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The Judicial Bulwark of the Constitution
Published online by Cambridge University Press: 02 September 2013
Extract
Few peculiarly American political devices have so perennial an interest, it seems, as our guardianship of the Constitution through the power of the judiciary. How unusually strong that interest is to day is well attested by the numerous examinations, chiefly within the past two years, of the sanctions for this much debated function. Especially significant is it, however, considering all that a long succession of legalists, historians, and political scientists have written upon the origin of judicial control, that so much fresh matter can be added to the elucidation of this problem. Yet it must be admitted that real contributions to various aspects of the topic may be found in the recent studies by Prof. A. C. McLaughlin, Prof. E. S. Corwin, Prof. C. A. Beard, Dr. C. G. Haines, and Mr. H. P. Dougherty, not forgetting also such late articles as those by Mr. Hampton L. Carson, Mr. C. H. Burr, Mr. Herbert Pope, Mr. W. M. Meigs and others.
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- Copyright © American Political Science Association 1914
References
1 Such, for example, as: Story, Commentaries on the Constitution, Bancroft, George, History of the Formation of the Constitution of the United States (1889) (1882)Google Scholar; Rogers, H. W. (editor), Constitutional History as seen in American Law, New York (1890)Google Scholar; Coxe, Brinton, Judicial Power (1893)Google Scholar; Meigs, W. M., Growth of the Constitution (1910)Google Scholar; Elliot, G. B., The Legislature and the Constitution, 5Google Scholar; Political Science Quarterly, 224; J. B. Thayer, Legal Essays; Baldwin, S. E., The American Judiciary (1904)Google Scholar; Willoughby, W. W., American Constitutional System (1904)Google Scholar, etc.
2 McLaughlin, A. C., The Courts, the Constitution and Parties, Chicago, (1912)Google Scholar; Corwin, E. S., The Rise of Judicial Review, 9 Michigan Law Review, 102–128, 283–316CrossRefGoogle Scholar (also 4 Michigan Law Review, 616); Corwin, E. S., National Supremacy, New York, (1913)Google Scholar; Beard, C. A., The Supreme Court and the Constitution, New York (1912)Google Scholar; Dougherty, H. P., Power of the Federal Judiciary over Legislation, New York, (1912)Google Scholar; Haines, C. D., The Conflict over Judicial Powers in the United States to 1820, Columbia University Studies, vol. 35, No. 1Google Scholar; Carson, H. L., The Historic Relation of Judicial Power to the Constitution, 60 University of Pennsylvania Law Review 687, ff.Google Scholar; Burr, C. H., Unconstitutional Law and the Federal Judicial Power, 60 University of Pennsylvania Law Review, 624 ff. (1912)CrossRefGoogle Scholar; Pope, H., The Fundamental Law and the Courts, 27 Harvard Law Review, 45–67, November (1913)CrossRefGoogle Scholar; Meigs, W. M., The American Doctrine of Judicial Power, and its Early Origin, 47 American Law Review, 691 September-October (1913)Google Scholar (largely restates views presented in earlier numbers of the same Review); Reeder, Robert P., Constitutional and Extra Constitutional Restraints, 61 University of Pennsylvania Law Review, 441, ff., May (1913)CrossRefGoogle Scholar (bibliography good); McDonough, J. B., Usurpation of Power by Federal Courts, 46 American Law Review, 45 ff. (superficial)Google Scholar; Dodd, W. F. (review of Beard's Supreme Court and Constitution and Dougherty's Power of Federal Judiciary) 18 American Historical Review, 380, January (1913)CrossRefGoogle Scholar; Davis, Horace A., Annulment of Legislation by the Supreme Court, 7 American Political Science Review, 541–587, November (1913)CrossRefGoogle Scholar (possibly the strongest presentation, based on historical research, of the argument against judicial control); Roe, G. E., Our Judicial Oligarchy, New York (1912)Google Scholar (very superficial); Farrand, Max, The Framing of the Constitution of the United States, New Haven (1913)Google Scholar (very slight reference, but reviewed on this score by Dodd, , 19 American Historical Review, 402Google Scholar, and Latané, , 7 American Political Science Review, 697)CrossRefGoogle Scholar; Judson, F. N.. The Judiciary and the People, New Haven (1913)Google Scholar (series of lectures—suggestive.)
3 1 Cranch, 137–179.
4 1 Cranch, 175.
5 McLaughlin, , The Courts, the Constitution and Parties, pp. 105–107.Google Scholar
6 Ibid, 194–99.
7 Ibid, 245–91.
8 27 Harvard Law Review, 45–67.
9 4 Michigan Law Review, 616; 9 Michigan Law Review, 102, 283.
10 In a forthcoming article the manuscript of which Professor Corwin has very kindly afforded me the privilege of reading and citing—nor has Professor Corwin, in this analysis, by any means exhausted the instances of expressed opinions in the convention.
11 1 Cranch, p. 178; cf. for criticisms, Coxe, , Judicial Power, etc., pp. 54–67.Google Scholar
12 Cited, p. 1, above.
13 Cf. Dodd, W. F., Revision of State. Constitutions, pp. 30–39.Google Scholar
14 Journals of Congress, 1878, p. 32 ff. It is interesting to note that Rhode Island was represented by Varnum of Trevett vs. Weeden fame.
15 Journal of Congress, p. 32.
16 Ibid. p. 36.
17 Massachusetts passed a repealing law April 20, Cf. Goodell, 7, Harvard Law Review, 415.CrossRefGoogle Scholar For the action of other States see Corwin, National Supremacy, ch. iii.
18 These were King, Johnson, Madison, Blount, Few and Pierce.
19 These dates were May 29, and 31, June 8, 11, 15, 16 and 18, July 17 and 23 and August 23, chiefly touching some mode of nullifying repugnant state laws; June 4, and 6, July 21 and August 15 upon the proposition of a council of revision for acts of Congress, and also July 18, August 22, 23 and 27, and September 12 and 14 significant for the combination of the lines of development underlying these two movements. It is believed that the accumulative force of this evidence will warrant our foregoing in this paper the more interesting method, almost invariably followed, of presenting characteristic quotations from the six, eight, or at most striking debates upon judicial control.
20 Farrand, : Records of the Federal Convention, i, p. 21Google Scholar; i, p. 59–60.
21 Ibid, i, 54, 61.
22 Farrand, i, 94, 97, 114. The debate is reported by Madison, Yates, King, Pierce and Mason.
23 The idea of the council of revision (Madison said on August 14) was borrowed from New York. Cf. Farrand, ii, 291.
24 Connecticut and Maryland opposed it.
25 Ibid, i, 139.
26 Ibid, i, 164, 170.
27 Ibid, i, 207.
28 Ibid, i, 245.
29 Ibid, i, 250.
30 Ibid, i, 293.
31 Ibid, ii, 27, 28.
32 Cf. Ibid, iii, 273.
33 Ibid, ii, 33. Cf. Also 26 and 34.
35 Ibid, ii, 39, 46.
36 Ibid, ii, 72–80.
37 Ibid, ii, 75.
38 He had been an attorney in Brattle vs. Hinckley in 1786. Cf. Goodell, , 7 Harvard Law Review, 415.CrossRefGoogle Scholar He was also active for the judiciary act of 1789.
39 Farrand, ii, 79, 80. Cf. ii, 298–301.
40 Ibid, ii, 76.
41 Ibid, ii, 78.
42 Farrand, ii, 89–93.
43 Farrand, ii, 92.
44 Ibid, ii, 294, 298, ff.
45 Ibid, ii, 298.
46 Farrand, ii, 329, 335, 341, 427, 542. Gerry on August 18, and G. Morris on August 27 opposed the inclusion of judges.
47 The full force of this argument can be appreciated only by an extended analysis of the constitutional views expressed in the convention with copious citations, obviously impossible in this article. See however the review of McLaughlin, Pope, and Corwin above. All these contribute pertinently to this subject, especially Professor Corwin.
48 Farrand, ii, 393.
49 Farrand, ii, 390, 391.
50 Ibid, ii, 281–2, 389, 395.
51 Ibid, ii, 391.
52 Ibid, ii, 391.
53 Ibid, ii, 390.
54 Ibid, ii, 391.
55 Ibid, iii, 523. Cf. also iii, 516, 522, 538, etc.
56 Ibid, iii, 527.
57 Note the striking utterances of Madison and Mason on September 12 on the paramountcy of national law. Farrand, ii, 587 and 588.
58 Farrand, ii, 430 and 431.
59 The use of “judicial power” for “Supreme Court” was due to Madison and G. Morris. Farrand, ii, 431.
60 Farrand, ii, 431. Note also the earlier discussions of that day and the dominant desire of the Convention for a distinct and independent judicial power. Ibid, 426, ff.
61 Farrand, ii, 439, ff.
62 Morris. Cf. Farrand, ii, 439. Madison, Ibid, 440. Cf. also General Pinckney's arguments on the independence of the judges in a debate of August 27 on salaries. (Farrand, ii, 429.)
For Williamson's statement on August 22, cf. Farrand, ii, 376.
63 Farrand, ii, 128–190 and ii, 581, 585.
64 Rutledge and Gorham are omitted in Professor Beard's list of advocates of judicial review, but cf. Farrand, ii, 79–80, 298–301, etc. Cf. Beard, op. cit, pp. 17–64.
65 Such for example as Hamilton's plan. Farrand i, 293.
66 For evidence as to the work of the committee see Meigs, Growth of the Constitution, p. 281, ff., especially as to the substitution of the judiciary clause (art. ii, sec. 2) in Randolph's draft in place of a clause crossed out which had invested in the Supreme Court decision as to the nullity of a law repugnant to the Constitution. Also cf. Farrand, ii, p. 183. See also my subsequent evidence as to their individual views.
67 Morris to T. Pickering, Farrand, iii, 419.
68 Madison to Sparks, Farrand, iii, 498.
69 Cf. Beard, , Supreme Court, etc., p. 66Google Scholar, note on Morris's statement as interpreted by McLaughlin.
70 Supreme law clause, art. vi, sec. 2. Judiciary Clause, art. iii, sec. 2.
71 Beard, , Supreme Court, etc., pp. 63–64.Google Scholar
72 Farrand, ii, 430.
73 Professor McLaughlin follows Scott. Cf. American Historical Review, iv, 456.
74 Dr.Dodd, W. F. in American Historical Review, xviii, p. 380.Google Scholar
75 It is very true, however, that Professor Beard makes a stronger claim on p. 51 which justifies the criticism of Dr. Dodd.
76 That is, art. iii, sec. 2; art. vi, sec. 2.
77 Farrand, iii, 538.
78 Sparks, Washington, ix, 35, 49, 86.
79 Annals of Seventh Congress, p. 48, 575, 698, 903, 918.
80 Maclay's, Wm.Journal, especially pp. 74, 78, 85, 91, 100–103.Google Scholar See likewise the letters of Muhlenberg (June 18, 1789) and of Robert Morris (August 24, 1789) to Peters, Judge (Pennsylvania Historical Society, Peters MSS., vol. ix).Google Scholar
81 Cf. Beard, p. 54. On Langdon, see p. 21 above.
82 On Strong see p. 10, notes 3 and 4 and p. 17, n. 1, above. It is of course not yet certain that Brattle vs. Hinekley was a bona fide precedent.
83 Cf. Beard, op. cit. p. 16. The original essay appeared in the Political Science Quarterty, March, 1912. Cf. Beard op. cit, p. 56–63. Note omission of Strong and Gorham.
84 Cf. Meigs, , Growth of the Constitution, vi. 243–52Google Scholar, etc., 281–87. Elliot, in Political Science Quarterly, 231.Google ScholarMeigs, , 19 American Law Review, p. 175.Google Scholar 23 American Law Review, p. 394; 40 American Law Review, p. 380. Burr, , 68, University of Pennsylvania Law Review, 636, etc.Google Scholar
85 Cf. especially the debate of August 15. Farrand, ii, 298, etc.
86 For these men note discussion on pp. 13–23 above; especially p. 13 for Franklin, and p. 21 for Broom.
87 Elliot's, Debates, iv, 226.Google Scholar The issue to be sure was specifically as to the nullity of laws contravening a treaty. But note also his plea in Bowman vs. Middleton (1791), 1 Bay 254. Cf. also his statement of August 27 on the importance of the judiciary. Farrand, ii, 429.
88 Farrand, ii, 33, etc.
89 Farrand, ii, 395.
90 Cf. Scott, Austin, 4 American Historical Review, p. 456.CrossRefGoogle Scholar See also Breakley's significant letter of April 14, 1784, to Dayton (Pennsylvania Historical Society, Dreer MSS.). For the votes of January, 1793, cf. Journal of House of Representatives, Second Congress, p. 658–59.
91 I wish to express my appreciation to the descendants of George Clymer who sought to find and place at my disposal all existing family papers, and to Mr. B.A. Konkle who made a search for me of the Wilson papers in his hands. See Annals First Congress, p. 382, 489, 585, 591, 710, 735, etc.
92 Cf. Note 90 above as to votes of 1793. Note also Fitzsimmons's petition to Congress, 16 Feb. 1802, Annals Seventh Congress, p. 188.
93 Cf. Thayer's, Cases in Constitutional Law, i, 78–90Google Scholar or 1 Martin, No. Ca. Reports, 42.
94 Elliot's, Debates, iv, 156.Google Scholar
95 Chas. Pinckney seems to have changed his opinions for a time about 1799–1803. As to his views, cf. Farrand, i. 131, 139, 140, 144, 150, 162, 164, 169, 171, 173; ii, 28, 298, 382, 390; iii, 427, 503, 506, 509–10; Elliot's, Debates, iv, 257–58Google Scholar; Wharton, State Trials, 412 (1799)Google Scholar; Annals Sixth Congress, p. 101 (1800).
96 Farrand, ii, 294 ff. and Journal, House of Representatives, Second Congress pp. 658–9.
97 Obviously the sliding scale allows for the rejection of the less definite cases.
98 House Journal, First and Second Congress, pp. 658–59.
99 Journal of Congress, 1787, pp. 32 ff. That Pierce fully comprehended the significance of judicial review is proved by his notes for June 4 (cf. Farrand, 1, 109).
100 Cf. Scott, A., 4 American Historical Review, p. 456CrossRefGoogle Scholar, and Meigs, W. M., 47 American Law Review, p. 691.Google Scholar
101 Cf. Ford's Pamphlets on the Constitution, bibliography, no. 133; Debates and Proceedings of the Massachusetts Convention, 1788, pp. 366–98. Also cited by Davis, . Political Science Review, November 1913, pp. 541–87.Google Scholar
102 Farrand, i, 97; and ii, 28.
103 For colonial cases see Hazeltine, in American Historical Association Reports, 1894, p. 299 ff.Google Scholar and Channing, , History of the United States, iii, pp. 498 ff.Google Scholar; 526.
104 For State precedents see Elliot, , 5 Political Science Quarterly, pp. 233–8Google Scholar; Coxe, Judicial Power, (cf. index); and Thayer's, Cases in Constitutional Law, i.Google Scholar
105 For the Pennsylvania precedent, I hope elsewhere to present my evidence, but cf. Annals of Congress, First Congress, p. 1925.
106 For New Hampshire cases see Dodd, , American Historical Review, xii, 348Google Scholar; Meigs, , 47 American Law Review, 691.Google Scholar 1 New Hampshire Reports, 216 and Mason, Jeremiah, Memoir, p. 26–27.Google Scholar
107 Cf. Goodell, A. C., 7 Harvard Law Review, 415–24.CrossRefGoogle Scholar
108 1 Bay 93 and 252.
109 As to Mason's plea in 1772 see Elliot, , 5 Political Science Quarterly, p. 235.Google Scholar
110 For Morris's address to the Pennsylvania Assembly in 1785 cf. Sparks, , Life of Gouverneur Morris, iii, 438.Google Scholar
111 For Strong's connection with Brattle vs. Hinckley see Goodell, , 7 Harvard Law Review, 415.CrossRefGoogle Scholar
112 For Pinckney's plea in Bowman vs. Middleton see 1 Bay, 254.
113 In other cases, see Elliot, 5 Political Science Review, and Coxe, Judicial Power.
114 Davis, H. A., Annulment of Legislation by the Supreme Court, 7 American Political Science Review, 541–87.CrossRefGoogle Scholar
115 Cf. “Centinel” in Pennsylvania.
116 Elliot's, Debates, iv, 71.Google Scholar
117 Ibid, 161.
118 Ibid, 164, 180–82, etc.
119 Ibid, 156–160, 181.
120 Ibid, 187–8.
121 Ibid, 184.
122 Ibid, 178, 179, 185, etc.
123 Davis, , 7 Political Science Review, p. 580.Google Scholar
124 McMaster, and Stone, : Pennsylvania and the Federal Constitution, pp. 305, 340, 354, 766.Google Scholar
125 Elliot's, Debates, iii, 205, 299, 325, 443, 539–41, 548, 553, 567–69.Google Scholar
126 Elliot, ii, 196.
127 Ibid, ii, 151.
128 Elliot, i, 380; Farrand, iii (see index).
129 Ford, R. L., Pamphlets on the Constitution, p. 184.Google Scholar
130 Elliot's, Debates, ii, 348, 362, etc.Google Scholar
131 Ibid, 266–70.
132 Especially numbers 32, 39, 44, 78–82.
133 12 Sergeant and Rawles's (Pennsylvania) Reports, 330. Cf. discussion by Pope, , 27 Harvard Law Review, 52 ff.Google Scholar
134 For Paterson's incontrovertible consistency see p. 202 below (in part).
135 Also, as Madison and Smith of South Carolina expressed it, to make the national judiciary coextensive with the national legislature. Cf. Annals of First Congress, pp. 812, 816.
136 Maclay, Journal, pp. 85–87, which shows conclusively that the 25th section of the act was forced by the appellate jurisdiction granted the Supreme Court by the Constitution itself; also Annals First Congress, pp. 459ff. Note the references to both, in Mr. Davis's article, for other points.
137 Naturally Randolph and Washington might be counted with the eighteen members of Congress, since they concurred in the congressional action as to the judiciary.
138 See 7 American Political Science Review, 582. As Mr. Davis does not name the “able scholar” who has pronounced his interpretation of the judiciary act “absurd” we are at a loss as to which one he may refer to.
139 Annals of First Congress, pp. 267, 439, 459–573, 661, 681, 819, 900, 1894–1928, etc., etc.
140 Cf. Washington's letters to the judges in 1789–90. Sparks's, Washington, x, 35, 49, 86Google Scholar, also Randolph's report of December 27, 1790.
141 2 Dallas, 410, also Annals Seventh Congress, 921–924.
142 3 Dallas, 175.
143 2 Dallas, 308.
144 3 Dallas, 211–37.
145 3 Dallas, 386.
146 4 Dallas, 14.
147 Annals of Congress, Seventh Congress, p. 926.
148 The shift may be traced in the Jay treaty debates of March and April, 1796, in the House. Cf. Annals Fourth Congress, first session.
149 As is well known the Kentucky and Virginia resolutions were a challenge to judicial control, and brought replies from most of the States generally defending the doctrine. See Ames' State Documents on Federal Relations. Also Anderson, , 5 American Historical Review, 43 ff.Google Scholar See also Pinckney's 1799 letter, Wharton's, State Trials, 412.Google Scholar
150 Annals Sixth Congress, p. 101.
151 Annals Seventh Congress, pp. 32–182, 529–975. In fact but three members of the House and one Senator denied the validity of judicial control.
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