Some alarming aspects of the legacies of judicial review and of John Marshall.

• Author: Presser, Stephen B.

My assigned tasks at this Symposium were to speak about the legacy of judicial review in general, and the legacy of Chief Justice John Marshall in particular. As originally delivered, my remarks were divided into two ten-minute discussions on these topics, and I have combined, revised, and annotated them for this written version. I begin with the legacy of judicial review, and follow that with some consideration of John Marshall. Caveat Lector. (1) I want to dissent from the conventional wisdom of the legal academy on these matters.

JUDICIAL REVIEW: ORIGINALLY REPUBLICAN, NOT DEMOCRATIC

I have to confess that I am more than a little at a loss to know what to say about the legacy of judicial review. Let us start with a definition. For our purposes, "judicial review" is the practice of the courts reviewing and, if necessary, declaring unlawful, the conduct of the executive and legislative branches of the federal government, and all three branches of the state governments. This practice seems to be the U.S. Constitution's ultimate device for securing federalism and the separation of powers. For me, then, a law professor with just short of three decades experience teaching and writing about American law, to ruminate on the legacy of judicial review is a bit like being asked to comment on the legacy of our being air-breathers. In the American judicial system, devoted as we claim to be to the rule of law and the notion that ours is a government of laws, not men, I cannot imagine an alternative to judicial review. Then again, there have been plenty of cultures that have done without it. Until recently, for example, the civil law tradition managed just fine without judicial review, thank you very much, (2) but if you have followed events in Europe recently, you know that the European Court of Justice has gotten very much into it, so judicial review may be becoming a universal phenomenon. (3)

This may not be all to the good, however, because the modern conception of judicial review seems to differ from what Alexander Hamilton had in mind in The Federalist No. 78, (4) to say nothing of what Marshall intended in McCulloch, (5) but probably not in Marbury. (6) Indeed, some of the literature on human rights and some of the decisions of international judicial bodies that I recently have looked at read human rights protocols (7) expansively to remove governing power from legislatures and sovereign nations. (8) These decisions remind me of the Warren Court, the Burger Court, or the Rehnquist Court when they were in the business of manufacturing new constitutional rights, and taking power away from states and localities. (9)

But if The Federalist No. 78 makes any sense, I think, it is because it expresses a single clear, objective, and limited notion of judicial review. (10) Hamilton's argument, ostensibly adopted by Marshall in Marbury, was that judicial review was a conservative doctrine, the purpose of which was to limit the legislature, the states, and the executive to the exercise of the clearly defined and originally limited powers granted to them by the sovereign people. (11) Judicial review was not to be a license for judicial lawmaking as it has become in our time and as it has been celebrated by most of us in the academy. I am out of the academic mainstream here, because I like the original conservative conception of judicial review, and am horrified by what the Supreme Court has done, at least since the New Deal, to aggrandize the federal government, to limit the power of states and localities, and to create utter uncertainty as to the meaning of constitutional provisions. (12)

I am a simple person, a simple Midwestern provincial law professor, and I subscribe to the simple notion that the only thing that should guide our understanding of the Constitution is the meaning that it had in 1789 when originally drafted, or the meaning of amendments as they were understood when they were passed. Raoul Berger gave my chair to Northwestern, and I share his originalist views. (13) I think the Supreme Court's opinions that incorporate the Bill of Rights into the Fourteenth Amendment are judicial usurpations, (14) and I disagree with everything from the school prayer decisions (15) to Planned Parenthood v. Casey. (16) While I think Brown v. Board of Education (17) was correct to outlaw racially segregated schools, it is because I believe that the Fourteenth Amendment can legitimately be read as intending to create a colorblind Constitution: all governmentally sponsored racial classifications, even for affirmative action or diversity purposes, are unconstitutional. (18) My views, in other words, differ so drastically from those of any other contributor to this Symposium that I wonder what limited use my comments have for any of you.

Still, maybe it does not hurt to speak from the perspective of a convinced conservative originalist, because that is still the view that the courts virtually always claim to be applying, and it is also the view that Congress claimed to be following in the recent Clinton impeachment fiasco. So, at some level, probably around our legal genomes, so to speak, we are programmed to be originalists, and we understand that there is something a bit illegitimate about any other perspective. This is not to say that those who claim we cannot reproduce the historical understanding are wholly without merit, but I think we can do a pretty good job, or I would not be in the business I am in, occupying the chair that I do. (19) All the same, however, how can I take the positions I do, if virtually no other practicing historian in the legal academy does?

It is because I think that originalism and the original conception of judicial review still have a lot to teach us. I have never been a big fan of diversity, (20) for example, because I think we have yet to get uniformity right. So what was the original understanding of judicial review all about? What was this simple, clear, uniform conception that I have posited supposed to be, and how could a smart fellow like Hamilton and, even in 1789, Jefferson, be enamored of the idea? You will remember that Jefferson turned around on this issue, but, in 1789, his correspondence indicates that he was all for it. (21)

What were the Federalists thinking in 1789? What justified judicial review? Again, if we look at The Federalist No. 78, and consider it on its own terms, it was popular sovereignty. (22) Supposedly, when the justices kept state and federal lawmakers and officials within bounds it was to be within the bounds set by the people when they, by the act of their sovereign will, adopted the Constitution. Under this view, the justices were merely the agents of the people. Popular sovereignty was the only acceptable theory for American government in 1789, as it had been since we made the break with Great Britain in 1776, so this justification for judicial review is not surprising. (23) But what passed for popular sovereignty back then is not the same as what passes for democracy now, and perhaps that is the legacy we should be exploring. We start with the proposition that the "people" who endorsed the Federal Constitution included no women, no blacks, and very few of everybody else, since the franchise was, at that time, virtually universally limited to property holders. This has led many of us to conclude that in our modern era we ought to forget about the Framers altogether, since we live in more democratic and less elitist times.

I am not so sure, though. I think it is still useful to remember how popular sovereignty differs from democracy, at least in the conception held by our Framers. I am not prepared, in this day and age, to mount a campaign for the narrowing of the franchise, but I think it is useful, occasionally, to remember how the Framers could simultaneously seriously believe in both popular sovereignty and a limited franchise. The clue, I think, is in what we called, in history departments fifteen years ago, "Republicanism": the set of principles that elucidated Republican government and was concerned with fostering civic virtue in the American people. The legal academy never really understood "Republicanism," (24) and as explicated by people like Cass Sunstein (25) and Frank Michelman (26) it sounded suspiciously like Franklin Roosevelt's New Deal rather than ideas held by Hamilton, Madison, Jay, and Marshall. (27) Even historians have now figured out that the late eighteenth century in the newly formed United States was as much about Lockean liberalism and Protestant Christianity (28) as it was about the "Republican" ideals of Harrington and Sidney, Trenchard and Gordon. (29) All the same, the U.S. Constitution, in its "republican" structure, as the late twentieth-century Federalist Society has been trying to tell us, does have some lessons for us, a legacy we should consider and perhaps even emulate. As The Federalist Papers, published in the late eighteenth century, tell us, the idea behind the Federal Constitution was one of creating a republican structure in which government was removed from direct democracy. (30) The indirect election of the president and senators was calculated to produce persons of virtue who could make difficult decisions without bowing to popularity, and in a manner that would preserve the rights and interests of the community, rather than reflecting narrow personal or partisan concerns. (31)

I do not know how well this ever worked, but I do think that Marshall himself, at some level, was committed to republican rather than democratic ideals, and his opinion in the Dartmouth College (32) case, his jeremiad against the New Hampshire legislature's attempt to democratize the college by subjecting it to popular legislative control, suggests as much. (33) If you read The Federalist Papers carefully, and--let us be honest--after more than 200 years, it is still recognized as the best guide to Constitutional interpretation...