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JUDICIAL REVIEW

JUDICIAL REVIEW. When a court measures a statute or an executive action against a constitution, treaty, or other fundamental law, judicial review has occurred. The antecedents of modern judicial review were three: first, Edward Coke's opinion in Bonham's Case (1610), in which he declared an act of Parliament to be against "common right and reason" and therefore void; second, the opinions of the British Privy Council finding certain measures of colonial legislatures to have exceeded authorization under their royal charters; and third, early U.S. state government decisions that state statutes exceeded the permissible bounds set forth in the state constitutions. There were also some early state and federal decisions suggesting that even where the state or federal constitutions were silent, certain basic principles of "republican governments" could not be disregarded by legislators, principles that would be grounds for striking down statutes. In Calder v. Bull (1798), Supreme Court Justice Samuel Chase gave examples of the violation of these principles, such as taking one person's property to give to another, deeming an action criminal that was not illegal when committed, and making persons judge and party in their own cases.

Judicial review in America is often dated from John Marshall's opinion in MARBURY V. MADISON (1803). According to Marshall, a provision of the Judiciary Act of 1789 improperly extended the jurisdiction of the U.S. Supreme Court, and was therefore unconstitutional. This was the first opinion in which the Court exercised judicial review en banc (with full judicial authority). The idea of judicial review had been employed previously by several of the justices, riding circuit, to question both federal and state legislation. In Federalist No. 78, published at the time of the ratification of the U.S. Constitution, Alexander Hamilton asserted the power of judicial review in terms almost identical to those employed by Marshall in Marbury. Opponents of the Constitution believed judicial review gave the justices too much discretion, but Hamilton defended the doctrine by arguing that when the judges struck down a statute on the grounds that it was barred by the Constitution, they were merely fulfilling their task as agents of the American people—the sovereign that dictated the Constitution.

Dred Scott Case and the Fourteenth Amendment

Judicial review was infrequent during the Republic's early years, although in several notable cases, including Fletcher v. Peck (1810), Dartmouth College v. Woodward (1819), and Gibbons v. Ogden (1824), the Marshall Court ruled that state legislatures had exceeded the bounds permitted them under the federal Constitution. Not until the Taney Court decided the DRED SCOTT CASE (1857), however, was a second federal statute ruled unconstitutional. In a 7 to 2 decision, Chief Justice Taney ruled that Congress had no power to forbid slavery in the territories, because the Fifth Amendment to the Constitution barred Congress from taking property without "due process." According to Taney, forbidding slavery amounted to the obliteration of a property interest that could not be "dignified with the name of due process."

At the beginning of the twenty-first century the Dred Scott case is regarded with universal disapprobation. Still, Taney's statement of the proper philosophy of judicial review—that the Court should interpret the Constitution's provisions as they were understood at the time of the Constitution's ratification—has merit and is itself in accordance with the understanding of the framers. Taney's elevation of property rights to the central constitutional concern is also in keeping with the framers' views.

Nevertheless, in Dred Scott, Taney belied his own judicial philosophy when he failed to recognize that at the time of the framing of the Constitution there was a presumption in favor of human freedom and a widespread belief that slavery was contrary to natural law. As such, there was less protection for slavery than for other forms of property, and congressional prohibition of slavery where it had not been established by positive law should have been permissible. Another principal holding of Dred Scott—that even free blacks were not regarded as "citizens" at the time of the ratification of the Constitution—is similarly debatable. Through 2002, Dred Scott continued to be invoked as a symbol of judicial review's excesses.

After the Civil War a series of constitutional amendments were passed, some provisions of which reversed Dred Scott. The Thirteenth Amendment forbade slavery and the Fourteenth Amendment made clear that citizen-ship could not be denied because of race. The Fourteenth Amendment also further circumscribed the powers of state governments by providing that no state could deprive any person of the "equal protection of the laws," take a person's "life, liberty or property without due process of law," or "abridge the privileges and immunities of citizens of the United States." The meaning of these provisions is obscure, but thereafter the Fourteenth Amendment was invoked in the most dramatic instances of judicial review.

The Fourteenth Amendment was intended to improve the lot of the newly freed slaves, but it soon came to be employed in a different context. As states began to impose new forms of economic regulation, many businesses and corporations argued that they possessed Fourteenth Amendment rights that had been infringed. They asserted a "right to contract" that they claimed inhered in the due process provision of the Fourteenth Amendment. Just as Taney believed that a congressional statute that took away a right to property in slaves could not be regarded as due process, so some began to argue that to infringe on the right to contract with one's employees did not meet the requirements of due process. Because this argument did not deal with "process" in its usual sense, it came to be known as substantive due process. This doctrine assumes that there are some subjects on which legislation simply should not be permitted.

A number of Supreme Court decisions found state regulatory legislation unconstitutional. The most famous was LOCHNER V. NEW YORK (1905), in which the Court invalidated, on substantive due process grounds, New York legislation that set maximum hours for bakers. Lochner's majority was chastised by Oliver Wendell Holmes Jr. in a fiery dissent. He claimed that the majority was imposing its own policy preferences on New York, and was reading into the Constitution a particular economic theory which the framers had not intended.

The New Deal

Until 1937 the U.S. Supreme Court continued to employ judicial review in service of a conservative, business-oriented view of the Constitution. When the Great Depression led to federal regulatory efforts of an unprecedented scope, it was inevitable that the Court would be asked to review the constitutionality of these measures. There were a number of decisions, some upholding New Deal legislation. But in the most notable cases, the Court held that Congress's power to regulate interstate commerce was limited and could not be stretched to include manufacturing or processing which took place within a single state. SCHECHTER POULTRY CORPORATION V. UNITED STATES (1935), for example, invalidated the National Industrial Recovery Act (1933).

Schechter Poultry infuriated President Franklin Roosevelt, who bemoaned the Court's use of a "horse-and-buggy" definition of interstate commerce. Roosevelt challenged the Court's interpretive strategy of defining terms the way they had been understood by the framers, and argued for a dynamic interpretation to fit the Constitution to the needs of the times. Roosevelt, in his fulmination, threatened to pack the court by appointing additional justices sympathetic to his views. But before he could, the Court dramatically changed interpretive course.

The case that demonstrated the Court's interpretive shift most clearly was NATIONAL LABOR RELATIONS BOARD V. JONES AND LAUGHLIN STEEL CORPORATION (1937), in which the Court allowed Congress to use its powers to regulate interstate commerce to create the National Labor Relations Board, with jurisdiction to mandate collective bargaining and union organizing within manufacturing plants. The Court's logic was that a strike at the Pennsylvania steel plant in question might have consequences for interstate commerce and that this possibility permitted federal regulation. This logic could support federal regulation of nearly anything, and was employed until late in the twentieth century. Jones and a number of other cases also rejected the predominance earlier given to freedom of contract, and substantive economic due process died.

The Warren Court

Several striking instances of modern judicial review occurred during the chief justiceship of Earl Warren, who adopted the notion advanced by Franklin Roosevelt that the Constitution ought to be perceived as a "living document." In the landmark case of BROWN V. BOARD OF EDUCATION OF TOPEKA (1954), the Warren Court announced that constitutional jurisprudence could not "turn back the clock." Warren, writing for a unanimous Court, held that racially segregated schools violated the Fourteenth Amendment's guarantee of equal protection of the laws, and that the practice had to end. There was strong evidence that this had not been the intention of the amendment, but the Court brushed this objection aside. The events Brown set in motion altered racial relations in America forever, and initiated a pattern of judicial activism unlike any other.

The Warren Court embraced earlier decisions which had held, in spite of a paucity of evidence, that the Fourteenth Amendment was intended to extend the Bill of Rights' prohibitions against the federal government to forbid actions by the states. The Court proceeded, wholesale, to refashion state and local government and law enforcement. The Court ruled that state laws requiring compulsory Bible reading or school prayer violated the First Amendment. It decided that the Fourth Amendment's prohibition on unreasonable searches and seizures meant that local law enforcement officials had to follow particular procedures dictated by the federal courts or have the evidence they obtained thrown out of court. The Court read the Fourteenth Amendment's equal protection language to mean that both houses of the state legislatures had to be apportioned on the basis of population, refusing to allow the states to emulate the federal Constitution's model of one chamber determined by population, and another by political subdivision.

Roe v. Wade

For most of the period of the Burger and Rehnquist Courts, much of the reformist zeal of the Warren Court prevailed. In an exercise of constitutional interpretation second in boldness only to Brown, the Court in ROE V. WADE (1973) ruled 7 to 2 that state prohibitions on abortion during the first trimester of pregnancy violated the Fourteenth Amendment's requirement of due process. Thus did substantive due process return, though in neither the property rights guise of Dred Scott or the economic aspect of Lochner.

The audacity of Roe led to an unsuccessful struggle in the legal academy to articulate a theory of judicial review that might reconcile the Court's conduct with Hamilton's idea that judicial review merely carried out the will of the people. Although the Court had been unwilling to overturn Roe, by 2002 it survived by the slimmest of margins. The Warren Court's decisions regarding state-sponsored prayer were generally upheld as late as 2002, with the Rehnquist Court barring officially selected prayers at school graduations and even at football games. Lower federal courts nibbled away at the school prayer decisions at the beginning of the twenty-first century, however, by permitting schools to impose "moments of silence" with prayer among the permitted meditative activities.

The Rehnquist Court

With the landmark case of UNITED STATES V. LOPEZ (1995), the Supreme Court, under Chief Justice William Rehnquist, announced for the first time since the New Deal that a federal regulatory measure was not permitted under the commerce clause. Congress had sought to impose federal criminal penalties on those who carried unauthorized firearms in or near any school in the nation. Proponents of the act argued that firearms disrupted education and that the disruption of education would eventually have an adverse affect on interstate commerce. This rationale was no more strained that that which had permitted the Court to allow many New Deal measures, but in a 5 to 4 ruling, the Court decided that to permit this commerce clause argument to prevail in Lopez would be to allow unlimited federal regulation.

A later Rehnquist Court case, United States v. Morrison (2000), applied similar logic to reject some provisions of the federal Violence Against Women Act, holding that basic criminal law enforcement was a matter for the state and local governments rather than the federal government. Lopez and Morrison, and a variety of other cases concerned with the assertion of state sovereign immunity and the prohibition on conscripting state and local officials into federal law enforcement, were perceived in the 1990s as the Rehnquist Court's assertion of a "new federalism." Critics charged that the Court's newly activist conservative majority was bent on construing the Constitution in a manner that sharply restricted what the federal government could do, and threatened its role as the protector of civil rights. The Rehnquist Court's defenders argued that it was returning to a jurisprudence of original understanding, and receding from the wanton readings of the Constitution during the Warren Court years.

But if the Rehnquist Court's new federalism decisions could be defended as an exercise in returning the Constitution to its original scheme, it was difficult to make that argument in support of the Rehnquist Court's most ambitious act of judicial review, in BUSH V. GORE (2000). For the first time, the Supreme Court, at the instance of a presidential candidate, held that a state court's interpretation of state election law violated the equal protection clause of the Fourteenth Amendment. Seven justices agreed there was an equal protection violation, but only five concurred in the Court's remedy of barring further ballot recounts in Florida, in effect awarding the presidency to George W. Bush.

In 2001 and 2002, justifications were advanced for what the Court did (most centering around the country's need to put an end to election proceedings that threatened to drag out for months or years). But the Court's equal protection reasoning was dubious and the Court itself took pains to limit its holding to the case at hand. Many sympathetic to the Gore candidacy believed that the Court stole the election for Bush. Not surprisingly, no sooner did the Democrats take control of the Senate in early 2001 than a series of hearings was scheduled on "judicial ideology." Democratic senators were concerned about preserving the legacy of the Warren Court, and worried that the Rehnquist Court was embarked upon "judicial activism." During the first months of 2001, no Bush nominees were confirmed to the federal courts and Democrats asserted that there was a need for a balance of interpretive approaches on the bench. Republicans countered this argument by asserting that ideology had no place in judging, which, they claimed, ought to be conceived of as an objective search for the original under-standing of the legislature or the sovereign people. The nature of judicial review had once again become one of the most important issues in national politics.

BIBLIOGRAPHY

Dionne, E. J., Jr., and William Kristol, eds. Bush v. Gore: The Court Cases and the Commentary. Washington, D.C.: Brookings Institution, 2001.

Ely, John Hart. Democracy and Distrust: A Theory of Judicial Review. Cambridge, Mass.: Harvard University Press, 1980.

Perry, Michael J. The Constitution, the Courts, and Human Rights: An Inquiry into the Legitimacy of Constitutional Policymaking by the Judiciary. New Haven, Conn.: Yale University Press, 1982.

Presser, Stephen B. Recapturing the Constitution: Race, Religion, and Abortion Reconsidered. Lanham, Md.: National Book Network, 1994.

Wolfe, Christopher. The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law. New York: Basic Books, 1986.

Wood, Gordon S. The Creation of the American Republic, 1776–1787. Chapel Hill: University of North Carolina Press, 1969.

Stephen B. Presser

See also Supreme Court.