The Establishment of Judicial Review II

In tracing the establishment of judicial review subsequently to the inauguration of the national government it will be important to bear in mind that there are two distinct kinds of judicial review, namely, federal judicial review, or the power of the federal courts to review acts of the State legislatures under the United States Constitution, and Judicial review proper; or the power of the courts to pass upon the constitutionality of acts of the coordinate legislatures. That the Judiciary Act of 1789 contemplated, in the mind of its author, Ellsworth, the exercise of the power of review by the national courts of acts of Congress can be scarcely doubted, but how far others accepted this view of the matter it is impossible even to conjecture, so entirely silent upon this point are the brief records of the debate. Perhaps the first congressional reference to such a power occurs in the House debate of February 21st, 1791, upon the bill to establish a national bank. Jackson of Georgia offered the argument that Congress ought not to adopt a measure which ran the risk being defeated by the judiciary of the United States, who might adjudge it to be contrary to the Constitution and therefore void.\u27 :an objection which however Boudinot of New Jersey and Smith of South Carolina were prompt to convert into an argument for the measure. Said the former, far from converting this right in the judiciary it was his boast and his confidence. It led him to greater decision on all subjects of a constitutional nature when he reflected that if, from inattention, want of precision or any other defect, he should do wrong, that there was a power in the government which could constitutionally prevent the operation of such a measure from affecting his constituents. There can be, I think, not the least doubt that a steadily developing feeling of unworthiness on the part of legislatures and a growing disposition to abdicate all final responsibility to the judiciary has been at once a cause and a consequence of the advancing power of the courts among us. It is therefore rather suggestive to come upon this point of view so early a date

The Establishment of Judicial Review (I)

When Gladstone described the Constitution of the United States as the most wonderful work ever struck off at a given time by the brain and purpose of man, his amiable intention to flatter was forgotten, while what was considered his gross historical error became at once a theme of adverse criticism. Their contemporaries and immediate posterity regarded the work of the Constitutional Fathers as the inspired product of political genius and essentially as a creation out of hand. Subsequently, due partly to the influence of the disciples of Savigny in the field of legal history, partly to the sway of the doctrine of evolution, and partly to a patriotic desire to claim for the Constitution a conformity to the historic spirit and needs of the American people like to that claimed for the English Constitution by English writers, and so inferentially, similar elements of durability, it has become the custom of writers to represent the Constitution as preeminently a deposit of time and event and to accord to the Fathers the substantial but more modest merit of having merely ratified the outcome of habit and usage. Tnis point of view, I am persuaded, has a large admixture of error and the other a correspondingly large element of truth. Because they were not utopists, because they had experienced some disillusionment from their earlier attempts at constitution-making, because they had some conception of the limits set by possibility, all this affords no adequate proof that the Fathers were not of their time and did not participate largely in its way of thinking. The collected wisdom acquired from a long succession of years is laid open for our use in the establishment of our forms of government, wrote Washington in 1783. Here exactly is the attitude of eighteenth century rationalism: its confidence in the reasoned and sifted results of human experience; its belief in the efficacy of ideas for the remedying of institutions, its firm persuasion more particularly of the existence of an available political science and of its mastery of that science,-such was the point of view of the latter quarter of the eighteenth century-the greatest era of reform in government that modern history has seen-such was the point of view of the Constitutional Fathers. They believed that the human reason can of ten intervene successfully to arrest the current of unreflective event and divert it to provided channels. They drew no fallacious line between the organic and the artificial, for their thinking admitted no such categories. Readers of Plutarch, they were confident of their ability to emulate the achievements of Lycurgus and Solon and leave a nation blessed with a polity accordant with its fundamental spirit and abiding necessities, a polity moreover which would be superior to all existing polities in that it would be founded upon nature and reason and not upon force or chance. But this being the point of view of the Fathers, it necessarily results that their indebtedness to the past was for ideas rather than for institutions. Whenever therefore they borrow from the past any of the really distinctive features of our constitutional system, for example Federalism, checks and balances, judicial review, they will be found to have taken them, not in the form of institutions tested and hammered into shape by practice, but as raw ideas

Supreme Court and Unconstitutional Acts of Congress

The power of the Supreme Court of the United States to supervise Congressional legislation has been so generally assumed in the recent discussions, both in and out of Congress, of the proposed Rate Bill, and is indeed so apparently settled today that it becomes of interest to inquire into the intention of the Constitutional Fathers in this matter. Did the Fathers intend that the federal judiciary should have the right to declare an act of Congress of no effect because transgressing constitutional limits? It does not detract from the interest of this question that two recent authorities who attempt to answer it-without, however, going into the subject at any length-express opposing opinions. Thus Mr. Cotton, the editor of the Constitutional Decisions of John Marshall, says with reference to \u27Marshall\u27s decision in Marbury v. Madison-decided in 1803 :-- That opinion is the beginning of the American system of constitutional law. In it Marshall announced the right of the Supreme Court to review the constitutionality of the acts of the national legislature and the executive, the coordinate branches of the government. Common as this conception of our courts now is, it is hard to comprehend the amazing quality of it then. No court in England had such a power, there was no express warrant for it in the words of the Constitution; the existence of it was denied by every other branch of the government and by the dominant majority of the country. Moreover, no such power had been clearly anticipated by the framers of the Constitution, nor was it a necessary implication from the scheme of government they had established. On the other hand, Professor McLaughlin in his Confederation and the Constitution, though he concedes that it is hard to speak with absolute assurance, deduces the power in question with considerable confidence from that clause of the Constitution which extends the judicial power of the United States to all cases arising under this Constitution. Certainly, he says, the Constitution was by this clause recognized and proclaimed as law and we may at least assert that by force of logic, if not because of the conscious purpose of the members of the convention, this power was bestowed, the power to declare of no effect an act of Congress contrary to the law of the land

National Power and State Interposition 1787-1861

Fifty years have elapsed since South Carolina pretended to leave the Union. Looking over recent writings of northern men on the constitutional phase of that momentous event, one will find among their authors a strong disposition to throw up the whole case on the question of the legal rightfulness of secession. For this phenomenon four reasons may be assigned : (1) sheer human indolence; (2) the fact that the apologetic zeal of the conquered is notoriously apt to overbear the conciliatory complacency of the conqueror; (3) the fact that by a species of intellectual inertia the mind of the student is apt to yield itself in the case of questions of this class to the stronger speculative current which, in l86o, was with the South; (4) finally, the fact that the historical investigator of today is prone to regard questions of this sort as academic, though in fact they may involve, as this one does, some extremely interesting considerations of institutional origins and differentiations. The basic foundation of all theories upon which secession proceeded, as well as of that doctrine which initially paralyzed the national government in dealing with it, was the doctrine that the Constitution was a compact of sovereign States. In no sense, however. was this the doctrine of the framers of the constitution. To their way of thinking the constitution was indeed a compact, but a compact entered into by the people of America, acting in original and creative fashion, an act of revolution, in other words, which was designed to give legal form to the already existing American nation. Nor did the constitution, in the thinking of the framers, leave the States sovereign in any genuine sense of the term. True, that description was often applied to the State governments, both during and after the Convention, to designate their corporate dignity, their autonomy, and finally their equality of representation in the new system. The State governments, however, were no parties to the constitutional compact, which was referred to a higher authority within the States, namely the People. But the people of a State was to the Union of 1787 but part and parcel of the American people, and agent of the latter in adopting the constitution. Not till CALHOUN, who denied the existence in a political sense of the American people, and elevated the people of a State to the dignity of the highest political entity in the United States, was the term sovereign used in connection with that agency which had ratified the constitution

The Establishment of Judicial Review (I)

When Gladstone described the Constitution of the United States as the most wonderful work ever struck off at a given time by the brain and purpose of man, his amiable intention to flatter was forgotten, while what was considered his gross historical error became at once a theme of adverse criticism. Their contemporaries and immediate posterity regarded the work of the Constitutional Fathers as the inspired product of political genius and essentially as a creation out of hand. Subsequently, due partly to the influence of the disciples of Savigny in the field of legal history, partly to the sway of the doctrine of evolution, and partly to a patriotic desire to claim for the Constitution a conformity to the historic spirit and needs of the American people like to that claimed for the English Constitution by English writers, and so inferentially, similar elements of durability, it has become the custom of writers to represent the Constitution as preeminently a deposit of time and event and to accord to the Fathers the substantial but more modest merit of having merely ratified the outcome of habit and usage. Tnis point of view, I am persuaded, has a large admixture of error and the other a correspondingly large element of truth. Because they were not utopists, because they had experienced some disillusionment from their earlier attempts at constitution-making, because they had some conception of the limits set by possibility, all this affords no adequate proof that the Fathers were not of their time and did not participate largely in its way of thinking. The collected wisdom acquired from a long succession of years is laid open for our use in the establishment of our forms of government, wrote Washington in 1783. Here exactly is the attitude of eighteenth century rationalism: its confidence in the reasoned and sifted results of human experience; its belief in the efficacy of ideas for the remedying of institutions, its firm persuasion more particularly of the existence of an available political science and of its mastery of that science,-such was the point of view of the latter quarter of the eighteenth century-the greatest era of reform in government that modern history has seen-such was the point of view of the Constitutional Fathers. They believed that the human reason can of ten intervene successfully to arrest the current of unreflective event and divert it to provided channels. They drew no fallacious line between the organic and the artificial, for their thinking admitted no such categories. Readers of Plutarch, they were confident of their ability to emulate the achievements of Lycurgus and Solon and leave a nation blessed with a polity accordant with its fundamental spirit and abiding necessities, a polity moreover which would be superior to all existing polities in that it would be founded upon nature and reason and not upon force or chance. But this being the point of view of the Fathers, it necessarily results that their indebtedness to the past was for ideas rather than for institutions. Whenever therefore they borrow from the past any of the really distinctive features of our constitutional system, for example Federalism, checks and balances, judicial review, they will be found to have taken them, not in the form of institutions tested and hammered into shape by practice, but as raw ideas

The Establishment of Judicial Review II

In tracing the establishment of judicial review subsequently to the inauguration of the national government it will be important to bear in mind that there are two distinct kinds of judicial review, namely, federal judicial review, or the power of the federal courts to review acts of the State legislatures under the United States Constitution, and Judicial review proper; or the power of the courts to pass upon the constitutionality of acts of the coordinate legislatures. That the Judiciary Act of 1789 contemplated, in the mind of its author, Ellsworth, the exercise of the power of review by the national courts of acts of Congress can be scarcely doubted, but how far others accepted this view of the matter it is impossible even to conjecture, so entirely silent upon this point are the brief records of the debate. Perhaps the first congressional reference to such a power occurs in the House debate of February 21st, 1791, upon the bill to establish a national bank. Jackson of Georgia offered the argument that Congress ought not to adopt a measure which ran the risk being defeated by the judiciary of the United States, who might adjudge it to be contrary to the Constitution and therefore void.\u27 :an objection which however Boudinot of New Jersey and Smith of South Carolina were prompt to convert into an argument for the measure. Said the former, far from converting this right in the judiciary it was his boast and his confidence. It led him to greater decision on all subjects of a constitutional nature when he reflected that if, from inattention, want of precision or any other defect, he should do wrong, that there was a power in the government which could constitutionally prevent the operation of such a measure from affecting his constituents. There can be, I think, not the least doubt that a steadily developing feeling of unworthiness on the part of legislatures and a growing disposition to abdicate all final responsibility to the judiciary has been at once a cause and a consequence of the advancing power of the courts among us. It is therefore rather suggestive to come upon this point of view so early a date

Supreme Court and Unconstitutional Acts of Congress

The power of the Supreme Court of the United States to supervise Congressional legislation has been so generally assumed in the recent discussions, both in and out of Congress, of the proposed Rate Bill, and is indeed so apparently settled today that it becomes of interest to inquire into the intention of the Constitutional Fathers in this matter. Did the Fathers intend that the federal judiciary should have the right to declare an act of Congress of no effect because transgressing constitutional limits? It does not detract from the interest of this question that two recent authorities who attempt to answer it-without, however, going into the subject at any length-express opposing opinions. Thus Mr. Cotton, the editor of the Constitutional Decisions of John Marshall, says with reference to \u27Marshall\u27s decision in Marbury v. Madison-decided in 1803 :-- That opinion is the beginning of the American system of constitutional law. In it Marshall announced the right of the Supreme Court to review the constitutionality of the acts of the national legislature and the executive, the coordinate branches of the government. Common as this conception of our courts now is, it is hard to comprehend the amazing quality of it then. No court in England had such a power, there was no express warrant for it in the words of the Constitution; the existence of it was denied by every other branch of the government and by the dominant majority of the country. Moreover, no such power had been clearly anticipated by the framers of the Constitution, nor was it a necessary implication from the scheme of government they had established. On the other hand, Professor McLaughlin in his Confederation and the Constitution, though he concedes that it is hard to speak with absolute assurance, deduces the power in question with considerable confidence from that clause of the Constitution which extends the judicial power of the United States to all cases arising under this Constitution. Certainly, he says, the Constitution was by this clause recognized and proclaimed as law and we may at least assert that by force of logic, if not because of the conscious purpose of the members of the convention, this power was bestowed, the power to declare of no effect an act of Congress contrary to the law of the land

National Power and State Interposition 1787-1861

Fifty years have elapsed since South Carolina pretended to leave the Union. Looking over recent writings of northern men on the constitutional phase of that momentous event, one will find among their authors a strong disposition to throw up the whole case on the question of the legal rightfulness of secession. For this phenomenon four reasons may be assigned : (1) sheer human indolence; (2) the fact that the apologetic zeal of the conquered is notoriously apt to overbear the conciliatory complacency of the conqueror; (3) the fact that by a species of intellectual inertia the mind of the student is apt to yield itself in the case of questions of this class to the stronger speculative current which, in l86o, was with the South; (4) finally, the fact that the historical investigator of today is prone to regard questions of this sort as academic, though in fact they may involve, as this one does, some extremely interesting considerations of institutional origins and differentiations. The basic foundation of all theories upon which secession proceeded, as well as of that doctrine which initially paralyzed the national government in dealing with it, was the doctrine that the Constitution was a compact of sovereign States. In no sense, however. was this the doctrine of the framers of the constitution. To their way of thinking the constitution was indeed a compact, but a compact entered into by the people of America, acting in original and creative fashion, an act of revolution, in other words, which was designed to give legal form to the already existing American nation. Nor did the constitution, in the thinking of the framers, leave the States sovereign in any genuine sense of the term. True, that description was often applied to the State governments, both during and after the Convention, to designate their corporate dignity, their autonomy, and finally their equality of representation in the new system. The State governments, however, were no parties to the constitutional compact, which was referred to a higher authority within the States, namely the People. But the people of a State was to the Union of 1787 but part and parcel of the American people, and agent of the latter in adopting the constitution. Not till CALHOUN, who denied the existence in a political sense of the American people, and elevated the people of a State to the dignity of the highest political entity in the United States, was the term sovereign used in connection with that agency which had ratified the constitution