Chapter 2.0. Judicial Review, Introduction
Judicial Review as an Aspect of Legal Interpretation
Judicial review in American law is the power asserted by courts to rule on the constitutionality of a law. In the broadest sense it may be conceived as a particularly strong form of the central role of courts, which is to interpret the law. No matter how detailed the text of a law is, individual cases rarely fit perfectly any pre-ordained script. Instead, the facts of a particular case typically allow ample room for lawyers and judges to propose competing understandings of how the facts fit into legislative rules, categories, and definitions. From this perspective, it is important to remember that in early English law, courts, especially Common Law courts, had already developed to a significant degree by about 1200, roughly a century before the emergence in about 1300 of a distinct legislative institution, i.e., Parliament. Thus from early on courts had played a prominent role in defining what the law was, even if they often claimed that they were merely affirming or clarifying custom.
Judicial Interpretation in Early Modern Law
Edward Coke. In the context of opposition to the Stuart kings in the early 1600s, a number of judges and Parliamentary leaders mounted a strong defense of judicial independence, led by Edward Coke, Chief Justice of two of England’s high courts (first of the Common Pleas and then the King’s Bench, 1606-16). Coke and others sometimes also defended a role for judicial interpretation that allowed courts significant leeway in deciding how statute law should be applied. Most famously, Coke’s commentary on Dr. Bonham’s Case (1610) seems to suggest an interpretive role that strongly resembles judicial review:
In many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void.
This statement has suggested to many scholars that Coke thought laws could be judged against a “fundamental law,” in the same way that according to the later American concept of judicial review laws are judged in terms of their conformity to the Constitution. Yet even if this was the case, the process of review suggested by Coke would be very subjective, given that England lacked any written constitution. Moreover, according to the most historically-informed recent scholarship, it seems that what Coke meant by these words had more to do with how laws might be inapplicable only in certain cases, and then just for the parties in those cases. In this view, he was merely applying what were then fairly standard techniques of legal interpretation.
Montesquieu, in Book XI of his Spirit of the Laws (1748), also implies the need for something like judicial review as an aspect of his argument for the separation of government powers. Thus, in the context of a discussion on the British government, he notes that, “there is no liberty, if the power of judging be not separated from the legislative and executive powers” (Book XI, ch. VI). But comments like these are obviously too general to provide support for any specific form of judicial review.
William Blackstone, in his Commentaries on the Laws of England (1765-69), reflects the growing emphasis in eighteenth-century Britain on the idea of Parliamentary sovereignty, which led to a rejection of the idea that courts could overturn or negate Parliamentary statutes. Thus Blackstone tended to approve of what some referred to as Parliament’s “omnipotence,” such that its power was “absolute and without control” (1:156-57; cf. 1:90-91). At the same time, however, he also recognized that the Common Law and the courts served to uphold personal liberty and due process and thus constituted one of the key components of what he considered a “balanced constitution” that checked arbitrary power and promoted liberty (e.g., at 3:133-137). It’s just that Blackstone tended to see Parliament as the defender of these rights and liberties, which makes sense if one keeps in mind that England’s decades of civil war and political turmoil in the seventeenth century had not been forgotten. (Citations refer to volume and page numbers of the first edition, in the facsimile edition by the University of Chicago Press, 1979, 4 vols.)
Repugnancy in Colonial American Law
Another, more direct source of the idea and practice of judicial review is the longstanding English corporate practice under which a corporation’s ordinances were reviewed for repugnancy to the laws of England. This practice shaped the charters for the American colonies, which stipulated that the laws passed by colonial assemblies were not supposed to be in contradiction, or “repugnant,” to the laws of England. The robust traditions of self government that developed in the colonies meant that these repugnancy clauses were largely ineffective. Nonetheless, colonial lawmakers were certainly familiar with the idea that their laws were, at least in theory, and occasionally in practice, subject to review, amendment, or even rejection by officials in England. After the Revolution, this practice continued in a new form, as the Constitution replaced the laws of England as the standard against which ordinary legislation would be judged.
The Emergence of Judicial Review in the Founding Era
Both the Common Law background and especially the above colonial practice explain why, even though it is not explicitly mentioned in the Constitution, the idea of judicial review, though still referred to in terms of “repugnancy,” crystallized quickly after the Revolution began in 1776. From this time on many states began to assert the right of the state’s high court to overturn state laws that they judge to be unconstitutional. At the federal level, Hamilton strongly supported, in the Federalist no. 78 (1788) among other places, the federal courts’ role in judging and declaring void any federal laws that contradict the “fundamental law” of the Constitution. The first important case in which the Supreme Court considered the constitutionality of a federal law was Hylton v. United States (1796), but in that case it upheld the law in question. Yet unless a court strikes down a law, its capacity for judicial review is not fully demonstrated.
Marbury v. Madison (1803). Thus the first explicit exercise of judicial review at the U.S. federal level is almost always dated to Chief Justice John Marshall’s decision in Marbury v. Madison, which struck down a minor provision of the Judiciary Act of 1789. The exercise of this power was, however, apparently approached with great caution in early America. For after Marbury, the next time that the Supreme Court struck down a federal law was not until the eve of the Civil War, in the case of Dred Scott v. Sandford (1857), which we will examine in detail later.
While judicial review at the federal level has remained controversial (see Robert Dahl’s comments, in Module 10, ch. 3), at least since the Civil War criticism has done little to dislodge this solidly established component of the U.S. constitutional system. Through the nineteenth century this idea continued to be discussed under the heading of “repugnancy,” and it was only in the early twentieth century that it was replaced by the phrase “judicial review.”