Thursday, May 13, 2010

On the Appropriate Scope of Judicial Review: Some Comments on Robert Lowry Clinton's "The Marbury Myth"

Dartmouth College Charter; Preserved Against Legislative Attack by Judicial Review

A friend and former student sent me the following article, from National Review, arguing that Marbury v. Madison, which articulated the principle of judicial review in 1803, does not stand for the proposition that the Supreme Court is the sole or supreme expositor of the Constitution's meaning. Indeed, the article goes a little further and seems to argue that neither Marbury nor any other decision in the first half of the 19th Century authorizes courts to strike down laws that do not purport to govern or direct courts themselves.

Here are some of the article's main points, followed by some commentary by your humble blogger. To summarize, I agree with some of Professor Clinton's points and disagree with others. For instance, I agree that neither Marbury nor the Constitution properly read supports "judicial supremacy" over the other branches when it comes to constitutional interpretation. At the same time, I respectfully suggest that Professor Clinton defines the appropriate role of courts too narrowly and also improperly equates any judicial role more expansive than he advocates with "judicial supremacy." Under my view (and the view of Lincoln, Madison, Antonin Scalia, Frank Easterbrook, Edwin Meese (no relation) as well as John McGinnis, Neal Devins, and many other leading scholars) each Department of Government is free to interpret the Constitution as it sees fit, without referring to views of other branches, so long as that Department is operating within the sphere of authority that the Constitution assigns to it. Under this approach, each branch is "supreme" within its own sphere, but no branch can control the constitutional interpretation of the other branches operating within their respective spheres. This approach, known as "Departmentalism" to some, finds support in the text and structure of the Constitution, the words of James Madison and the words and actions of Abraham Lincoln, among others. There are several examples of judicial review perfectly consistent with Departmentalism, that Clinton would apparently, and incorrectly in my view, equate with "Judicial Supremacy."

To reiterate, I will first summarize Clinton's argument, complete with some lengthy quotes from his article. I will then offer my own commentary on it. Note that, in summarizing Clinton's argument, I will sometimes elaborate on his points to clarify them, particularly by mentioning actual cases to which Clinton alludes or mentions by date but not by name.


1) While lionized today, Marbury was not, Clinton argues, deemed an important decision during the 19th century and was rarely cited for the proposition that Courts could strike down Acts of Congress or state legislatures. Indeed, the article says, the Supreme Court did not cite Marbury for this proposition until the late 19th Century, first in 1887 vis a vis a state law [Mugler v. Kansas, where the Court cited Marbury but then affirmed the Kansas statute under review] and then in 1895 [in Pollock v. Farmer's Loan and Trust Co., which struck down the income tax].

2) Marbury did not hold that the Supreme Court is the supreme or sole expositor of Constitutional meaning. Instead, Clinton says, the decision was much narrower than that. In particular, the decision simply declined to exercise jurisdiction over a case because the statute purporting to confer that jurisdiction exceeded the authority that Article III of the Constitution grants to Congress to create and define the appellate jurisdiction of the Supreme Court. To put things another way, Marbury was a sort of defensive decision, i.e., defended the Court from unlawful incursions by other branches and a decision that in one sense denied the Court power, because the Court declined to exercise adjudicatory power that Congress had attempted to give it. Marbury did not, Clinton says, purport to reach beyond the Court and interfere with Congress's substantive legislative choices, for instance. Nor, he says, did its rationale support such a judicial role. As Clinton puts it:

"In the final pages of his Marbury opinion, Chief Justice Marshall argued that a legislative act in conflict with the Constitution is void, and then carefully restricted the Court’s power to invalidate such acts to instances in which the Court is forced to ignore either the Constitution or the statute in order to decide a particular case. The only time this situation can arise is when the constitutional and statutory provisions involved are addressed to the Court itself, as in Marbury. In other words, under Marbury’s reasoning, the Court is not entitled to “reach out” and invalidate a legislative act simply because the Court doesn’t like it, or even because the Court believes that some other agency of government has done something unconstitutional. Thus, Marbury-style judicial review is very limited in scope. It is restricted to cases in which Congress has unconstitutionally meddled with the Court’s functions."

This is a strong claim (and by "strong," I do not mean "correct"), namely, that Marbury simply (and only) authorizes courts to invalidate Congressional statutes that purport to force Courts qua Courts to act in an unconstitutional manner.

3) During the last quarter of the 19th Century, elite lawyers for business interests bent on limiting the regulatory authority of states repeatedly invoked Marbury as justification for aggressive judicial review of state legislation that interfered with economic liberties. (Such liberties, it should be noted, included the right to contract, the right to set prices, and the right to pursue the occupation of one's choice.) At the time this campaign began, Clinton claims, courts had never exercised such power. As he puts it:

"This group of lawyers, in league with the captains of industry, opposed government regulation of economic activity. Since the state legislatures and Congress were passing regulations designed to mitigate the worst effects of the Industrial Revolution, the lawyers and their clients sought to employ the federal courts in an effort to counter the regulations. The problem was that the courts had never exercised such power, and the constitutional basis for it was doubtful at best. So the only way to get the job done was to find a precedent for judicial supremacy. But Marbury was too tame and Dred Scott was too notorious. The only thing left was to reinvent Marbury, reinterpreting its language to make it seem like an exercise in judicial supremacy." (emphasis added)


Courts ultimately agreed that the Constitution protects certain economic liberties from unjustified invasion by individual states and the national government. I should note that exemplars of such protection include Lochner v. New York (1905), which invalidated a state maximum hour law, and Allgeyer v. Louisiana (1897), which invalidated Louisiana's effort to regulate insurance contracts entered by its citizens in another state. I should also note that the Court exercised the same authority vis a vis Congress. For instance, in 1908, in Adair v. United States, the Court struck down Congress's ban on so-called "yellow dog" agreements, that is, contracts whereby employees agreed, as a condition of employment, not to join unions. Moreover, in Adkins v. Children's Hospital (1923), the Court struck down a minimum wage that Congress had imposed on employers and employees in the District of Columbia.

According to Clinton, these lawyers, and the courts that agreed with them, adhered to the philosophy of "Social Darwinism," which held that law and public policy should encourage economic survival of the fittest. Regulatory intervention in the marketplace, he says, was inconsistent with this vision, because it protected the weak from the depredations of the strong and thus stultified the process of social evolution. Here again, it is worth quoting a portion of his essay:

"These legal and economic elites were also believers in an ideology called Social Darwinism. They saw economic life in much the same way that Charles Darwin and his followers saw biological life — as an intense struggle for survival in which only the “fittest” deserve to survive and reproduce. Since economic regulation was usually in the interest of protecting those who could not protect themselves in this struggle, Social Darwinists believed that such laws were counterproductive in retarding economic progress, restricting the freedom of the “more fit,” and advancing the interests of those “less fit” people who constituted a “drag” on society. The Social Darwinists were ultimately successful in pressing their views on the courts, and these views held sway in the American legal community and the courts for about half a century."

To reiterate, Clinton argues that the Lochner era's protection for economic liberty exemplified the Supreme Court's assertion of judicial supremacy and reflected an approach to judicial review that was inconsistent with Marbury, or at least not not supported by Marbury.

4) Of course, in 1937, the Supreme Court reversed course and repudiated the Lochner era's protection for economic liberty. Still, Clinton argues that the Court, under the leadership of Earl Warren from 1954 until mid-1969, continued to embrace judicial supremacy, but simply reoriented its efforts toward the protection of a different set of substantive values. (Students of this era will of course recall the Warren Court's revolution in Constitutional Criminal procedure, which foisted upon the states various new rules governing the sort of evidence admissible at criminal trials, for instance.) Moreover, in 1958, Clinton says, the Court invoked Marbury for the proposition that judicial interpretations of the Constitution are themselves, like the Constitution, the Supreme Law of the Land and thus by their own force binding on other actors who must treat the Supreme Court's interpretation of the Constitution as equivalent to the Constitution itself. [Here Clinton is referring to the Court's decision in Cooper v. Aaron, which reiterated that Brown v. Board of Education required that admission decisions at state-run high schools be made irrespective of race and ordered the Governor of the State of Arkansas to refrain from interfering with a local school board's efforts to comply with the Brown decision, to which the school board had been a party.] Moreover, in the 1992 Casey decision, Clinton points out, the Court, when reaffirming Roe v. Wade, asserted that Americans' belief in themselves as a people committed to the Rule of Law "is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals.” Clinton might have added the same opinion's statement that the Court should adhere to Roe in part to reward those citizens who thought Roe was wrong, "when viewed outside of constitutional terms" but "who nevertheless struggled to accept it, because they respect the rule of law." Like the statement from Casey that Clinton quotes, this statement seems to rest on the assumption that the Court's resolution of a constitutional question thereby binds individual citizens whose disagreement with that decision must thereby be "outside constitutional terms" and whose failure to adhere to the principle announced in such a decision in their public lives would thereby contravene the rule of law.

5) Finally, it should be noted that Clinton claims that decisions such as Roe, and various unnamed Warren Court excesses, would not have been possible without what he calls "judicial supremacy." As explained earlier, he also characterizes various decisions from the Lochner era as premised upon such supremacy.


1) I don't take issue with Clinton's assertion that Marbury was rarely cited until late in the 19th Century. See Davison Douglas, The Rhetorical Uses of Marbury v. Madison: The Emergence of a "Great Case," 38 Wake Forest L. Rev. 375 (2003). Still, the paucity of citations of Marbury during the 19th century should not obscure the deeply-rooted status of judicial review. As John Yoo and Sai Prakash have shown, numerous participants in the Constitutional Convention assumed that the Constitution they were creating would empower federal courts to strike down unconstitutional state and federal laws. See Saikrishna Prakash & John Yoo, The Origins of Judicial Review, 70 U. CHI. L. REV. 887. Indeed, Anti-Federalist opponents of the Constitution cited the prospect of judicial review as a reason to reject the constitution. (Some of the papers of the Anti-Federalist Brutus provide an example of such criticism of judicial review.) In his famous Federalist 78, published in 1788, Alexander Hamilton offered a rousing defense of judicial review in response to such detractors, arguing that the existence of a written constitution implied that, when a court court decides a case or controversy before it, it must treat the Constitution as paramount and decline to give effect to ordinary statutes, for instance, that contradict that supreme law.

Indeed, even before the Constitutional Convention, several judges on the highest court in Virginia, including George Wythe, a signatory of the Declaration of Independence, expressly embraced the concept of judicial review, in what is known as the Case of the Prisoners, decided in 1782. Moreover, shortly after the Constitution was ratified, the Justices of the Supreme Court declined to enforce a Congressional statute purporting to require individual justices to receive petitions from veterans of the Revolutionary War for pensions, determine whether each petitioner was in fact entitled to a pension, and make a recommendation to the Secretary of War, who could reverse the court's determination. See Hayburn's Case (1792). Finally, in Calder v. Bull (1798), the Supreme Court entertained a challenge to a Connecticut statute overturning the judgment of a state court. While the Justices rejected the challenge, each assumed that the Court possessed the authority to void unconstitutional state enactments.

Finally, the First Congress apparently believed that the Supreme Court had the authority to determine whether, for instance, state legislative enactments were consistent with the Constitution. To be precise, the First Congress enacted the Judiciary Act of 1789, very shortly after the Constitution was ratified. Among numerous other things, that Act conferred upon the Supreme Court the authority to hear appeals in cases:

"where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity."

In other words, the First Congress --- acting 14 years before Marbury --- conferred upon the Supreme Court the authority to review decisions by state courts that had sustained state statutes against constitutional challenge. This, of course, is exactly the sort of review that the Supreme Court conducted during the Lochner era. Indeed, in Lochner itself, the Court reversed a judgment of the New York Court of Appeals that had narrowly sustained the state's maximum hour legislation against constitutional attack. If this sort of review was an example of inappropriate "judicial supremacy," then it's the sort of judicial supremacy endorsed by the same Congress that, for instance, proposed the Bill of Rights.

2) In sum, just as the Christian Church pre-dated the various books of the New Testament, in some cases by several decades, so too did the institution of judicial review predate Marbury v. Madison. Moreover, the logic supporting the institution of judicial review, expressed for instance in Federalist 78, was not limited to instances in which Congress sought to compel the courts to act in a manner that exceed their authority. Moreover, the First Congress contemplated that the Supreme Court would exercise judicial review in a manner that Professor Clinton would apparently regard as exemplifying judicial supremacy.

3) Professor Clinton also seems to understate the extent of judicial review early in the 19th century. For instance, during a ten year period, from 1810 to 1819, the Marshall Court struck down statutes in four different states on the grounds that such legislation offended the Contracts Clause found in Article I, Section 10 of the Constitution. None of the statutes purported to require Federal or even state courts to exercise jurisdiction in contravention of Article III or any other provision of the Constitution. In the famous Dartmouth College case, for instance, the Court struck down a New Hampshire statute that sought coercively to transform Dartmouth from a private to a public college, on the grounds that the statute offended the Contracts Clause because it altered the College's original royal charter, pictured above. In so doing, the Court conducted the same sort of review that courts would conduct during the Lochner era. To be sure, the opinion by John Marshall did not cite Marbury as authority for the sort of judicial review that the Court conducted. However, this omission seems beside the point. If anything, the omission could suggest that judicial review was so "taken for granted" by this time that there was no reason to justify the exercise of such review.

If, as Clinton asserts, "judicial supremacy" entails a court declaring a statute invalid "because the Court believes that some other agency of government has done something unconstitutional," then the Marshall Court, which decided Marbury in 1803, embarked on such a Supremacy campaign just seven years later, a campaign consistent with the Judiciary Act of 1789.

4) At the same time, I believe that Professor Clinton is absolutely correct when he asserts that Marbury does not support the sort of judicial supremacy suggested by the dicta of Cooper v. Aaron or the language in Casey quoted above. (I refer to the language in Copper as dicta because the actual question before the Court, as the Justices recognized, was whether the Governor of Arkansas could obstruct a local school board's compliance with the Court's prior mandate, issued pursuant to a case properly within the Court's jurisdiction. I also hasten to add that I believe Cooper and Brown to have been decided correctly on the merits.) That is to say, neither Marbury, its logic, nor its antecedents supports the notion that judges are the only actors authorized to interpret the Constitution or that other actors, e.g., the President, must treat Supreme Court precedent as definitive expositions of the Constitution when operating within their own sphere of authority. Indeed, at the Pennsylvania ratifying convention James Wilson, later a Supreme Court Justice, argued that a President could decline to enforce a law he believed to be unconstitutional and that, in the same way, judges could decline to enforce unconstitutional laws that came before them. Moreover, the logical structure of Marshall's justification for judicial review (and, for that matter, Hamilton's argument as articulated in Federalist 78), simply authorizes courts, when deciding cases properly before them, to determine whether a statute or regulation is constitutional. This could entail declining to enforce a statute that the Executive is seeking to enforce. Or, it could involve reversing a judgment by a state court sustaining a statute against constitutional attack.

None other than James Madison would have agreed with this assertion. In 1834 he wrote:

"As the Legislative, Executive, and Judicial departments of the United States are co-ordinate, and each equally bound to support the Constitution, it follows that each must, in the exercise of its functions, be guided by the text of the Constitution according to its own interpretation of it; and, consequently, that in the event of irreconcilable interpretations, the prevalence of the one or the other department must depend on the nature of the case, as receiving its final decision from one or the other."

And, of course, in his first inaugural address, Lincoln expressly reiterated what he had argued in his debates with Stephen Douglas a few years earlier, namely, that, while the Dred Scott decision was binding on the individual parties to the case, its overarching principle --- that African-Americans were not citizens and were instead property of their putative "owners," --- was not binding on actors in the political branches of government. Finally, as President, Lincoln directed Federal agents to grant passports and patents to African-Americans, thereby treating them as citizens.

5. I also agree with Clinton's assertion that the Warren and Burger Courts abused the power of judicial review, striking down various state and federal laws or judicial practices that were perfectly constitutional. Examples include Roe, Miranda v. Arizona and Mapp v. Ohio, the latter of which reversed 170 years of Constitutional Law to hold that evidence obtained in violation of the 4th Amendment MUST be kept from a jury in a criminal case, even if it means releasing a mass murderer so he or she may kill again. Other examples include the Burger Court's transmogrification of the 8th Amendment from a ban on Cruel and Unusual modes of punishment to a sort of roving commission empowering judges to determine what factors a jury must consider when deciding whether to impose the death penalty via the most humane method possible upon a defendant duly convicted of murder. At the same time, I would not attribute these errors to judicial supremacy, however defined, as such, but instead to willful judging.

6. "Departmentalism" as I have sketched it depends upon the existence of limits upon the judicial power. If anyone can at any time call upon courts to answer a constitutional question, and if such answers are treated as binding resolutions of cases or controversies, then the political branches will have a very small independent role in interpreting the Constitution. I would agree with Professor Clinton if he is arguing that courts have in some cases exceeded the appropriate judicial role by relaxing traditional limits on the sort of cases and controversies that judges can hear and resolve, thereby enlarging the judicial sphere at the expense of the political branches.

7. One final note that is not about the nature of judicial review as such, but instead about Professor Clinton's account of the Lochner era, particularly his claims that Lochner era judges were motivated by Social Darwinism and struck down legislation that was generally designed to protect the weak from the strong. Both assertions are controversial to say the least.

a) Lochner era judges found protection for liberty of occupation, liberty of contract and rights of property in the Due Process Clause of the 14th Amendment, one of the three "Civil War Amendments" adopted in the late 1860s. During the Civil War, Abraham Lincoln argued that the North and South were locked in a struggle over two definitions of Liberty. According to one definition, liberty included the ability to work at one's chosen occupation and retain the fruits of one's labors. The other definition, he said, protected the ability of one (white) person to own and direct the labor of another (black) person and to retain the fruits of that person's labor. The North, of course, won the Civil War, and the first definition of liberty prevailed, or so many thought. Still, despite emancipation, southern States sought to deprive African-Americans of various liberties, including economic liberties such as liberty of occupation and liberty of contract, via the so-called "Black Codes." Congress sought to preempt these codes via the Civil Rights Act of 1866 which, among other things, ensured African-Americans the same rights of contract as white persons and also prevented states from imposing occupational licensing requirements on African-Americans that were not imposed on white persons. The Act, however, exceeded any apparent power of Congress, which then proposed the 14th Amendment. When ratified, this amendment authorized Congress to enforce the Amendment's provisions, including the Equal Protection Clause, Due Process Clause, and the Priviliges or Immunities Clause, against the states.

Given the historical origins of the 14th Amendment, it's no surprise that, in the early 1870s, four Justices on the Supreme Court --- dissenting in the Slaughterhouse Cases --- argued that the Privileges and Immunities Clause as well as the Due Process Clause protected liberty of occupation from arbitrary abridgment, that is, regulation that did not fall within the police power. Of course, the five Justices in the Slaughterhouse majority took a contrary view, holding that the Amendment was motivated by and aimed at state racial discrimination. The opposite position, taken by dissenters like Justices Field and Bradley, for instance, had nothing to do with Social Darwinism. Indeed, it was the majority opinion in Slaughterhouse that smacked of Social Darwinism, ratifying the outcome of a Darwinian struggle in the political process that granted one firm a monopoly over slaughtering to the exclusion of hundreds of other small firms.

b) Nor am I aware of any data suggesting that most laws voided during the Lochner era protected the weak against the strong. Lochner itself, for instance, voided a law that likely disadvantaged labor-intensive small bakeries against larger, capital-intensive establishments. Small labor-intensive businesses could use constitutionally protected yellow dog contracts to prevent unionization that would raise their costs disproportionately compared to larger firms. At the same time, the Lochner era Court upheld certain forms of legislation, such as state and federal antitrust laws, that prevented large firms from cartelizing and thereby destroying wealth and harming consumers. See generally Alan J. Meese, Will, Judgment and Economic Liberty: Mr. Justice Souter and the Mistranslation of the Due Process Clause, 41 William and Mary L. Rev. 3, 25-44 (1999). Regardless of what one thinks of Lochner and its progeny as a matter of constitutional law, it seems difficult to square most Lochner-era decisions with the philosophy of Social Darwinism.