Judicial review before Marbury.

• Author: Treanor, William Michael

INTRODUCTION I. BACKGROUND II. REVOLUTIONARY-ERA CASE LAW A. Jury Trial Cases B. Rutgers v. Waddington C. Symsbury Case D. Case of the Prisoners E. Conclusion: Different Interpretive Approaches for Different Statutes III. STATE COURTS 1N THE EARLY REPUBLIC A. Challenges Not Implicating Judicial Powers or the Right to a Jury Trial B. Right to a Jury Trial C. Statutes Affecting Courts D. Conclusion: Significance of Type of Statute IV. CIRCUIT COURT DECISIONS A. Review of State Statutes in Circuit Courts B. Review of Congressional Statutes Affecting the Judicial Role: Hayburn's Case and United States v. Ravara C. Conclusion: Neglected Evidence of Judicial Review V. SUPREME COURT CASE LAW A. National Government Powers B. Judicial Role C. Review of State Statutes: Ware v. Hylton VI. IMPLICATIONS OF THE CASE LAW A. Marbury: Building on a Firmly Established Foundation B. Understanding the Scope of Judicial Review CONCLUSION INTRODUCTION

One of the most significant questions for originalists--perhaps the most significant question--is: What was the original understanding of judicial review? Scholars and jurists have sharply disagreed on the answer, Opinions range from the claim that judicial review was not part of the original understanding at all (1) to the contention that the original conception of judicial review was so expansive that courts had the power to invalidate statutes on broad natural law grounds. (2) The Supreme Court has claimed originalist sanction for the view that it is "the ultimate expositor of the constitutional text," (3) and in the past decade has struck down a string of congressional statutes on originalist grounds. (4) The dominant scholarly view--presented most compellingly by Larry Kramer in his Foreword to the Harvard Law Review's analysis of the Supreme Court's 2000 Term (5) and his recent book, The People Themselves (6)--is dramatically at odds with this approach and holds that, while judicial review was part of the original understanding, it was rarely exercised, and only clearly unconstitutional statutes were struck down.

This Article presents the most complete historical account of the richest source of evidence on the original understanding: the case law before Marbury. (7) It specifically focuses on the cases in which at least one judge found a statute unconstitutional. (8) Far more than any previous work, this Article, rather than accepting at face value judicial assertions that only clearly unconstitutional statutes or statutes violative of natural law were being invalidated, carefully probes judicial reasoning and its application to statutory and constitutional text. This historical analysis leads to a view of judicial review in the founding era that is sharply different from all the varying schools of thought, both with respect to the frequency of judicial review and with respect to when it was exercised, and thus this Article supports a reconceptualization of the original understanding.

This Article shows, first, that judicial review was dramatically better established in the years before Marbury than previously recognized. While there has been a range of opinions about early judicial review, none of the modern commentators has grasped how common it was for courts to invalidate statutes. The most influential modern account asserts that there were five such decisions in state and federal courts in the critical period between the Constitution and Marbury. (9) In contrast, this Article discusses thirty-one cases in which a statute was invalidated and seven more in which, although the statute was upheld, one judge concluded that the statute was unconstitutional. The sheer number of these decisions not only belies the notion that the institution of judicial review was created by Chief Justice Marshall in Marbury, it also reflects widespread acceptance and application of the doctrine. Moreover, the fact that judicial review was exercised so frequently indicates that courts were not as reluctant to invalidate statutes as Kramer contends. At one level, then, this study provides some support for the modern Court's expansive view of its powers pursuant to the original understanding--a view that the Court has claimed but that no previous historical study has previously supported.

Second, as it focuses on the statutes challenged in these cases and the constitutional texts at stake, this Article contends that the early practice reflects a structural and process-based approach to judicial review. With the exception of two instances in which a state court found a state statute unconstitutional because it violated the Federal Contract Clause, (10) exercises of judicial review were of two types. First, when legislation affected coordinate constitutional departments that were not part of the political process that had produced the legislation--either juries or courts--courts repeatedly invalidated that legislation. They did so even when there was no obvious inconsistency between the legislation and constitutional text. Of the twenty-one cases in this category, there were colorable arguments in favor of the statutes in eighteen. Second, federal courts closely scrutinized state legislation for its constitutionality; in most cases in which a statute was struck down, the statute either ran afoul of the Federal Constitution or implicated a sphere of federal power (such as the ability to confer citizenship, regulate foreign commerce, or resolve boundary disputes between states). In seven of the eight cases in which a federal court invalidated a state statute, there were plausible grounds for supporting the rejected statute's constitutionality.

In contrast, I have found no case outside these categories in which a statute was invalidated. There is little evidence that anyone thought that judicial review was only appropriate in the categories of cases I have outlined. Rather, the difference is that the standard of review was different outside of these categories.

Thus, analysis of the early case law indicates that both Kramer's approach and the Court's approach miss the original understanding in ways of profound importance for modern originalist jurisprudence. Where Kramer describes a consistent pattern of deference, this Article shows that the standard of review varied with subject matter and that, in the two categories of cases described above, courts were not deferential and could apply an expansive conception of judicial review. Indeed, in twenty-five of the twenty-nine cases in these two categories, there were plausible grounds supporting the invalidated statute. When the category of state court invalidation of state statutes on federal constitutional grounds is added so that all cases are represented, one finds that in twenty-four of the thirty-one cases in which statutes were invalidated, there were plausible arguments in favor of the statute. (11) In short, the case law is dramatically at odds with the view that only clearly unconstitutional statutes were invalidated.

In contrast, the Supreme Court's expansive view of its power to invalidate legislation that is at odds with its conception of the original understanding misses the fact that early courts were--except in the limited categories of cases described above--strikingly deferential and overturned no statutes outside these limited categories. In addition, the early case law is almost a mirror image of modern case law. In the leading modern cases, the Supreme Court has acted expansively in striking down congressional legislation on federalism grounds. Early practice was the opposite. While these early federal court cases have been largely overlooked, they show that, in the period covered here, exercises of judicial review served to keep state legislatures, rather than Congress, in check. In contrast, in Hylton v. United States, (12) the one Supreme Court case involving a substantive challenge to an assertion of congressional authority, the Court unanimously upheld the statute in the face of a strong textualist challenge.

Part I of this Article establishes the background for the presentation of the early case law. It discusses the competing views on the original understanding of judicial review. It also discusses the two sources of evidence on the original understanding other than the post-1776 case law: judicial precedent before the American Revolution and the (remarkably few) early statements about judicial review that occurred outside of the context of litigation (such as Alexander Hamilton's Federalist 78 (13)). This Part explains why the post-1776 case law provides the critical evidence on original understanding.

Part II looks at the revolutionary-era case law. It examines the seven cases from this period that can arguably be considered judicial review cases. The next three Parts analyze the case law from the early Republic. Part III brings together the state cases in which courts invalidated statutes. Part IV looks at the lower federal court cases. Part V studies Hylton and the other relevant Supreme Court case law before Marbury.

Part VI then draws on the previous analysis in two ways. First, it argues that the pre-Marbury case law powerfully illuminates Marbury. The prevalence of pre-Marbury exercises of judicial review helps explain why the assertion of judicial review in Marbury provoked little controversy, a fact that previous scholars have often found surprising. It also makes Chief Justice Marshall's often-criticized reasoning in the case understandable: what appears to be a puzzling, unconvincing, and uniquely aggressive exercise of judicial review was fully consistent with prior judicial decisions in which courts had invalidated statutes that trenched on judicial authority and autonomy. Second, Part VI seeks to articulate the approach to judicial review underlying the case law. There is a dearth of writings from this era on when judicial review should be exercised, and there was certainly some support for the view...