Judicial Review

ETA: It might only be a few people, but it seems that this post did get a few hits when (other than a porn related one and a couple others) this blog doesn't get any really. Hi!

It has been a repeated argument here that Griswold v. Connecticut did not really establish a constitutional right to privacy -- previous decisions did so even if that opinion firmly did so as part of the decision of the Court. See, e.g, Mapp v. Ohio, mentioning "the right of privacy."  This is informative as a matter of how law is "found" or at least announced and developed by the courts.  Things tend not be announced from the ether, so to speak, but in some fashion based on previous decisions.  In varying degrees, a ruling might significantly move the needle, including by firmly saying something.

It is, indeed, a general opinion, it is expressly admitted by all this bar, and some of the Judges have, individually, in the Circuits, decided, that the Supreme Court can declare an act of congress to be unconstitutional, and, therefore, invalid; but there is no adjudication of the Supreme Court itself upon the point. 

-- Justice Chase, Cooper v. Telfair

Something comparable was in place regarding judicial review and Marbury v. Madison (1803) though the comparable is not exact for various reasons. Early cases had no decision of the Court, each justice separately explaining their opinion, and the matter was never expressly pressed.  Nonetheless, it was repeatedly assumed, including by both sides (ideological or otherwise) in the case at issue.  Judicial review -- here we can summarize it as the power of the courts to overturn executive and legislative action, of an equal sovereign (here, the U.S. Congress) because it is deemed in violation of the relevant constitution -- was on some level not really controversial. Alexander Hamilton in the Federalist Papers (No. 78) provides the famous accounting, but Charles Beard (early 20th Century) later on made a good case it was overall not too controversial if not universally held.

Hylton v. U.S. (1796) is a telling case here. The matter at hand was the constitutionality of a federal carriage tax, deemed by James Madison as an illegitimate direct tax.  The headnotes and multiple justices so noted. Madison's side did not oppose submitting the matter to the courts from my understanding. The separate opinions also are early examples of interpretation such as meaning of words, purposes, assuming bad arguments should be rejected and so forth. The same applies when the Alien and Sedition Acts were passed -- it was unsuccessfully claimed that the legislation should be struck down as unconstitutional.

The justices assumed that judicial review existed but that a high test was in place before a congressional act a law (per Chase) is held to be "unconstitutional and void."  As Chase notes then: "The deliberate decision of the National Legislature, (who did not consider a tax on carriages a direct tax, but thought it was within the description of a duty) would determine me, if the case was doubtful, to receive the construction of the Legislature."  Justice Iredell in Calder v. Bull (1797): "If any act of Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void; though, I admit, that as the authority to declare it void is of a delicate and awful nature, the Court will never resort to that authority, but in a clear and urgent case."

Cooper v. Telfair (1800) declined to declare void a 1782 Act of the Georgia legislature attainting British loyalists and confiscating their property, Chase specifically emphasizing it was during war time and before the Constitution.  It is unclear that would matter later on, especially since it seems to me to be an illegitimate bill of attainder that the courts were -- after the U.S. Constitution was in place ... being asked to uphold.  Justice Douglas discussed the case, one of those neat online finds.

Nonetheless, multiple justices assumed a right to judicial review, if strictly applied.  Justice Washington: "The presumption, indeed, must always be in favour of the validity of laws, if the contrary is not clearly demonstrated."  Justice Cushing: "Although I am of opinion, that this Court has the same power, that a Court of the state of Georgia would possess, to declare the law void, I do not think that the occasion would warrant an exercise of the power."  Justice Paterson: "to authorise this Court to pronounce any law void, it must be a clear and unequivocal breach of the constitution, not a doubtful and argumentative implication."

Mossman v. Higginson (1800) was handed down about the same time and is an interesting little curio. The recorder provides a brief summary "by the Court" as was at times done by then, showing a single opinion of the Court was not a complete invention by John Marshall.  We first get a summary of each side's argument, one saying "the judiciary act [the subject of Marbury v. Madison] was only intended to carry the constitution into effect, and cannot amplify, or alter, its provisions."  The summary provided by the Court noted that it "must receive a construction consistent with the Constitution," which is a bit more vague.  Does that mean that unless courts have no other ability to do so, such as if there is room to work, or that a clear case would warrant it being held void? There might be some room for argument.

A footnote by the recorder to Chase's remark noted the Marbury did adjudicate the question. But, the basic holding as to judicial review wasn't surprising. The debate was more on how it decided the matter, including regarding a matter that someone like Thomas Jefferson thought was clearly a matter of executive discretion (decisions involving handing out commissions).  Later debates also regarded how much restraint the judges showed and how binding a single ruling would be to future parties. It is sometimes assumed otherwise: that judicial review itself was a big deal though many of the usual accounts emphasize other things too.

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To add something on one of those last points, James Madison twenty-five years after opposing it as a member of Congress accepted the constitutionality of a national bank:

Waiving the question of the constitutional authority of the Legislature to establish an incorporated bank as being precluded in my judgment by repeated recognitions under varied circumstances of the validity of such an institution in acts of the legislative, executive, and judicial branches of the Government, accompanied by indications, in different modes, of a concurrence of the general will of the nation, the proposed bank does not appear to be calculated to answer the purposes of reviving the public credit, of providing a national medium of circulation, and of aiding the Treasury by facilitating the indispensable anticipations of the revenue and by affording to the public more durable loans.

In fact, a companion opinion to Marbury v. Madison  accepted circuit riding duties for Supreme Court justices as established by practice after less than fifteen years of history.  What this tells you about originalism is unclear, but it is notable.  Lincoln in his first inaugural also argued:

I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.

The matter at hand was Dred Scott v. Sandford, the infamous decision  that Lincoln himself argued was based by mistaken historical facts (see his Cooper Union speech) and that the Congress during the Civil War basically ignored when it blocked slavery in the federal territories.  While the issue of precedents, not just about abortion, is in the air, this again shows the question of judicial review has various nuances.  This too goes back far.