The Doctrine of Judicial Review

Its Legal and Historical Basis and Other Essays

Edward S. Corwin

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351483483
• Edition: 1
• Topic: Law
• Subtopic: Courts
• Index: Law

This book, first published in 1914, contains five historical essays. Three of them are on the concept of judicial review, which is defined as the power of a court to review and invalidate unlawful acts by the legislative and executive branches of government. One chapter addresses the historical controversy over states' rights. Another concerns the Pelatiah Webster Myth the notion that the US Constitution was the work of a single person.In "Marbury v. Madison and the Doctrine of Judicial Review, " Edward S. Corwin analyzes the legal source of the power of the Supreme Court to review acts of Congress. "We, the People" examines the rights of states in relation to secession and nullification. "The Pelatiah Webster Myth" demolishes Hannis Taylor's thesis that Webster was the "secret" author of the constitution. "The Dred Scott Decision" considers Chief Justice Taney's argument concerning Scott's title to citizenship under the Constitution. "Some Possibilities in the Way of Treaty-Making" discusses how the US Constitution relates to international treaties.Matthew J. Franck's new introduction to this centennial edition situates Corwin's career in the history of judicial review both as a concept and as a political reality.

1

Marbury v. Madison and the Doctrine of Judicial Review^*

What is the exact legal basis of the power of the Supreme Court to pass upon the constitutionality of acts of Congress? Recent literature on the subject reveals a considerable variety of opinion. There are radicals who hold that the power owes its existence to an act of sheer usurpation by the Supreme Court itself, in the decision of Marbury v. Madison.¹ There are conservatives who point to clauses of the Constitution which, they assure us, specifically confer the power.² There are legal writers who refuse to go back of Marbury v. Madison, content in the ratification which, they assert, subsequent events have given the doctrine of that decision.³ There are historical writers who show that a considerable portion of the membership of the body that framed the Constitution are on record as having personally favored judicial review at one time or another, either before, during, or after the Convention.⁴ Finally, there are other historical writers who represent judicial review as the natural outgrowth of ideas that were common property in the period when the Constitution was established.⁵ Both these last views I find to be in themselves correct enough, but with the result of disclosing some more fundamental problems. For the question is not, what did the framers of the Constitution hope or desire with reference to judicial review, but what did they do with reference to it; and before ideas contemporary with the framing of the Constitution can be regarded as furnishing the legal basis of judicial review, it must be shown that they were, by contemporary understanding, incorporated in the Constitution for that purpose and that they were logically sufficient for it. To investigate these questions is the purpose of the study to follow.

I

The position of those who are content to rest the power of the Supreme Court over acts of Congress upon Marbury v. Madison⁶ is plainly illogical. For either that decision was based upon the Constitution or it was not. In the former case, however, it is the Constitution that is the real basis of the power, while in the latter the decision was erroneous by the court’s own premises. Still it is urged that whatever the defects of the original decision, these have long since been cured by popular acquiescence and later decisions. Let me then begin this article by showing some difficulties in the way of this view.

The case of Marbury v. Madison arose upon an application by plaintiff to the Supreme Court for a writ of mandamus to the Secretary of State to compel him to deliver a commission authorizing plaintiff to exercise the functions of an office to which he had been duly appointed. The court, reversing the usual order of procedure,^6a went first into the merits of the question and from its review of these came to the conclusion that a mandamus, had it been sought in a tribunal having jurisdiction of the case, would undoubtedly have been the proper remedy. But this, it contended, had not been done. For though § 13 of the Act of 1789 purported to authorize the Supreme Court to issue “writs of mandamus in cases warranted by the principles and usages of law to . . . persons holding office under the authority of the United States,”⁷ this provision transgressed Article III, § 2, par. 2, of the Constitution, the words of which describing the original jurisdiction of the Supreme Court must be interpreted as negativing any further power of the same order. Thereupon the court pronounced §13 null and void, and dismissed the case for want of jurisdiction.

Inevitably, the first question raised by Marshall’s decision is as to the correctness of his construction of Article III, § 2, par. 2. In support of his position the Chief Justice might have quoted, had he chosen, the Federalist,⁸ but against him were: first, the important evidence of the legislative provision overturned, showing congressional opinion practically contemporaneous with the Constitution; secondly, the fact that anterior to Marbury v. Madison the court itself had repeatedly taken jurisdiction of cases brought under that provision⁹ and thirdly, the fact that in other connections affirmative words of grant in the Constitution had not been deemed to infer a correlative negative. Thus, were the rule laid down in Marbury v. Madison to be followed, Congress would have power to enact penalties against only the crimes of counterfeiting, treason, and piracy and offences against the Law of Nations, whereas in fact it had, even as early as 1790, enacted penalties against many other acts, by virtue of its general authority under the “necessary and proper” clause.¹⁰

Yet it must be admitted that the rule of exclusive-ness does often apply to cases of affirmative enumeration, so that the only question is whether Article III, § 2, par. 2, furnished such a case. Speaking to this point, the Chief Justice said: “A negative or exclusive sense must be given them [the words of the paragraph in question] or they have no operation at all.”¹¹ But this is simply not so. For though given only their affirmative value, these words still place the cases enumerated by them beyond the reach of Congress,—surely no negligible matter. Nor does the Chief Justice’s attempt to draw support from the further words of the same paragraph fare better upon investigation. “In all other cases,” he quotes, the Supreme Court is given appellate jurisdiction, that is, as he would have it, merely appellate jurisdiction. Unfortunately for this argument the words thus pointed to are followed by the words—which the Chief Justice fails to quote—“with such exceptions . . . as the Congress shall make.” Why, then, should not the exceptions thus allowed to the appellate jurisdiction of the Supreme Court have been intended to take the form, if Congress so willed, of giving the court original jurisdiction of the cases covered by them?

Moreover, the time was to come when Marshall himself was to abandon the reasoning underlying the rule laid down in Marbury v. Madison. This rule, to repeat, was that the Supreme Court’s original jurisdiction is confined by the Constitution to the cases specifically enumerated in Article III, § 2, par. 2, and—though this was only dictum—that the court’s appellate jurisdiction is confined “to all other cases.” But now it must be noted that jurisdiction is always either original or appellate,—that there is, in other words, no third sort. The rule laid down in Marbury v. Madison becomes therefore the logical equivalent of the proposition that the Supreme Court had only original jurisdiction of the cases enumerated in Article III, § 2, par. 2. In Cohens v. Virginia¹² nevertheless the court took jurisdiction on appeal of a case which had arisen “under this Constitution,” but was also a case to which a State was party, on the basis of the rule, as stated by the Chief Justice, that “Where the words admit of appellate jurisdiction the power to take cognizance of the suit originally does not necessarily negative the power to decide upon it on an appeal, if it may originate in a different court.”¹³ And in further illustration of this rule, the Chief Justice instanced the right of the Supreme Court to take jurisdiction on appeal of certain cases which foreign consuls were allowed to institute in the lower federal courts.¹⁴ He also insisted, and quite warrantably, upon the necessity of the rule in question to major purposes of the Constitution. Yet obviously if the rule is to be harmonized with that laid down in Marbury v. Madison, it must be by eliminating the word “all” from the opening clause of Article III, § 2, par. 2, and by inserting qualifying words in front of the word “those” of the same clause. Otherwise the line of reasoning taken in Marbury v. Madison is abandoned and the precise decision there left hanging in mid-air.¹⁵

Suppose however, we concede Marshall his construction of Article III, is his decision absolved of error thereby? By no means. This decision rests upon the assumption that it was the intention and necessary operation of § 13 of the Act of 1789 to enlarge the original jurisdiction of the Supreme Court, and this cannot be allowed. To begin with, in Common Law practice, in the light of which § 13 was framed, the writ of mandamus was not, ordinarily at least, an instrument of obtaining jurisdiction by a court, even upon appeal, but like the writs of habeas corpus and injunction, was a remedy available from a court in the exercise of its standing jurisdiction. This being the case, however, why may it not have been the intention of Congress in enacting § 13, not to enlarge the Supreme Court’s jurisdiction, but simply to enable the court to issue the writ of mandamus to civil officers of the United States as auxiliary to the original jurisdiction which the Constitution conferred upon it? It is certain that the court has more than once entertained motions by original suitors for injunctions to such officers,¹⁶ and it is apparent that, so far as the question here discussed is concerned, an application for a writ of mandamus must rest on the same footing.¹⁷

Furthermore, the proposition that the writ of mandamus is not to be regarded ordinarily as a means of obtaining jurisdiction, but only of exercising it, was recognized and applied by the Supreme Court itself a few years later, in a case the exact parallel of Marbury v. Madison. By § 14 of the Act of 1789 the circuit courts of the United States were given the power, in words substantially the same as those employed in § 13, to issue certain writs “in cases authorized by the principles and usages of law.” Yet in Mclntire v. Wood,¹⁸ where the issue was the validity of a writ of mandamus to a person holding office under the authority of the United States the Supreme Court ruled that before a circuit court could utilize the power given it in § 14 in a case, it must have jurisdiction of the case on independent grounds, and the same rule was later reiterated in McClung v. Silliman.¹⁹ But clearly, had the court followed this line of reasoning in Marbury v. Madison, it could not have questioned the validity of § 13. Indeed, had it but followed the, today at any rate, well-known maxim of Constitutional Law that of two possible interpretations of a statute, the one harmonious with the Constitution, the other at variance with it, the former must be preferred,²⁰ it could not have challenged the legislation in question. By its view of Article III, § 2, par. 2, it must still doubtless have declined jurisdiction of the case, but the ground of its action would have been, not the error of Congress, but the error of plaintiff.

In short there was no valid occasion in Marbury v. Madison for any inquiry by the court into its prerogative in relation to acts of Congress. Why then, it will be asked, did the court make such an inquiry? In part the answer to this question will appear later, but in part it may be answered now. To speak quite frankly, this decision bears many of the earmarks of a deliberate partisan coup. The court was bent on reading the President a lecture on his legal and moral duty to recent Federalist appointees to judicial office, whose commissions the last Administration had not had time to deliver, but at the same time hesitated to invite a snub by actually asserting jurisdiction of the matter. It therefore took the engaging position of declining to exercise power which the Constitution withheld from it, by making the occasion an opportunity to assert a far more transcendent power.

II

But from Marbury v. Madison we proceed to the question whether, and in what way, the Constitution itself sanctions judicial review. I have already indicated my opinion that no clause was inserted in the Constitution for the specific purpose of bestowing this power on courts, but that the power rests upon certain general principles thought by its framers to have been embodied in the Constitution. I shall now endeavor to justify this opinion.

That the members of the Convention of 1787 thought the Constitution secured to courts in the United States the right to pass on the validity of acts of Congress under it cannot be reasonably doubted. Confining ourselves simply to the available evidence that is strictly contemporaneous with the framing and ratifying of the Constitution, as I think it only proper to do, we find the following members of the Convention that framed the Constitution definitely asserting that this would be the case: Gerry and King of Massachusetts, Wilson and Gouverneur Morris of Pennsylvania, Martin of Maryland, Randolph, Madison, and Mason of Virginia, Dickinson of Delaware, Yates and Hamilton of New York, Rutledge and Charles Pinckney of South Carolina, Davie and Williamson of North Carolina, Sherman and Ellsworth of Connecticut.²¹ True these are only seventeen names out of a possible fifty-five, but let it be considered whose names they are. They designate fully three-fourths of the leaders of the Convention, four of the five members of the Committee of Detail which drafted the Constitution,²² and four of the five members of the Committee of Style which gave the Constitution final form.²³ The entries under these names, in the Index to Farrand’s Records occupy fully thirty columns, as compared with fewer than half as many columns under the names of the remaining members. We have in this list, in other words, the names of men who expressed themselves on the subject of judicial review because they also expressed themselves on all other subjects before the Convention. They were the leaders of that body and its articulate members. And against them are to be pitted, in reference to the question under discussion, only Mercer of Maryland, Bedford of Delaware, and Spaight of North Carolina, the record in each of whose cases turns out to be upon inspection of doubtful implication. For while Spaight, for instance, undoubtedly expressed himself, during the period of the Convention, as strongly adverse to the theory of judicial review,²⁴ yet he later heard the idea expounded both on the floor of the Philadelphia Convention and the North Carolina convention without protest. The words of Bedford which are relied upon in this connection are his declaration that he was “opposed to every check on the legislature.” But these words were spoken with reference, not to judicial review, but to the proposition to establish a council of legislative revision.²⁵ Mercer of Maryland did not sign the Constitution and opposed its adoption. It is by no means impossible that one of the grounds of his opposition was recognition of the fact that the Constitution established judicial review.²⁶ Altogether it seems a warrantable assertion that on no other feature of the Constitution with reference to ...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication Page
• Contents
• Introduction to the Transaction Edition
• Preface
• 1 Marbury v. Madison and the Doctrine of Judicial Review
• 2 “We, The People”
• 3 The Pelatiah Webster Myth
• 4 The Dred Scott Decision
• 5 Some Possibilities in the Way of Treaty-Making
• Index