Judicial Review at the Constitutional Convention

In his podcast course on Colonial and Revolutionary America, Stanford history prof Jack Rakove criticizes those lawprofs who, he says, characterize the doctrine of judicial review as springing forth fully formed out of nothing from the pen of Chief Justice John Marshall, like Athena from the head of Zeus.

The doctrine, Rakove concedes, was not systematically developed at the time of the Philadelphia Convention. But the idea, he contends, was in the air and common currency among the delegates.

Without citing a particular speech, Rakove refers to arguments by delegate Elbridge Gerry criticizing James Madison's proposed council of revision. I tracked down one of Gerry's statements to which Rakove presumably refers, and I thought I'd go over it with you.

The Resolutions laid out by Edmund Randolph (almost universally believed to have been prepared by Madison) at the outset of the Convention included an Eighth Resolution by which a “Council of revision”, composed of both “the Executive” and “a convenient number of the National Judiciary”, would “ examine every act of the National Legislature before it shall operate”:

8. Resd. that the Executive and a convenient number of the National Judiciary, ought to compose a Council of revision with authority to examine every act of the National Legislature before it shall operate, & every act of a particular Legislature before a Negative thereon shall be final; and that the dissent of the said Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by ----- of the members of each branch.

The Convention, sitting as a Committee of the Whole, held an initial discussion concerning “Proposition 8th” on Monday June 4, 1787. Elbridge Gerry promptly objected to it. Among other things, Gerry suggested that the federal judiciary did not need to review laws in advance because it would have an opportunity to review them, and if necessary to set them aside as unconstitutional, after the fact (emphasis added):

First Clause of Proposition 8th. relating to a Council of Revision taken into consideration.

Mr. GERRY doubts whether the Judiciary ought to form a part of it, as they will have a sufficient check agst. encroachments on their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality. In some States the Judges had actually set aside laws as being agst. the Constitution. This was done too with general approbation. It was quite foreign from the nature of ye. office to make them judges of the policy of public measures. He moves to postpone the clause in order to propose "that the National Executive shall have a right to negative any Legislative act which shall not be afterwards passed by -------- parts of each branch of the national Legislature."

Rufus King of Massachusetts then jumped in in support of Gerry, amplifying a conclusion perhaps implicit in Gerry's remarks. Because federal judges would be evaluating laws after the fact, approving them in advance would compromise their judicial role:

Mr. KING seconds the motion, observing that the Judges ought to be able to expound the law as it should come before them, free from the bias of having participated in its formation.

The Corporate Origins of Judicial Review

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.