The Corporate Origins of Judicial Review
Bilder, Mary Sarah, The Yale Law Journal
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
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. …