193, 196 (1952). But see infra Chapter 21 at note 44.
[3.]Edmond Cahn, “Brief for the Supreme Court,” The New York Times Magazine, October 7, 1956, in Levy, Warren 28, 29; cf. Robert G. McCloskey, The American Supreme Court 17–18 (1960). But see infra Chapter 23 at note 2.
[4.]United States v. 1,629.6 Acres of Land, County of Sussex, Del., 503 F.2d 764, 767 (3d Cir. 1974); United States v. Oglesby, 163 F. Supp. 203, 204 (W.D. Ark. 1958); Blask v. Sowl, 309 F. Supp. 909, 914 (W.D. Wis. 1967).
[5.]M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819). Hamilton stated that judicial “usurpations on the authority of the legislature” would be impeachable. Supra Chapter 15 at note 50.
[6.]304 U.S. 64, 77–78 (1938): referring to Swift v. Tyson, 40 U.S. (16 Pet.) 1 (1842), the Court held, “the unconstitutionality of the course pursued [by the courts] has now been made clear, and compels us” to “abandon” the “doctrine so widely applied throughout nearly a century.” For Justice Brandeis’ quotation from Justice Holmes, see supra Chapter 15 note 56.
[7.]Powell v. McCormack, 395 U.S. 486, 546–547 (1969): “That an unconstitutional action has been taken before surely does not render the same action any less unconstitutional at a later date.” See also Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 290 (1827).
[8.]Massachusetts Constitution, 1780, Part the First, Article XVIII, 1 Poore 959, quoted more fully supra Chapter 15 at note 18. See also supra Chapter 15 note 19.
[9.]Judicial Review and the Supreme Court 2 (1967); cf. McCloskey, supra note 3 at 8–9.
[9a.]See infra Chapter 23 at note 2.
[10.]Levy, supra note 9 at 3.
[11.]Id. 30–31. In the same essay, however, Levy earlier stated, “Long acquiescence by the people and their representatives has legitimated judicial review . . . Judicial review, in fact exists by the tacit consent of the governed.” Id. 12.
[12.]Quoted in full, supra Chapter 17 at note 15 (emphasis added).
[13.]Willard Hurst, “Discussion” in Supreme Court and Supreme Law 74 (E. Cahn ed. 1954). Learned Hand also adhered to amendment as the proper means of change. Kathryn Griffith, Judge Learned Hand and the Role of the Federal Judiciary 83 (1973). Justice Black rang the changes on this theme, e.g., in Griswold v. Connecticut, 381 U.S. 479, 522 (1965).
[14.]Federalist 507; Lusky 31–32.
[15.]Professor Felix Frankfurter wrote President Franklin Roosevelt, “People have been taught to believe that when the Supreme Court speaks it is not they who speak but the Constitution, whereas, of course . . . it is they who speak and not the Constitution. And I verily believe that that is what the country needs most to understand.” Roosevelt and Frankfurter: Their Correspondence 1928–1945 383 (M. Freedman ed. 1967). But as a Justice, sitting on the desegregation case, he could not bring himself to tell the people, as Justice Jackson urged, that the Justices were “declaring new law for a new day.” Supra Chapter 7 at notes 52, 55. See also supra Chapter 17 at notes 25–26.
[16.]Levy, supra note 9 at 2. After examining the arguments pro and con, Archibald Cox likewise concludes that the argument for judicial review “hardly adds up to conclusive proof that the basic charter, as originally adopted, conferred supremacy upon constitutional questions to the Judicial Branch.” The Role of the Supreme Court in American Government 16 (1976).
[17.]Levy, supra note 9 at 2.
[18.]Raoul Berger, Congress v. The Supreme Court 236–344 (1969).
[19.]To the Founders “in pursuance thereof” meant “consistent with.” Id. 228–236.
[21.]Quoted in id. 245 note 101.
[22.]Id. 198–284. Levy asserts that “Articles III and VI . . . established . . . judicial review . . . over the acts of the states, the subordinate agencies within the federal system, but not over the President and Congress.” Levy, supra note 9 at 7. But Article VI refers to “laws of the United States which shall be made in pursuance” of the Constitution; only congressional laws consistent with the Constitution are made the “supreme law of the land.” The companion argument—that only state judges are “bound” by the Constitution—would free every other official, state or federal, from constitutional bonds, an absurd result, and one incompatible with the Founders’ design. Berger, supra note 18 at 236–242. Levy’s inarticulate premise, that the Framers were more solicitous to protect Congress than the States from review, runs counter to historical fact. The Founders cherished the States as the bastion of their rights and feared the remote and new federal government; they sought to protect the States against federal incursions, and to do so initially confided judicial review to the State courts. Id. 258–278. They repeatedly referred to judicial review as a curb on congressional encroachments. Id. 13–14; Hamilton, supra Chapter 15 at note 50. See Hamilton, infra note 33.
[23.]Levy, supra note 9 at 3.
[24.]For a critique of Corwin’s 1913 review, see Berger, supra note 18 at 106–114. His reversion in 1937 to his 1913 view was colored by his espousal of the Court-packing plan as a means of halting the Court’s assault on the New Deal. For comment on some of his 1937 views, see Berger, id. at 114 note 312.
[25.]More fully quoted in Berger, id. 104–105.
[26.]Id. 69 note 109, 63.
[29.]Levy, supra note 9 at 5.
[31.]2 Farrand 430.
[32.]Levy, supra note 9 at 4–6.
[33.]Berger, supra note 18 at 73. Following William Crosskey, Levy states this was “wrenched out of context to give the misleading impression that Madison supported judicial review over Congress,” whereas Madison referred “to the possibility that state judges would declare unconstitutional a state act in violation of the federal constitution.” Levy, supra note 9 at 4. But Levy himself calls attention to Hamilton’s explanation “that the Court’s power was intended to hold Congress in check, thereby safeguarding the States against national aggrandizement.” Levy, id. 6. The Founders were far more concerned about checking Congress than the States. Supra note 22. See also Madison’s statement that the Bill of Rights, aimed at Congress, would enable the courts to act as a bulwark. Infra Chapter 21 at note 65.
[34.]Berger, supra note 18 at 15–16.
[36.]Id.; see also Index s.v. “Expounding.”
[37.]Levy, supra note 9 at 6; but see Hamilton, supra note 33.
[38.]1 Farrand 291, 28; Berger, supra note 18 at 19 note 53.
[39.]Levy, supra note 9 at 6. For Yates see Berger, supra note 18 at 201–202. Yates had been anticipated by James Iredell, an advocate of the Constitution and judicial review, in a reply to Richard Spaight, who had written him from the Convention. Berger, id. 82–83.
[40.]Levy, supra note 9 at 6.
[41.]Laurent Frantz observed of a similar argument, “the issue is not what Madison really thought but how the First Amendment was presented to those who voted for its enactment.” “Is the First Amendment Law?—A Reply to Professor Mendelson,” 51 Calif. L. Rev. 729, 739 (1963).
[42.]Berger, supra note 18 at 120.
[44.]Levy, supra note 9 at 8.
[45.]Berger, supra note 18 at 38–39.
[46.]Charles Evans Hughes said of the colonists’ reliance on Magna Charta, “It matters not whether they were accurate in their understanding of the Great Charter, for the point is . . . what the colonists thought it meant” in framing their own constitutional provisions. C. E. Hughes, The Supreme Court of the United States 186 (1928).
[47.]Levy, supra note 9 at 11.
[48.]The Creation of the American Republic 1776–1787 389, 524, 555, 564, 589 (1969); the changes proceeded at a rapidly accelerating pace, id. 92, 259, 300, 318.
[50.]Berger, supra note 18 at 46.