By Paul K. Savage
With a will and a
self-restraint
That's the envy of every Saint
I could easily work a
miracle or two.
-Sir Lancelot, in Lerner and Loew's "Camelot"
Judicial Review is one of those subjects that always attracts a lot of printer's ink. Due to the importance of judicial review in modern government, the subject probably deserves the attention it gets. In these pages I do not explore judicial review as a function of judicial activism, but rather as one of judicial self-restraint, setting forth a pattern that, I believe, was intended to be followed by the other branches of government, though it has become dangerously close to being abandoned since the early part of the twentieth century. In exploring this theme, I will argue that the judicial review as advocated by John Marshall in Marbury was not an americanized adaptation of Edward Coke's Dr.Bohnam's Case, but rather reflected a positivist mentality attached to a written constitution; still, elements of the common law tradition shaped the judicial function in such a way that the courts cannot fully protect the rights of the American people without the voluntary self-restraint of coordinate branches of government. Alexander Hamilton once suggested that "Bad principles in Govt. tho slow are sure in their operation and will gradually destroy it."1 I suggest that such is only the case if bad "people" are in government, for good people are governed as much by conscience as by law; it is when "law" becomes the extent of "conscience" that principles in government matter most.
Sir Edward Coke's (1552-1634)2 writings once comprised the heart of a legal education in the American colonies. He has been called the "legal father of judicial review,"3 but if so his American progeny is arguably illegitimate and his British progeny was stillborn.4 Coke's paternity claims arise, of course, from The Case of the College of Physicians (Dr. Bonham's case),5 in which Thomas Bonham appealed to the courts on the claim of having been falsely imprisoned by the President and Censors of the Royal College of Physicians. The College, under authority of a statute from Parliament, had fined Dr. Bonham for practicing medicine without a license from them, accused him of being incompetent--although he was in fact physician trained at Oxford--and later imprisoned him for refusing to pay the fine. It was the legality of the imprisonment that was at issue, which hinged, of course, on the legality of the fine.6
In finding in Dr. Bonahm's favor the Court of Common Pleas, with Lord Coke sitting as Chief Justice, held that the college was without authority to imprison. Coke gave five points why he thought so, all of which speak directly to the lack of power in the college to imprison except the fourth point, which speaks to power to fine.7 In this fourth point, Coke suggested that the proceedings against Dr. Bonahm were improper, since the college was to receive half of the fines it levied. Because of their pecuniary interest in the outcome of the proceedings, Coke suggested that the college was actually a party in the case and as such, should not also be the judges in the matter according to common law tradition: a man should not be a judge in his own case. With this finding came the famous statement:
And it appears in our books, that in many cases the Common Law will control Acts of Parliament and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the Common Law will control it and adjudge such Act to be void.8
This remarkable sentence has continued to stir up controversy since the moment it was first published. The source of the controversy, of course, is the notion that the Common Law may adjudge an Act of Parliament void if it is against common right and reason. Astonishingly, the court says it without doing it, for it has been well established that, "As for the 'controul' exercised by the Common Law over statutes, it may readily be explained as construction."9 Thus, the courts construe the acts in such a way that the results aren't absurd.10 If an act of parliament wants to run off a cliff, the courts will try to steer it aright, but where that is absolutely impossible because of repugnancy 11 or impossibility, the courts will let the statute self-destruct.12 This is not the same as the modern practice in the United States--where the judiciary may declare a statute inoperative for all future time--but is contingent on the facts of the case before the courts.13
The hot question in all of this is what Lord Coke was thinking when he said that common right and reason might control an act of Parliament. The evidence does seem to suggest that when Coke was making his oral pronouncement of the holding, he wasn't attempting to say anything of a new or extraordinary character.14 Coke's Institutes, for example, do not convey the feeling that Coke "conceived of a body of law as fundamental in the sense of being unchangeable, but it is quite clear that he did believe, whether as a judge, a politician, or as a legal commentator, that there was a great body of law which was in its general principles dangerous to change,"15 which danger might be averted in part by strict construction.
Yet as a reporter of the case, Coke did seem to be making a stronger claim for the common law than he had made from the bench,16 and Coke's contemporaries appear to have understood his position to have been in the stronger "judicial review" sense.17 In this respect, it might be said that Coke's thoughts on the subject are merely academic: what matters is what others thought he thought. And since Coke's report of the case would of necessity form the basis of contemporary and later opinion, a colorable claim for judicial review might persist.
It is quite clear that Lord Ellesmere considered Coke's positions as advocating something more than mere construction. In an apparent jab at the philosophy imputed to the latter, Ellesmere extolled the virtues of his grandfather, a former Chief Justice of the Common Pleas,
He questioned not power for the Judges of this Court to correct all misdemeanors as well extrajudicial as judicial, not to have power to judge Statutes and Acts of Parliament to be void, if they conceived them to be against common right and reason; but he left the King and the Parliament to judge what was common right and reason. I speak not of impossibilities or direct repugnancies.18
For Lord Ellesmere, questions of common right and reason were about "policy,"19 not law, and as such were best left to those branches of government suited to deciding policy. Law, the realm of the judiciary, would only control once policy were enshrined in statute. It was the apparent suggestion that the common law--embodying the wisdom, or common right and reason, of ancient scholars--might actually dictate policy in some instances that resulted in Lord Coke's removal from the Court of Common Pleas to the King's Bench. But the idea could not be so easily erased. His successor as Chief Justice of the King's Bench, Sir Henry Hobart, followed Coke's view of the common law as may be seen in Day v. Savadge 20 and Lord Sheffield v. Ratcliffe,21 thus leading scholars to suggest that "It is impossible to deny that Hobart's doctrine is implicit in that of his predecessor."22 Rouswell v. Ivory in Chancery also follows Bonham in its stronger judicial review sense.23
To whatever extent the notion of common law supremacy may have survived Coke's generation, "As a practical issue in English constitutional law, the Revolution of 1688 marks the abandonment of the doctrine of Bonham's Case and the realization of the futility of seeking permanence in a legal system which was suffering change as inevitable as it was radical."24 But it should be remembered that the American colonies were well established by 1688. Whatever inevitability may have driven the radical changes in England, it did not, apparently, reach to the distant American soil. Just as pre-1688 notions of British Constitutionalism seemed to persevere in the colonies,25 so also did pre-1688 notions of common law. This was maintained by virtue of the colonial legal education system, if it could be called a system, which relied heavily upon Coke's writings and early British cases. One case which would prove influential in later American decisions was The Duchess of Hamilton's Case wherein Sir Thomas Powys suggests that
in Day and Savadge in Hobart, 87 it is indeed said that an Act of Parliament may be void from its first Creation, as an Act against Natural Equity; for Jura Naturae sunt immutabilia, sunt leges legum. But this must be a very clear Case, and Judges will strain hard rather than interpret 26 an Act void ab initio.27
This cobblestone of a notion of judicial restraint except in "a very clear case" helps pave the road down which the United States Supreme Court will later travel. Another cobblestone was supplied by Mr. Blackstone, though with significant variations from that which he would have preferred. Blackstone's oft quoted saying regarding the power of the courts over acts of parliament reads,
Lastly, acts of parliament that are impossible to be performed are of no validity; and if there arise out of them collaterally any absurd consequences, manifestly contradictory to common reason, they are, with regard to those collateral consequences void. I lay down the rule with these restrictions; though I know it is generally laid down more largely, that acts of parliament contrary to reason are void. But if the parliament will positively enact a thing to be done which is unreasonable, I know of no power that can control it: and the examples usually alleged in support of this sense of the rule do none of them prove, that where the main object of a statute is unreasonable the judges are at liberty to reject it: for that were to set the judicial power above that of the legislature, which would be subversive of all government.28 But where some collateral matter arises out of the general words, and happens to be unreasonable; there the judges are in decency to conclude that this consequence was not foreseen by the parliament, and therefore they are at liberty to expound the statute by equity, and only quoad hoc disregard it.... But...there is no court that has power to defeat the legislature, when couched in such evident and express words, as leave no doubt whether it was the intent of the legislature or no.29
Blackstone's conception of Parliamentary sovereignty had not taken hold in the colonies.30 Hence we see language in colonial courts hearkening back to Coke in justification of invalidating legislation, both domestic 31 and parliamentary.32 The notion of parliamentary sovereignty, however, was not wholly lost in the post-revolution American system, nor were Blackstone's positivist philosophies. First let us consider the latter.
Positivism suggests, of course, that all law is of human origin, that there is no higher, fundamental law than that which comes from earthly bodies.33 For Blackstone, this meant that Parliament was supreme: there is nothing that Parliament cannot do. But as Professor Black points out,
Positivism...is a game any number can play. It is not a necessary consequence thereof that those who make the ordinary laws be unbridled. If all law is of human invention and a mere act of will, well, a sovereign people can exercise its will to bind those who legislate--with, for example, a written constitution, adopted in a special, solemn manner by the people, and not subject to alteration by any but the extraordinary procedures therein established.... That, of course, is what we did, We the People of the United States. What we did first was to accept that the people, not their representatives, are the highest lawmaking body, and then to adopt as a people a constitution that is law. We bound our representatives by law.34
The Constitution, then, is an expression of positivism. The sovereign people laid down the "supreme law of the land,"35 than which nothing on earth is higher; but, the Constitution isn't the only "supreme" among laws. Also qualifying are those "Laws of the United States which shall be made in Pursuance thereof; and all Treaties made...under the Authority of the United States."36 Hence, as long as it acts within the limits set forth within the Constitution, the legislature 37 has its day in the sun and knows no limits. Keeping the legislature within those limits that are imposed by the people has been the historical challenge.
It is well known that the Constitution does not expressly grant the power of Judicial Review to the courts. A distinction must be made, of course, between two different types of review, coordinate and constituent.38 Constituent Judicial Review, meaning the power of the Supreme Court to rule state laws unconstitutional, is most controversial in modern times, because the most controversial laws dealing with individual rights are clearly generated in state political machinery (ie. Roe v. Wade, Brown v. Board of Education, Griswold v. Connecticut, etc.). Yet these controversies generally hinge on methods of interpreting the Constitution, rather than on the legitimacy of the review itself. I do not deal with constituent review in these pages--except collaterally 39--but limit the remaining discussion to coordinate review, the power of the Supreme Court to sit in judgment on the acts of other branches of the central government. What the Framers intended for Judicial Review will vary, of course, on whom you ask. Many people "framed" the Constitution and some would even claim to have been "framed" by it.40 We have judicial review, whether legitimate or not, whether incontrovertibly rooted in the Constitution 41 or founded on the expediency of the age,42 we have it. So instead of discussing intent, I deal with effect--what happened, for better or worse.
It would have been convenient--in terms of confirming the framer's intent--if Marbury had been decided in 1789 rather nearly fifteen years later, but no such opportunity presented itself. The first instance in which the constitutionality of a federal law was challenge did not arise until 1796. In Hylton v. United States,43 a tax on carriages was challenged as being unconstitutional under the prohibition against levying direct taxes. In a decision upholding the law, newly appointed Justice Chase declared:
As I do not think the tax on carriages is a direct tax, it is unnecessary, at this time, for me to determine, whether this court, constitutionally possesses the power to declare an act of Congress void, on the ground of its being made contrary to, and in violation of, the Constitution; but if the court have such power, I am free to declare, that I will never exercise it, but in a very clear case.44
The language is reminiscent, of course, of that of The Duchess of Hamilton's Case.45 The courts were cautious in exploring the limits of their power. What clearer case could arise than a statute which would seem to alter the judiciary's constitutional jurisdiction? This brings us to Marbury.
46
When a statute gave the Supreme Court original jurisdiction in an instance where the Constitution seemed to suggest only an appellate jurisdiction, the statute was declared void by the court. John Marshall was not shy about declaring his views:The government of the United States has been emphatically termed a government of laws, and not of men.... That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.... The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.... Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.... It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret the rule. If two laws conflict with each other, the courts must decide on the operation of each.47
The statute extending the court's jurisdiction was void because it was repugnant to the Constitution. It should be noted at this point that the elements involved in "Cokes question" do not arise in this context. There is no question regarding whether a fundamental law requiring common right and reason binds the legislature; it is the Constitution which forms the fundamental law: it binds axiomatically. That is enough. The language and reasoning is clearly reminiscent of Alexander Hamilton's arguments in the Federalist Papers:
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act therefore contrary to the constitution can be valid. To deny this would be to affirm that the deputy is greater that his principal; that the servant is above the master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorise, but what they forbid.48
British Parliament did, in fact, assert that the representatives of the people were superior to the people themselves, which is why the colonies rebelled. It was to prevent this from happening again on American soil that 1) the Constitution was written and made law, and 2) The Constitution itself requires that all who hold significant public offices under it "shall be bound by Oath or Affirmation, to support this Constitution."49
But the question remains: who decides what the Constitution means? The Marbury court said, when it comes to judicial questions, we do.50 Had the political climate been otherwise, it might have been tempting for the courts to accept their newly given jurisdiction to issue writs of mandamus against public officials. Conversely, it might have been tempting in other circumstances to use the power of judicial review to strike down legislation more aggressively. Surely, the court missed an opportunity in Hylton v. United States 51 to maximize its power, choosing instead to exercise restraint except in "a very clear case." A culture of judicial restraint must be credited for many of the early decisions.52 Perhaps the greatest irony inherent in the concept of judicial review--in light of Bonham's case--is that the decision to exercise authority by the courts is left largely up to the judges themselves: when it comes to determining the extent of their power, these Supreme Court justices are--in a sense--judges in their own case.53
Through means of checks and balances, the framers installed mechanisms to achieve fundamentals, with freedom from tyranny being the most fundamental principle of all. Despite these mechanisms, the need for some measure of self-restraint persisted. George Washington, in his Farewell Address to the nation, counselled,
It is important...that the habits of thinking in a free Country should inspire caution in those entrusted with its administration, to confine themselves within their respective Constitutional spheres; avoiding the exercise of the Powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all departments in one, and thus to create whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power; by dividing and distributing it into different depositories, and constituting each the Guardian of the Public Weal against invasions by the others, has been evinced by experiments ancient and modern; some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them. If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can any time yield.55
Washington's warning is directed towards the officers of the government, not to the people. But why does Washington encourage self-restraint, not just checks and balances?
The newly united states adopted the system that they thought should have existed under British rule, namely that the King in Parliament had the power to represent the colonies in all external/international matters (such as trade agreements and the sending and receiving of ambassadors), yet have little power to meddle in domestic affairs.56 This principle was thought--by the colonials--to have been thoroughly embedded within the British Constitution. Yet the British system was deemed oppressive because power was not checked. The King, viewed by the colonials as the protector of their rights 57 against usurpations by Parliament, failed to intercede on their behalf. The Declaration of Independence therefore asserts among the colonists' grievances against the King:
He has combined with others [ie. Parliament] to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws, giving his assent to their acts of pretended legislation.58
It is doubtful that the King had any constitutional power at this point in history to prevent Parliament from acting as it did. But not all restraints must be viewed in legal terms. Blackstone, for instance, in his 1778 edition of the Commentaries added the following (underlined phrase) to the sentence quoted above 59 regarding the power of Parliament to enact whatever it wants: "I know of no power in the ordinary forms of the Constitution that is vested with authority to control it." This may suggest that an act is subject to extra-legal (ie. extra-ordinary) powers such as armed force or "moral force of public resentment,"60 but also that the King possessed certain powers of persuasion that he might have exercised in the colonists' behalf. That he refused to do so was politically expedient for him in terms of his domestic affairs, but for the colonists King George sacrificed his duty at the alter of politics: this made him a tyrant.
Whether the means of checking power in another body are extra-legal (in terms of persuasion) or legal (by judicial review or a veto power), the constitutional culture of separation of powers in the United States creates a certain amount of inertia.61 Overcoming this inertia requires, generally, a very clear case of power grabbing,62 or to use Washington's word, usurpation. Small, incremental changes in the balances in power may ruffle some feathers but seldom bring the legal checks in force.63
That the courts have a role, through judicial review, in preventing unconstitutional acts by the government is clear, but the question remains: to what extent do other bodies of government have concurrent responsibilities by virtue of their oaths to support the Constitution. If the Supreme Court is to be the sole guardian of the Constitution, and if judicial self-restraint will allow invalidation only in a very clear case, does that allow room for abuse? What if the very clear case extends chiefly to the political process, ie. insuring that all parties may participate, rather than working towards value-oriented outcomes?64 Does that mean, once again, that--except for the Bill of Rights restrictions--there is nothing that the Congress can't do? Well, no! Because the courts don't just look at process, they also demand a certain degree of rationality in lawmaking. The notion of rationality was first enunciated in McCulloch v. Maryland,65 suggesting that Congress' means, under the 'necessary and proper' clause, must have a rational connection to legitimate ends.
Determining what is "necessary and proper" to the achievement of some legitimate government end has been the subject of many a Supreme Court decision, beginning most famously with McCulloch, where Chief Justice John Marshall declared: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end,...are constitutional."66 The appropriateness of legislation as determined by Congress is granted considerable deference by the judiciary, who--in the absence of the Tenth Amendment restraints rejected in Garcia 67--hesitate in commercial matters to substitute the Court's judgment for that of the elected legislature.68 In general, all activities--including agriculture, criminal activities or discriminatory conduct--that in any way "affect" commerce between the states may be subject to federal regulation.69
In short, though some might view the emergence of a rationality standard as Coke coming in through the back door,70 we soon see that the door is very small in modern practice. Locke's natural law limits also avail us little. John Locke suggested that there are some powers that the people cannot give to government (ie. there may be limits even to positivism) because a person cannot give what a person does not possess. And since a person does not possess the power to be arbitrary with one's self, a person may not give government the power to be arbitrary.71 But legislating short of arbitrariness still leaves tremendous room for maneuvering.
Which brings me back to inertia. As long as the Justices take the view that the Framers "did not make the judiciary the overseer of our government,"72 except in those justiciable cases that come before their tribunals, the system cannot be preserved without "the habits of thinking in a free society...[inspiring] caution in those entrusted in with its administration, to confine themselves within their Constitutional spheres."73 Ultimately, then, the integrity of the system was to be preserved by the integrity of its office holders.
In the internal sphere, the need for some measure of self-restraint is axiomatic: "All things are lawful for me, but all things are not expedient: all things are lawful for me, but all things edify not."74 Self-regulation is often in one's own best interest, especially if one believes in some form of eternal judgment. But in the political sphere, the need for self-regulation is not always apparent, especially when human nature itself seems to work against such self-restraint:
To this strange doctrine--viz., that in the state of nature everyone has the executive power of the law of nature--I doubt not but it will be objected that it is unreasonable for men to be judges in their own cases, that self-love will make men partial to themselves and their friends. And on the other side, that illnature, passion, and revenge will carry them too far in punishing others; and hence nothing but confusion and disorder will follow; and that therefore God hath certainly appointed government to restrain the partiality and violence of men. I easily grant that civil government is the proper remedy for the inconveniences of the state of nature, which must certainly be great where men may be judges in their own case, since 'tis easy be imagined that he who was so unjust as to do his brother an injury, will scarce be so just as to condemn himself for it.75
One might say that self-restraint is unnatural--contrary to the law of nature. John Locke asserted as much. And he asserted that civil government was the cure, the proper mechanism to prevent the evils of men being judges in their own case. However, as has been shown above, unless some measure of self-restraint is shown by those who govern, unless they judge their own cases regarding the limits of their power and are willing to find their grants of power wanting, their powers will increase by gradual usurpation--in proper British parliamentary fashion. That some form of public virtue within is necessary to check the pursuit of self-interests without was advance also by John Stuart Mill:
The disposition of mankind, whether as rulers or as fellow-citizens, to impose their own opinions and inclinations on others, is so energetically supported by some of the best and by some of the worst feelings incident to human nature, that it is hardly ever kept under restraint by anything but want of power; and as the power is not declining, but growing, unless a strong barrier of moral conviction can be raised against the mischief, we must expect, in the present circumstances of the world, to see it increase.76
In support of the necessity of a sense of moral conviction, George Washington followed his counsel on self-restraint in Government with the following sentiments:
Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labour to subvert these great Pillars of human happiness, these firmest props of the duties of Men and citizens. The mere Politician, equally with the pious man ought to respect and to cherish them.77
Ultimately, the best mechanism government can find in prevent usurpation of power is the oath that office holders take to support the Constitution, if that oath is backed by a firm conviction that such an oath is binding for moral if not for legal reasons. But even moral conviction may not suffice. Consider, for example, two opposing views of the powers and limits of the presidency:
President Theodore Roosevelt: "I declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it. My belief was that it was not only his right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws."78
President Taft: "The true view of the Executive function is, as I conceive it, that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary to its exercise.... [It is argued] that the Executive is charged with responsibility for the welfare of all the people in a general way, that he is to play the part of a Universal Providence and set all things right, and that anything that in his judgment will help the people he ought to do, unless he is expressly forbidden not to do it. The wide field of action this would give to the Executive one can hardly limit."79
Each of these two may be equally true in their minds to their oaths to support the Constitution, yet as they sit in judgment on their own cases, the results will differ dramatically. Whether one views government as one of enumerated powers or enumerated limits makes all the difference. As citizens, our assurance that power will not be usurped depends on three factors: 1) legal restraints provided by mechanism such as judicial review; 2) a moral conviction on the part of office holders that it is wrong to usurp authority; and 3) the election of individuals to office whose view of the nature of limited government accurately corresponds with the principles of U.S. constitutionalism. All three of these elements are, in my view, crucial to the preservation of constitutional liberty. But all three can be subverted in a very subtle fashion.
The premise underlying the notion of self-restraint is that the individual, when guided by proper principles, is in a better position to govern one's self than is an outside body. Conscience is harder to escape than the eyes (or the long arm) of the law. The old adage asks whether a tree falling in the forest makes a sound if their was no one there to hear it. We might rephrase the question to ask whether such and such an activity is wrong if the perpetrator doesn't get caught. If it were somehow morally wrong--though technically not illegal--to cut down trees, the would-be lumberjack with a conscience would hesitate to do so (or perhaps would confess to having done so, like in the George Washington fable). But if one's moral sense is only dictated from without, the question becomes one of legality. What is legal, is allowed. What is not legal is not allowed. Is it allowed if nobody every finds out? Is it allowed if it is obviously wrong, but the legislature hasn't gotten around to outlawing it yet?
Alexis Solzhenitsyn, a dissident in communist Russia, warned Americans of what he saw as an alarming trend in American society, a trend that he referred to as "legalistic."80 That trend was what he viewed as the increasing tendency to view life not in terms of right or wrong but in terms of legal or illegal. Such "legalism" shifts the burden of conscience to society, thereby releasing the "self" from the need to make moral decisions. Laws might be appropriately considered the collective conscience of society, but the notion that laws comprise the sum total of society's conscience is a frightful thought. Legalism, in short, brings all mankind to the door of young attorneys like Abraham Lincoln in Springfield. Only individual conscience brings him to say:
Yes, we can doubtless gain your case for you; we can set the whole neighborhood at loggerheads; we can distress a widowed mother and her six fatherless children and thereby get you six hundred dollars to which you seem to have a legal claim, but which rightfully belongs, it appears to me, as much to the woman and her children as it does to you. You must remember that some things are not morally right. We shall not take your case, but will give you a little advice for which we will charge you nothing. You seem to be a sprightly, energetic man; we would advise you to try your hand at making six hundred dollars in some other way.81
Few would argue against the need for individual conscience. Few would indeed argue against the need for more conscience in society. Indeed as the founders wisely foresaw, a measure of moral conviction is necessary under our system of government:
Benjamin Franklin: "Only a virtuous people are capable of freedom. As nations become corrupt and vicious, they have more need of masters."82
John Adams: "Our Constitution was made only for a moral and a religious people. It is wholly inadequate to the government of any other."83
Samuel Adams: "Neither the wisest constitution nor the wisest laws will secure the liberty and happiness of a people whose manners are universally corrupt."84
The need to govern one's self on the basis of some standard higher than mere self-interest or expediency extends far beyond to realm of the individual. As has been argued above, it must reach into political decision-making. The individual politician cannot abdicate his or her own responsibility to sit in judges in their own case in the first instance. Checks and Balances in government are designed only for appeals from those decisions in a minority of very clear cases. For a governmental official to abdicate responsibility for self-restraint to outside bodies is governmental "legalism," and the dangers of such a Weltanschauung is just as great for society as individual "legalism" is for the individual.
Perhaps the greatest change in American government occurred during the "New Deal" era. Government had some nifty new tools to work with: the power to tax incomes (XVI Amendment) and a Senate not subject to the same kind of federalism restraints as had been in place for the first century under the Constitution (Amendment XVII).85 Moreover, the government had a crisis to overcome: The Great Depression. One of the prevailing questions, however, was whether Roosevelt's proposed solutions were constitutional. By this point in history, the courts had assumed a more active role in its judicial review than had been the case in the nineteenth century.86 So, out of political expediency, President Franklin D. Roosevelt decided to leave the ball in their court (pardon the expression). Writing to a congressional committee, Roosevelt encouraged them not to consider the constitutionality of a statute under their view:
Manifestly, no one is in a position to give assurance that the proposed act will withstand constitutional tests. [But] the situation is so urgent and the benefits of the legislation so evident that all doubts should be resolved in favor of the bill, leaving it to the courts, in an orderly fashion, the ultimate question of constitutionality. A decision by the Supreme Court relative to this measure would be helpful as indicating [the] constitutional limits within which this Government must operate. [I] hope your committee will not permits doubts as to constitutionality, however reasonable, to block the suggested legislation.
87 Despite the fact that Roosevelt's efforts to use the power of the Presidency to help people in need might be considered admirable, his encouragement of others not to seriously weigh for themselves the limits of their powers under the Constitution, seems to me to be akin to conspiracy of which the colonists accused the King in Parliament.88 It is advocating governmental "legalism," suggesting whatever the Courts will let Congress get away with is right. This is particularly troubling in light of the executive's ability to influence judicial decisions through appointment.89 If the Executive and Legislative branches are willing to allow the judiciary to have the deciding word on all matters of the constitution--without any thought to governing according to one's own judgment of the meaning of the enumerated powers--what meaning has their oath and to what extent does the constitution guide them? Government becomes obedience to the bench, rather than government according to the Constitution of a people acting in their sovereign capacity.
Obviously, in this article I have been talking about both apples and oranges when I use the common law maxim against a person being a judge in one's own case, which formed the basis for the judgment in Dr. Bonham's Case, to suggest that government officers must exercise a measure of self-restraint in fulfilling the duties of their offices. But the nature of the Judiciary which generally refuses--and appropriately so--to get involved in government policy making requires coordinate branches to be largely self-governing, to decide for themselves the extent of their powers. Limited government, as the Founders envisioned, can only be preserved under this system if its officers do not abdicate--for the sake of expediency--their responsibility to adjudge to outside bodies such as the judiciary. Checks and Balances are meant to be a safety net, the life boats on the good ship Constitution, if you will. To huddle the masses into the life boats for security not only makes for an uncomfortable voyage, it also leaves dangerously few souls at the helm to steer through dangerous waters.
Endnotes
** I am indebted to Professor Barbara Aronstein Black of Columbia Law School for her helpful comments and to Professors Lori Damrosch and Louis Henkin, also of Columbia Law School, for drawing various references to my attention.
1. James Madison, Notes of the Debates in the Federal Convention of 1787 133 (Norton paperback ed. 1987) (1840).back
2. For an interesting treatment of Coke's role in the development of the theories of natural law, positivism, and historical jurisprudence, see Harold J. Berman, The Origins of Historical Jurisprudence: Coke, Selden, Hale, 103 Yale L. J. 1651 (1994). back
3. 3. R. A. McKay, Coke -- Parliamentary Sovereignty or the Supremacy of Law?, 22 Michigan L. Rev. 215 (1924). Coke's role should not blind us to the influence of Roman Law, Christopher Saint German, Doctor and Student ch. 2 (many editions, 1531 ff.); and Emerich de Vattel, The Law of Nations (1758)(trans. Charles G. Fenwick). Vattel's influence on the Founding Fathers, with special emphasis on the foreign affairs powers, is explored in Daniel G. Lang, Foreign Policy in the Early Republic (1985).back
4. This is the expression that came to mind, but I am uncertain whether someone else uttered these words in my hearing, or whether they were original with me. back
5. 8 Co. 114a (C.P.); 2 Brownl. 255 (C.P. 1610).
6. See S. E. Thorne, The Constitution and the Courts: A Reexamination of the Famous Case of Dr. Bonham, in The Constitution Reconsidered 20 (Conyers Read ed., 1938). back
7. Although Coke's fourth point has often been called dictum, Thorne points out that in basing the right to imprison on the right to fine, "Coke's fourth point proves to be not a dictum but a very material portion of his argument." Id., at 21.back
8. This passage does not appear in the case manuscript, but rather was added later by Coke in his published reports. Charles M. Gray, Bonham's Case Reviewed, Proceedings of the American Philosophical Society 17 (1972). In his original oral argument, Coke "brought up the objections to a man's being a judge in his own case in a more incidental fashion," while discussing the other more substantive points. The evidence from the manuscript suggests that "Coke remodeled his opinion somewhat in writing it up, in this instance to no purpose except to make the logic of his opinion stand out more boldly, but with the effect of raising the argument from the maxim to a more conspicuous place than it originally had." Id., at 50. The manuscript drawn upon by Gray is British Museum Hargrave MS. 52. 16b ff.; 39 ff.back
9. McKay, supra note 3, at 223. "[T]he argument is derived from the ordinary common-law rules of statutory interpretation...." Thorne, supra note 6, at 21. "In sum, if we follow the manuscript report of Bonham's case, Coke only suggested a fairly obvious possibility of construction: filling out sketchy jurisdiction-conferring statutes so as to make with consistent with the common justice which transferences of jurisdiction are presumably meant to conserve or promote." Gray, supra note 8, at 43.back
10. "...though Coke's fourth argument is phrased in very wide terms, it visualizes no statute void because of a conflict between it and common law, natural law, or higher law, but simply a refusal to follow a statute absurd on its face." Thorne, supra note 6, at 21.back
11.. Ie. you say tomayto and you say tomahto, so I'll call the whole thing off.back
12. The common law courts would disallow a statute "in the sense of refusing to put into operation certain minor features which appeared to the judges as against common sense, or an exemption of the cases in question from the scope of the statute." McKay, supra note 3, at 225.back
13. "[T]o 'adjudge an act void' is not to declare it unconstitutional in the modern sense, or even to declare it beyond the power of Parliament to enact; it is little more, if any, than so to construe the meaning of any act that it will conform to the general reason of law.... It is, in short, a right of strict construction in the courts." Id., at 230.back
14. The manuscript report strongly reports the view that Coke subscribed to the following view when he gave his oral opinion, viz. that "statutes which, if they mean what they seem to mean, would enact something especially absurd, mischievous, or unlikely to have been intended should, if the test leaves any room for interpretation at all, be construed strictly to mean something more suitable." Gray, supra note 8, at 42.back
15. McKay, supra note 3, at 235. "I have not found anywhere [in the Institutes] any expression to the effect that the judges may do otherwise than put into effect the will of the framers of the statutes.... Of course, the framers may do unjustly, but the inference is that they did not intend to do so, and hence, if possible, the injustice must be removed." Id., at 237.back
16. "[W]hen he came to write his report, he fell to thinking about the transcendent power and excellence of the common law and became interested in showing the most that could be made of the authorities he had used in Bonham's case. He decided that they could indeed support a doctrine of 'judicial review,' though he had obviously not thought about the implications of such a doctrine." Gray, supra note 8, at 49.back
18. Quoted in McKay, supra note 3, at 229.back
19. To use the modern expression! (back)
20. Hobart, 85 (K.B. 1614). My interests in genealogy compel me to include reference to this case, although I am aware of no direct relation. Hobart does not cite to Dr. Bonham's case, but does follow similar reasoning. (back)
21. Hobart, 334a, 346 (K.B. 1615). (back)
22. Theodore F. T. Plucknett, Bonham's Case and Judicial Review, 40 Harvard L. Rev. 30, 49-50 (1926). (back)
23. Discussed in Gray, supra note 8, at 51ff. (back)
24. Plucknett, supra note 22, at 53. "Nevertheless, people continued to argue that the legislature was limited by reason, or perhaps even, by natural equity, and it is in this form that we find the last traces of the influence of Dr. Bonham's Case in England." Id., at 54. (back)
25. On this controversy, see generally, Charles Howard McIlwain, American Revolution: A Constitutional Interpretation (1923); John Phillip Reid, Constitutional History of the American Revolution: The Authority of Rights (1986); John Phillip Reid, Constitutional History of the American Revolution: The Authority to Tax (1987); Robert Livingston Schuyler, Parliament and the British Empire (1929); Barbara Black, The Constitution of Empire: The Case for the Colonists, 124 U. Pa. L. Rev. 1157 (1976); Martin Stephen Flaherty, The Empire Strikes Back: Annesley v. Sherlock and the Triumph of Imperial Parliamentary Supremacy, 87 Colum. L. Rev. 593 (1987). (back)
26. This case reflects a post-1688 mind set regarding the power of the courts to adjudge. "It is significant that even the application of Coke's principle is now to be decently veiled under the cloak of interpretation." Plucknett, supra note 22, at 58. (back)
27. 10 Mod. 115 (C.P. 1712). (back)
28. The Swiss, in modelling their form of government after the American example, expressly rejected the practice of coordinate judicial review for the very reasons Blackstone gives here. "[T]he constituent assembly of 1874 formally repudiated the solution adopted...in Marbury." J.F. Aubert, The Swiss Federal Constitution, in Introduction to Swiss Law 25 (F. Dessemontet and T. Ansay eds.,1981). They feared that judicial review as known in America would place judges in a position to substitute their interpretation of the Constitution for that of the Federal Assembly. This does not prevent the Judiciary from making decisions in the absence of clear legislative intent. Indeed, the Swiss system "attributes to judges a measure of freedom which seems greater than they have in other civil law jurisdictions..." Alfred E. Overbeck, Some Observations on the Role of the Judge Under the Swiss Civil Code 37 LA. L. R. 681 (1977). Barchi notes: "Expert opinion is also consulted to see that draft bills are in accordance with the Constitution. Care must be taken to see that their provisions come within the jurisdiction of the Confederation and do not infringe upon the rights of the cantons." Pier Felice Barchi, Political Institutions, in Focus on Switzerland: The Historical Evolution, Political Institutions 101 (1975). See also, Gerard Schmid, Justiz, in 2 Handbuch Politisches System der Schweiz (Strukturen und Prozesse)(Ulrich Klöti ed., 1984). Perhaps more importantly, with coordinate judicial review the courts could in theory declare unconstitutional a national law that had been previously approved by the people through the referendum; an outcome clearly unacceptable in the Swiss democratic climate. The problematic concept of judicial review of direct democracy in an American context is discussed in Julian N. Eule, Judicial Review of Direct Democracy, 99 Yale L.J. 1503 (1990) (argues for less judicial restraint in judicial review of direct democracy at state level to protect minorities). See also, Kris W. Kobach, The Referendum: Direct Democracy in Switzerland 248 (1993)(views judicial review to be one of the strengths of the California system, but recommends that opinions be rendered in an advisory capacity prior to being put to a popular vote). (back)
29. I Bl. Comm. 91 (1st ed. 1765). Compare with Ninth ed. 1778 quoted p. 18 below. Blackstone does not actually disagree with Coke, if Dr. Bonham's case is viewed as construction. See, Gray, supra note 8, at 43. (back)
30. Barbara Aronstein Black, An Astonishing Political Innovation: The Origins of Judicial Review, 49 U. Pitt. L. Rev. 694-95 (1988). (back)
31. See Giddings v. Browne, in 2 Hutchinsons Papers (Prince Soc. 1865) 1-15. (back)
32. See Paxton's Case, Quincy 51, 401 (Mass 1761, first published in 1865), in which Coke was used to fight against the Stamp Act as being against Magna Carta and hence ipso facto void. For a discussion of this and additional cases invalidating Parliamentary laws in the colonies through reference to the common law, see Plucknett, supra note 22, at 62-68. (back)
33. Positivism does not foreclose the existence of the heavenly laws, but rather leaves them to heavenly tribunals for administration. On earth, to Caesar is rendered that which is Caesar's, thus spiritual law--or natural law in whatever form--is given effect only through temporal means, e.g. incorporation into man-made laws. (back)
34. Black, supra note 30, 38, at 695-96. For an interesting discussion on the incorporation of natural law into the Constitution see the debate between Justices Chase and Iredell, in Calder v. Bull, 3 U.S. (4 Dall.) 386 (1798). (back)
35. U.S. Const. art. VI. Some have argued that judicial review is anti-democratic, in that it allows the courts to override the will of the legislature. "But the framers did not see judicial review as invalidating the will of the people. They saw the Constitution, too--or the Constitution in particular--as representing the will of the people. One might say they saw the Constitution as representing the people as 'constitutors,' whereas the legislature represents the people in a lesser capacity, the people as legislators.... The courts represent the people in their authentic sovereign capacity." Louis Henkin, Constitutionalism, Democracy and Foreign Affairs 76-77. (back)
37. And the Executive in its sphere. Consider the comments of John Marshall in Marbury v. Madison: "The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive or executive officers, perform duties in which they have a discretion. Questions in the nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court." 1 Cranch (5 U.S.) 137 (1803). (back)
38. For a succinct look at these two types of review, see generally, Black, supra note 30, 38. (back)
39. Although many of the arguments would be the same if I did. (back)
40. Certainly the anti-federalists might make this assertion. (back)
41. See Herbert Wechsler, Toward Neutral Principles of Constitutional Law, in Principles, Politics, and Fundamental Law 4-10 (1961). (back)
42. See Learned Hand, The Bill of Rights 1-30 (1958). (back)
43. 3 Dall. (3 U.S.) 171 (1796). (back)
44. Id., at 175 (emphasis in original, but I would have done it if the reporter hadn't). (back)
45. Discussed above at p. 8. (back)
46. 5 U.S. (1 Cranch) 137 (1803). (back)
48. The Federalist No. 78 (Hamilton). (back)
49. U.S. Const. art. VI, cl. 3. (back)
50. Which response shouldn't be troublesome if Hamilton is to be believed: "[Whoever] attentively considers the different departments of power must perceive, that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them. The judiciary [has] no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgement." The Federalist No. 78 (Hamilton). (back)
51. Discussed at p. 12, above. (back)
52. On interpretation under the Marshall court, see John Choon Yoo, Note, Marshall's Plan: The Early Supreme Court and Statutory Interpretation, 101 Yale L. J. 1607 (1992). (back)
53. Justices are bound of course by the Constitution, but consider this from Justice Charles Evans Hughes: "We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and our property under the Constitution." See also Cooper v. Aaron, 358 U.S. 1 (1958)("the interpretation...enunciated by this Court...is the supreme law of the land"). We take philosophical solace, perhaps in such thoughts as this, expressed in a letter from Thomas Jefferson to James Madison, regarding the judiciary; "This is a body, which if rendered independent, and kept strictly to the their own department merits great confidence for their learning and integrity." quoted in The Democracy Reader 134 (Diane Ravitch and Abigail Thernstrom eds., 1992). (back)
54. U.S. Const. art. III, sec. 1. (back)
55. Quoted in Ravitch, supra note 53, at 139. (back)
56. See note 25, 25 above. "Many of our colonial forbears' complaints against British rule were phrased in 'constitutional' terms. Seldom, however, was the claim one of deprivation so some treasured good or substantive right.... 'Constitutional claims thus were often jurisdictional--that Parliament lacked authority, say, to regulate the colonies' 'internal commerce'--the foundation for the claim being generally that we were not represented in Parliament.... Or they were arguments of inequality: claims of entitlement to 'the rights of Englishmen' had an occasional natural law flavor, but the more common meaning was that suggested by the words, a claim for equality of treatment with those living in England." John Hart Ely, Democracy and Distrust 88-89 (1980). (back)
57. The colonists doubtless agreed with Coke that it is the king's natural duty to safeguard the community and that the king is the supreme lawgiver. Berman, supra note 2, at 1673. Remember that subsequent changes in British politics occurred after the colonies were founded, and the colonists argued that they did not acquiesce to the rise of Parliament. (back)
58. Thomas Jefferson, The Declaration of Independence para. 16. (back)
60. Plucknett, supra note 22, at 60-61. (back)
61. Consider, for example, the Political Questions doctrine, Baker v. Carr, 369 U.S. 186 (1962)("there is not a judicial remedy for every political mischief"). (back)
62. Ie. Youngstown Sheet & Tube Co. v. Sawyer [The Steel Seizure Case] 343 U.S. 579 (1952)(court held that the Executive went too far in taking over operation of nation's steel industry under the guise of wartime necessity). (back)
63. This is especially the case in federalism issues, which are beyond the scope of this paper, but consider this thought from Thomas Jefferson: "When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided on one government on another and will become as venal and oppressive as the government from which we separated." 15 The Writings of Thomas Jefferson 332 (Albert Ellery Bergh ed., 1907). (back)
64. As per the Carolene Products footnote, United States v. Carolene Products Co., 304 U.S. 144, footnote 4 (1938); See Ely, supra note 56, at ch. 4; see also, Henry Monaghan, Our Perfect Constitution, 56 N.Y.U.L. Rev. 353 (1981). But see Gerard E. Lynch, Review of John Hart Ely's Democracy and Distrust, 80 Colum. L. Rev. 857 (1980). The underlying presumption in Carolene Products might be said to include the notion that it is against reason for a individual to be subject of laws that he or she was not a citizen in creating it. See Jean-Jaques Rousseau, On the Social Contract Book I, ch. VI (1762). (back)
65. 4 Wheat. (17 U.S.) 316 (1819). (back)
66. Id., at 421. Thomas Jefferson had earlier warned that if the necessary and proper clause could be construed to justify the creation of a national bank, as it was done in this instance, it boded ill for the Constitution: "If such a latitude of construction be allowed to this phrase as to give any non-enumerated power, it will go to every one, for there is not one which ingenuity may not torture into a convenience is some instance or other, to some one of so long a list of enumerated powers. It would swallow up all the delegated powers." Thomas Jefferson, quoted in, Gerald Gunther, Constitutional Law 79 (12th ed., 1991). (back)
67. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1976). (back)
68. The court typically applies a standard similar to that expressed in Williamson v. Lee Optical Co., 348 U.S. 483 (1955)("[T]he law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it. The day is gone when this Court...strike[s] down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of [thought]")(italic added). For the application of the rational basis test is commerce clause cases, see Heart of Atlanta Motel, Inc. v. U.S., 379 U.S. 241, 261-62 (1964); Katzenbach v. McClung, 379 U.S. 294, 303-04 (1964); Stafford v. Wallace, 258 U.S. 495, 521 (1922). (back)
69. See, e.g., Wickard v. Filburn, 317 U.S. 111 (1942)(Congress may impose restrictions on wheat production designed for personal consumption as a means to stabilize the interstate wheat market); Perez v. United States, 402 U.S. 146 (1971)(Congress may criminalize local, small time loan sharking, because they often have ties to organized crime which affects interstate commerce); Katzenbach v. McClung, 379 U.S. 294 (1964)(Congress may prohibit discrimination in restaurant because "Congress has determined for itself that refusals of service to Negroes have imposed burdens both upon the interstate flow of food and upon the movement of products generally"). 70. The "so-called dictum in Dr. Bonham's case...is widely regarded as foreshadowing not merely the power which American courts today exercise in the disallowance of statutes on the gound of their conflict with the Constitution, but also that very test of 'reasonableness' which is the ultimate flowering of that power." Thorne, supra note 6, at 15. (back)
71. John Locke, The Second Treatise of Civil Government ch. 2. (back)
72. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594 (1952)(Frankfurter, J., concurring). A position with which I must agree, by the way. See note 37, 55, above. (back)
73. George Washington, supra note 37, 55. (back)
74. 1 Corinthians 10:23. (back)
75. John Locke, The Second Treatise of Civil Government chap. II, para. 13. (back)
76. John Stuart Mill, Essay on Liberty (1859). (back)
77 George Washington, Farewell Address (1796) quoted in Ravitch, supra note 53. (back)
78. T. Roosevelt, An Autobiography 371-72 (MacMillan ed. 1914). (back)
79. W.H. Taft, Our Chief Magistrate and his Powers 139-40, 144-5 (1916). (back)
80. Alexis I. Solzhenitsyn, A World Split Apart 7 (1978). (back)
81. W. Herndon & J. Welk, 2 Herndon's Lincoln 345n (1899). (back)
82. 9 The Writings of Benjamin Franklin 569 (Albert Henry Smith, ed., 1907). (back)
83. Quoted in John R. Howe, The Changing Political Thought of John Adams 189 (1966). (back)
84. Quoted in 1 William V. Wells, The Life and Public Service of Samuel Adams 22 (1865). (back)
85. See, Roger G. Brooks, Comment, Garcia, the Seventeenth Amendment, and the Role of the Supreme Court in Defending Federalism, 10 Harv. J.L & Pub. Pol'y 189 (1987). (back)
86. It was some fifty years, for example, between Marbury and the next case voiding a legislative provision, Scott v. Standford, 19 How. (60 U.S.) 393 (1857). (back)
87. Franklin D. Roosevelt, Letter to Congressman Hill, July 6, 1935, quoted in Gerald Gunther, Constitutional Law 23 (12th ed., 1991). (back)
89. Not to mention Roosevelt's supposed "Court packing plan." (back)