The Two Paradigms of American Jurisprudence
During the twentieth century, American Judicial Review made the journey from being constitutional to being extra-constitutional then to being non-constitutional. What began as a distinctive judicial power to interpret the Constitution, essentially different from legislative review, became merely another variant of legislative power.[i] The result has been radically different outcomes in the holdings, rules of law, and public policy impacts flowing from the Supreme Court. These different outcomes have transformed American culture and quietly ushered in a new form of governance that runs counter to constitutional republicanism and traditional judicial review. The twentieth century Court diminished reliance on the Constitution while simultaneously claiming to interpret it.
Modern judicial review is incompatible with the American Constitution. The Constitution constrains Supreme Court Justices to act within the confines of our national compact and restricts their findings to matters of law.[iii] It is true that the Constitution is a framework to be supplemented by the operation of politics and jurisprudence. But exceeding constitutional permissibility while doing so brings grave, even fatal consequences.
Modern judicial review permits Justices to invoke the vagaries of esoteric philosophies and trendy social zeitgeists to impose their personal wills. The question arising from this transformation is “Should the Court be required to abandon modern judicial review and return to traditional judicial review?” The claim made here is that the Court should return to the traditional review that emerged from the Marshall Court. Failure to do so will continue our nation’s slow march toward authoritarianism.
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. Public policy, political conduct, and private agreements, whether state or national, individual or corporate, would be anchored in and constrained by the articles, sections, and clauses ratified by the People.
Marshall’s jurisprudence of applying the Constitution’s text to resolve questions of fundamental law functioned more or less intact from 1801 to the early 1900’s. Even in the face of the Civil War, the 14th amendment, a few unconstitutional holdings, and some unsupportable rules of law[iv], Marshall’s legacy of Constitution-bound review largely kept faith with the terms of the founding contract. [v] The key opinions of Marshall and his fellow Justice, Joseph Story, contain language, reasoning, and argumentation supported and constrained by constitutional text.[vi] Then things changed.
Constitution-bound interpretation was attacked as old fashioned and non-utilitarian by progressive intellectuals and academics.[vii] 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.[viii] 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. [ix] 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.[x] The fact of a ratified Constitution seemed almost irrelevant in light of the newly evolved human subspecies homo progressia[xi] and its innate ability 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 as well as wise determiners of policy. Severe and widespread social problems created by hyper industrial growth in the last half of the nineteenth century demanded that the progressives be allowed to step in with unimpeded corrective measures. Or so they argued.
Progressive political victories brought, among other things, a major shift away from original the Anglo-American jurisprudence of Blackstone and Marshall. Beginning in the mid 1940’s, progressive Justices of the New Deal Era began their slow but steady movement away from Constitution-bound interpretation. Under the banner of modern judicial review, they began to explore interpretive frontiers beyond the Constitution. By the early 2000’s, the Court no longer functioned solely as keepers of the national compact but also as authoritarian allocators of cultural values. The Justices were slowly becoming American Ayatollahs. They began issuing cultural edicts as if ruling over a theocracy.
The post New Deal Courts, once cut loose from their constitutional anchor, found themselves free to sail the open seas of modern judicial review. Today, Court majorities routinely deploy a judicial methodology of selecting a culturally transforming value that fits their vision of ‘how America ought to be’ then advancing their argument using fundamental premises often well outside the four corners of the Constitution. Tying their pre-determined decisions to social science experiments, emanating penumbras, and the attitudes of popular elites, the Justices are building a new America. The Court seems at times to refashion American 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 founding constitutionalism reassures the public even as the reality of constitutionalism fades from their governance. 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 than would be possible under constitution-bound interpretations of the Marshall – Story Court[xii].
Exploration of three culture-changing cases will be submitted as supporting evidence. These cases would have resulted in quite different outcomes had a constitution-bound judicial review been applied. They are Griswold v Connecticut (1965), Roe v Wade (1973) and, Doe v Bolton (1973). These signpost cases exemplify modern judicial review’s theocratic nature. 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.
Some academics contest the assertion made by a growing body of 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.”[xiii] His point, I think, is 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. Nevertheless, the long journey into modern judicial review has gradually led the Court a good distance away from the compact it was created to protect and defend. That distance now threatens to leave American constitutionalism a nearly invisible dot on the far horizon of time. Abortion rights, gay marriage rights, radically diminished free exercise of religion, delegated judicial and legislative powers, and virtual nationalization of healthcare come to mind as evidence of a fading traditional jurisprudential methodology.
The criticism of modern judicial review here is not directed at the moral and social result of such decisions. Any given end result may indeed be moral and correct. However, the route to such ends is not honest constitutional interpretation, it is Court edict. To say that judges and Court’s ‘legislate’ is a significant and serious semantical error. Legislation by definition involves an ongoing conversation between citizens and their elected officials. Justices engage in no such conversation with citizens. Thus, judicial legislation is by definition and practice impossible.
The ultimate danger of modern judicial review is that it will diminish 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 based on non-partisan 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 thus portends the possibility of an authoritarian state replacing the constitutional republic. If the Court continues with modern review, the rule of law may soon yield to the rule of guns, if it has not already.
Traditional American judicial review rose from the Marshall Court, then in the twentieth century, fell to the doctrine of modern judicial review. A return to traditional Constitution-bound review is needed to resurrect our national compact, restore separation of powers, and re-establish the Court as non-partisan Constitution-based interpreter of fundamental law.
Establishing America’s Constitution-bound Review: Blackstone, Federalist 78, and the Marshall Court
Traditional (original) constitutional review was not created from whole cloth with the launch of the nation. Traditional or Marshall-style constitutional interpretation has deep roots in English Common Law and the colonial legal system. The legal logic and methodology of traditional review is eloquently spelled out in Blackstone’s Commentaries on the Law of England.[xiv] Blackstone looks at the historical development of law and from this look poses a five-step analytical process for judicial review.[xv]
His analysis focuses on the words of the law and the holistic meaning of the compact, document, policy or law being reviewed. Drawing on knowledge and wisdom acquired during a lifetime career in the law, Blackstone set about to establish an operational definition of judicial review. Studying the evolution and application of the law, he determined that the best way to interpret it is to read the words of the law and explore the intention of the lawgiver at the time the law was made.
It is important to clarify that ‘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 intention is manifested solely by the act of making words on the page become law. The loose rhetoric of individual legislators or side-notes of committee meetings would not, under Blackstone, constitute the intent of the lawgiver. This poses the question of how does a judge go about reviewing the law using American jurisprudence.
Blackstone answers the question with a very specific and comprehensible legal methodology. 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 impacted.
If, and only if, a good-faith examination of the text fails to provide the holding and applicable rule, go to step two. [xvi] Two is a re-consideration of the words in light of the context of the entire document (or documents) in which the words reside. Text and context, sufficiently examined by the learned mind with honest intent, will reveal what holdings, rules, and policy ramifications are to be applied in almost all cases.[xvii]
When, in the rare circumstance, these two steps fail to answer the question presented, go to step three. The words are again evaluated. This time in relation to the subject matter or public policy to which they apply. Sometimes specialized nomenclature makes its way into the law and must be understood. In the unlikely event that after step three, questions of holding, rule of law, and policy implications cannot be ascertained, go to step four.[xviii]
Step four is an absurdity test applied to the words to ensure that they do not lead to a holding or rule that is, on its face, absurd.[xix] (more)
Finally, in the highly unlikely event that some combination of these steps fail to produce an honest and discernable conclusion to the questions of law at hand, the words will be examined yet again. This time they are evaluated in the context of the whole document or law, to determine the spirit, reason, essence, and meaning of that which is under review.
If Blackstone laid the foundation for English judicial review, Federalist 78 suggests his analytical foundation should be used for American constitutional review. American jurisprudence carries a distinct western European DNA.
Federalist 78 mirrors Blackstone’s traditional mode of review. 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.”[xx] As with Blackstone, Hamilton places the source of the law, not judicial will, as the overarching interpretive guide. He argues from the vantage point of the vesting clauses of Articles I and III, which is to say he anchors his assertion in constitutional text. Blackstone, the Common Law, and Federalist 78 laid the legal foundation on which American constitutional review rests and 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 summary of this cornerstone case explains the essence of American traditional judicial review.
Appellant Marbury sought the specific legal remedy of a writ of mandamus[xxi] under Section 13 of the Federal Judiciary Act of 1789. Section 13 named the Supreme Court as the court of original jurisdiction for adjudicating writs of mandamus. 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 magistrates 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 struck a statute as being impermissible under the terms of our national compact. The Court’s reasoning begins with a reading of the text of Article III of the Constitution that established only two explicit areas of original jurisdiction for the Supreme Court. Neither area included original jurisdiction over mandamus.[xxii] 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 jurisdictions.[xxiii] Marbury and cases that followed institutionalized Constitution-bound application of judicial review for the new nation.
The decision claimed for the Supreme Court the authority to decide conflicts between the content of 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 laws.
The jurisprudential methodology on which Marbury rests defines the essence American judicial review: Look to the Constitution for an honest and reasonable textual permissibility. This “permissibility” approach is the essence of adhering to enumerated powers as the Constitution’s text and structure clearly requires.[xxiv] 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.
Some academics have argued 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.”[xxv] Some progressives assert Marshall was a believer in their living constitution frequently citing the following or similar dicta 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.”
Respectfully, I do not see a convincing level of support for the proposition of Marshall as a living constitutionalist or anything even close. Evidence points to the contrary. In McCulloch, the Court interprets the “necessary and proper clause” broadly in order to ensure successful execution of enumerated responsibilities. The decision is a significant step in the direction of an energetic national government, as one would expect from a Federalist. But the language of the opinion is classic Blackstonian jurisprudence and establishes the Marshall Court as Constitution-bound. Marshall’s opinion in McCulloch says, “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, are constitutional.”
Using this language in a comprehensive landmark decision, Marshall commits the Court and the nation to a form of textual constraint and constitutional allegiance. Such language is the hallmark of most of Marshall’s subjective interpretations. A thorough content analysis of the Marshall Court’s thousands of decisions is beyond the scope of this paper and such an analysis would reveal some contradictions. Nevertheless, on whole, his opinions bind interpretation to honest and reasonable textual constraint.
Today such Constitution-bound language from the majority would be a strange anomaly indeed, perhaps even invoking ridicule from our contemporary Progressives. Re-establishing constitutional constraint is left to the shrinking minority on the Court. In 2012, Justice Scalia writes:
“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.”[xxvi]
Marshall’s own words, when taken in whole and in context, describe a Justice and a Court fully committed to quintessential Constitution-bound traditional review. This traditional review became the jurisprudential institution on which American law rested. Then things changed.
Rise of Modern Judicial Review: The Flight from Constitution-bound Interpretation to the Dark Side of Tenure
The twentieth century saw a profound change in the practice of judicial review. Progressive academic J. Allen Smith wrote a no holds barred attack on constitutional design in his 1907 The Spirit of American Government. In the early twentieth century, Progressives routinely attacked a Court they saw as tradition-bound. They perceived the Court to be striking down state police action aimed at curbing industrial mistreatment of workers and work place dangers. They were, by implication, attacking the contracts clause and commerce clause interpretations of the Marshall Court.
Freedom of contract under the contracts clause was according to progressive claim, being used to give inordinate power to owners of businesses. Progressive academics and their counter parts in the popular press created the Lochner myth. The myth popularized the belief that the Court was knowingly sanctioning abuse of workers and work place dangers. But a comprehensive scholarly review of the evidence shows no such sanction on the part of the Court. In 1913, Charles Warren reviewed all 560 Supreme Court cases involving review of state action legislation and found that only two were struck as violations of the Constitution.[xxvii]
Whatever the jurisprudential reality of the turn-of-the-century Court, Progressive scholars and intellectuals began a campaign to remake the Court in their image. And they succeeded.
Progressives became the dominant 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 safe 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 effort 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.[xxviii] In this homage, Frankfurter established 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.[xxix] The good judge – bad judge paradigm had begun in earnest.
In The Constitution and the New Deal, G. Edward White examines the progressive canonization phenomenon. He compared two groups of essays and papers written by progressives on twentieth century Justices. The first group of essays consisted of papers about Justices who the progressive intellectuals routinely canonized as “progressive”, “liberal”, and “modern”. The second group of essays consisted of papers on Justices who progressive intellectuals routinely demonized as “conservative”, “reactionary”, or “old fashion”. During the 1930’s, progressives lumped traditional review Justices Devanter, McReynolds, Sutherland, and Butler together for progressive rhetorical ridicule.[xxx] By the 1950’s the progressives had successfully conjured into existence a zeitgeist identifying these traditional Justices as “The Four Horsemen of Reaction”.
This canonization-demonization strategy would serve well the progressive objective of raising up modern-review judges and knocking down traditional-review judges. By the late 1960’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.
The political rise of the progressives at the dawn of the twentieth century was the beginning of the end for Constitution-bound judicial review. American law and culture would be transformed, as an examination of four “modern-review” cases will demonstrate.
Before We Proceed Further, What’s So Great About the Constitution?
An implied assumption underlying the argument presented here is the necessity to adherence to and rely on the Constitution. But why is constitutional reliance necessary? It is because, absent close allegiance to our constitutional document, a withering of our republican form of government is probable. A corrupt and authoritarian state will likely rise, in fact is already rising, to replace our republican design.
This conclusion is not based just in starry-eyed Founding romanticism. It is based on scholarly thinking both old and new[xxxi]. In considerable part the necessity assumption rests on the convincing work of Montesquieu. In 1748 he wrote, “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.”[xxxii] Montesquieu, like the Greeks, believed “the nature of the State’s constitution is of the greatest consequence.”[xxxiii] 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 and 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. If one is to trust the events of history, the Court’s use of modern judicial review moves us deeper into rule by Orwellian masters.
Modern Judicial Review’s Impact on Culture and Society
Academics, lawyers, and judges make arguments and speak in abstractions. Even the argument for traditional review being made here resorts to lines of logic, abstract legal references and political philosophy. It is all too easy to lose sight of the fact that these abstractions and esoteric legal principles are aimed at real breathing human beings carrying on their daily affairs in a living society. We are talking about your child, your husband or wife, your mother and your father. The forces born from our arcane debates impact real lives.
Three cases stand as evidence that the Supreme Court, when convenient, sees the Constitution as a minor historical roadblock to be circumvented, not as binding fundamental law. They demonstrate how the Justices implant language in an opinion to be uses as justification for more radical constitutional departures in the future. This not adherence to law, it is culture building.
Griswold v Connecticut 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510, 1965
Facts: The Executive Director of Planned Parenthood of Connecticut and its medical director were convicted as accessories for violating Connecticut law against giving married persons information and medical advice on how to prevent conception.
Court’s Holding: The Connecticut statute forbidding the use of contraceptives violates the right of marital privacy which fall within the penumbra of specific guarantees of the Bill of Rights.
Majority Reasoning by Justice Douglas: Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.[xxxiv] These emanating penumbras give rise to a Constitutional right to marital privacy, which forbids state interference.
Critique of this modern review: Griswold was a “setup” case. The law in question had never been enforced or prosecuted. It existed as an inert appendage from days long passed. The Director of Planned Parenthood conspired with the prosecutor to be “charged” with violating the never-before-enforced law. The setup had nothing to do with a prohibition on distribution of birth control information. The case was the first step in long and complicated plan to legalize abortion through the Courts thereby avoiding the bothersome legislative process and a national discussion. This changing of culture by Court fiat rather than national conversation lies at the heart of modern judicial review.
Even with this disingenuous setup, finding a Constitutional right to abortion was not going to happen, as there simply existed no legitimate constitutional argument. But the extra-constitutional magic of modern judicial review simply rewrites the constitution – no amendment needed. Thus, Justice Douglas conjures specialized arcane rights into existence with his progressive incantation. He commands to the Bill of Rights “penumbras emanate, penumbras emanate, penumbras emanate” and viola’ auras swirl out from the constitutional sun. The heretofore-invisible right of marital privacy rises from the long dried ink of the Constitution. That this is not law but little more than New Age drivel seemed to bother few other than the minority on the Court.
Modern judicial review often radically changes the culture by deliberately chaining together strings of cases. Case A is embedded with language designed to be used in cases B and C to arrive at a culture shattering change that can not be achieved through the legitimate legislative process. Griswold was case A. Roe v Wade and Doe v Bolton would be cases B and C.
Roe v Wade 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147,1973
A right to marital privacy might arguably have been found but not in the delusional penumbras, emanations, and auras of Justice Douglas. A more credible source is the constitutional text of the 4th amendment ensuring a right to be secure in our homes. Constitutional restrictions on government intrusions into the home can plausibly extend to the marital bedroom in the home, no magical vapors needed. Roe would leap from Griswold’s marital privacy to the strangely named “bodily” privacy. Why bodily? Because the Court was setting up to ‘discover” a “right” to unfetter abortion on demand.
Roe was heard by the Federal District Court with no trial court transcript, no review of trial level testimony, and no trial court evidence. Why? There was never a trial, never any evidence for the court to review and never a case in controversy. Legally this means that there is no party who has standing. Ignoring this, the District Court granted standing, heard the “case”, and performed the magic that only modern judicial review can perform. It transmogrified the legally sound question of law “what limits may the states place on doctors performing abortions?” into “does the Constitution contain a fundamental right for women to terminate their pregnancies if the so wish?” Of course the Court panel, one of whose members was a pro-abortion activist, “discovered” the right.
The Supreme Court upheld Roe basing their decision on the flawed (as in erroneous and factually untrue) essays of Cyril Means, attorney and long time abortion activist. Neither the District Court nor the High Court consider the question of law to be a weighing of the rights of the mother vis-a-vis the rights of human living in utero. The in utero mass was not to be considered a rights form human life. The court had disregard two hundred years of jurisprudence to come to this conclusion. But then the Courts were in the midst of executing a years-long social plan to radically change the culture, they were not interpreting law. They of course determine that the Constitution contained a fundamental right of any woman to terminate her pregnancy at any time for any reason, including birth control and mere inconveniency of parenthood.
Doe v Bolton 410 U.S. 179 S. Ct. L. Ed. 2d. Ct. 1973
Roe contained the famous trimester language that gave a woman free reign over the abortion decision in trimester one, considerable reign in trimester two, and returned control to the state in trimester three. But this was mere deception. Doe created an ironclad way around any limitation on aborting at anytime. This was accomplished by the infamous ‘women’s health exception’ which returns the abortion decision to a woman and her doctor if the mothers health is at risk. If the mothers health is at risk then the state’s authority is mooted. The Court defined the women’s health to include anything impinging on emotional, psychological or familial health. Translation: “no state intervention ”. Not content, the Court released Roe and Doe on the same day commanding that the two decisions be read and taken together as a whole.
This is modern judicial review operating on all cylinders: Come up with a radical social change that could never run the legislative gauntlet or survive a national conversation, then conjure up baseless cases (Griswold & Roe), chain them together, then decided them on pseudo social science ignoring any and all conflicting jurisprudence and constitutional text.
[i] Christopher Wolf, The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-
Made Law, pub. Little Field Adams, 1994, p 4.
[ii] Pestritto, Ronald J., The Birth of the Administrative State: Where It Came from and What It Means for
Limited Government, pub. Heritage Foundation, First Principles Series, November 2007
[iii] Except in the two narrow areas of original jurisdiction, foreign ministers and controversies
[iv] e.g., The Taney Court decision in Dred Scott
[v] For an authoritative analysis of the jurisprudence of John Marshall and the Marshall Court see
chapter three of John Marshall and the Heroic Age of the Supreme Court by R. Kent Newmyer,
Louisiana State University Press, 2001
[vi] The Marshall Court sat for 34 1/2 years and decided thousands of cases so any overarching statement
about the Court is subject to discussion. Nevertheless, language in the key cases, in the cornerstone
opinions, and in the landmark decisions argue from the vantage point of constitutional text.
[vii] See Woodrow Wilson’s Leadership of Men speech, 1890, his essays on public administration and
his campaign speeches of 1911 – 1912 see also Herbert Crowley, The Promise of American Life,
[viii] American Progressivism: A Reader, Ed. Ronald J. Pestritto and William J. Atto, pub.
Lexington Books, 2008 p. 3
[ix] Thomas G. West and William A. Shambra, The Progressive Movement and the Transformation of
[xi] Homo Progressia is my tongue-in-cheek invention to describe how the early Progressives
asserted themselves to be an advanced mutation in the Darwinian evolution of homo sapiens. This
Progressive mindset is embodied by Woodrow in a line from his Presidential campaign. “All
the progressives ask or desire is permission—in an era when “development,” “evolution,” is the
scientific word—to interpret the Constitution according to the Darwinian principle….”He also said in
his scholarly essay on Public Administration, “as drones in a beehive, men [Americna citizens]
would submit to central authority. Progressivism is at its center, an elite central authority
unilaterally making policy policy.” One assumes that Wilson means for Progressives to be Queen
[xii] The Marshall Court and traditional judicial review was significantly influenced
and formed by Joseph Story as well as John Marshall.
[xiii] In his Foreword to Reading Law: The Interpretation of Legal Texts, Anton Scalia and
Bryan A Garner, 2012
[xiv] Wolf, Modern Judicial Review, p. 18 writing on traditional review taking from the original source,
Blackstone’s Commentaries. A review of Blackstone’s Commentaries describes traditional review
in considerable more detail than can be included here.
[xvi] Ibid, p. 18 – 20
[xx] Alexander Hamilton writing as Publius, Federalist 78
[xxi] Writs of Mandamus seek to compel a government entity to carry a ministerial function required by
[xxii] Article III, Section 2, Clause 2, sets forth in clear text and words the constitutionally permissible
areas of original jurisdiction for the Supreme Court … “In all Case involving Ambassadors and
other public Ministers and Counsels, and those in which a State shall be Party the supreme Court
shall have original jurisdiction.”
[xxiii] Legal Contrivers between states and matters involving foreign ministers.
[xxiv] The Constitution specifically enumerates powers for the institutions of the national government.
Functional enumeration, with some reasonable latitude for interpretation in narrow circumstance
is, in fact, the logical structure throughout.
[xxv] Wernick, Robert, Chief Justice Marshall Takes Law in Hand, pub. Smithsonian, Nov 1998, Vol 29
issue 8, p. 156
[xxvi] Antonin Scalia and Bryan A. Garner, Reading the Law: The Interpretation of Legal Text, foreword,
[xxvii] Charles Warren, U.S. Supreme Court Progressive: Its Decisions in Accord with the Spirit of the
Time, Criticism Proven Groundless by Citation of Cases, Columbia Law Review 1913. P 345 – 350
[xxviii] G. Edward White, The Constitution And The New Deal, Harvard University Press,
200. p. 277
[xxix] Ibid, See White, Chapter 11, writing on the original source essay by Felix Frankfurter, The
Constitutional Opinions of Mr. Justices Holmes, 29 Harvard Law Review 683, 1916
[xxxi] A number of contemporary scholars and academics are building a body of work demonstrating the
increasing authoritarianism arising from the Court’s drift away from constitutional restraint by
their use of modern judicial review. These would include Gary Lawson of Harvard, Chris Wolf
writing in The Rise of Modern Judicial Review , Ronald J.Pestritto of Hillsdale College writing in
American Progressivism, and Richard Morgan author of Coming Clean About Brown. These and
Similarly minded scholars are my source for the ‘constitutional necessity’ argument.
[xxxii] Charles Louis de Secondat, Baron Montesquieu, De l’Esprit des Loix, XI, 4.
[xxxiii] Ibid, 6
[xxxiv] Griswold v Connecticut, 381 U.S. 479, p 484