Did the Founders expect the Courts to Declare Laws Unconstitutional?
Posted by Rob Natelson
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Every so often I’m asked whether the Founders anticipated judicial review. In other words, whether the Founders expected the courts to void laws they found unconstitutional.The clear answer is “yes.” During the colonial era, each colony was governed by its charter, which was a kind of constitution for the colony. Colonial laws in violation of the charter were understood to be void. So also were laws that violated fundamental documents in the British Constitution, such as Magna Carta.During the ratification debates, both Federalists and Anti-Federalists assumed that the courts would have power to void unconstitutional laws. Probably the most famous example is Federalist No. 78, in which Alexander Hamilton wrote:
During the Virginia ratifying convention, Federalist George Nicholas responded to fears that the federal government might exceed its powers by saying,Anti-Federalist George Mason, discussing ex post facto laws, argued at the same convention, “Will it not be the duty of the federal court to say that such laws are prohibited?” And at the same gathering Federalist John Marshall argued that Congress could not exceed its enumerated powers:In the years before the first case in which the Supreme Court struck down a federal law (Marbury v. Madison, 1803), there were over thirty episodes in which American courts voided state or federal laws for unconstitutionality. See William Michael Treanor, Judicial Review Before Marbury, 58 Stanfor...The occasional claim that the Framers rejected judicial review at the Philadelphia convention seems arise from misunderstanding the Framers’ decision to reject a council of revision. A council of revision was a system that then existed in some states as a substitute for the executive veto. It was a panel of executive and judicial officers who reviewed a bill before it became law. Like an executive when he considers whether to sign or veto a bill, the council could consider issues of policy and drafting as well as constitutionality.
Get the 2nd Edition Today!Elbridge Gerry argued against a council of revision, and his argument shows how well accepted judicial review was. According to James Madison’s notes,The convention followed Gerry’s advice and adopted the presidential veto instead of a council of revision.In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution's original meaning have been published or cited by many top law journals. (See: www.constitution.i2i.org/about/.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado's Independence Institute.
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- Before we put this guy on a pedestal and start worshiping the ground he walked on, let's include a few things the author has conveniently left out.It was because of Adams' actions concerning the Midnight Judges appointments that we gotMarbury v Madison. Which in essence, gave us judicial review, essentially making the Supreme Court the Law of the Land by granting them exclusivity in their interpretation of the Constitution. Not to mention the Court was empowered with writing its' own rules of evidence and limits its' decisions to stare decisis.There are many that will argue this was not what the Founders had in mind. What say you all?Of all the Founders, Adams is my least favorite. he attempted to usurp the Constitution with theAlien and Sedition Acts and numerous other legislation.
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- George F. Will
- Opinion Writer
The constitutional right to be left alone
Judge J. Harvie Wilkinson III, a Reagan appointee to the U.S. Court of Appeals for the 4th Circuit, is a courtly Virginian who combines a manner as soft as a Shenandoah breeze with a keen intellect. His disapproval of much current thinking about how the Constitution should be construed is explained in his spirited new book — slender and sharp as a stiletto — “Cosmic Constitutional Theory: Why Americans Are Losing Their Inalie....”A “cosmic theory,” Wilkinson says, is any theory purporting to do for constitutional questions what Freud and Einstein tried to do concerning human behavior and the universe, respectively — provide comprehensive and final answers. The three jurisprudential theories Wilkinson criticizes are the “living Constitution,” “originalism” and “constitutional pragmatism.” Each, he says, abets judicial hubris, leading to judicial “activism.”655Comments- Weigh In
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George WillWill writes a twice-a-week column on politics and domestic affairs.Those who believe the Constitution is “living” believe, Wilkinson says, that judges should “implement the contemporary values” of society. This leads to “free-wheeling judging.” So Wilkinson apparently agrees somewhat with Justice Antonin Scalia, who stresses the “antievolutionary purpose of a constitution,” which “is to prevent change — to embed certain rights in such a manner that future generations cannot readily take them away.” Future generations or contemporary majorities.Wilkinson is right that judges, comprising an elite and “introverted” profession, are prone to misreading the values of the broader society. But even if judges read those values correctly, judicial restraint can mean giving coercive sweep to the values of contemporary majorities. That a majority considers something desirable is not evidence that it is constitutional.One problem with originalism, Wilkinson argues, is that historical research concerning the original meaning of the Constitution’s text — how it was understood when ratified — often is inconclusive. This leaves judges no Plan B — other than to read their preferences into the historical fog.Constitutional pragmatists advocate using judicial power to improve the functioning of the democratic process. But this, Wilkinson rightly warns, licenses judges to decide what a well-functioning democracy should look like and gives them vast discretion to engage in activism in defense of, for example, those it decides are “discrete and insular minorities.”Insisting that “the republican virtue of restraint requires no cosmic theory,” Wilkinson’s recurring refrain is that judges should be disposed to defer to majorities, meaning the desires of political, popularly elected institutions. But because deference to majority rule is for Wilkinson a value that generally trumps others, it becomes a kind of cosmic theory — a solution that answers most vexing constitutional riddles.Wilkinson’s premise is that “self-governance,” meaning majority rule, is the “first principle of our constitutional order.” But this principle, although important, is insufficient and, in fact, is secondary.
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The constitutional right to be left alone
Granted, where politics operates — where collective decisions are made for the polity — majorities should generally have their way. But a vast portion of life should be exempt from control by majorities. And when the political branches do not respect a capacious zone of private sovereignty, courts should police the zone’s borders. Otherwise, individuals’ self-governance of themselves is sacrificed to self-government understood merely as a prerogative of majorities.The Constitution is a companion of the Declaration of Independence and should be construed as an implementation of the Declaration’s premises, which include: Government exists not to confer rights but to “secure” preexisting rights; the fundamental rights concern the liberty of individuals, not the prerogatives of the collectivity — least of all when it acts to the detriment of individual liberty.George WillWill writes a twice-a-week column on politics and domestic affairs.Wilkinson cites Justice Oliver Wendell Holmes as a practitioner of admirable judicial modesty. But restraint needs a limiting principle, lest it become abdication. Holmes said: “If my fellow citizens want to go to Hell I will help them. It’s my job.” No, a judge’s job is to judge, which includes deciding whether majorities are misbehaving at the expense of individual liberty.Justice Felix Frankfurter, whose restraint Wilkinson praises, said that the Constitution is “not a document but a stream of history.” If so, it is not a constitution; it cannot constitute if its meanings are fluid and constantly flowing in the direction of the preferences of contemporary majorities.The Constitution is a document, one understood — as America’s greatest jurist,John Marshall, said — “chiefly from its words.” And those words are to be construed in the bright light cast by the Declaration. Wilkinson worries about judges causing “an ever-increasing displacement of democracy.” Also worrisome, however, is the displacement of liberty by democracy in the form of majorities indifferent or hostile to what the Declaration decrees — a spacious sphere of individual sovereignty.georgewill@washpost.com
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