The Corporate Origins of Judicial Review

By Bilder, Mary Sarah | The Yale Law Journal, December 2006 | Go to article overview

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

INTRODUCTION

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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Corporate Origins of Judicial Review
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.