The Supreme Court and the Constitution

Bibliographical Note

This Dover edition, first published in 2006, is a republication of the work originally published in the Classics in History Series by Prentice-Hall, Inc., Englewood Cliffs, N.J., in 1962. The 1962 edition, in turn, was a republication, with an introduction and bibliographies by Alan F. Westin, of the work first published by The Macmillan Company, New York, in 1912. The original Editors’ Note and the two biographical paragraphs printed at the beginning of the 1962 edition have been omitted in the present volume.

Library of Congress Cataloging-in-Publication Data

Beard, Charles Austin, 1874–1948.

The Supreme Court and the constitution / Charles A. Beard ; introduction and bibliographies by Alan F. Westin.—Dover ed. p. cm.

Originally published: Englewood Cliffs, N.J. : Prentice-Hall, 1962, in series: Classics in history series.

Includes bibliographies.

9780486149615

1. United States. Supreme Court. 2. Judicial review—United States. 3. Constitutional history—United States. I. Title.

KF4575.B39 2006

347.73’26—dc22

2005054771

Manufactured in the United States of America

Dover Publications, Inc., 31 East 2nd Street, Mineola, N.Y. 11501

Table of Contents

Title Page

Copyright Page

Introduction - Charles Beard and American Debate Over Judicial Review, 1790-1961

Introduction to the 1938 Edition

1 - Attacks Upon Judicial Control

2 - The Constitutional Convention of 1787 and Judicial Control

3 - Judicial Control Before the Ratifying Conventions

4 - The Spirit of the Constitution

5 - The Supporters of the New Constitution

6 - John Marshall and the Fathers

7 - Marbury v. Madison

Appendix - The Constitution of The United States of America

Bibliographies

Introduction

Charles Beard and American Debate Over Judicial Review, 1790-1961

Seventeen decades and fourteen Chief Justices after the adoption of the Federal Constitution, why should anyone still debate whether the Framers intended the Supreme Court to pass on the constitutionality of Congressional legislation? in terms of parsing the records of the Convention and the text of the Constitution itself, putting these into the context of colonial and republican America, and collecting the memoirs and correspondence of the day —surely, the job has been done by now and the issue must be considered settled by all except the hopelessly antiquarian.

Such was the view taken, for example, by Professor Felix Frankfurter as long ago as 1924. Dismayed by public charges that the Supreme Court had usurped the power of judicial review, Frankfurter attributed the persistence of this talk to a "lack of historical scholarship, combined with fierce prepossessions . . . One would suppose that, at least, after the publication of Beard, The Supreme Court and the Constitution, there would be an end to this empty controversy." ¹

Charles Beard shared this view of his 1912 study. in the introduction to a re-issue of the work in 1938, he announced firmly:

For practical purposes, [my] book settled the controversy . . . The ghost of usurpation was fairly laid. Whatever controversies may arise in the future over the exercise of judicial power, it is not likely that the historic right of the Supreme Court to pass upon acts of Congress will again be seriously challenged.

Despite Beard’s prophecy, the ghost of usurpation has been clanking its chains through legislative chambers, historical meetings, and publishing houses for many a decade since 1912. Several dozen books and perhaps a hundred articles have persisted in treating this as still a debatable proposition, and not all of the commentators can be dismissed as incompetents or outraged partisans deprived of reason.

to probe the reasons for this continuing debate and to assess the relation of Beard’s study to it, this introductory essay has been divided into four sections. Part I summarizes, in brief fashion, the classic lines of debate over the Supreme Court’s power to review acts of Congress. Part II examines critically the sources of conflict and debate over this judicial authority. Part III surveys the literature on the Framers’ intention as to judicial review of Congressional measures and analyzes certain major periods into which this literature falls. Part IV presents the basic criticisms which have been leveled against the Beard thesis. in a final coda, the essay suggests why the debate over judicial review will never be settled, and why this continued argument should be a source of satisfaction rather than one of concern for a free society.

I. The Classic Lines of Debate Over Judicial Review of Legislation

Before exploring why the debate over judicial review of legislation has continued with such vitality, it is useful to set out the classic assumptions and disputed positions in the controversy. The goal at this point is not to analyze these but only to catalogue them for future reference in this essay.

The pivot on which the entire debate revolves is that the Framers did not state, unequivocally and in a way which would foreclose the argument for all reasonable men reading the Constitution, that the Supreme Court had the power to review Congressional measures and hold them invalid if the Justices thought them unconstitutional. ² The situation resembles those of the President’s inherent powers to act as chief executive or the Congress’ power to spend for the general welfare. in all three, the Framers created an appearance of authority and a description of it in vague terms, but did not draft with sufficient precision to resolve serious ambiguities. Time and the development of our political system have made these provisions central to American constitutional debate, but the Framers spoke only once on these subjects and no constitutional amendments have been passed dealing with judicial review, inherent presidential powers, or spending for the general welfare. The result is that the debate has proceeded at the level of original intention.

Coupled with this fact is the absence of comprehensive records of the Constitutional Convention to rely on for indications of intention. No transcript was taken at Philadelphia. We have the continuous notes of only one participant, James Madison, and meager, scattered notes from a few others. It is not too much to say that Madison’s notes have become almost as disputed a written record as the text of the Constitution itself. Since the proceedings were secret, there is no newspaper coverage of the Convention, as there is for leading Congressional debates of the young Republic.

When the language of the Constitution is disputed, as here, there is a variety of criteria which can be used by the courts and by those speaking and writing about the issue as part of our constitutional politics. At least five such approaches can be identified. First, there is strict textual or word analysis, taking what the legislators put down on paper, defining it in dictionary fashion, and refusing to go beyond the words. The assumption of the textual school is that courts and executives should not re-write the Constitution; where ambiguities arise, the means of resolving them is constitutional amendment. A second approach is contextual analysis. Here, the analyst considers not only the text but also the section of the Constitution in which it appears, as well as the document as a whole, to map the environments of meaning in which the Framers placed the disputed clauses. Strictly textual construction, say the contextualists, robs words of their roots in the interacting scheme of government which the Framers assembled to write and which the nation ratified. A third technique adds the drafting process to the net of analysis. Here the analyst studies the progress of the clause from its earliest Convention draft (and even its history as an idea or in other laws or jurisdictions before it reached the Convention), through committees and general debate, through amendments and final stylistic changes, to the final language. Words, in the view of the drafting process analysts, mean more when one examines what fell by the wayside, what was deliberately rejected, and what was heartily approved. A fourth technique might be called developmental analysis. It adds to the others a consideration of the accretions of meaning which the disputed clause has acquired from the time of its enactment to the time of analysis, based upon governmental practices involving the power in question, court interpretations, and changed economic and political conditions. The argument for adding developmental factors is that, as the years advance since the original writing, increasingly broad constructions are needed to keep the purposes of the Framers in tune with new realities. Finally, there is a fifth standard, one which is rarely supported openly but is as real as rock nevertheless. I would call this institutional analysis. in the case of the Supreme Court, as guardian of constitutional construction (including construction of its own powers), this technique has the Justices manipulating the four above criteria in light of the values of society (as the Justices see them), particularly the values of consistency, predictability, and the primacy of the judiciary. Not all Justices would attach this institutional perspective, but a majority of the Court since Marshall’s day has usually done so.

in the debate over judicial review of legislation, attention has centered on what I have called the drafting process phase of construction, usually termed, loosely, the Framers’ intent. Using a variety of points at which to measure intention—the selection process for members of the Convention, the Convention, the selection process for members of the Ratifying Convention, the Ratifying Conventions, public debate over ratification, contemporary events indicating the views on judicial power of members of the Convention or Ratifying Conventions, contemporary court practice, and various others—commentators have evolved four conflicting positions as to what the Framers intended when they defined judicial power. Again, to summarize:

(1) The Framers consciously provided for judicial review of Congressional acts, by writing express words to that effect into the text of the Constitution.

(2) The Framers consciously assumed this power would flow by normal implication from other powers given to the Court as well as from the logic of a written Constitution for a government of limited powers.

(3) The Framers were undecided whether to provide judicial review of legislation. The Convention ended without a conscious resolution of the issue and the Framers departed carrying divided assumptions as to whether judicial review would develop or not.

(4) The Framers considered the question of judicial review and deliberately left it out of the Constitution, because a majority was not convinced of its wisdom or necessity.

Over the decades, positions (2) and (3) have been the main battlefields, although (1) and (4) have had supporters from time to time.

to complete this catalogue of classic positions in the debate, we can summarize the items of evidence advanced to confirm or deny the legitimacy of this judicial power. Perhaps the best way to do this is to quote from one widely used summary of the arguments for and against. This summary, which follows on pages 6 and 7, is from a work³ by Professor Percy Fenn, formerly of Oberlin, and has the merit of simplicity, if not of detail.

Arguments in favor of judicial review:

(1) The subordination of acts of Parliament to a higher law was known to English jurisprudence, because Sir Edward Coke said in Dr. Bonham’s Case in 1610 that an act of Parliament contrary to the common law was void, or, at least, sometimes void.

(2) The Privy Council had the power to review judicially the acts of colonial legislatures and to annul them.

(3) James Otis, counsel in Pax ton’s Case in 1761, invoked a higher law—either divine law or the law of nature—to argue that it voided a legislative act made contrary to it.

(4) Eight precedents are alleged for the exercise of this power by state courts against state legislatures before 1787.

(5) The leading members of the Constitutional Convention knew of this power, advocated the grant of it, and thought they had granted it.

(6) Between 1789 and 1803 (the date of the federal Supreme Court’s first use of it against Congress), ten state courts exerted this power against their legislatures.

(7) During this period, certain members of the Supreme Court claimed the power for the federal judiciary and used it on circuit.

Arguments against judicial review:

(1) Coke’s dictum in the Bonham Case is contradicted by the whole theory and practice of parliamentary sovereignty.

(2) The Privy Council’s power of review is of slight importance because (a) its position in relationship to a colonial legislature had no similarity either in fact or law to the position of a judiciary fixed as the third coordinate branch of an independent government; and because, further, (b) there is no record of the annulment of an important colonial law, if, indeed, it can be properly said that the Privy Council ever vetoed such a law.

(3) There is not one example of a colonial court exercising this power against an act of a colonial legislature.

(4) The alleged precedents for the exertion of this power by state courts are in most cases either unreliable or irrelevant for these reasons:

(a) For one case there is no record at all.

(b) For two of them, the opinions were written years after the case was decided, and by a friend of the court.

(c) Several are of doubtful authenticity (the number varies with the writer).

(d) in most of them, the words claiming the power are mere dicta—the personal opinion of the judge, and not a ruling of the court—because the issue of constitutionality was not necessary for a decision of the controversy.

(5) The members of the Constitutional Convention never directly raised the question of the grant of such a power to the judiciary.

(6) The cases between 1787 and 1803 in which an act was voided did not occur before 1787.

(7) Chief Justice Marshall does not cite a single precedent for annulling a legislative act in Marbury v. Madison, which shows that he either did not know of any or did not think any important.

(8) Strong popular disapproval habitually attended the claim to exercise the judicial veto.

Which of these two sets of factual assertions and constitutional conclusions is the sounder raises, of course, the question of Beard’s book, and of platoons of commentators long before and steadily after him. Having set out the classic lines of the debate, we can now turn to several aspects in depth, particularly as they bear on Beard’s thesis.

II. The Sources of Conflict Over Judicial Usurpation

There are a number of obvious reasons why attacks on the legitimacy of judicial review of federal legislation have been a permanent part of our constitutional discourse. Groups wounded by Supreme Court decisions, when the provocation is sustained and painful enough, will challenge the Court’s authority as part of the disappointed group’s arsenal of retaliation. historians, legal commentators, and political scientists will sometimes join the attack as part of the policy-orientation of these persons; others will see the question of judicial review as a superb mystery to unravel for the sake of the problem itself. There are some other reasons, however, which are not quite as obvious and deserve some examination.

The particular manner in which the Supreme Court itself has treated the question of its power may be a prime explanation. in 1803, when John Marshall first announced for a unanimous bench in Marbury v. Madison⁴ that the Court would hold a provision of federal lawunconstitutional, he rested his argument on the principle of a written constitution, the nature of our governmental system, and the sworn obligation of federal Justices to apply the Constitution. There was no discussion of colonial practices, pre-Convention precedents, Convention debates, ratification proceedings, Congressional construction down to 1803, or any other supports from contemporary events. The opinion was