The Origins of Judicial Review: A Historian's Explanation

We are indebted to Professor Wood for a characteristically stimulating lecture.1 He has a gift for making history an intellectually exciting enterprise and a knack for drawing readers in and inviting us to join him on a voyage of discovery. He flatters his readers by making us feel smarter and more knowledgeable than we really are. He encourages the vain notion that we are equal partners in the quest for historical knowledge, participating with him in reading the sources, connecting disparate phenomena, and drawing certain inferences from the accumulated evidence. The logic and lucidity of his argument enable us to perceive the conclusion even before he formally announces it. We then feel as if we, not the author, have made the critical deduction and as if he is merely seconding our prior discovery. The extent to which Wood creates this illusion of the reader's "smartness" is a measure of his superb craftsmanship as a writer. In this lecture, as in all his writings, Wood is the consummate historian, wholly dedicated to the principles and values of a discipline that in its grandest aspirations seeks not merely to accumulate knowledge about the past but to promote "historical-mindedness" as a kind of epistemology, a way of understanding reality. Practically every word Wood writes defines what it means to be historically minded, a habit of mind that he acquired as a student of Bernard Bailyn. No one has done more than. Bailyn and Wood to educate their fellow historians and the general reading public in developing a sophisticated, historical cast of Mind.2 In revisiting the origins of judicial review, Wood has admirably performed the historian's job of clearing away a pervasive anachronism that has characterized much of the scholarship on judicial review and on the Marshall Court in general. We put too much emphasis on one celebrated case, Marbury v. Madison,' as the defining moment when the Supreme Court acquired the authority to strike down legislation as contrary to the Constitution. Further, we tend to regard the Marshall Court's practice of declaring laws unconstitutional as prefiguring the modem doctrine of judicial review, a practice whereby the Supreme Court exercises sweeping authority to decide the divisive political, social, and economic questions that dominate our public life. And we are too inclined to credit Chief Justice Marshall in his great nationalizing decisions as anticipating, if not actually creating, the regulatory nation-state that the United States has become. I am in such complete agreement with Professor Wood that I am hardpressed to offer a comment that goes beyond an affirming nod. My remarks accordingly will focus on the way a master historian goes about answering the perennially fascinating question of the origins and nature of judicial review. The traditional account, where it has gone beyond Marbury, has mainly consisted of collecting the so-called "precedents" of the 1780s and 1790s, along with quotations from the founders, such as Alexander Hamilton's famous No. 78 of The Federalist.4 Such evidence, while illuminating, is for Wood wholly unsatisfactory to explain "something as significant and forbidding as judicial review."5 He proceeds on the sound assumption that the sources of judicial review "had to flow from fundamental changes taking place in the Americans' ideas of government and law."6 In other words, what we have been accustomed to regard as causes or sources are in fact symptoms or effects of deeper underlying currents. Wood then identifies four fundamental alterations in people's thinking about government and law: (1) the redefinition of the "separation of powers," by which judges gained a kind of equivalent status with legislators and executives as representatives or agents of the sovereign people; (2) the embodiment of fundamental law in written constitutions; (3) the "legalization" of fundamental law, the process that "domesticated" the Constitution so that it could run in the court system just like any ordinary law; and (4) the separation of law and politics. …