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Judicial Review and Democracy

ISSUE:  Summer 1943

Few American political institutions have been more elaborately explained and documented than judicial review; none, it is safe to say, is less understood. Misunderstanding is no monopoly of conservatives who celebrate the institution as a bulwark of republicanism; it distinguishes equally liberals who for the most part deprecate judicial intervention in the economic realm but rejoice exceedingly at judicial intervention on behalf of civil liberties. Neither group seems to appreciate the nature, the implications, and the consequences of this unique institution. The dust of confusion hangs heavily over the discussion of the court reform bill of 1937; it is settling, already, on the discussion of the Gobitis and other Jehovah’s Witnesses cases. In all the millions of words that have been poured over these issues, few touch reality. The court reform proposal furnished the most promising opportunity offered our generation for an analysis of the relation of judicial review to democracy, but no such analysis was vouchsafed us: the gallant throng of experts who trooped down to Washington to testify on the merits and demerits of S. 1392 managed to talk about almost everything but that. The clash between the majority and the minority in the flag salute case revealed clearly enough the problem of reconciling “the conflicting claims of liberty and authority,” but a hundred commentators have succeeded with wonderful agility in ignoring that problem. Indeed, so general has been the failure to confront the real issues presented by judicial review that we are forced to the conclusion that it is rooted in ignorance or confusion rather than in timidity or circumspection.


How can it be said that the problem of judicial review is the problem of democracy? A moment’s reflection on the nature of the institution will clarify the statement. The function—and effect—of judicial review is to give or deny judicial sanction to an act passed by a majority of a legislative body and approved by an executive. Every act adjudicated by the court has not only been ratified by a majority, but it has—in theory and we must assume in fact-been subjected to the most anxious scrutiny as to its conformity with the constitution. In support of every act, therefore, is not only a majority vote for its wisdom but a majority vote for its constitutionality.

Where the question of constitutionality is raised, the judiciary subjects the act anew to scrutiny—theoretically on constitutional grounds alone, never on those of expediency. Where it concludes that the act involved is contrary to the constitution, it voids the act. In doing this the court opposes its own opinion on constitutionality to the opinions of the other two branches of the government. We can put the situation even more sharply: the one non-elective and non-removable element in the government rejects the conclusions as to constitutionality arrived at by the two elective and removable branches.

A further observation is pertinent. Obviously, political majorities are never aware—and would never admit—that they are violating the constitution. There are rarely, if ever, clear-cut instances where wilful majorities deliberately ride down constitutional barriers. There are rarely, if ever, real instances analogous to the hypothetical instances which Marshall conjured up in Marbury v. Madison and which the champions of judicial review persistently conjure up. Popular notions to the contrary notwithstanding, our legislative bodies, state and national, have been throughout our history profoundly conservative and constitution-minded.

In every instance of challenged legislation we may presume that the majority responsible for the act believed that it was legislating in harmony with fundamental law. If the lay mind should find it difficult to reconcile this with the numerous instances of judicial nullification, it may be pointed out that in most of these instances some judges have agreed with the legislators rather than with their brothers.

The real question, of course, is not that of blind or malicious majorities striking down constitutional barriers, but of differing interpretations of the meaning of the constitution. The crucial question is not so much whether an act does or does not conform to the constitution (for everyone agrees that it should), but who shall judge as to conformity? For it is still true, as Bishop Hoadly said two centuries ago, “Whoever hath an absolute authority to interpret any written or spoken laws, it is He who is truly the Law-Giver to all intents and purposes, and not the person who first wrote or spoke them.” Judicial review leads inevitably to judicial legislation, and the argument derived from separation of powers concludes with the effective destruction of independence and separation.

What is the argument for judicial rather than legislative or executive interpretation of the constitution and laws? The orthodox answer is familiar enough. In the words of Marshall “it is emphatically the province and duty of the judicial department to say what the law is.” That is the essence of judicial business—to know the law and the constitution, and in this the other departments cannot hope to compete. However, not only are the courts peculiarly fitted to interpret the law, but—and here we come to the most persuasive argument—they alone are independent, their judgment alone to be trusted.

These are large claims—confidently made and boldly maintained—but scarcely susceptible of proof. It is possible to challenge both of them; it is possible, too, to enter a demurrer—to plead that even if the claims are sound, the logic of judicial review in a democratic system is by no means established.

That judges—especially judges of our highest courts— are more learned in the law than legislators or executives will not be gainsaid. Is the observation relevant? Does the issue of constitutionality customarily involve legal erudition? Have acts of the Congress or of state legislatures frequently been challenged on the basis of provisions of our constitution so intricate that great learning is required for their comprehension? There have been examples of this, to be sure. But, for the most part, judicial rejection of legislative acts has been an exercise not of learning but of discretion. As Justice Holmes said back in 1896, “the true grounds of decision are considerations of policy and of social advantage, and it is vain to suppose that solutions can be attained merely by logic and the general propositions of law which nobody disputes.”

Indeed, if we turn—for simplicity—to the federal scene, we will find that acts which have encountered judicial invalidation have in every instance required the interpretation of vague and ambiguous clauses of the constitution-clauses whose meaning is not to be determined by legal research but by “considerations of policy.” Thus when the Supreme Court asserts that the Congress has not authority to regulate slavery in the Territories, to authorize legal tender, to impose a tax on incomes, to prohibit yellow-dog contracts, to deny the channels of commerce to the products of child labor, to fix minimum wages for women in the District of Columbia, to lay taxes for the purpose of regulating agricultural production—it is not applying clear-cut provisions of the Constitution, but interpreting vague phrases like “regulation of commerce,” “general welfare,” “lay and collect taxes,” “make all needful rules and regulations respecting the Territory,” “due process,” and so forth. And when the court interprets these phrases it does not so much exploit legal learning as display opinion and exercise discretion. And, it may be added, for all of the constitutional problems presented by these laws the legal learning of the legislative and executive departments is entirely adequate.

What of the other assumption—that judges alone can be trusted to act independently, objectively, and dispassionately on questions of constitutionality? The assumption that legislators ever consciously permit passion or prejudice to influence their judgment on questions of constitutionality is, of course, intolerable; so what we are concerned with is unconscious bias, and the argument is that judges have less of this than legislators. The contemporary school of legal realists has dealt very harshly with the whole notion of judicial objectivity—has, perhaps, gone too far in support of the notion that judicial opinions are largely the product of personal and environmental imponderables. But if it is an exaggeration to say that judicial opinion depends on judicial digestion, it will not be denied that the “mechanical” or “phonographic” theory of jurisprudence has been completely discredited. The question of judicial objectivity is too large to examine here in any detail, but it may not be irrelevant to observe that almost every leader of American democracy—Jefferson, Jackson, Lincoln, Bryan, Theodore Roosevelt, Franklin Roosevelt—has charged the courts with bias, and that from members of the Supreme Court itself have come accusations that the court indulges in “judicial legislation,” warnings that the “fear of socialism” has influenced judicial action, protests against a “tortured construction” of the Constitution. And it is difficult to read such opinions as those of Story in the Charles River Bridge Company case, Taney in the Dred Scott case, Field in the Income Tax case, McReynolds in the gold clause cases—to take only a few of the most notorious—and avoid the conclusion that judges are sometimes swayed by considerations other than those of constitutional logic.

But if it cannot be shown that superior learning is an essential ingredient of judicial review or objectivity a peculiar possession of judges, what shall we say for the arguments supporting that institution? Is it possible that the strictures of Presidents Jefferson, Lincoln, and Theodore Roosevelt— often regarded as amiable aberrations—are valid? Is it possible to challenge judicial review on the basic ground that it has not, in fact, justified itself?

For the most part, consideration of this institution has gone on in the rarefied atmosphere of theory and hypothesis, but our question is not one of theory, but of fact. It is commonly taken for granted that courts decide rightly questions of constitutional law, that they curb majority will only to protect minority rights, that their intervention has saved the constitution from impairment or destruction. A realistic examination of the operation of judicial review in the federal field will not sustain these assumptions. It is safe to say that—as far as the record reveals—had there never been an instance of judicial nullification of a Congressional act, our constitutional system would be essentially what it is today. For most of the judicial nullifications of federal legislation have been cancelled out by amendment, by new and acceptable legislation or—more frequently—by judicial reversal. It is safe to say, further, that the judicial record in the important field of personal liberties is practically barren— again, as far as federal legislation is concerned. In short, if we had had to depend upon the Courts rather than upon the Congress and the President for maintaining our constitutional system and protecting personal liberties, we would be in an awkward position. The fact is, of course, that over a period of a century and a half there have been very few instances where the Congress has threatened the integrity of the constitutional system or the guarantees of the Bill of Rights.


A simple analysis of the actual incidence of judicial review in the field of Congressional legislation is perhaps the most effective support for these generalizations. There have been, altogether, some seventy-five instances of such judicial nullification. About half of these have been of a technical nature. The number of consequential cases has been comparatively small—though important quite out of proportion to their number. It will not do too much injustice to the history or significance of judicial review to characterize these cases briefly.

Marbury v. Madison—really one of the technical cases but significant because it was the first instance of judicial nullification of Congressional legislation—rejected a Congressional authorization to the Supreme Court to issue a writ of mandamus. The only practical effect of the decision was to deny Marbury a job to which the court held he was morally entitled. The implications of the decision both with respect to Presidential power of removal and with respect to the jurisdiction of the courts, were subsequently seriously modified by the court itself. The provision nullified—section 13 of the Judiciary act of 1789—threatened neither the integrity of the Constitution nor the rights of persons.

Dred Scott v. Sandford nullified a provision of the Missouri Compromise already repealed and announced that the Congress had no authority to regulate or prohibit slavery in the Territories—a decision indubitably erroneous and shortly reversed by Congressional action. The enduring importance of the decision is to be found in the announcement that the due process clause of the Fifth (and by implication of the Fourteenth) amendment had a substantive as well as a procedural significance.

Hepburn v. Griswold denied to the Congress the right to make paper money legal tender for the payment of debts contracted prior to the enactment of the law. The decision—palpably erroneous—was reversed the next year.

Ex parte Garland held that an act forbidding a person who had participated in the rebellion from practicing before the Supreme Court was “ex post facto,” partook of attainder, and qualified the Presidential pardon, and was therefore void. Dubious as was this construction (four judges held that the requirement of loyalty was not a punishment but merely a proper qualification) it constitutes perhaps the best example of judicial protection of personal rights from Congressional impairment in the whole of our history.

United States v. Klein nullified an act of Congress which denied to persons who had participated in the rebellion the privilege of suing in the Court of Claims for recovery of damages suffered in the rebellion, even though they had subsequently been pardoned. The decision may have broadened the scope of the pardoning power, mitigated the consequences of technical treason, and benefited a few well-to-do Southerners.

Collector v. Day—as well as the later Evans v. Gore and Miles v. Graham—exempted state and federal judges from payment of income taxes. The effect was, in the words of Justice Holmes, to make judges “a privileged class free from bearing their share of the cost of the institutions upon which their well-being if not their life depends.” Both of the later decisions have since been reversed.

A long series of cases having to do with the interpretation of laws designed to effectuate the provisions of the Thirteenth, Fourteenth, and Fifteenth Amendments may be considered together. U. S. v. Reese, James v. Bowman, U. S, v. Harris, Baldwin v. Franks, Hodges v. U. S., Civil Rights cases, and Butts v. Merchants Transportation Co. all in effect nullified the efforts of Congress to put teeth into these Amendments by ruling that Congress may prohibit only such discrimination against Negroes as flow from State-not private—action and that the rights of Negroes which are protected are those rights only which derive from citizenship in the United States—a vague and limited category.

Monongahela Navigation Co. v. U. S. held that the determination of the measure of compensation in the purchase of a public utility franchise was a judicial, not a legislative, function. It was one of the earliest of that long series of opinions—most of them relating to state laws—which transferred rate making from the legislatures to the courts. It is a responsibility the courts are now as eager to evade as they were once to embrace.

Pollock v. Farmers’ Loan and Trust Co. invalidated the income tax law of 1894. It remains, with Dred Scott, the most unfortunate of all exhibitions of judicial review. The opinion reversed earlier decisions and was, in turn, reversed by the Sixteenth Amendment. Its practical effect was merely to delay for almost twenty years the application of a system of taxation universally recognized as sound.

Wong Wing v. United States held invalid a statute granting authority to a United States Commissioner rather than to a jury to try Chinese alleged to be unlawfully in the country. That the Chinese alien would receive a fairer trial from a jury than from a Commissioner is not clear, but in any event the decision is memorable because it is one of the two (ex parte Garland is the other) in which the court may be said to have protected the rights of persons against Congressional assault.

Adair v. United States voided an act designed to outlaw yellow-dog contracts in interstate commerce. It represented a retreat from the long-established Marshall tradition of the interpretation of the commerce power as well as a stunning setback to reform in the field of labor legislation. It has since been, in effect, overruled.

So, too, the Employers’ Liability Cases rejected reliance upon the commerce clause as authority for establishing employers’ liability for interstate carriers where the inability was not clearly confined to the interstate activities of these carriers. And a series of analogous opinions effectively denied the benefits of workmen’s compensation to maritime workers.

Keller v. United States held that Congressional control over imigration does not extend to the punishment of those who exploit emigrant girls for purposes of prostitution, And, in a comparable field, Matter of Heff decided that the Congress could not punish the illegal sale of liquor to Indians if the Indians were at the same time citizens. Eleven years later the court, affirming that “citizenship is not incompatible with tribal existence or continued guardianship” reversed this decision.

Newberry v. United States decided that as party primaries are not part of elections the Congress does not have authority to prohibit corrupt practices in primary elections. The opinion has recently been seriously modified if not reversed in United States v. Classic.

Hammer v. Dagenhart overturned a child labor law on the ground that regulation of commerce does not extend to the prohibition of the products of child labor in interstate commerce. The decision has recently been reversed. Bailey v. Drexel Furniture Company nullified a later attempt of the Congress to tax the products of child labor out of existence as an improper exercise of the taxing power.

Eisner v. Macomber partially defeated the purpose of the income tax amendment by holding that a stock dividend was not “income” within the meaning of the words of that amendment.

Adkins v. Children’s Hospital invoked the esoteric due process clause of the Fifth Amendment to nullify a Congressional effort to fix minimum wages for women in the District of Columbia; such legislation was, the court held, an improper interference with freedom of contract. The decision has since been reversed.

United States v. Cohen Grocery Company held that part of the Lever war-time agricultural act which prohibited “unfair or unreasonable” rates or charges void because the test was too vague. The rebuke was pertinent, but it is equally pertinent to remark that legislative recourse to vague phrases of this nature has been encouraged by reliance upon judicial legislation in the premises. If the court is prepared to decide the meaning of “just,” “reasonable,” “fair,” and so forth, why should the legislature bother?

Hill v. Wallace announced that a penalty tax on trading in grain futures was not authorized by the commerce clause of the Constitution.

Myers v. United States invalidated—sixty years later—-a reconstruction law designed to limit the President’s power of removal. If the decision was correct the implications of Marbury v. Madison were wrong, but the more recent Humphrey’s Executor opinion suggests some reservations as to the finality of the Myers’ decision.

United States v. Constantine invalidated a heavy penalty tax imposed upon liquor dealers carrying on their traffic in violation of State or local laws, on the ground that the repeal of the Eighteenth Amendment had removed the subject from federal jurisdiction. The only interests served by the decision were those of states’ rights and bootleggers.

The New Deal cases are almost too recent and too familiar to justify rehearsal. United States v. Butler voided the AAA on the somewhat confused grounds of an improper interpretation of the general welfare and the tax clauses of the Constitution. Perry v. United States held that the repudiation of the gold obligation in government bonds was both illegal and immoral, but that as no one was hurt, no one could collect damages. Schechter v. United States struck down the NRA both because it was not a proper exercise of the commerce power and because it was an improper delegation of power by the Congress to the Executive. This latter argument was the basis, too, of the invalidation of an act authorizing the President to regulate the transportation of “hot oil.” Railroad Retirement Board v. Alton Railroad, outlawing a system of railway retirement pensions, was a further limitation upon the commerce power. Louisville v. Radford and Ashton v. Cameron County restrained the authority of the Congress over bankruptcies and over the readjustment of municipal indebtedness. Carter v. Carter Coal Co. sought to remove regulation of the coal industry from the domain of Congressional control.


This is the record. It is familiar enough to students of our constitutional law; less familiar, perhaps, to the layman who, not unnaturally, supposes the Court continuously intervening to protect fundamental rights of life, liberty, and property from Congressional assault. It discloses not a single case, in a century and a half, where the Supreme Court has protected freedom of speech, press, assembly, petition, or religion against Congressional attack. It reveals no instance, with the possible exception of the dubious Wong Wing case, where the court has intervened on behalf of the underprivileged—the Negro, the alien, women, children, workers, tenant-farmers. It reveals, on the contrary, that the Court has effectively intervened, again and again, to defeat Congressional attempts to free the slave, to guarantee civil rights to Negroes, to protect workingmen, to outlaw child labor, to assist hard-pressed farmers, and to democratize the tax system. From this analysis the Congress, and not the courts, emerges as the instrument for the realization of the guarantees of the Bill of Rights.

What is perhaps most impressive about this record is that it tends to support the Jeffersonian allegation that the court is neither more learned nor more objective than the political branches of the government. Almost every instance of judicial nullification of Congressional acts appears, now, to have been a mistaken one. In many—perhaps in most-instances the mistake has been (after a decent interval) conceded and corrected by the Court itself. In other instances it has been rectified by the operation of public opinion. The conclusion is almost inescapable that judicial review has been a drag upon democracy and—what we may conceive to be the same thing—upon good government.


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