Origins of American Traditional Judicial Review: Blackstone, Federalist 78, and the Marshall Court
Traditional constitutional review was not created from whole cloth with the launch of the nation. It has deep roots in English Common Law and the colonial legal system. Its legal logic and methodology is eloquently spelled out in William Blackstone’s Commentaries on the Law of England. Blackstone looks at the historical development of law, and then poses a five-step process for judicial review.
Blackstone’s methodology focuses the judge’s analytical lens on the words of the law and the linguistic content of the compact, case, document, policy, or law being reviewed. Studying the evolution and historical application of English Common Law, he determined that the best way to interpret is to read the words of the law and explore the intention of the lawgiver at the time the law was established.
The intention of the lawgiver is not the same as contemporary legislative intent. The lawgiver in American governance is the legislature as an entity, not as its separate parts. Congressional intent is manifested solely by the act of making words on the page become law. The political rhetoric of individual legislators or side notes of committee meetings would not, under Blackstone, constitute the intent of the lawgiver.
Blackstone’s sets forth a specific and comprehensible jurisprudential methodology:
- a) First, go to the text of that which is under review. Examine the words understood in their general and popular use. This will almost always answer the questions posed by the facts at hand, questions of law presented, and any public policy impacts.
- b) If, and only if, a good-faith examination of the text fails to provide the holding, applicable rule of law, and legally appropriate public-policy outcome, go to step two. Two is a re-consideration of the words in light of the context of the entire document in which the words reside. Text and context, sufficiently examined by the informed and learned mind with honest intent, will reveal what holdings, rules, and policy ramifications are to be applied.
- c) When, in the rare circumstance that these two steps fail to answer the questions presented, go to step three. Re-evaluate the words again but this time in relation to the subject matter or public policy to which they apply. Sometimes specialized nomenclature makes its way into a statute or law and must be understood. If, in step three, questions of holding, rule of law, and policy implications can’t be ascertained, go to step four.
- d) Step four is an absurdity test applied to the words to ensure that any interpretation of them does not lead to a holding or rule that is, on its face, absurd. Blackstone’s example is the English law against bloodletting in the streets meant to prevent bloody violence against citizens. A doctor performing emergency bloodletting to save an injured person would not fall under the law; that would be an absurdity.
- e) Finally, in the unlikely event that no combination of these four steps produces an honest and discernible conclusion to the questions of law at hand, examine the words yet again, this time in the context of the whole document or law, to determine the spirit, reason, essence, and meaning of that which is under review. This would be a rare instance indeed.
If Blackstone laid the foundation for English judicial review, Federalist 78 suggests that his analytical foundation should be used for American constitutional review. Blackstone’s model was the starting point for traditional American constitutional interpretation.
Federalist 78 mirrors Blackstone’s traditional mode of review. Alexander Hamilton writes, “It can be of no weight to say that courts, on the pretense of a repugnancy, may substitute their own pleasure to constitutional intentions of the legislature.” As with Blackstone, Hamilton places the locus of review in the linguistic structure of the law, not judicial will. He argues from the vantage of the vesting clauses of Articles I and III, and anchors his design in constitutional text. Blackstone, colonial common law, and Federalist 78 laid the legal foundation on which the Marshall Court would build the institution of American constitutional review.
The American incarnation of traditional review is embodied in the jurisprudential reasoning and language of Marbury v Madison (1803) and many subsequent Marshall-Court decisions. Marshall uses Marbury to establish the Constitution-bound character of American judicial review. A quick summary of this cornerstone case explains the essence of American traditional judicial review.
Appellant William Marbury sought the specific legal remedy of a writ of mandamus under the Federal Judiciary Act of 1789, Section 13, which named the Supreme Court as the court of original jurisdiction for adjudicating such writs. Marbury filed such a writ with the Supreme Court in compliance with Section 13. The Marshall Court acknowledged that Marbury was entitled to the relief sought (awarding of a magistrate’s commission), and that a writ of mandamus was the proper legal form for remedy. The Court then declared Section 13 to be unconstitutional.
This was the first time the Supreme Court had struck a Congressional statute as being impermissible under the terms of our national compact. The Court’s reasoning is based on a reading of the text of Article III of the Constitution that establishes only two explicit areas of original jurisdiction for the Supreme Court. Neither area included original jurisdiction over mandamus. Accordingly, the Justices ruled unanimously (4-0) that the Court had no jurisdiction to decide writs of mandamus. They cited Article III’s silence on mandamus along with its explicit establishment of only two areas of original jurisdiction. Marbury and key opinions that followed institutionalized Constitution-bound judicial review for the new nation.
Marbury claimed for the Supreme Court the authority to decide conflicts between the content of Congressional statutes and constitutional text. General acceptance of Marbury and its standing the test of time established the authority of the Court to determine the constitutionality of statutes.
The jurisprudential methodology on which Marbury rests defines the essence of American judicial review: Look to the Constitution for an honest and reasonable textual permissibility. This “textual permissibility” approach requires adherence to the Constitution’s explicit language and structure. It is true that the Constitution is a framework to be filled-in by the operation of politics and jurisprudence. But exceeding clear constitutional permissibility while doing so brings grave consequences.
The Marshall Court would, even as it liberally defined allocation of power under the doctrine of federalism, ensure interpretation of fundamental law in the tradition of Blackstone’s Commentaries and Federalist 78.
Progressive academics have presented a counter argument asserting that Marshall soared beyond the bounds of textual constraint to aggressively ensure a strong and preeminent national government. He was, after all, a committed Federalist. Robert Warnick writes, “Marshall had a lifelong conviction that a country needs a central government with power and responsibility enough to override local interests.” Some progressives assert Marshall was a believer in the living constitution, and cite Marshall’s dictum from McCulloch v Maryland (1819) “We must never forget that it is a constitution we are expounding, a flexible instrument sufficient to the exigencies of the nation.”
Their argument continues. In McCulloch, the Court interprets the “necessary and proper clause” broadly in order to ensure successful execution of national government responsibilities. The decision is, indeed, a significant step in the direction of an energetic national government, as one would expect from a Federalist-leaning Court.
However, the language of the opinion is classic Blackstonian jurisprudence and establishes the Marshall Court as Constitution-bound. Marshall’s opinion in McCulloch states, in part:
“Let the ends be legitimate, let it be within the scope
of [the] constitution, and all means which are appropriate,
which are not prohibited, but consist with the letter and
spirit of the constitution … ” (italics mine)
Marshall’s use of this language in a comprehensive landmark decision, commits the Court and the nation to textual constraint and constitutional allegiance. Such language is the hallmark of most of Marshall’s interpretations. A thorough content analysis of the Marshall Court’s hundreds of decisions is beyond the scope of this paper and such an analysis would, without a doubt, reveal some contradictions. Nevertheless, on whole, their key opinions bind interpretation to honest and reasonable textual constraint.
Today such Constitution-bound language from the majority would evoke ridicule from contemporary Progressives. The re-establishment of constitutional constraint has been left to the shrinking minority on the Court. In 2012, Antonin Scalia wrote, “A more latitudinarian approach to interpretation, by contrast, makes it hard to see when the judge has succumbed to the Dark Side of the Tenure – which, like the Dark Side of the Force in Star Wars, is marked by self-indulgence.”
Scalia and Marshall are members of the same constitutional tribe. Marshall’s own words, when taken in whole and in context, describe a Justice and a Court fully committed to Constitution-bound review. This traditional review became the jurisprudential institution on which American constitutional law rested. Then things changed.
Leaving Traditional Judicial Review to Enter the Brave New World of Modern Judicial Review
During the 20th century, modern review replaced traditional review. What began as a distinctive judicial power to interpret the Constitution, essentially different from legislative review, became merely another variant of legislative power. The result has been radically different outcomes in the holdings, rules of law, and public policy flowing from the Supreme Court. These have transformed American culture and quietly ushered in a new form of governance that runs counter to constitutional republicanism.
Constitution-bound interpretation was attacked as old fashioned and non-utilitarian by progressive intellectuals and academics. The Progressive Era was the first major period in American political development to feature, as a primary characteristic, open and direct criticism of the Constitution. Although progressives were not in complete agreement with one another on policy and means, they universally asserted that the existing constitutional system was outdated and must be made into a dynamic, evolving instrument of social change. Change not by amendment but by central-government decree.
This criticism of constitutional design was unique because it formed the backbone of the entire progressive movement. The fact of a ratified Constitution seemed almost irrelevant in light of the newly evolved human subspecies homo progressia and its claim to decide matters of public governance for the rest of the body politic. Madisonian separation of powers was no long needed to protect liberty. The highly evolved homo progressia would become the protectors of liberty and determiners of policy. Severe and widespread social problems created by hyper industrial growth in the last half of the 19th century demanded that the progressives be allowed to step in with unimpeded corrective measures. Or so they argued.
The post-New Deal Courts, cut loose from their constitutional anchor, found themselves free to sail the open seas of modern judicial review. Today, Court majorities routinely select a culturally transforming value that fits their vision of “how America ought to be”, then advance their argument on premises often well outside the four corners of the Constitution. They are building a New America, refashioning society by sheer will, blithely pre-empting the legislative process and its national discussion.
Still, Americans invest heavily in constitutional rule and its Madisonian design. The illusion of separation of powers is necessary to camouflage modern judicial review’s inherent authoritarianism. The facade of constitutionalism reassures the public even as the reality of constitutionalism fades. Court majorities bury their social edicts in reams of excessive dicta and vague allusions to precedent that give the appearance, but not necessarily the substance, of constitutional reasoning. Key landmark cases decided by the Court today often result in holdings, rules of law, and public policies that are significantly different from what would be possible under constitution-bound interpretations of the Marshall Court.
Exploration of three culture-changing cases – Griswold v Connecticut (1965), Roe v Wade (1973), and Doe v Bolton (1973) will be offered as supporting evidence. They exemplify modern judicial review’s theocratic nature, and would have resulted in quite different outcomes had constitution-bound judicial review been applied.
The Griswold–Roe–Doe phalanx is the smoking gun, the irrefutable evidence that exposes a modern Court operating far outside the nation’s constitutional compact. Sections five and six will provide evidence supporting this view and highlight the dangers that lie therein.
Some academics contest the assertion made by a growing body of contemporary scholars that judges are routinely operating outside the Constitution. Frank Easterbrook writes “political scientists, editorial writers, and cynics often depict judges as doing nothing other than writing their preferences into law. Careful observers of the judiciary do not make that mistake.” His point appears to be that vestiges of original constitutionalism remain.
The Court, of course, still makes decisions that rely on the Constitution and only the Constitution. Elements of traditional Marshall-style review can be seen here and there. This is because the vast majority of cases heard by the Court do not create new fundamental rights. Most decisions are matters of mere statutory construction or cases that require application of already settled rules of law. Only a handful of cases change the Constitution, create new rights, and result in cultural transformation.
The ultimate damage done by modern judicial review is that it is diminishing the Court’s credibility and authority to maintain the rule of law in the minds of the citizens. Historically, the Court has stabilized American politics through its use of interpretative processes largely based on non-partisan traditional constitutional review. The citizenry has intuitively trusted the Court to mostly (but not entirely) remain above political and social warfare. However, what the Court often does today is issue personal decrees that are enforced by the guns of government, not by the acceptance of the public. Modern judicial review replaces the constitutional republic with the new authoritarian state. If the Court continues with modern review, the rule of law will yield to the rule of guns, if it has not already.
Sinking Deeper into the Dark Side of Tenure
Progressives rose to national power becoming the dominant political and intellectual voices in the 1920’s and 1930’s. A full exploration of Progressive history is beyond the scope of this paper but it is generally correct to say they sought to transform the Court from Constitution-bound reviewer of fundamental law into an agent of social and cultural change. Nothing demonstrates this movement to change the Court’s identity and modus operandi more clearly than the progressive campaign to canonize living-Constitution Justices and to demonize Constitution-bound Justices.
Felix Frankfurter launched the canonization – demonization strategy in 1916 with his festshrift on Justice Oliver Wendell Holmes.In this homage, Frankfurter established the committed progressive Holmes as the bellwether for proper Constitutional interpretation. Legal commentary about individual Justices was new, with little similar personal commentary to be found before the 1920’s. The progressive’s good judge – bad judge campaign had begun in earnest.
In The Constitution and the New Deal, G. Edward White examines the progressive canonization phenomenon. He analyzes essays written by progressives in which they critique 20th century Justices. He finds two categories of reference to the Justices. The first category consists of references to Justices whom they routinely canonized as “progressive”, “liberal”, and “modern”. The second category consists of references to Justices whom they routinely demonized as “conservative”, “reactionary”, and “old-fashion”. For instance, during the 1930’s progressives lumped traditional-review Justices Devanter, McReynolds, Sutherland, and Butler together for ridicule, and by the 50’s had characterized them as “The Four Horsemen of Reaction”.
By the late 60’s, progressive Justices who unabashedly pushed for radical cultural change through Court mandates were revered as intellectual and social icons inside the academy. To this day, the meme of the progressive activist judge as unquestioned intellectual and cultural hero prevails. Witness Sonia Sotomayor’s remark that “one’s sex, race, and ethnicity ought to affect the decisions one renders from the bench.” . Such application of idiosyncratic personal preference to decisions on matters of constitutionality is quintessential modern judicial review.
The political rise of the progressives over the twentieth century empowered them to steamroller Constitution-bound judicial review. American constitutional review and culture would be transformed, as an examination of three modern-review cases will demonstrate.
Before We Proceed Further, What’s So Great About the Constitution?
An assumption underlying the argument being presented here is the necessity of adherence to and reliance on the Constitution. But why is there such a necessity? It is because without it our republican form of government would likely wither, and a corrupt and authoritarian state would likely rise to replace it. This assessment is based on scholarly writings, both old and new. They recount abuse of power from pharos to monarchs to military strongmen.
Much of the necessity assumption rests on the convincing works of Locke, Montesquieu, and Madison along with the contemporary work of Gary Lawson, Ronald Pestritto, Thomas West, and others. In 1748 Montesquieu sums up the problem, “Constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go.” Montesquieu, like the Greeks, concludes on the evidence of history that “the nature of the State’s constitution is of the greatest consequence.”
The nature of human inclination is often argued by post modern progressives to be so subjective that it defies understanding or at least it is constantly evolving, i.e., a moving target that must be constantly redefined. This assertion is mostly sophistry. While civilizations can and do advance and develop (as well as fall and fail), the past offers evidence enough to conclude a consistent pattern of human attributes and human conduct over time.
The Constitution, and the separation of powers embedded in it, rest on a more historical and fact-based understanding of human nature than does progressivism. There is little evidence that a more virtuous, more knowledge-possessed, and more intelligent species of human evolved to inhabit the twentieth century.
The Constitution, with all its flaws, shortcomings, and imperfections, serves as a seawall against the storms of authoritarianism that perpetually sweep across bodies politic. If one is to trust the events of history, the Court’s use of modern judicial review moves us deeper and inextricably into rule by bureaucratic masters.
Modern Judicial Review’s Impact on Culture and Society
The primary impact of modern review is that fundamental law rooted in experience, history, and reflection is relegated to inconsequence. Three cases, Griswold, Roe, and Doe, stand as evidence that the Supreme Court, when convenient, sees the Constitution not as binding fundamental law, but as a minor historical roadblock to be circumvented. These cases demonstrate how the Justices implant language in an opinion as justification for even more radical constitutional departures in future decisions. This is not adherence to the rule of law; it is culture building.
The Case Evidence:
Griswold v Connecticut 381 U.S., 479 – 85, 1965
The Executive Director of Planned Parenthood of Connecticut’s executive director and medical director were convicted as accessories for violating Connecticut law against giving married persons information and medical advice on how to prevent conception. The Court held that the Connecticut statute forbidding the dissemination of information on contraceptives violates the fundamental right of marital privacy that falls within the penumbras of specific guarantees of the Bill of Rights.
The Court reasoned that specific guarantees in the Bill of Rights have penumbras, yielding rights formed by emanations from “those guarantees that help give them life and substance.”These penumbras give rise to a constitutional right to marital privacy, which forbids state interference.
Factual analysis reveals problems with that finding. Griswold was a setup case. The law in question had never been enforced or prosecuted but lay inert from days long past. The Director of Planned Parenthood worked with the prosecution to be charged with a violation. The setup had nothing to do with a prohibition on distribution of birth-control information. The case was the first step in the judiciary conspiring with activists to legalize abortion through the courts thereby avoiding the bothersome legislative process and time-consuming national discussion. Fundamentally changing the culture by Court fiat rather than national conversation is modern judicial review’s modus operandi.
Even with the Griswold setup, finding a Constitutional right to abortion was going to be difficult. But modern judicial review simply rewrites the constitution – no amendment needed. Thus, William O. Douglas incants “penumbras emanate” and conjures into existence, voila!, the right of marital privacy.
That this is not jurisprudence but little more than New Age drivel seemed to bother only a minority on the Court. Byron White would make this point in his Roe dissent. “I find nothing in the language or history of the Constitution to support the Court’s judgment. The court simply fashions and announces a new constitutional right for pregnant mothers [410 U.S. 222] and, with scarcely any reason or authority for its actions, invests that right with sufficient substance to override most existing state abortion statutes.”
A right to marital privacy might a have been legitimately found on constitutional grounds but not in Douglas’ emanating penumbras. A more credible source would have been the constitutional text of the 4th amendment ensuring a right to be secure in our homes. Constitutional restrictions on government intrusions into the home might plausibly extend to the marital bedroom, no penumbras needed.
Modern judicial review often strategically links cases in order to arrive at a cultural change that could not be achieved through the legitimate legislative process. Case A is embedded with language designed to be invoked in cases B and C. Griswold was case A. Roe v Wade and Doe v Bolton cases B and C. This is the “legs of dicta” strategy invoked when modern judicial reviewers seek to change society from the bench.
Roe v Wade 410 U.S., 113, 1973
“Bodily” privacy would, without sufficient jurisprudential foundation, leap from Griswold’s marital privacy into the Roe decision. Why conjure into existence bodily privacy? The evidence suggests that the Justices were setting up to “discover” a right to unfetter abortion on demand, and they needed a rationale even if it was jurisprudentially implausible.
The underlying facts raise more troubling questions. The Federal District Court heard Roe with no trial court transcript and no review of trial level testimony. Why? Because there was never a case in controversy, never a trial, and never any evidence for the court to review. As a matter of law, this meant that there was no party who had standing. Ignoring this legal requirement, the District Court granted Roe standing, heard the “case”, and performed the magic that only modern judicial review can perform. It transmogrified the legitimate question of law “what limits may the states place on doctors performing abortions?” into the out-of-left-field question, “does the Constitution contain a fundamental right for women to terminate their pregnancies at will?” The Court panel, one of which was a pro-abortion activist, “discovered” that right embedded in the ninth amendment.
Curiously, lower-court winner Roe appealed her win to the High Court and was granted certiorari. Roe had gotten her right to abort and one would think that would have ended the litigation. The appeal was filed because the objective was never to secure Roe a legal abortion. Roe herself was simply a means to an end. That end was to give all women the fundamental right to abort their pregnancies at any time for any reason.
The Supreme Court upheld Roe, basing its decision in large part on the flawed – erroneous and factually inaccurate – essays of Cyril Means. Mr. Means was an attorney and long-time pro-abortion activist. Neither the District Court nor the High Court weighed the rights of the human living in utero vis-à-vis the mother’s rights. Mean’s essays were used to misdirect attention away from the human in utero and toward the issue of women’s health. This redirection of focus created a detour around two hundred years of common law, statute law, and jurisprudence regarding the rights of the human fetus. For instance, property law had long invested the human living in utero with legal rights. But then the Courts were in the midst of executing a years-long social-engineering plan to radically alter the culture. They were not interpreting law. The fetus and its rights were simply deemed irrelevant to the question at hand.
Doe v Bolton 410 U.S. 179, 1973
Roe contained the language that gave a woman free reign over an abortion decision in trimester one, less reign in trimester two, but returned primary control to the state in trimester three. However, Doe created a way around any limitation by the state. This was accomplished by the ‘women’s health exception’ which, if the mother’s health is at risk, moots the state’s authority and returns the abortion decision to a woman and her doctor.
Most people envision a gravely ill near-death mother being aborted so that she may live. This was not the vision the Court had in mind. It defined women’s health to include anything in the life of the woman impinging on emotional, psychological or familial health. Translation: There may be no state intervention at anytime. The Court released Roe and Doe on the same day commanding that the two decisions be read and taken together as a single operating legal entity.
The Griswold-Roe-Doe phalanx is modern judicial review operating on all cylinders: Come up with a radical social change that could never survive the legislative gauntlet or a national conversation, conjure up cases with plausible facts, chain them together, then decide them on pseudo social science ignoring conflicting jurisprudence, common law, and constitutional text.
How Would the Court Have Decided Differently Under Traditional Review?
Court decisions arrived at under traditional review differ from those arrived at under modern review. For instance, Griswold could never have been decided under Douglass’ claim of emanating penumbras. The argument that auras and penumbras emanate fundamental rights is not law; it is metaphysics. In fact, modern judicial review is little more than metaphysics which is why it so dangerous to the rule of law. The Court might have found a right to marital privacy in Griswold under traditional review. It could have gone to the 4th amendment that conveys, “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” The 4th amendment’s “secure house” might well have been extended to the marital bedroom of that house. That would have at least anchored the finding in constitutional jurisprudence. The Constitution is written law not an Ouija board.
But subjecting Griswold to this constitutional tradition would not have so easily accomplished the hidden objective the Justices sought: Set up a string of cases that would lead to an unfettered abortion right for women.
Roe would have never been made it to the court docket under traditional review. Norma McCorvey never sought an abortion, was never denied an abortion and never had an abortion. She had no standing; there was no case in controversy, and no lower court proceeding to review. Traditional jurisprudential review would require that rules for standing be met. It would also require that a real case in controversy exist.
Likewise, Doe would have been decided differently under traditional review. The essence of Doe is reliance on the health of the mother for its legal rule. In deciding Doe, the Court relied not on constitutional principle and law but on the social science essays of Cyril Means. Social science academics and their theories are compelling sources of law only in modern review, not in traditional review.
Other cases would have had different outcomes under traditional review. Take Wickard v Filburn (1942). The Court decided that wheat grown on the family farm, made into flour on the same farm, baked into bread in the farmhouse, and eaten at the family kitchen table was interstate commerce subject to federal regulation. Such a decision would have been impossible under Marshall-style traditional review. Traditional review would have required that commerce be defined as commonly used. That common usage is “the activity of buying and selling, particularly large scale buying and selling, between states.” This activity was entirely absent in the Wickard fact-set. Other key Supreme Court cases would have been decided differently or not even made it to the Court docket under traditional review.
The Constitution was created as the supreme law of the land. It is an agreement between the People and their sitting governments. It is also an agreement between and among the People themselves. As with any agreement, compliance with the terms of our Constitution requires an authoritative Keeper-of-the-Compact. Early American political development was, in part, a search for the proper institutional location for this primary compliance function. The search would not take long.
John Marshall declared the Supreme Court keeper of the American Constitution when his Court issued Marbury v Madison in 1803. The Constitution would stand guard over the rule of law and the Marshall Court would stand guard over the Constitution.
Using modern judicial review, Progressives quietly rewrote the terms of the American compact while a nation slept. This paper, relying on and summarizing the work of others and evaluating the facts in evidence describes what can accurately be described as the rise of the American Ayatollahs. If the United States is to control the authoritarian Leviathan that is our governance in the twenty-first century, return to the traditional constitutional review of the Marshall Court will be a necessary first step.