Annotation 13 - Article III


The Establishment of Judicial Review

Judicial review is one of the distinctive features of United States constitutional law. It is no small wonder, then, to find that the power of the federal courts to test federal and state legislative enactments and other actions by the standards of what the Constitution grants and withholds is nowhere expressly conveyed. But it is hardly noteworthy that its legitimacy has been challenged from the first, and, while now accepted generally, it still has detractors and its supporters disagree about its doctrinal basis and its application. 576 Although it was first asserted in Marbury v. Madison 577 to strike down an act of Congress as inconsistent with the Constitution, judicial review did not spring full-blown from the brain of Chief Justice Marshall. The concept had been long known, having been utilized in a much more limited form by Privy Council review of colonial legislation and its validity under the colonial charters, 578 and there were several instances known to the Framers of state court invalidation of state legislation as inconsistent with state constitutions. 579  

Practically all of the framers who expressed an opinion on the issue in the Convention appear to have assumed and welcomed the existence of court review of the constitutionality of legislation, 580 and prior to Marbury the power seems very generally to have been assumed to exist by the Justices themselves. 581 In enacting the Judiciary Act of 1789, Congress explicitly made provision for the exercise of the power, 582 and in other debates questions of constitutionality and of judicial review were prominent. 583 Nonetheless, although judicial review is consistent with several provisions of the Constitution and the argument for its existence may be derived from these provisions, they do not compel the conclusion that the Framers intended judicial review nor that it must exist. It was Chief Justice Marshall's achievement that, in doubtful circumstances and an awkward position, he carried the day for the device, which, though questioned, has expanded and become solidified at the core of constitutional jurisprudence.

Marbury v. Madison .--Chief Justice Marshall's argument for judicial review of congressional acts in Marbury v. Madison 584 had been largely anticipated by Hamilton. 585 For example, he had written: ''The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.'' 586  

At the time of the change of Administration from Adams to Jefferson, several commissions of appointment to office had been signed but not delivered and were withheld on Jefferson's express instruction. Marbury sought to compel the delivery of his commission by seeking a writ of mandamus in the Supreme Court in the exercise of its original jurisdiction against Secretary of State Madison. Jurisdiction was based on Sec. 13 of the Judiciary Act of 1789, 587 which Marbury, and ultimately the Supreme Court, interpreted to authorize the Court to issue writs of mandamus in suits in its original jurisdiction. 588 Though deciding all the other issues in Marbury's favor, the Chief Justice wound up concluding that the Sec. 13 authorization was an attempt by Congress to expand the Court's original jurisdiction beyond the constitutional prescription and was therefore void. 589  

''The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States;'' Marshall began his discussion of this final phase of the case, ''but, happily, not of an intricacy proportioned to its interest.'' 590 First, certain fundamental principles warranting judicial review were noticed. The people had come together to establish a government. They provided for its organization and assigned to its various departments their powers and established certain limits not to be transgressed by those departments. The limits were expressed in a written constitution, which would serve no purpose ''if these limits may, at any time, be passed by those intended to be restrained.'' Because the Constitution is ''a superior paramount law,'' it is unchangeable by ordinary legislative means and ''a legislative act contrary to the constitution is not law.'' 591 ''If an act of the legislature, repugnant to the constitution, is void, does it notwithstanding its invalidity, bind the courts, and oblige them to give it effect?'' The answer, thought the Chief Justice, was obvious. ''It is emphatically the province and duty of the judicial department to say what the law is. . . . If two laws conflict with each other, the courts must decide on the operation of each.

''So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

''If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.'' 592 To declare otherwise, Chief Justice Marshall said, would be to permit a legislative body to pass at pleasure the limits imposed on its powers by the Constitution. 593  

Turning, then, from the philosophical justification for judicial review as arising from the very concept of a written constitution, the Chief Justice turned to specific clauses of the Constitution. The judicial power, he observed, was extended to ''all cases arising under the constitution.'' 594 It was ''too extravagant to be maintained that the Framers had intended that a case arising under the constitution should be decided without examining the instrument under which it arises.'' 595 Suppose, he said, that Congress laid a duty on an article exported from a State or passed a bill of attainder or an ex post facto law or provided that treason should be proved by the testimony of one witness. Would the courts enforce such a law in the face of an express constitutional provision? They would not, he continued, because their oath required by the Constitution obligated them to support the Constitution and to enforce such laws would violate the oath. 596 Finally, the Chief Justice noticed the supremacy clause, which gave the Constitution precedence over laws and treaties and provided that only laws ''which shall be made in pursuance of the constitution'' are to be the supreme laws of the land. 597  

The decision in Marbury v. Madison has never been disturbed, although it has been criticized and has had opponents throughout our history. It not only carried the day in the federal courts, but from its announcement judicial review by state courts of local legislation under local constitutions made rapid progress and was securely established in all States by 1850. 598  

Judicial Review and National Supremacy .--Even many persons who have criticized the concept of judicial review of congressional acts by the federal courts have thought that review of state acts under federal constitutional standards is soundly based in the supremacy clause, which makes the Constitution and constitutional laws and treaties the supreme law of the land, 599 to effectuate which Congress enacted the famous Sec. 25 of the Judiciary Act of 1789. 600 Five years before Marbury v. Madison, the Court held invalid a state law as conflicting with the terms of a treaty, 601 and seven years after Chief Justice Marshall's opinion a state law was voided as conflicting with the Constitution. 602  

Virginia provided a states' rights challenge to a broad reading of the supremacy clause and to the validity of Sec. 25 in Martin v. Hunter's Lessee 603 and in Cohens v. Virginia. 604 In both cases, it was argued that while the courts of Virginia were constitutionally obliged to prefer ''the supreme law of the land,'' as set out in the supremacy clause, over conflicting state constitutional provisions and laws, it was only by their own interpretation of the supreme law that they as courts of a sovereign State were bound. Furthermore, it was contended that cases did not ''arise'' under the Constitution unless they were brought in the first instance by someone claiming such a right, from which it followed that ''the judicial power of the United States'' did not ''extend'' to such cases unless they were brought in the first instance in the courts of the United States. But answered Chief Justice Marshall: ''A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the Constitution or a law of the United States, whenever its correct decision depends upon the construction of either.'' 605 Passing on to the power of the Supreme Court to review such decisions of the state courts, he said: ''Let the nature and objects of our Union be considered: let the great fundamental principles on which the fabric stands, be examined: and we think, the result must be, that there is nothing so extravagantly absurd, in giving to the Court of the nation the power of revising the decisions of local tribunals, on questions which affect the nation, as to require that words which import this power should be restricted by a forced construction.'' 606  

Limitations on the Exercise of Judicial Review

Constitutional Interpretation .--In a system such as the one in the United States in which there is a written constitution, which is law and is binding on government, the practice of judicial review inherently raises questions of the relationship between constitutional interpretation or construction and the Constitution--the law--which is construed. The legitimacy of construction by an unelected entity in a republican or democratic system becomes an issue whenever the construction is controversial, as it was most recently in the 1960s to the present. Full consideration would carry us far afield, in view of the immense corpus of writing with respect to the proper mode of interpretation during this period.

Scholarly writing has identified six forms of constitutional argument or construction that may be used by courts or others in deciding a constitutional issue. 607 These are (1) historical, (2) textual, (3) structural, (4) doctrinal, (5) ethical, and (6) prudential. The historical argument is largely, though not exclusively, associated with the theory of original intent or original understanding, under which constitutional and legal interpretation is limited to attempting to discern the original meaning of the words being construed as that meaning is revealed in the intentions of those who created the law or the constitutional provision in question. The textual argument, closely associated in many ways to the doctrine of original intent, concerns whether the judiciary or another is bound by the text of the Constitution and the intentions revealed by that language or whether it may go beyond the four corners of the constitutional document to ascertain the meaning, a dispute encumbered by the awkward constructions, interpretivism and noninterpretivism. 608 Using a structural argument, one seeks to infer structural rules from the relationships that the Constitution mandates. 609 The remaining three modes sound in reasoning not necessarily tied to original intent, text, or structure, though they may have some relationship.Doctrinal arguments proceed from the application of precedents. Prudential arguments seek to balance the costs and benefits of a particular rule. Ethical arguments derive rules from those moral commitments of the American ethos that are reflected in the Constitution.

Although the scholarly writing ranges widely, a much more narrow scope is seen in the actual political-judicial debate. Rare is the judge who will proclaim a devotion to ethical guidelines, such, for example, as natural-law precepts. The usual debate ranges from those adherents of strict construction and original intent to those with loose construction and adaptation of text to modern-day conditions. 610 However, it is with regard to more general rules of prudence and self-restraint that one usually finds the enunciation and application of limitations on the exercise of constitutional judicial review.

Prudential Considerations .--Implicit in the argument of Marbury v. Madison 611 is the thought that with regard to cases meeting jurisdictional standards, the Court is obligated to take and decide them. Chief Justice Marshall expressly spelled the thought out in Cohens v. Virginia: 612 ''It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution.'' As the comment recognizes, because judicial review grows out of the fiction that courts only declare what the law is in specific cases 613 and are without will or discretion, 614 its exercise is surrounded by the inherent limitations of the judicial process, most basically, of course, by the necessity of a case or controversy and the strands of the doctrine comprising the concept of justiciability. 615 But, although there are hints of Chief Justice Marshall's activism in recent cases, 616 the Court has always adhered, at times more strictly than at other times, to several discretionary rules or concepts of restraint in the exercise of judicial review, the practice of which is very much contrary to the quoted dicta from Cohens. These rules, it should be noted, are in addition to the vast discretionary power which the Supreme Court has to grant or deny review of judgements in lower courts, a discretion fully authorized with certiorari jurisdiction but in effect in practice as well with regard to what remains of appeals. 617  

At various times, the Court has followed more strictly than other times the prudential theorems for avoidance of decisionmaking when it deemed restraint to be more desirable than activism. 618  

The Doctrine of ''Strict Necessity.'' --The Court has repeatedly declared that it will decide constitutional issues only if strict necessity compels it to do so. Thus, constitutional questions will not be decided in broader terms than are required by the precise state of facts to which the ruling is to be applied, nor if the record presents some other ground upon which to decide the case, nor at the instance of one who has availed himself of the benefit of a statute or who fails to show he is injured by its operation, nor if a construction of the statute is fairly possible by which the question may be fairly avoided. 619  

Speaking of the policy of avoiding the decision of constitutional issues except when necessary, Justice Rutledge wrote: ''The policy's ultimate foundations, some if not all of which also sustain the jurisdictional limitation, lie in all that goes to make up the unique place and character, in our scheme, of judicial review of governmental action for constitutionality. They are found in the delicacy of that function, particularly in view of possible consequences for others stemming also from constitutional roots; the comparative finality of those consequences; the consideration due to the judgment of other repositories of constitutional power concerning the scope of their authority; the necessity, if government is to function constitutionally, for each to keep within its power, including the courts; the inherent limitations of the judicial process, arising especially from its largely negative character and limited resources of enforcement; withal in the paramount importance of constitutional adjudication in our system.'' 620  

The Doctrine of Clear Mistake .--A precautionary rule early formulated and at the base of the traditional concept of judicial restraint was expressed by Professor James Bradley Thayer to the effect that a statute could be voided as unconstitutional only ''when those who have the right to make laws have not merely made a mistake, but have made a very clear one,--so clear that it is not open to rational question.'' 621 Whether phrased this way or phrased so that a statute is not to be voided unless it is unconstitutional beyond all reasonable doubt, the rule is of ancient origin 622 and of modern adherence. 623 In operation, however, the rule is subject to two influences, which seriously impair its efficacy as a limitation. First, the conclusion that there has been a clear mistake or that there is no reasonable doubt is that drawn by five Justices if a full Court sits. If five Justices of learning and detachment to the Constitution are convinced that a statute is invalid and if four others of equal learning and attachment are convinced it is valid, the convictions of the five prevail over the convictions or doubts of the four. Second, the Court has at times made exceptions to the rule in certain categories of cases. Statutory interferences with ''liberty of contract'' were once presumed to be unconstitutional until proved to be valid; 624 more recently, presumptions of invalidity have expressly or impliedly been applied against statutes alleged to interfere with freedom of expression and of religious freedom, which have been said to occupy a preferred position in the constitutional scheme of things. 625  

Exclusion of Extra-Constitutional Tests .--Another maxim of constitutional interpretation is that courts are concerned only with the constitutionality of legislation and not with its motives, policy, or wisdom, 626 or with its concurrence with natural justice, fundamental principles of government, or the spirit of the Constitu tion. 627 In various forms this maxim has been repeated to such an extent that it has become trite and has increasingly come to be incorporated in cases in which a finding of unconstitutionality has been made as a reassurance of the Court's limited review. And it should be noted that at times the Court has absorbed natural rights doctrines into the text of the Constitution, so that it was able to reject natural law per se and still partake of its fruits and the same thing is true of the laissez faire principles incorporated in judicial decisions from about 1890 to 1937. 628  

Presumption of Constitutionality .--''It is but a decent respect to the wisdom, integrity, and patriotism of the legislative body, by which any law is passed,'' wrote Justice Bushrod Washington, ''to presume in favor of its validity, until its violation of the Constitution is proved beyond a reasonable doubt.'' 629 A corollary of this maxim is that if the constitutional question turns upon circumstances, courts will presume the existence of a state of facts which would justify the legislation that is challenged. 630 It seems apparent, however, that with regard to laws which trench upon First Amendment freedoms and perhaps other rights guaranteed by the Bill of Rights such deference is far less than it would be toward statutory regulation of economic matters. 631  

Disallowance by Statutory Interpretation .--If it is possible to construe a statute so that its validity can be sustained against a constitutional attack, a rule of prudence is that it should be so construed, 632 even though in some instances this maxim has caused the Court to read a statute in a manner which defeats or impairs the legislative purpose. 633 Of course, the Court stresses that ''[w]e cannot press statutory construction 'to the point of disingenuous evasion' even to avoid a constitutional question.'' 634 The maxim is not followed if the provision would survive constitutional attack or if the text is clear. 635 Closely related to this principle is the maxim that when part of a statute is valid and part is void, the courts will separate the valid from the invalid and save as much as possible. 636 Statutes today ordinarily expressly provide for separability, but it remains for the courts in the last resort to determine whether the provisions are separable. 637  

Stare Decisis in Constitutional Law .--Adherence to precedent ordinarily limits and shapes the approach of courts to decision of a presented question. ''Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. . . . This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error so fruitful in the physical sciences, is appropriate also in the judicial function.'' 638 Stare decisis is a principle of policy, not a mechanical formula of adherence to the latest decision ''however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.'' 639 The limitation of stare decisis seems to have been progressively weakened since the Court proceeded to correct ''a century of error'' in Pollock v. Farmers' Loan & Trust Co. 640 Since then, more than 200 decisions have seen one or more earlier decisions overturned, 641 and the merits of stare decisis seems more often celebrated in dissents than in majority opinions. 642 Of lesser formal effect than outright overruling but with roughly the same result is a Court practice of ''distinguishing'' precedents which often leads to an overturning of the principle enunciated in the case while leaving the actual case more or less alive. 643  

Conclusion .--The common denominator of all these maxims of prudence is the concept of judicial restraint, of judge's restraint. ''We do not sit,'' said Justice Frankfurter, ''like kadi under a tree, dispensing justice according to considerations of individual expediency.'' 644 ''[A] jurist is not to innovate at pleasure,'' wrote Jutice Cardozo. ''He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life.'' 645 All Justices will, of course, claim adherence to proper restraint, 646 but in some cases at least, such as Justice Frankfurter's dissent in the Flag Salute Case, 647 the practice can be readily observed. The degree, however, of restraint, the degree to which legislative enactments should be subjected to judicial scrutiny, is a matter of uncertain and shifting opinion.


[Footnote 576] See the richly detailed summary and citations to authority in G. Gunther, Constitutional Law (Westbury, N.Y., 12th ed.: 1991), 1- 38; For expositions on the legitimacy of judicial review, see L. Hand, The Bill of Rights (Cambridge: 1958); H. Wechsler, Principles, Politics, and Fundamental Law--Selected Essays (Cambridge: 1961), 1-15; A. Bickel, The Least Dangerous Branch--The Supreme Court at the Bar of Politics (New York: 1962) 1-33; R. Berger, Congress v. The Supreme Court (Cambridge: 1969). For an extensive historical attack on judicial review, see 2 W. Crosskey, Politics and the Constitution in the History of the United States (Chicago: 1953), chs. 27-29, with which compare Hart, Book Review, 67 Harv. L. Rev. 1456 (1954). A brief review of the ongoing debate on the subject, in a work that now is a classic attack on judicial review, is Westin, Introduction: Charles Beard and American Debate over Judicial Review, 1790-1961, in C. Beard, The Supreme Court and the Constitution (Englewood Cliffs: 1962 reissue of 1938 ed.), 1-34, and bibliography at 133-149. While much of the debate focuses on judicial review of acts of Congress, the similar review of state acts has occasioned much controversy as well.

[Footnote 577]   5 U.S. (1 Cr.) 137 (1803). A state act was held inconsistent with a treaty in Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796).

[Footnote 578] J. Goebel, op. cit., n. 2, 60-95.

[Footnote 579] Id., 96-142.

[Footnote 580] M. Farrand, op. cit., n. 1, 97-98 (Gerry), 109 (King), 2 id., 28 (Morris and perhaps Sherman). 73 (Wilson), 75 (Strong, but the remark is ambiguous). 76 (Martin), 78 (Mason), 79 (Gorham, but ambiguous), 80 (Rutledge), 92-93 (Madison), 248 (Pinckney), 299 (Morris), 376 (Williamson), 391 (Wilson), 428 (Rutledge), 430 (Madison), 440 (Madison), 589 (Madison); 3 id., 220 (Martin). The only expressed opposition to judicial review came from Mercer with a weak seconding from Dickinson. ''Mr. Mercer . . . disapproved of the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be uncontroulable.'' 2 id., 298. ''Mr. Dickinson was strongly impressed with the remark of Mr. Mercer as to the power of the Judges to set aside the law. He thought no such power ought to exist. He was at the same time at a loss what expedient to substitute.'' Id., 299. Of course, the debates in the Convention were not available when the state ratifying conventions acted, so that the delegates could not have known these views about judicial review in order to have acted knowingly about them. Views, were, however, expressed in the ratifying conventions recognizing judicial review, some of them being uttered by Framers. 2 J. Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution (Philadelphia: 1836). 131 (Samuel Adams, Massachusetts), 196-197 (Ellsworth, Connecticut). 348, 362 (Hamilton, New York): 445-446. 478 (Wilson, Pennsylvania), 3 id., 324-325, 539, 541 (Henry, Virginia), 480 (Mason, Virginia), 532 (Madison, Virginia), 570 (Randolph, Virginia); 4 id., 71 (Steele, North Carolina), 156-157 (Davie, North Carolina). In the Virginia convention, John Marshall observed if Congress ''were to make a law not warranted by any of the powers enumerated, it would be considered by the judge as an infringement of the Constitution which they are to guard . . . They would declare it void. . . . To what quarter will you look for protection from an infringement on the constitution, if you will not give the power to the judiciary? There is no other body that can afford such a protection.'' 3 id., 553-554. Both Madison and Hamilton similarly asserted the power of judicial review in their campaign for ratification. The Federalist (J. Cooke ed. 1961). See Nos. 39 and 44, at 256, 305 (Madison), Nos. 78 and 81, at 524-530, 541-552 (Hamilton). The persons supporting or at least indicating they thought judicial review existed did not constitute a majority of the Framers, but the absence of controverting statements, with the exception of the Mercer-Dickinson comments, indicates at least acquiesence if not agreements by the other Framers.

[Footnote 584]   5 U.S. (1 Cr.) 137 (1803).

[Footnote 585] The Federalist, Nos. 78 and 81 (J. Cooke ed. 1961), 521- 530, 541-552.

[Footnote 586] Id., No. 78, at 525.

[Footnote 587] 1 Stat. 73, 80.

[Footnote 588] The section first denominated the original jurisdiction of the Court and then described the Court's appellate jurisdiction. Following and indeed attached to the sentence on appellate jurisdiction, being separated by a semi-colon, is the language saying ''and shall have power to issue . . . writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.'' The Chief Justice could easily have interpreted the authority to have been granted only in cases under appellate jurisdiction or as authority conferred in cases under both original and appellate jurisdiction when the cases are otherwise appropriate for one jurisdiction or the other. Textually, the section does not compel a reading that Congress was conferring on the Court an original jurisdiction to issue writs of mandamus per se.

[Footnote 589] Marbury v. Madison, 5 U.S. (1 Cr.) 137, 173 -180 (1803). For a classic treatment of Marbury, see Van Alstyne, A Critical Guide to Marbury v. Madison, 1969 Duke L. J. 1.

[Footnote 590] Id., 1 Cr. (5 U.S.), 176. One critic has written that by this question Marshall ''had already begged the question-in-chief, which was not whether an act repugnant to the Constitution could stand, but who should be empowered to decide that the act is repugnant.'' A Bickel, op. cit., n. 576, 3. Marshall, however, soon reached this question, though more by way of assertion than argument. Id., 1 Cr. (5 U.S.), 177- 178.

[Footnote 591] Id., 176-177.

[Footnote 592] Id., 177-178.

[Footnote 593] Id., 178.

[Footnote 594] Ibid. The reference is, of course, to the first part of clause 1, Sec. 2, Art. III: ''The judicial power shall extend to all Cases . . . arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority. . . .'' Compare A. Bickel, op. cit., n. 576, 5-6, with R. Berger, op. cit., n. 576, 189-222.

[Footnote 595] Id., 1 Cr. (5 U.S.), 179.

[Footnote 596] Id., 179-180. The oath provision is contained in Art. VI, cl. 3. Compare A. Bickel, op. cit., n. 576, 7-8, with R. Berger, op. cit., n. 576, 237-244.

[Footnote 597] Id., 1 Cr. (5 U.S.), 180. Compare A. Bickel, op. cit., n. 576, 8-12, with R. Berger, op. cit., n. 576, 223-284.

[Footnote 598] E. Corwin, The Doctrine of Judicial Review (Princeton: 1914), 75-78; Nelson, Changing Conceptions of Judicial Review: The Evolution of Constitution Theory in the State, 1790-1860, 120 U. Pa. L. Rev. 1166 (1972).

[Footnote 599] 2. W. Crosskey, op. cit., n. 576, 989. See the famous remark of Holmes: ''I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as the laws of the several States.'' O. Holmes, Collected Legal Papers (Boston: 1921), 295-296.

[Footnote 600] 1 Stat. 73, 85, quoted supra, n. 582.

[Footnote 601] Ware v. Hylton, 3 U.S. (3 Dall.) 190 (1796).

[Footnote 602] Fletcher v. Peck, 10 U.S. (6 Cr.) 87 (1810). The case came to the Court by appeal from a circuit court and not from a state court under Sec. 25. Famous early cases coming to the Court under Sec. 25 in which state laws were voided included Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122 (1819); McCulloch v. Maryland, 17 U.S. (4 Wheat,) 316 (1819).

[Footnote 603]   14 U.S. (1 Wheat) 304 (1816).

[Footnote 604]   19 U.S. (6 Wheat,) 264 (1821).

[Footnote 605] Id., 379.

[Footnote 606] Id., 422-423. Justice Story traversed much of the same ground in Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816). In Ableman v. Booth, 62 U.S. (21 How.) 506 (1859), the Wisconsin Supreme Court had declared an act of Congress invalid and disregarded a writ of error from the Supreme Court, raising again the Virginia arguments. Chief Justice Taney emphatically rebuked the assertions on grounds both of dual sovereignty and national supremacy. His emphasis on the indispensability of the federal judicial power to maintain national supremacy, to protect the States from national encroachments, and to make the Constitution and laws of the United States uniform all combine to enhance the federal judicial power to a degree perhaps beyond that envisaged even by Story and Marshall. As late as Williams v. Bruffy, 102 U.S. 248 (1880), the concepts were again thrashed out with the refusal of a Virginia court to enforce a mandate of the Supreme Court. And see Cooper v. Aaron, 358 U.S. 1 (1958).

[Footnote 607] The six forms, or ''modalities'' as he refers to them, are drawn from P. Bobbitt, Constitutional Fate--Theory of the Constitution (1982); P. Bobbitt, Constitutional Interpretation (1991). Of course, other scholars may have different categories, but these largely overlap these six forms. E.g., Fallon, A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L. Rev. 1189 (1987); Post, Theories of Constitutional Interpretation, in R. Post (ed.), Law and the Order of Culture (1991), 13-41.

[Footnote 608] Among the vast writing, see, e.g., R. Bork, The Tempting of America (1990); J. Ely, Democracy and Distrust: A Theory of Judicial Review (1980); L. Tribe & M. Dorf, On Reading the Constitution (1991); H. Wellington, Interpreting the Constitution (1990); Symposium, Constitutional Adjudication and Democratic Theory, 56 N. Y. U. L. Rev. 259 (1981); Symposium, Judicial Review and the Constitution--The Text and Beyond, 8 U. Dayton L. Rev 443 (1983); Symposium, Judicial Review Versus Democracy, 42 Ohio St. L. J. 1 (1981); Symposium, Democracy and Distrust: Ten Years Later, 77 Va. L. Rev. 631 (1991). See also Farber, The Originalism Debate: A Guide for the Perplexed, 49 Ohio St. L. J. 1085 (1989).

[Footnote 609] This mode is most strongly association with C. Black, Structure and Relationship in Constitutional Law (1969).

[Footnote 610] E.g., Meese, The Attorney General's View of the Supreme Court: Toward a Jurisprudence of Original Intention, 45 Pub. Admin. Rev. 701 (1985); Addresses--Construing the Constitution, 19 U. C. Davis L. Rev. 1 (1985), containing addresses by Justice Brennan, id., 2, Justice Stevens, id., 15, and Attorney General Meese. Id., 22. See also Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693 (1976).

[Footnote 611]   5 U.S. (1 Cr.) 137 (1803).

[Footnote 612]   19 U.S. (6 Wheat.) 264, 404 , (1821).

[Footnote 613] See, e.g., Justice Sutherland in Adkins v. Children's Hospital, 261 U.S. 525, 544 (1923), and Justice Roberts in United States v. Butler, 297 U.S. 1, 62 (1936).

[Footnote 614] ''Judicial power, as contradistinguished from the powers of the law, has no existence. Courts are the mere instruments of the law, and can will nothing.'' Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 866 (1824) (Chief Justice Marshall). See also Justice Roberts in United States v. Butler, 297 U.S. 1, 62 -63 (1936).

[Footnote 615] The political question doctrine is another limitation arising in part out of inherent restrictions and in part from prudential considerations. For a discussion of limitations utilizing both stands, see Ashwander v. TVA 297 U.S. 288, 346 -356 (1936) (Justice Brandeis concurring).

[Footnote 616] Powell v. McCormack, 395 U.S. 486, 548 -549 (1969); Baker v. Carr, 369 U.S. 186, 211 (1962); Zwickler v. Koota, 389 U.S. 241, 248 (1967).

[Footnote 617] 28 U.S.C. Sec. Sec. 1254-1257. See F. Frankfurter & J. Landis, op. cit., n. 12, ch. 7. ''The Supreme Court is not, and never has been, primarily concerned with the correction of errors in lower court decisions. In almost all cases within the Court's appellate jurisdiction, the petitioner has already received one appellate review of his case. . . . If we took every case in which an interesting legal question is raised, or our prima facie impression is that the decision below is erroneous, we could not fulfill the Constitutional and statutory responsibilities placed upon the Court. To remain effective, the Supreme Court must continue to decide only those cases which present questions whose resolution will have immediate importance far beyond the particular facts and parties involved.'' Chief Justice Vinson, Address on the Work of the Federal Court, in 69 Sup. Ct. v, vi. It ''is only accurate to a degree to say that our jurisdiction in cases on appeal is obligatory as distinguished from discretionary on certiorari.'' Chief Justice Warren, quoted in Wiener, The Supreme Court's New Rules, 68 Harv. L. Rev. 20, 51 (1954).

[Footnote 618] See Justice Brandeis' concurring opinion in Ashwander v. TVA, 297 U.S. 288, 346 (1936). And contrast A. Bickel, op. cit., n. 576, 111-198, with Gunther, The Subtle Vices of the ''Passive Virtues''--A Comment on Principle and Expediency in Judicial Review, 64 Colum. L. Rev. 1 (1964).

[Footnote 619] Rescue Army v. Municipal Court, 331 U.S. 549, 568 -575 (1947). See also Berea College v. Kentucky, 211 U.S. 45, 53 (1908); Siler v. Louisville & N.R.R. Co., 213 U.S. 175, 191 (1909); Carter v. Carter Coal Co., 298 U.S. 238, 325 (1936); Coffman v. Breeze Corp., 323 U.S. 316, 324 -325 (1945); Spector Motor Service v. McLaughlin, 323 U.S. 101, 105 (1944); Alma Motor v. Timken Co., 329 U.S. 129 (1946). Judicial restraint as well as considerations of comity underlie the Court's abstention doctrine when the constitutionality of state laws is challenged.

[Footnote 620] Rescue Army v. Municipal Court, 331 U.S. 549, 571 (1947).

[Footnote 621] The Origin and Scope of the American Doctrine of Constitutional Law, in J. Thayer, Legal Essays (Boston: 1908), 1, 21.

[Footnote 622] See Justices Chase and Iredell in Calder v. Bull, 3 U.S. (3 Dall.) 386, 395 , 399 (1798).

[Footnote 623] E.g., Flemming v. Nestor, 363 U.S. 603, 611 (1960).

[Footnote 624] ''But freedom of contract is, nevertheless, the general rule and restraint the exception; and the exercise of legislative authority to abridge it can be justified only by the existence of exceptional circumstances.'' Adkins v. Children's Hospital, 261 U.S. 525, 546 (1923).

[Footnote 625] Kovacs v. Cooper, 336 U.S. 77, 88 (1949). Justice Frankfurter's concurrence, id., 89-97, is a lengthy critique and review of the ''preferred position'' cases up to that time. The Court has not used the expression in recent years but the worth it attributes to the values of free expression probably approaches the same result. Today, the Court's insistence on a ''compelling state interest'' to justify a governmental decision to classify persons by ''suspect'' categories, such as race, Loving v. Virginia, 388 U.S. 1 (1967), or to restrict the exercise of a ''fundamental'' interest, such as the right to vote, Kramer v. Union Free School District, 395 U.S. 621 (1969), or the right to travel, Shapiro v. Thompson, 394 U.S. 618 (1969), clearly imports presumption of unconstitutionality.

[Footnote 626] ''We fully understand . . . the powerful argument that can be made against the wisdom of this legislation, but on that point we have no concern.'' Noble State Bank v. Haskell, 219 U.S. 575, 580 (1911) (Justice Holmes for the Court). See also Trop v. Dulles, 356 U.S. 86, 120 (1958) (Justice Frankfurter dissenting).

[Footnote 629] Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 270 (1827). See also Fletcher v. Peck, 10 U.S. (6 Cr.) 87, 128 (1810); Legal Tender Cases, 79 U.S. (12 Wall.) 457, 531 (1871).

[Footnote 630] Munn v. Illinois, 94 U.S. 113, 132 (1877); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 -79 (1911); Metropolitan Cas. Ins. Co. v. Brownell, 294 U.S. 580, 584 (1935).

[Footnote 631] E.g., United States v. Robel, 389 U.S. 258 (1967); United Mine Workers v. Illinois State Bar Assn., 389 U.S. 217 (1967). But see McGowan v. Maryland, 366 U.S. 420, 426 (1961). The development of the ''compelling state interest'' test in certain areas of equal protection litigation also bespeaks less deference to the legislative judgment.

[Footnote 632] Rust v. Sullivan, 500 U.S. 173, 190 -191 (1991); Public Citizen v. United States Dept. of Justice, 491 U.S. 440, 465 -467 (1989) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)); Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988).

[Footnote 633] E.g., Michaelson v. United States, 266 U.S. 42 (1924) (narrow construction of Clayton Act contempt provisions to avoid constitutional questions): United States v. Harriss, 347 U.S. 612 (1954) (lobbying act): United States v. Seeger, 380 U.S. 163 (1965): Welsh v. United States, 398 U.S. 333 (1970) (both involving conscientious objection statute).

[Footnote 634] United States v. Locke, 471 U.S. 84, 96 (1985) (quoting Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933)).

[Footnote 635] Rust v. Sullivan, 500 U.S. 173, 191 (1991); but compare id., 204-207 (Justice Blackmun dissenting), and 223-225 (Justice O'Connor dissenting). See also Peretz v. United States, 501 U.S. 923, 929 -930 (1991).

[Footnote 636] Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987); Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601, 635 (1895); but see Baldwin v. Franks, 120 U.S. 678, 685 (1887), now repudiated. Griffin v. Breckenridge, 403 U.S. 88, 104 (1971).

[Footnote 637] Carter v. Carter Coal Co., 298 U.S. 238, 312 -316 (1936). See also, id., 321-324 (Chief Justice Hughes dissenting).

[Footnote 638] Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 -408 (1932) (Justice Brandeis dissenting). For recent arguments with respect to overruling or not overruling previous decisions, see the self- consciously elaborate opinion for a plurality in Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S.Ct. 2791, 2808-2816 (1992) (Justices O'Connor, Kennedy, and Souter) (acknowledging that as an original matter they would not have decided Roe v. Wade, 410 U.S. 113 (1973), as the Court did and that they might consider it wrongly decided, nonetheless applying the principles of stare decisis--they stressed the workability of the case's holding, the fact that no other line of precedent had undermined Roe, the vitality of that case's factual underpinnings, the reliance on the precedent in society, and the effect upon the Court's legitimacy of maintaining or overruling the case). See id., 2860-2867 (Chief Justice Rehnquist concurring in part and dissenting in part), 2880-2885 (Justice Scalia concurring in part and dissenting in part). See also Payne v. Tennessee, 501 U.S. 808, 827 - 830 (1991) (suggesting, inter alia, that reliance is relevant in contract and property cases), and id., 835, 842-844 (Justice Souter concurring), 844, 848-856 (Justice Marshall dissenting).

[Footnote 639] Helvering v. Hallock, 309 U.S. 106, 110 (1940) (Justice Frankfurter for Court). See also Coleman v. Alabama, 399 U.S. 1, 22 (1970) (Chief Justice Burger dissenting). But see id., 19 (Justice Harlan concurring in part and dissenting in part); Williams v. Florida, 399 U.S. 78, 117 -119 (1970) (Justice Harlan concurring in part and dissenting in part). Recent discussions of and both applications of andrefusals to apply stare decisis may be found in United States v. IBM Corp., 116 S. Ct. 1793, 1800-01 (1996) (noting principles of following precedent and declining to consider overturning an old precedent when parties have not advanced arguments on the point), with which compare id. at 1804 (Justice Kennedy dissenting) (arguing that the United Stateshad presented the point and that the old case ought to be overturned); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 231-35 (1996) (plurality opinion) (discussing stare decisis, citing past instances of overrulings, and overruling 1990 decision), with which compare the dissents, id. at 242, 264, 271; Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114, 1127-32 (1996) (discussing policy of stare decisis, why it should not be followed with respect to a 1989 decision, and overruling that precedent), with which compare the dissents, id. at 1133, 1145. Justices Scalia and Thomas have argued for various departures from precedent. E.g., Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514 U.S. 175, 200-01 (1995) (Justice Scalia concurring) (negativecommerce jurisprudence); Colorado Republican Campaign Comm. v. FEC, 116 S. Ct. 2309, 2323 (1996) (Justice Thomas concurring in part and dissenting in part) (rejecting framework of Buckley v. Valeo and calling for overruling of part of case). Compare id. at 2321 (Court notes those issues not raised or argued).

[Footnote 640]   157 U.S. 429, 574 -579 (1895).

[Footnote 641] See Appendix. The list encompasses both constitutional and statutory interpretation decisions. The Court adheres, at least formally, to the principle that stare decisis is a stricter rule for statutory interpretation, Patterson v. McLean Credit Union, 491 U.S. 164, 171 -175 (1989), at least in part since Congress may much more easily revise those decisions, but compare id., 175 n. 1, with id., 190- 205 (Justice Brennan concurring in the judgment in part and dissenting in part). See also Flood v. Kuhn, 407 U.S. 258 (1972).

[Footnote 642] E.g., United States v. Rabinowitz, 339 U.S. 56, 86 (1950) (Justice Frankfurter dissenting); Baker v. Carr, 369 U.S. 186, 339 -340 (1962) (Justice Harlan dissenting): Gray v. Sanders, 372 U.S. 368, 383 (1963) (Justice Harlan dissenting). But see Green v. United States, 356 U.S. 165, 195 (1958) (Justice Black dissenting). And compare Justice Harlan's views in Mapp v. Ohio, 367 U.S.643, 674-675 (1961) (dissenting), with Glidden v. Zdanok, 370 U.S. 530, 543 (1962) (opinion of the Court).

[Footnote 643] Notice that in Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S.Ct. 2791 (1992), while the Court purported to uphold and retain the ''central meaning'' of Roe v. Wade, it overruled several aspects of that case's requirements. And see, e.g., the Court's treatment of Pope v. Williams, 193 U.S. 621 (1904), in Dunn v. Blumstein, 405 U.S. 330, 337 , n. 7 (1972). And see id., 361 (Justice Blackmun concurring.)

[Footnote 644] Terminiello v. City of Chicago, 337 U.S. 1, 11 (1949) (dissenting).

[Footnote 645] B. Cardozo, The Nature of the Judicial Process (New Haven: 1921), 141.

[Footnote 646] Compare Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (Justice Douglas), with id., 507 (Justice Black).

[Footnote 647] West Virginia State Board of Education v. Barnette, 319 U.S. 624, 646 (1943) (dissenting).

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