The Baron de Montesquieu and James Madison believed in the importance of the separation of powers among the executive, legislative and judicial branches of government. However, their view was that the third branch would not have power equal to that of either of the first two but enough so that no one branch would overpower the other two. In America today, things have shifted since 1789 when the Constitution became the law of the land: the legislative branch stands humbled by the reach of executive power and thwarted by endless interference on the part of the judiciary.

The dramatically expanded role of the executive can be traced to the changes the country has gone through since 1789 and the quasi-imperial military and economic role it plays in the world today.

The dramatically increased power of the judiciary is largely due to judicial review:
(a) the practice whereby a court can interpret the text of the Constitution itself or of a law passed by the Congress and signed by the President and tell us what the law “really” means, and
(b) the practice whereby a court can declare a law voted on by the Congress and signed by the President to be unconstitutional.

In fact, the term “unconstitutional” now so alarms the soul that it is even the title of Colin Quinn’s latest one-man show.

Things are very different in other countries. In the U.K., the Parliament is sovereign and its laws mean what Parliament says they mean. In France, in the Constitution of the Fifth Republic (1958) the reach of the Cour Constitutionelle is very limited: Charles DeGaulle in particular was wary of the country’s falling into a gouvernement des juges – this last expression being a pejorative term for a situation like that in U.S. today where judges have power not seen since the time of Gideon and Samuel of the Hebrew Bible.

The U.S. legal system is based on the Norman French system (hence trial by a jury of one’s peers, “voir dire” and “oyez, oyez”) and its evolution into the British system of common law (“stare decisis” and the doctrine of precedence). So why is the U.S. so different from countries with whom the U.S. has so much in common in terms of legal culture? How did this come about? In particular, where does the power to declare laws to be unconstitutional come from? Mystėre.

A famous early example of Judicial Review occurred in Jacobean England about the time of the Jamestown settlement and about the time the King James Bible was finished. In 1610, in a contorted dispute know as Dr. Bonham’s Case over the right to practice medicine, Justice Edward Coke opined in his decision that “in many cases, the common law will control Acts of Parliament.” This was not well received, Coke lost his job and Parliamentary Sovereignty became established in England. Picking himself up, Coke went on to write his Institutes of the Lawes of England which became a foundational text for the American legal system and which is often cited in Supreme Court decisions, an example being no less a case than Roe v. Wade.

Another English jurist who had a great influence on the American colonists in the 18th century was Sir William Blackstone. His authoritative Commentaries on the Laws of England of 1765 became the standard reference on the Common Law, and in this opus, parliamentary sovereignty is unquestioned. The list of subscribers to the first edition of the Commentaries included future Chief Justices John Jay and John Marshall and even today the Commentaries are cited in Supreme Court decisions between 10 and 12 times a year. Blackstone had his detractors, however: Alexis de Tocqueville described him as “an inferior writer, without liberality of mind or depth of judgment.”

Blackstone notwithstanding, judicial review naturally appealed to the colonists: they were the target of laws enacted by a parliament where they had no representation; turning to the courts was the only recourse they had. Indeed, a famous and stirring call for the courts to overturn an act of the British Parliament was made by James Otis of Massachusetts in 1761. The Parliament had just renewed the hated writs of assistance and Otis argued (brilliantly it is said) that the writs violated the colonists’ natural rights and that any act of Parliament that took away those rights was invalid. Still, the court decided in favor of Parliament. Otis’ appeal to natural rights harkens back to Coke and Blackstone and to the natural law concept that was developed in the late Middle Ages by Thomas Aquinas and other scholastic philosophers. Appeal to natural law is “natural” when working in common law systems where there is no written text to fall back on; it is dangerous, however, in that it tugs at judges’ religious and emotional sensibilities.

Judicial review more generally emerged within the U.S. in the period under the Articles of Confederation where each state had its own constitution and legal system. By 1787, state courts in 7 of the 13 states had declared laws enacted by the state legislatures to be invalid.

A famous example of this took place in Massachusetts where slavery was still legal when the state constitution went into effect. Subsequently, in a series of cases known collectively as the Quock Walker Case, the state supreme court applied judicial review to overturn state law as unconstitutional and to abolish slavery in Massachusetts in 1783.

As another example at the state level before the Constitution, in New York the state constitution provided for a Council of Revision which applied judicial review to all bills before they could become law; however, a negative decision by the Council could be overturned by a 2/3 majority vote in both houses of the state legislature.
In 1784 in New York, in the Rutgers v. Waddington case, Alexander Hamilton, taking a star turn, argued that a New York State law known as the Trespass Act, which was aimed at punishing Tories who had stayed loyal to the Crown during the Revolutionary War, was invalid. Hamilton’s argument was that the act violated terms of the Treaty of Paris of 1783; this treaty put an end to the Revolutionary War and in its Articles VI and VII addressed the Tories’ right to their property. Clearly Hamilton wanted to establish that federal treaties overruled state law but also he would well have wanted to keep Tories and their money in New York. Indeed, the British were setting up the English speaking Ontario Province in Canada to receive such émigrés including a settlement on Lake Ontario alluringly named York – which later took back its original Native Canadian name Toronto. For a picture of life in Toronto in the old days, click HERE .

The role of judicial review came up in various ways at the Constitutional Convention of 1787. For example, with the Virginia Plan, Madison wanted there to be a group of judges to assist the president in deciding to veto a bill or not, much like the New York State Council of Revision – and here too this could be overturned by a supermajority vote in Congress. The Virginia Plan was not adopted; many at the Convention saw no need for an explicit inclusion of judicial review in the final text but they did expect the courts to be able to exercise constitutional review. For example, Elbridge Gerry of Massachusetts (and later of gerrymander fame) said federal judges “would have a sufficient check against encroachments on their own department by their exposition of the laws, which involved a power of deciding on their constitutionality.” Luther Martin of Maryland (though born in New Jersey) added that as “to the constitutionality of laws, that point will come before the judges in their official character…. “ For his part, Martin found that the Constitution as drawn up made for too strong a central government and opposed its ratification.

The Federalist Papers were newspaper articles and essays written by the founding fathers John Jay, James Madison and Alexander Hamilton, all using the pseudonym “Publius,” a tip of the hat to the great Roman historian Publius Cornelius Tacitus; for the relevance of Tacitus across time, try Tacitus by historian Ronald Mellor. A group formed around Hamilton and Jay giving birth to the Federalist Party, the first national political party – it stood for a strong central government run by an economic elite; this quickly gave rise to an opposition group the Democratic Republicans (Jefferson, Burr, …) and the party system was born, somewhat to the surprise of those who had written the Constitution. Though in the end, judicial review was left out of the Constitution, right after the Convention, the need for it was brought up again in the Federalist Papers : in June 1788 Hamilton, already a star, published Federalist 78 in which he argued for the need for judicial review of the constitutionality of legislation as a check on abuse of power by the Congress. In this piece, he also invokes Montesquieu on the relatively smaller role the judiciary should have in government compared to the other two.

Fast forward two centuries: the Federalist Society is a political gate-keeper which was founded in 1982 to increase the number of right-leaning judges on the federal courts. Its founders included such high-profile legal thinkers as Robert Bork (whose own nomination to the Supreme Court was so dramatically scuttled by fierce opposition to him that it led to a coinage, the verb “to bork”). The Society regrouped and since then members Antonin Scalia, John G. Roberts, Clarence Thomas, Samuel Alito and Neil Gorsuch have acceded to the Supreme Court itself. (By the way, Federalist 78 is one of their guiding documents.)

Back to 1788: Here is what Section 1 of Article III of the Constitution states:                     The judicial Power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Section 2 of Article III spells out the courts’ purview:                                                           The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

So while Article III lays out responsibilities for the court system, it does not say the courts have the power to review the work of the two other branches of government nor call any of it unconstitutional.

Clause II of Article 6 of the Constitution is known as the Supremacy Clause and states that federal law overrides state law. In particular, this would imply that a federal court could nullify a law passed by a state. But, again, it does not allow for the courts to review federal law.

So there is no authorization of judicial review in the U.S. Constitution. However, given the precedents from the state courts and the positions of Madison, Gerry, Martin, Hamilton et al., it is as though lines from the Federalist 78 such as these were slipped into the Constitution while everyone was looking:
  The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. … If there should happen to be an irreconcilable variance between the [Constitution and an act of the legislature], the Constitution ought to be preferred to the statute.

The Supreme Court of the United States (SCOTUS) and the federal court system were created straightaway by the Judiciary Act passed by Congress and signed by President George Washington in 1789.

The first “big” case adjudicated by the Supreme Court was Chisholm v. Georgia (1793). Here the Court ruled in favor of the plaintiff Alexander Chisholm and against the State of Georgia, implicitly ruling that nothing in the Constitution prevented Chisholm from suing the state in federal court. This immediately led to an outcry amongst the states and to the 11th Amendment which precludes a state’s being sued in federal court without that state’s consent. So here the Constitution was itself amended to trump a Court decision.

The precedent for explicit judicial review was set seven years later in 1796 in the case Hylton v. United States: this was the first time that the Court ruled on the constitutionality of a law passed by Congress and signed by the President. It involved the Carriage Act of 1794 which placed a yearly tax of $16 on horse-drawn carriages owned by individuals or businesses. Hylton asserted that this kind of tax violated the powers of federal taxation as laid out in the Constitution while Alexander Hamilton, back in the spotlight, pled the government’s case that the tax was consistent with the Constitution. Chief Justice Oliver Ellsworth and his Court decided in favor of the government, thus affirming the constitutionality of a federal law for the first time; by making this ruling, the Court claimed for itself the authority to determine the constitutionality of a law, a power not provided for in the Constitution but one assumed to come with the territory. This verdict held sway for 101 years; it was overturned in 1895 (Pollock v. Farmers’ Loan and Trust) and then reaffirmed after the passage of the 16th amendment which authorized taxes on income and personal property.

Section 13 of the Judiciary Act of 1789 mandated SCOTUS to order the government to do something specific for a plaintiff if the government is obliged to do so according to law but has failed to do so. In technical terms, the court would issue a writ of mandamus ordering the government to act – mandamus, meaning “we command it,” is derived from the Latin verb mandare.

John Marshall, a Federalist from Virginia, was President John Adam’s Secretary of State. When Jefferson, and not Adams, won the election of 1800, Adams hurried to make federal appointments ahead of Jefferson’s inauguration that coming March; these were the notorious “midnight appointments.” Among them was the appointment of John Marshall himself to the post of Chief Justice of the Supreme Court. Another was the appointment of William Marbury to a judgeship in the District of Columbia. It was Marshall’s job while he was still Secretary of State to prepare and deliver the paperwork and official certifications for these appointments. He failed to accomplish this in time for Marbury and some others; when Jefferson took office he instructed his Secretary of State, James Madison, not to complete the unfinished certifications.

In the “landmark” case Marbury v. Madison (1803), William Marbury petitioned the Court under Section 13 of the Judiciary Act to order the Secretary of State, James Madison, to issue the commission for Marbury to serve as Justice of the Peace in the District of Columbia as the certification was still unfinished thanks to John Marshall, now the Chief Justice. In a legalistic tour de force, the Court affirmed that Marbury was right and that his commission should be issued but ruled against him. John Marshall and his judges declared Section 13 of the Judicial Act unconstitutional because it would (according to the Court) enlarge the authority of the Court beyond that permitted by the Constitution.

Let’s try to analyze the logic of this decision: put paradoxically, the Court could exercise a power not given to it in the Constitution to rule that it could not exercise a power not given to it in the Constitution. Put ironically, it ascribed to itself the power to be powerless. Put dramatically, Marbury, himself not a lawyer, might well have cheered on Dick the Butcher who has the line “let’s kill all the lawyers” in Henry VI, Part 2 – but all this business is less like Shakespeare and more like Aristophanes.

Declaring federal laws unconstitutional did not turn into a habit in the 19th century. The Marshall court itself did not declare any other federal laws to be unconstitutional but it did find so in cases involving state laws. For example, Luther Martin was on the losing side in McCulloch v. Maryland (1819) when the Court declared a Maryland state law levying a tax on a federally authorized national bank to be unconstitutional.

The story doesn’t end there.

Although another law wouldn’t be ruled unconstitutional by the Supreme Court until 1857, the two plus centuries since Marbury would see a dramatic surge in judicial review and outbreaks of judicial activism on the part of courts both left-wing and right-wing. There is a worrisome tilt toward increasing judicial power: “worrisome” because things might not stop there; the 2nd Book of Samuel (the last Judge of the Israelites) is followed by the 1st Book of Kings, something to do with the need to improve national defense. Affaire à suivre. More to come.