Judicial Review before Marbury
Treanor, William Michael, Stanford Law Review
INTRODUCTION I. BACKGROUND II. REVOLUTIONARY-ERA CASE LAW A. Jury Trial Cases B. Rutgers v. Waddington C. Symsbury Case D. Case of the Prisoners E. Conclusion: Different Interpretive Approaches for Different Statutes III. STATE COURTS 1N THE EARLY REPUBLIC A. Challenges Not Implicating Judicial Powers or the Right to a Jury Trial B. Right to a Jury Trial C. Statutes Affecting Courts D. Conclusion: Significance of Type of Statute IV. CIRCUIT COURT DECISIONS A. Review of State Statutes in Circuit Courts B. Review of Congressional Statutes Affecting the Judicial Role: Hayburn's Case and United States v. Ravara C. Conclusion: Neglected Evidence of Judicial Review V. SUPREME COURT CASE LAW A. National Government Powers B. Judicial Role C. Review of State Statutes: Ware v. Hylton VI. IMPLICATIONS OF THE CASE LAW A. Marbury: Building on a Firmly Established Foundation B. Understanding the Scope of Judicial Review CONCLUSION
One of the most significant questions for originalists--perhaps the most significant question--is: What was the original understanding of judicial review? Scholars and jurists have sharply disagreed on the answer, Opinions range from the claim that judicial review was not part of the original understanding at all (1) to the contention that the original conception of judicial review was so expansive that courts had the power to invalidate statutes on broad natural law grounds. (2) The Supreme Court has claimed originalist sanction for the view that it is "the ultimate expositor of the constitutional text," (3) and in the past decade has struck down a string of congressional statutes on originalist grounds. (4) The dominant scholarly view--presented most compellingly by Larry Kramer in his Foreword to the Harvard Law Review's analysis of the Supreme Court's 2000 Term (5) and his recent book, The People Themselves (6)--is dramatically at odds with this approach and holds that, while judicial review was part of the original understanding, it was rarely exercised, and only clearly unconstitutional statutes were struck down.
This Article presents the most complete historical account of the richest source of evidence on the original understanding: the case law before Marbury. (7) It specifically focuses on the cases in which at least one judge found a statute unconstitutional. (8) Far more than any previous work, this Article, rather than accepting at face value judicial assertions that only clearly unconstitutional statutes or statutes violative of natural law were being invalidated, carefully probes judicial reasoning and its application to statutory and constitutional text. This historical analysis leads to a view of judicial review in the founding era that is sharply different from all the varying schools of thought, both with respect to the frequency of judicial review and with respect to when it was exercised, and thus this Article supports a reconceptualization of the original understanding.
This Article shows, first, that judicial review was dramatically better established in the years before Marbury than previously recognized. While there has been a range of opinions about early judicial review, none of the modern commentators has grasped how common it was for courts to invalidate statutes. The most influential modern account asserts that there were five such decisions in state and federal courts in the critical period between the Constitution and Marbury. (9) In contrast, this Article discusses thirty-one cases in which a statute was invalidated and seven more in which, although the statute was upheld, one judge concluded that the statute was unconstitutional. The sheer number of these decisions not only belies the notion that the institution of judicial review was created by Chief Justice Marshall in Marbury, it also reflects widespread acceptance and application of the doctrine. …