Alerted by Orin Kerr's post over at The Volokh Conspiracy, I read earlier today an article in the latest edition of the Yale Law Journal, The Corporate Origins of Judicial Review by Mary Sarah Bilder of Boston College Law School. From the introduction:
"This Article traces a new historical account of the origins of judicial review. It argues that judicial review arose from a longstanding English corporate practice under which a corporation's ordinances were reviewed for repugnancy to the laws of England. This English corporation law subsequently became a transatlantic constitution binding American colonial law by a similar standard of not being repugnant to the laws of England. After the Revolution, this practice of bounded legislation slid inexorably into a constitutional practice, as 'the Constitution' replaced 'the laws of England.' With the Constitution understood to embody the supreme authority of the people, the judiciary would void ordinary legislation repugnant to this supreme law. Over a century later, this practice gained a new name: judicial review. The widespread acceptance of this name eventually obscured the degree to which the origins of the practice lay in older practices regarding the delegated nature of corporate and colonial authorities, rather than in a new constitutional theory of judicial power."
With all due respect, I would say the article is OK but not great. On the plus side, I learned lots of things about the history of corporate charters (of both what we would now call commercial entities and municipal corporations). In addition, Professor Bilder's thesis, as a hypothesis, makes a lot of sense. It would explain, for example, why so many of the founding generation seem to have assumed that some sort of judicial review existed without ever discussing it in detail -- in the corporate context, it was just part of the generally assumed legal background, so common that no one thought to re-examine it or analyze it. But where the article falls down, I think, is in its failure to point to hard evidence establishing that limitations on corporate bylaws served as the unconscious blueprint for what we now call judicial review.
Make no mistake, the article is well worth reading. Professor Bilder may well be correct, and the journey is a fascinating one. I'm just not sure she gets us all the way to her destination.
"This Article traces a new historical account of the origins of judicial review. It argues that judicial review arose from a longstanding English corporate practice under which a corporation's ordinances were reviewed for repugnancy to the laws of England. This English corporation law subsequently became a transatlantic constitution binding American colonial law by a similar standard of not being repugnant to the laws of England. After the Revolution, this practice of bounded legislation slid inexorably into a constitutional practice, as 'the Constitution' replaced 'the laws of England.' With the Constitution understood to embody the supreme authority of the people, the judiciary would void ordinary legislation repugnant to this supreme law. Over a century later, this practice gained a new name: judicial review. The widespread acceptance of this name eventually obscured the degree to which the origins of the practice lay in older practices regarding the delegated nature of corporate and colonial authorities, rather than in a new constitutional theory of judicial power."
With all due respect, I would say the article is OK but not great. On the plus side, I learned lots of things about the history of corporate charters (of both what we would now call commercial entities and municipal corporations). In addition, Professor Bilder's thesis, as a hypothesis, makes a lot of sense. It would explain, for example, why so many of the founding generation seem to have assumed that some sort of judicial review existed without ever discussing it in detail -- in the corporate context, it was just part of the generally assumed legal background, so common that no one thought to re-examine it or analyze it. But where the article falls down, I think, is in its failure to point to hard evidence establishing that limitations on corporate bylaws served as the unconscious blueprint for what we now call judicial review.
Make no mistake, the article is well worth reading. Professor Bilder may well be correct, and the journey is a fascinating one. I'm just not sure she gets us all the way to her destination.
Review of Legislative Acts was not only contemplated, the topic was discussed at length during the Constitutional Convention. Only 11 of the 55 delegates to the Constitutional Convention, according to Madison's notes, expressed an opinion on the desirability of judicial review.
ReplyDeleteIt was Oliver Ellsworth who was the driving force behind keeping judicial review out of the Constitution. I believe this was done to eliminate the contemplation of intrusion on State's sovereignty, and to address the post-revolutionary sentiment that would have likely made ratification impossible had an unelected branch of government been granted such power by the Constitution, with the only way to remove it, in case of perceived abuse, being that of constitutional amendment.
I thought you were on to something when you posted about the 25th Section of the Judiciary Act of 1789, and the House Journal of 1831 relating to the effort to repeal that Section. Unfortunately, I think you may have looked at the information while wearing "lawyer's blinders". -A common phenomenon whereby we have an unconscious tendency to rely on which is taught in Law School (by a professor whom you trusted by default), rather than look solely at the information you are reviewing. -This is also known as "cached thought" -or "blind faith". I don't mean this to be an insult...unless you consider being human to be an insult. :>)
The Federal District Courts had no authority to rule on the validity of U.S. laws. (Today, most judges have confused the personal obligation indentified by the Supremacy Clause…That they can disobey an unlawful order, by giving it no force, at their own peril, -if they believe that law to be repugnant to the Constitution; with that of the power to invalidate the same.) However, a litigant did have the ability to claim protection under the Constitution from laws created by Congress that were repugnant to the Constitution. The third provision of the 25th Section provides for Supreme Court review if such a claim is presented.
A narrow view, that would consider the 25th Section to permit the Supreme Court to address validity, only after a state court made a final decision, while, in essence, preventing the same from being a final decision, in a federal court, would be illogical. If you look closely at the Judiciary Act of 1789, you will see that courts created by a state are indentified as “state court” (Section 12). You should also note that federal circuit courts created by the Act are identified as those of a state.
The principle author of the Act was no other than the same man who made sure that Judicial Review was not included in the Constitution -Oliver Ellsworth...who went on to be the 3rd CJ of the Supreme Court.
You should also note that Marbury is not cited in the House Journal on this subject. In fact, Marbury is not cited for the power of judicial review until Mugler v. Kansas (1887). In fact, the 25th Section is cited for the Court's authority in Scott v. Sanford (where SCOTUS ruled part of the Missouri Compromise to be unconstitutional) on appeal from the Circuit Court of Appeals -a federal court.
Is the citation of Marbury as the Court’s authority in Mugler v. Kansas a flaw in the Doctrine of Stare Decisis, or an attempt to solidify the Court's power and prevent future efforts for repeal of the 25th Section? -I doubt we will ever know.
One thing I am fairly sure of; had Chief Justice Marshall conjured-up the power of judicial review, based on the words contained in the Federalist Papers (written by Hamilton--who was not present for most of the Convention) and some claimed implication in the Constitution, rather than exercising a power that was clearly granted by the Judiciary Act...We probably would have seen our first civil war in 1803.
Should you desire additional information; feel free to contact me at jim (symbol) kahuna (period) com.