The corporate origins of judicial review.

Author:Bilder, Mary Sarah

INTRODUCTION I. REPUGNANCY AND CORPORATIONS A. Corporations and Bylaws B. Limits on Bylaws C. Constitutional Limits on Corporate Bylaws II. REPUGNANCY, COLONIAL LAW, AND THE CONSTITUTION A. The Colonial Constitution and Repugnancy B. American Constitutions and Repugnancy C. The United States Constitution and Repugnancy III. THE PRACTICE OF REPUGNANCY CONCLUSION INTRODUCTION

This Article traces a new historical account of the origins of judicial review. It argues that judicial review arose from a longstanding English corporate practice under which a corporation's ordinances were reviewed for repugnancy to the laws of England. This English corporation law subsequently became a transatlantic constitution binding American colonial law by a similar standard of not being repugnant to the laws of England. After the Revolution, this practice of bounded legislation slid inexorably into a constitutional practice, as "the Constitution" replaced "the laws of England." With the Constitution understood to embody the supreme authority of the people, the judiciary would void ordinary legislation repugnant to this supreme law. Over a century later, this practice gained a new name: judicial review. The widespread acceptance of this name eventually obscured the degree to which the origins of the practice lay in older practices regarding the delegated nature of corporate and colonial authorities, rather than in a new constitutional theory of judicial power.

Only on rare occasions do we now think now about judicial review in terms of repugnancy. The word mainly appears in quotations of older court opinions. In 2005, Justice John Paul Stevens declared that "[b]ecause the statute itself is not repugnant to the Constitution ..., the Court does not have the constitutional authority to invalidate it." (1) A recent opinion piece in the New York Times on judicial activism described judicial review as "an act 'of great delicacy, and only to be performed where the repugnancy is clear.'" (2)

Despite the contemporary infrequency of the word, what we think of as "judicial review" was once routinely described in terms of repugnancy. Kent's Commentaries used the heading "Laws repugnant to the constitution void" to discuss judicial review. (3) In 1889, almost a century of cases involving judicial review appeared in the U.S. Reports under the caption "Cases in Which Statutes or Ordinances Have Been Held To Be Repugnant to the Constitution or Laws of the United States." (4) Before judicial review had a name, the practice was understood in terms of review under a repugnancy standard. (5)

Explanations of the origins of judicial review have not paid much attention to the word or to the idea of repugnancy. (6) In fundamental law accounts, judicial review is legitimized by English constitutional and common law, often Dr. Bonham's Case in particular, and codified as constitutional doctrine in Marbury v. Madison. (7) In structuralist accounts, judicial review reflects the unique structures of American politics--for example, the invention of a written constitution, responses to federalism, belief in the people's or popular sovereignty, concerns about state legislative power, ideas about the separation of powers, distinctions of law and politics, the aspirations of an independent national judiciary, or even the post-Civil War power of the federal government. (8)

Even when the word has been noticed, its genealogy has been of little interest. In a 2004 essay, Noah Feldman remarked on the fact that "repugnant" appears in both Dr. Bonham's Case and Marbury. (9) He commented, "I hope you will accept on faith, without demonstration, that the word 'repugnant' is a relatively rare word in legal discourse." "Repugnant," however, was not always a rare word in legal discourse. The history of its recurrence in both cases provides the crucial clue to the origins of judicial review.

This history resolves three central concerns in the scholarship surrounding the origins of judicial review. These three issues can be phrased as whether the Framing generation intended judicial review to be part of the constitutional scheme; why the Framing generation presumed that judicial review was to exist; and how the Framing generation thought judicial review should be practiced.

Whether or not the Framers intended judicial review has been a longstanding debate. In the mid-nineteenth century, lawyers and historians began to investigate the precedents for judicial review. Since then the debate has been endless. William Crosskey famously argued that the Framers never intended judicial review. (11) In the last few decades, although opinion has run in favor of some intent for judicial review, scholars have disagreed over the clarity of such intent. Saikrishna Prakash and John Yoo have argued for a clear intent to authorize judicial review, (12) while Larry Kramer has suggested that the practice of judicial review was confused and contested. (13)

This Article adopts a different stance by abandoning an intent-focused inquiry. Judicial review was neither created anew nor caught in a mist of confusion. Supporting scholarship by Maeva Marcus, William Treanor, and others who have demonstrated significant post-Revolutionary comfort with the practice of judicial review, (14) this Article demonstrates that judicial review was initially taken for granted and presumed to exist. Many members of the Framing generation presumed that courts would void legislation that was repugnant or contrary to a constitution.

Why judicial review was taken for granted has also remained a matter of controversy. As Marcus has written, the "mystery lies in why and how" the Founding generation "came to think" that the judiciary possessed this power. (15) Fundamentalist accounts of the origins of judicial review attribute the idea to a belief in a fundamental, higher, or natural law that binds ordinary law--an argument that often relies heavily on Dr. Bonham's Case. Yet as Kramer concluded, there is "little evidence" to support the idea that Dr. Bonham's Case was important to American judicial review. (16) He dismissed alternative colonial precedents, however: "[I]t is misleading to describe these antecedent [colonial and imperial] practices as a nascent or immature form of constitutional review...." (17) Others have shared this belief that colonial American practices are largely irrelevant because they were not "constitutional"--i.e., based on a written constitution. (18)

This Article argues that the colonial American practice of bounded legislation under a repugnancy standard is causally responsible for the existence of American judicial review. This claim expands on suggestions made most recently by Barbara Black and Philip Hamburger about corporate practices (19) and bolsters contentions long found in the scholarship of the British empire about a possible link between imperial review practices and judicial review. (20) The Founding generation presumed a practice of constitutional judicial review as an outgrowth of the experience of constraining corporate and colonial legislation by the laws of the nation. Continuity in the practice of constitutionally constraining legislation resulted in discontinuity in the relationship of legislature and judiciary.

This claim is about past practices, not precedents. Conceptualized as an intellectual precedent, post-Revolutionary judicial review was not the same as colonial and corporate repugnancy review; understood as a practice, it was. Modern constitutional scholars have defined the search for the origins as a search for prior examples of coordinate review because they are most troubled by Supreme Court review of congressional acts--that is, by one branch of government reviewing the acts of another coordinate branch. Such an inquiry asks a question about judicial review based on a belief that the emerging strict theory of separation of powers consistently motivated the decisions of the Framing generation. (21)

Experience, however, rather than logic, explains the history of judicial review. Coordinate judicial review was presumed because of an earlier practice that most frequently involved hierarchical authorities. The new conception of separation of powers was a theoretical critique--and, of course, there were a few who voiced it. Yet interestingly the practice of constraining legislation by a constitutional repugnancy standard was so well accepted that it initially blunted this potential concern. Over the nineteenth century this critique developed strength, until it became hard to think about judicial review in any other way. Nonetheless, the emergence of the critique should not obscure the causal explanation for the practice. Judicial review initially had no name because it was not an intellectual invention.

The shift in focus from a genealogy of judicial power to a history of constrained legislation implicitly emphasizes the importance of understandings of delegated authority in the development of judicial review. This delegation theme places the story of early American judicial review in closer alignment with the accounts of the development of judicial review in other postcolonial nations. (22) Throughout the British Empire, the practice of constraining colonial legislatures under a standard of repugnancy arose from "the constitutional relationship between the Imperial Parliament and the subordinate colonial legislatures." (23) The origins of judicial review in Canada and Australia have been thought to lie in this same imperial practice of a repugnancy standard. (24) The longer duration of the imperial relationship in these countries produced different patterns in the practice of judicial review. (25)

This question of how judicial review should be practiced motivates many investigations of its origins. (26) This Article claims that because judicial review was a shifting cultural practice, not a new intellectual doctrine, the how question cannot be as...

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