Some Alarming Aspects of the Legacies of Judicial Review and of John Marshall

My assigned tasks at this Symposium were to speak about the legacy of judicial review in general, and the legacy of Chief Justice John Marshall in particular. As originally delivered, my remarks were divided into two ten-minute discussions on these topics, and I have combined, revised, and annotated them for this written version. I begin with the legacy of judicial review, and follow that with some consideration of John Marshall. Caveat Lector. (1) I want to dissent from the conventional wisdom of the legal academy on these matters. JUDICIAL REVIEW: ORIGINALLY REPUBLICAN, NOT DEMOCRATIC I have to confess that I am more than a little at a loss to know what to say about the legacy of judicial review. Let us start with a definition. For our purposes, "judicial review" is the practice of the courts reviewing and, if necessary, declaring unlawful, the conduct of the executive and legislative branches of the federal government, and all three branches of the state governments. This practice seems to be the U.S. Constitution's ultimate device for securing federalism and the separation of powers. For me, then, a law professor with just short of three decades experience teaching and writing about American law, to ruminate on the legacy of judicial review is a bit like being asked to comment on the legacy of our being air-breathers. In the American judicial system, devoted as we claim to be to the rule of law and the notion that ours is a government of laws, not men, I cannot imagine an alternative to judicial review. Then again, there have been plenty of cultures that have done without it. Until recently, for example, the civil law tradition managed just fine without judicial review, thank you very much, (2) but if you have followed events in Europe recently, you know that the European Court of Justice has gotten very much into it, so judicial review may be becoming a universal phenomenon. (3) This may not be all to the good, however, because the modern conception of judicial review seems to differ from what Alexander Hamilton had in mind in The Federalist No. 78, (4) to say nothing of what Marshall intended in McCulloch, (5) but probably not in Marbury. (6) Indeed, some of the literature on human rights and some of the decisions of international judicial bodies that I recently have looked at read human rights protocols (7) expansively to remove governing power from legislatures and sovereign nations. (8) These decisions remind me of the Warren Court, the Burger Court, or the Rehnquist Court when they were in the business of manufacturing new constitutional rights, and taking power away from states and localities. (9) But if The Federalist No. 78 makes any sense, I think, it is because it expresses a single clear, objective, and limited notion of judicial review. (10) Hamilton's argument, ostensibly adopted by Marshall in Marbury, was that judicial review was a conservative doctrine, the purpose of which was to limit the legislature, the states, and the executive to the exercise of the clearly defined and originally limited powers granted to them by the sovereign people. (11) Judicial review was not to be a license for judicial lawmaking as it has become in our time and as it has been celebrated by most of us in the academy. I am out of the academic mainstream here, because I like the original conservative conception of judicial review, and am horrified by what the Supreme Court has done, at least since the New Deal, to aggrandize the federal government, to limit the power of states and localities, and to create utter uncertainty as to the meaning of constitutional provisions. (12) I am a simple person, a simple Midwestern provincial law professor, and I subscribe to the simple notion that the only thing that should guide our understanding of the Constitution is the meaning that it had in 1789 when originally drafted, or the meaning of amendments as they were understood when they were passed. …