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Bar Journal - Fall 2006

Judicial Review and Its Limits; Part I (Legitimacy)

By:

Merrill v. Sherburne1 has long been celebrated as New Hampshire’s version of Marbury v. Madison,2 i.e., the first instance of a court in New Hampshire to exercise the power of judicial review.  Only recently, many of us have learned from several articles published in the New Hampshire Bar Journal that judicial review was far from a novel proposition by the time that Merrill v. Sherburne was decided.3  For example, as was pointed out in the Bar Journal’s 2002 publication of the UNH masters’ thesis of Richard M. Lambert, several of our Superior Courts had exercised the power more than three decades previously.4  Similarly, earlier this year, the Journal reprinted a 1995 article by Timothy Lawrie which had originally appeared in the American Journal of Legal History.5  In his article, Interpretation and Authority:   Separation of Powers and the Judiciary’s Battle for Independence in New Hampshire, Mr. Lawrie recounts the details of several previously unpublished New Hampshire Supreme Court cases – all predating Merrill - wherein the Supreme Court exercised the power of judicial review.6

Both Mr. Lambert’s thesis and Mr. Lawrie’s article deserved publication in New Hampshire simply on account of their scholarly contributions to our historical understanding of the constitution under which we live.  However, as I noted in my introduction to the reprint of Mr. Lawrie’s article, when it comes to judicial review, the lessons of history raise some interesting challenges to the conventional wisdom about its proper role in our modern political system.7

Suffice it to say that what I call in this paper horizontal judicial review – the power of the judiciary to review the acts of its co-equal branches of government for consistency with the Constitution – has become much more of a force in our modern political system than it ever was in the era of the Founders. Whereas the judiciary initially invoked its authority quite sparingly, the phenomenon of some court striking down a statute or declaring the action of an executive official unconstitutional is today almost a matter of routine.

But it is not just the quantity of judicial review which has changed; its quality has also changed.  For example, in the early years of the Republic, it was conventional wisdom that the power – and the responsibility – to make judgments about constitutionality rested with all departments of government.  Accordingly, it was far from accepted that judicial determinations of constitutionality were binding upon the other branches.  By way of contrast, the judicial review of today not only asserts that constitutional decisions by courts are “final” in that they are conclusive as to the parties to the case at hand, but it also claims that these decisions are “supreme” in the sense of being binding upon everyone else.  Indeed, some judges and academics have even gone so far as to claim that judicial review is “exclusive,” i.e., that the only branch of government which has the authority to make determinations of constitutionality is the judicial branch.  Similarly, whereas certain subjects (so-called political questions) were originally thought to be exempt from judicial review, modern judicial review aspires to be “universal” in that it recognizes virtually no limits.  And, finally, whereas early American political theory postulated that the judicial branch ultimately depended upon the cooperation of the other two branches for the enforcement of its orders in constitutional cases, some modern judges have even claimed to be able to wield the power of the purse and the power of the sword to enforce their orders. 

If judicial review is really final, supreme, exclusive, universal and self-executing, it is no longer merely judicial review. It is something much more muscular.  Indeed, some critics have dubbed it judicial sovereignty

In any case, whatever it is called, the modern brand of judicial review is exemplified by the self-assertive decisions increasingly being issued by state supreme courts in cases involving the funding of public education.  Two of the most egregious examples are the 2003 decision of the Nevada Supreme Court in the case of Guinn v. The Legislature of the State of Nevada8 and the decision last year by the Kansas Supreme Court in Montoy v. State of Kansas.9  In the former, the court held that a provision of the Nevada Constitution requiring the legislature to “provide for a uniform system of common schools” negated another provision in the same constitution which required that any spending bill which would cause the state budget to exceed a specified cap must receive a supermajority vote to pass.  In holding that bills designed to fund education could exceed the cap even if passed by only a majority vote, the Nevada Supreme Court, in essence, ruled a provision of the Nevada Constitution unconstitutional!10  In Montoy, the Kansas Supreme Court found that the Kansas Legislature’s appropriation of $142 million did not constitute full compliance with the court’s earlier order directing the Legislature to fix the purported constitutional infirmities in Kansas’ existing educational funding scheme.  Claiming that the court’s “remedial powers” in constitutional cases trumped the provisions of the Kansas Constitution which delegated the responsibility for appropriation and taxation exclusively to the legislature, the court ordered the Kansas Legislature to immediately raise another $143 million to support education – or else.  The court did not say what the “or else” would be, but many public officials interpreted this to be a threat that if the legislature did not toe the mark, the court would close the state’s schools.11  In other words, if Kansans did not receive what the court considered to be a “constitutionally adequate” education, they would get no education at all!

For those of us who still treasure the notion that the best form of government is democracy, these examples of judicial sovereignty are shocking.  Equally disturbing is the bloviated rhetoric which often accompanies them.  Take, for example, the pompous lecture delivered by the Kentucky Supreme Court to those who deigned to challenge that court’s authority to involve itself in matters of education policy.  Here is what the Court said: “Before proceeding...we must address a point made by the appellants with respect to our authority to enter this fray and to ‘stick our judicial noses’ into what is argued to be strictly the General Assembly’s business.... To avoid deciding the case because of ‘legislative discretion’, ‘legislative function’, etc., would be a denigration of our own constitutional duty.  To allow the General Assembly (or, in the point of fact, the Executive) to decide whether its actions are constitutional is literally unthinkable.  The judiciary has the ultimate power, and the duty, to apply, interpret, define, and construe all words, phrases, sentences and sections of the Kentucky Constitution as necessitated by the controversies before it. It is solely the function of the judiciary to so do. This duty must be exercised even when such action serves as a check on the activities of another branch of government or when the court’s view of the constitution is contrary to that of the other branches, or even that of the public.”12

Although it may be “literally unthinkable” for the justices of many of our American courts to acknowledge that others besides themselves have the power and duty to make constitutional determinations, a growing number of responsible scholars in this country disagree with them.  More importantly, concerns over judicial sovereignty have started to bubble up even among the general citizenry.  For example, much to the chagrin of the ABA, a substantial majority of the respondents to a recent poll which it had commissioned to gauge public sentiment about the judicial system in America replied that they considered the media’s increasingly prevalent attacks upon the judiciary as richly deserved.13 Indeed, what Alexander Hamilton once called the least dangerous branch is fast becoming viewed as the most dangerous branch.

Up until now, however, the field of battle over judicial sovereignty has been confined to the realm of words.  Nevertheless, if the tide of judicial activism14 does not begin to ebb, I fear that words will become deeds. At some point, some legislature or some governor who is faced with an order like that issued by the Supreme Court of Kansas in the Montoy case will “just say no.”15 Such a situation almost occurred in Kansas.  It was only averted because the issue of resistance to the court got bogged down in partisan politics.16 On the other hand, the day may well come in some state where the same political party controls both the legislature and the governor’s chair and where even the special interest groups who stand to benefit from a court order will have had enough of judicial sovereignty.  And, if that day does come, the court whose order is defied will have established that the judiciary is not only the least dangerous branch, but that it is also the least relevant branch.

Nevertheless, it is important to understand that the looming crisis over judicial review does not – at least for now – extend to its complete rejection. To begin with, most people take it as a given that judicial review is legitimate – at least if  “legitimate” means “constitutional.”17  In other words, it is generally accepted that the authority of our courts to engage in judicial review is itself derived from the constitution. On the other hand, despite its virtually universal acceptance, the basic proposition that judicial review is legitimate is not easy to prove.

      A.  Judicial Review’s  Lack of  Textual Support

To begin with, there is nothing in either our New Hampshire Constitution18 or in the Federal Constitution19 which expressly provides for judicial review.20  Suffice it to say that this is no small obstacle to proving that judicial review is legitimate.21   As Senator John Breckinridge of Kentucky said in his 1802 speech to the U.S. Senate introducing a bill to repeal certain provisions of the Judiciary Act of 1801, “If [judicial review] is derived from the Constitution, I ask gentlemen to point out the clause which grants it.  I can find no such grant. Is it not extraordinary, that if this high power was intended, it should nowhere appear?  Is it not truly astonishing that the Constitution, in its abundant care to define the powers of each department, should have omitted so important a power as that of the courts to nullify all the acts of Congress, which, in their opinion, were contrary to the Constitution?”22 Similarly, as stated by Chief Justice Gibson of the Pennsylvania Supreme Court in his famous attack on the legitimacy of judicial review in the 1825 case of  Eakins v. Raub, “[T]he grant of a power so extraordinary ought to appear so plain that he who should run [with it] might read [it].”23  

Since judicial review is not expressly mentioned in either the United States Constitution or the New Hampshire Constitution, its legitimacy must be based upon something other than textual considerations.  But not everything in a constitution is expressed exclusively in its words.  Some things are expressed in the nature of the institutions it creates, in its overall structure or in its stated purposes.24  The question, then, is whether judicial review, which is admittedly not explicit in our constitutions, is nevertheless implicit in them.  Accordingly, we explore below the two theories which are typically offered in support of the notion that judicial review is indeed constitutionally based.  The first is that the exercise of judicial review is an inherent part of the job of being a judge and the second is that our constitutional system of limited government cannot function without it.  The first of these theories has strong historical credentials while the second is more familiar to the modern practitioner.  As we will see, however, upon close inspection, neither theory provides a comprehensive or, in the long run, even a particularly satisfactory rationale for the doctrine.

     

B.   Judicial Review as Inherent in the Office of Judge

The constitutional grant of authority to both the United States Supreme Court and to our own  Supreme Court is almost entirely contained in each constitution’s grant to the courts of the “judicial power.”25 One argument for judicial review, therefore, is that the authority of courts to interpret their respective constitutions is something which is inherent in the judicial power.26 In colloquial terms, the argument reduces itself to the notion that when one becomes a judge, judicial review is something that “comes with the territory.”27

This notion that the exercise of judicial review is just a part of being a judge is, in turn, derived from the proposition that the role of a judge is to decide cases.  Accordingly, when a party relies upon the Constitution in order to challenge or sustain the validity of some act of government affecting his legal rights, the court’s exercise of the power of judicial review is arguably an inevitable consequence of the fact that a court must deal with all issues which are necessary to a resolution of the case before it. This is the argument that U. S. Supreme Court Chief Justice John Marshall made when he first articulated the federal doctrine of judicial review in the case of Marbury v. Madison:  “If both the law and the Constitution apply to a particular case, so that the court must either decide the case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the court must determine which of these conflicting rules governs the case.  This is the very essence of judicial duty.”28 Our own Justice Levi Woodbury invoked the same rationale for judicial review in New Hampshire’s counterpart to Marbury, Merrill v. Sherburne: “It must be admitted that courts ought to decide, according ‘to the laws of the land,’ all cases which are submitted to their examination.  To do this, however, we must examine those laws.  The constitution is one of them, and is in fact, and must be regarded by the judges as fundamental law.”29 According to this view of judicial review, courts are entitled to determine a statute’s constitutionality because they sometimes must in order to decide the case before them.  Judicial review, therefore, is nothing special; it is just an ordinary part of the process of adjudicating legal disputes in a judicial forum.30

I respectfully suggest, however, that Justices Marshall and Woodbury “put the rabbit in the hat.” The basic problem with formulations of the issue such as those put forth in Marbury and Merrill is that they assume the answer to the question in the way that they pose the question. If one assumes that a party to a case before a court can, as a matter of right, put the Constitution in play, it admittedly follows that the court must be able to interpret the Constitution in order to decide the case.  But that merely begs the question: what establishes that a party is entitled to raise constitutional issues in a judicial forum?

The fact that it is not a given that litigants in a judicial forum must be able to raise issues of constitutional law is best exemplified by the legal system which governed Eighteenth Century England – from which we borrowed most of our early jurisprudence.  In the English system, it was Parliament, not the courts, which determined matters of constitutionality.31  According to Blackstone, “[T]he power and jurisdiction of Parliament ... hath sovereign and uncontrollable authority... being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted.”32 

Although Lord Coke’s famous dictum in Bonham’s Case33  is often cited in support of the notion that English judges had the authority to judge the constitutionality of acts of Parliament, his comments are best understood as a somewhat exaggerated restatement of the otherwise conventional proposition that courts should presume that Parliament would not pass a statute which violated the constitutional rights of British citizens and, therefore, that courts should strive to construe all statutes in a manner consistent with the constitution.34  Although this practice may admittedly have yielded some quite creative judicial interpretations of British statutory law, this is still not a true exercise of judicial review.35

It is important to understand that, at least at the time Marbury and Merrill were decided, issues of constitutional law were not the types of issue which were normally presented to a court for resolution.  The traditional role of courts was to resolve the rights of private parties under the common law or, to a lesser extent, under a statute.  Matters of public law, i.e., what laws may be made, who may make them and how they may be made, were decided elsewhere.  In the words of Justice Gibson, courts of that era did not “scan the authority of the lawgiver.”36  According to Justice Gibson, constitutional issues represented political judgments concerning the allocation of power among the organs of government and between government and the people and, therefore, the authority to determine such issues did not rest with the judiciary or some other department of government itself, but “with the people, in whom full and absolute sovereign power resides.”37 

 

Ironically, under the system with which the Framers were most familiar, the British colonial system,  if the authority of the colonial lawgivers was scanned by anyone, it was scanned by an agency which was part of the executive, not the judicial, branch of government.  Under England’s imperial system, the acts of the colonial legislatures were subject to nullification by the Privy Council, a body which exercised the authority of the Crown in such matters.  According to one source, the Privy Council exercised its power to reject the acts of the American colonial legislatures over 450 times in the century before our independence was secured.  Akil Reed Amar, AMERICA’S CONSTITUTION - A BIOGRAPHY, p. 211 (Random House, 2005).   New Hampshire was not unfamiliar with this practice.  As reported by historian Richard Upton, colonial New Hampshire had its fair share of legislation rejected by the authorities in London.  Richard F. Upton, Separation of Powers in New Hampshire, Chp. I (unpublished thesis, Harvard Law School, 1938).  Although such rejections were often for reasons of imperial policy, they were sometimes based upon the Council’s determination that the act in question was in violation of a colony’s charter or even the (unwritten) British constitution.  In such cases, the Privy Council was exercising a power which was quite similar to the power of vertical constitutional review which we, in our federal system, assign to the judicial branch.  Accordingly, to the extent that the colonists had experience with the authority of the lawgiver being scanned, they experienced it as an executive,  not a judicial, phenomenon.

 The point is that there is nothing inherent in the judicial function that courts be the expositors of the authority of the lawgiver.  The authority of the lawgiver is not a matter of “ordinary” law like the interpretation of a statute or the common law of wills, deeds, contracts or torts, all of which relate to the rights of private parties.38  On the contrary, the authority of the lawgiver has to do with the workings of government itself and, thus, is a form of “extra”-ordinary law.  Accordingly, although constitutional explication is a function which could be assigned to the judiciary, it is not something which is, “in the nature of things”, a necessary part of the job description of a  judge .39

The proposition that constitutional adjudication is just an ordinary part of the business of judging is also belied by the acknowledgment by both Justice Marshall and Justice Woodbury that the judiciary should not declare a statute unconstitutional except in the “clearest of cases.”40  Determining whether a statute violates the Constitution is not therefore simply a matter of a judge laying the two side by side and deciding whether there is a conflict.  By recognizing a “presumption of constitutionality”, judges defer (or at least they claim to defer) to the judgment of the legislature which passed the statute.41  This, however, is not the customary deference shown by courts to the framers of a law whose legislative intent is properly determinative of the law’s meaning.  On the contrary, this is a political decision by a judge to consider the legislature’s interpretation of a law (the Constitution) in whose creation the legislature was not involved.

There is something else about the exercise of judicial review which distinguishes it from the ordinary business of judging.  It is ordinarily the responsibility of a court to decide all legal issues which have been properly presented to it.  Indeed, this is the essence of the court’s adjudicatory function.  Accordingly, to the extent that they are properly presented, constitutional issues are presumably to be decided along with all other issues in the case.42  However, this merely begs the question: how does one decide whether an issue is “properly” presented.  The fact is that judges need not, and frequently do not, decide issues of constitutionality.  But if a judge can simply elect whether to allow an issue to be presented, his election is hardly an exercise of his adjudicatory function; instead, he is making a political decision.43

Perhaps the best illustration of the fact that judicial review is really not inherent in the business of judging is the multi-tiered system of judicial review which is now an accepted part of both our federal and our domestic jurisprudence.  The notion that the scope of judicial review may differ according to whether a case involves “fundamental” rights, “important” rights or just a citizen’s interest in being able to do as he chooses - which, in turn, supposedly implicates “strict scrutiny” review, “middle tier” review or “rational basis” review - is indeed ingrained in our current jurisprudence.  See generally, e.g., Lawrence v. Texas, 539 U.S. 558 (2003); Boulders at Strafford, LLC v. Town of Strafford, 153 N.H. ___ (June 13, 2006) (Broderick, C.J.); Gonya v. Comm’r, N.H. Ins. Dept., 153 N.H. ___ (May 18, 2006) (Broderick, C.J., concurring specially).  However, the entire construct has been created by the judiciary out of whole cloth.  The purpose of the exercise is to channel judicial review into those areas where it is supposedly  most needed or most effective.  In the final analysis, therefore, both the construct itself and the assignment of a particular case to one class or another constitutes a political decision.  See generally, Jed Rubenfield, The New Unwritten Constitution, 51 Duke L.J. 289 (2001). 

A perfect example of the discretionary nature of judicial review is the concept of “judicial restraint.”  This is the term used to describe that collection of strategies which the courts have themselves devised to avoid making constitutional decisions.  These include such things as the doctrines of standing, ripeness, mootness, abstention, and the exhaustion of administrative remedies.44  Although each of these doctrines may, at some level, have a constitutional dimension (i.e., to prevent courts from issuing advisory opinions), they essentially involve prudential considerations which the courts voluntarily use to rein themselves in so as not to provoke unnecessary power contests with their sister branches of government.45 When a judge invokes such considerations, he is not deciding the case before him; he is deciding whether to decide the case before him.  Again, this is a political, not a judicial act.46 

Accordingly, the proclamation of Chief Justice Marshall in Marbury v. Madison that, “It is emphatically the province and duty of the judicial department to say what the law is”,47 was simply an overstatement if he meant (which he surely did) that this always includes the law of the Constitution.  As we have seen, sometimes it does and sometimes it doesn’t.  If, then, the power of judicial review is legitimate, it must rest on something other than the notion that it is inherent in the office of being a judge.  So let us turn now to the other rationale so often offered in support of judicial review - the notion that our system of limited government cannot function without it.

C.   Judicial Review as a Necessity in a Limited Government

In 1958, faced with the continuing resistance of many Southerners to its desegregation orders, the Supreme Court of the United States attempted to put an end to the South’s intransigence.  In a rare per curiam opinion, the Court declared that judicial review was an “indispensable feature of our constitutional system.”48  In like manner, our own Supreme Court announced in State v. LaFrance that “judicial review is the exercise by courts of their responsibility to determine whether the acts of the other two branches are illegal and void because those acts violate the constitution.. . .  Adherence to the doctrine of judicial review is essential to achieving balance in our government.”49  In other words, according to the authors of these opinions, judicial review is legitimate because it is a necessary component of our political system.         

1.   Separation of Powers.

The concept that judicial review is a necessity has two variations.  The first is based upon the doctrine of separation of powers.  On the national level, the doctrine of separation of powers is derived by implication from the Federal Constitution’s “vesting” of the executive power in the President, the legislative  power in Congress and the judicial power in the federal courts.50  On the New Hampshire level, on the other hand, the doctrine of separation of powers is explicitly memorialized in Article 37, Part I of our Constitution.51  Under both constitutions, however, the notion is the same: each branch of government has its own sphere of influence which is separate and presumably different from that which is assigned to the other branches.

What brings judicial review into the mix is the correlative doctrine of checks and balances.  The Constitution grants each branch of government certain powers which are designed to allow it to put a damper upon the excessive exercise of power by any other branch.52  In the words of Justice Gibson, “one organ of government is enabled to control another, or to exert an influence over its acts.”53 Viewed from the perspective of this construct, judicial review is supposedly the institutional check granted to the judiciary to keep the legislature and the executive branch from exercising powers beyond those which they have been granted by the Constitution. In other words, judicial review is the enforcement mechanism for the doctrine of separation of powers.54 

 

This, of course, assumes that an institutional, as opposed to a popular, check is truly necessary to enforce the separation of powers.  Suffice it to say, however, that it is fairly debatable whether any organ of government itself ought to have the authority to police the exercise of official power by some other organ of government.55 

Assuming, nevertheless, that an institutional check is at least appropriate for such purposes, the real question is why the judiciary must be the agency to which the task is delegated.  For the most part, the advocates of judicial review never answer this question – in fact, they seldom even ask it.   For example, Lincoln Caplan, editor of Legal Affairs, recently asserted in an essay entitled The People’s Court, “It’s essential in our system of government for one branch to have ultimate responsibility for interpreting the nation’s fundamental law and, as the court of last resort is the judicial branch, the Supreme Court plays that vital role.”56  Similarly, our own Court recently claimed in Hughes v. Speaker of the New Hampshire House of Representatives that “We have the responsibility to examine whether the [legislature’s] conduct violated Part I, Article 8 [of the Constitution].  (citation omitted)  It is our duty to interpret constitutional provisions and to determine whether the legislature has complied with them.”57 (author's emphasis)

This is not how James Madison, the celebrated “Father of the Constitution”, saw things.  He believed that one purpose of separating the powers of government among three district branches was to provide all three with a power of constitutional review over the acts of each other.  As he wrote in THE FEDERALIST, No. 51: “To what expedient then shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the constitution?  The only answer that can be given is, that if all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places....But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others.”58

Note that the doctrine of separation of powers is  quite unlike the doctrine of judicial review in one very important respect.  Separation of powers is  inherently antagonistic to concentrations of power.  Judicial review, on the other hand, is characterized by a concentration of power - in the hands of the judiciary, of course. A significant objection, therefore, to reading the doctrine of judicial review into the Federal Constitution follows from the notion that, in order to limit the powers of government, the Framers established a government of enumerated powers.  Marbury v. Madison, 5 U.S. at 176.  To the extent that judicial review is acknowledged to be an unenumerated power of the federal judiciary, its constitutional legitimacy is automatically suspect.  Although it is theoretically possible that an enumeration may be accomplished by implication, it is obvious that the entire concept of an extra- textual or sub-textual enumeration of powers is in great tension with the very concept of the Constitution as a power-limiting device. Moreover,  the fact that  the judiciary (unlike Congress) has no Necessary and Proper Clause to turn to justify the existence of an implied power of judicial review is yet another reason why the principle of enumeration ought to be an impediment to establishing the doctrine’s legitimacy under the Federal Constitution.

This conceptual problem exists to a similar, but somewhat lesser, degree with respect to justifying the existence of judicial review in the New Hampshire Constitution.  As a general proposition, unless something is prohibited, the State is granted plenary authority under our Constitution.  However, the repository of that plenary authority is the legislature, which is granted the power to pass all laws which it deems “wholesome and reasonable”.  Art. 5, Pt. II, N.H. Const.   As for the judiciary, its powers are restricted to those which are expressly granted and those which are “inherent” in the judicial function.  Accordingly, since judicial review is neither, the principle that written constitutions are designed to limit the power of government and that one way in which they do this is by an enumeration of powers should, in theory, present an obstacle to the acceptance of legitimacy of judicial review under our Constitution as well.

The words of Madison, however, do not resonate with the advocates of judicial review.  They prefer the views expressed by Madison’s FEDERALIST co-author, Alexander Hamilton.  Indeed, Hamilton’s remarks on the subject in THE FEDERALIST, No. 78 are probably the one Framing Era source most frequently cited in support of the notion that judicial review is historically legitimate. For example, he claimed in No. 78 that there must be “an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to [its] authority.” On the other hand, although Hamilton did say that it was critical that this task be assigned to the judiciary, I believe that his comments in this regard were more rhetorical flourish than political dogma.59 

Indeed, the idea that our system of separated powers cannot survive without judicial review is a gross exaggeration.  As we noted above, the common law model is one in which the legislative branch (Parliament) has the final say in constitutional matters.  The experience of the civil law countries is also instructive because they too have a long tradition of non-judicial superiority in constitutional matters.  Perhaps the major difference between them and common law jurisdictions is that in the civil law countries, it is the executive branch, rather than the legislative branch, which has the primacy in this area.60 Finally, even among those common law countries which have in recent years adopted some form of judicial review, there are none in which the judicial branch dominates the system the way that it does in the United States.61

Ironically, one of the reasons for the civil law countries’ reluctance to adopt an American-style judicial review has been their belated embrace of the doctrine of separation of powers.   We Americans tend to view the doctrine of separation of powers as something which constrains only the political branches and thus justifies judicial review.  Europeans, however, have tended to take a more comprehensive approach to the subject.  Having observed how judicial review has worked in America, they as much fear that the judiciary will exercise powers which belong to the legislative and executive branches as they fear that the legislative and executive branches will exercise the powers of the judiciary.62  Accordingly, to the extent that some nations on the Continent have moved toward a form of constitutional review designed to maintain a separation of powers among their several branches of government, the bodies to which they have assigned this task have generally not been controlled by judges.63 

Constitutional review by a non-court was actually considered, but ultimately rejected, by the Federal Constitutional Convention of 1787.64   Labeled as a “council of revision,” the proposal was to establish a joint executive-judicial body that could negate both federal and state legislation (and, in the case of federal legislation, the review would occur before the law ever went into effect).65  Interestingly, the primary advocate for this scheme was none other than James Madison.66  Although the Convention eventually rejected the proposal, there is no evidence that this was because the delegates felt that constitutional review by judges was indispensable to their plan of government.67

The logic of the notion that the doctrine of separation of powers necessitates some type of institutional policeman to enforce it actually militates against judicial review.  For if the judiciary itself is subject to the separation of powers, some other policeman is necessary to control the judiciary.  In fact, viewed from this perspective, judicial review is simply a case of the fox guarding the henhouse.  In New Hampshire, the danger that this can pose is no mere theoretical possibility.  As our judiciary increasingly expands its hegemony over non-judicial matters, its henhouse is getting bigger and bigger.  Witness the cases purporting to establish the judiciary’s exclusive jurisdiction to make and administer rules governing certain court-related matters:  Petition of New Hampshire Bar Association, 151 N.H. 112 (2004) (regulation of the practice of law); Petition of Judicial Conduct Committee, 151 N.H. 123 (2004) (discipline of judges); Petition of Mone, 143 N.H. 128 (1999) (court security);  Opinion of the Justices (Prior Sexual Assault Evidence), 141 N.H. 562 (1997) (rules of evidence); Smith v. State, 118 N.H. 764, 770 (1978) (fees for court-appointed counsel in indigent criminal cases);  Opinion of the Justices, 86 N.H. 597 (1933) (punishments for criminal contempts).  Among the many problems presented by this accumulation of power in the hands of a politically-unaccountable body is that judicial rules and procedures begin to acquire a constitution-like status.  This is so because the only way that the people can change a rule which is supposedly within the exclusive control of the judiciary is to cement a contrary rule in the Constitution itself.

The point is that there is nothing about judicial review which is essential to the enforcement of separation of powers.  Besides the fact that judicial review does nothing to enforce constitutional constraints upon the judiciary itself (except as it may decide on its own to do so), there are a variety of other devices which are equally capable of confining the several branches of government (including the judicial branch) to the exercise of their delegated powers.68  Consequently, the most that can be said about the relationship of the doctrine of separation of powers to the doctrine of judicial review is that the latter is an appropriate, but not a necessary, way to enforce the former.

2.   Protection of Individual Rights

This, then, brings us to the other theory that purports to support the legitimacy of judicial review as a necessity.  This is the notion that judicial review is necessary to protect the constitutional rights of individuals and minorities against the tyranny of the majority.  Our own Court made this point quite forcefully in State v. LaFrance: “The courts have the duty to interpret constitutional provisions. This duty may result in decisions that run counter to the present desires of the voters or their elected representatives.  This is so because the constitutions of our States and of the nation are intended to be restraining documents so that exercise of power by the majority does not go unchecked. We do not have unqualified majority rule; we have majority rule with protection for minority and individual rights. Without this limitation we would have a tyranny of the majority and we would lose our liberty.”69  Similarly, United States Supreme Court Justice Robert Jackson, writing for the majority in West Virginia State Board of Education v. Barnette, said the following: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of the majorities and officials and to establish them as legal principles to be applied by the courts.”70

This individual rights justification is especially appealing to modern Americans who are seemingly obsessed with real and imagined threats to their “rights” (also real and imagined). However, it has very little historical support.  For example, one can search the Marbury v. Madison and Merrill v. Sherburne decisions with a fine-toothed comb and find no discussion of such a justification for judicial review — despite the fact that both cases arguably involved the rights of individuals (Marbury’s right to his justice of the peace commission and Sherburne’s right to the benefits of a final judgment in his favor).71  Instead, as noted above, both opinions purported to justify judicial review on the basis that it was inherent in a court’s responsibility to adjudicate whatever case may come before it.  This is clearly an institutional, not an individual rights, justification for judicial review.

On the federal level, the advocates of a rights-based theory of judicial review invariably point to James Madison’s speech before the House of Representatives introducing his proposals for amendments to the Constitution which eventually led to the Bill of Rights: “If they are incorporated into the [C]onstitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.”72

There are a number of problems, however, with relying upon Madison’s speech as evidence of the Framers’ acceptance of judicial review.  The first problem is that Madison’s speech was delivered to Congress, not to the legislatures and conventions in the several states where the Constitution was ratified and, in any case, it was made after the Constitution had been ratified.  Accordingly, it could not have been a part of the “original understanding” of the Constitution. Secondly, it has not even been established that Madison’s speech was a part of the original understanding of the Bill of Rights.  Again, it was delivered to Congress and there is no evidence that it was reported to the state legislatures which ratified the Bill of Rights.  (For, unlike the rather extensive record of the debates over the Constitution, the record of the ratification of the Bill of Rights is virtually non-existent.)  Finally, the Bill of Rights itself was not adopted until 1791.  This means that if the existence judicial review is premised upon a need to enforce the rights guaranteed in the Bill of Rights, then it could not have been a part of the original Constitution and only became such upon the ratification of the Bill of Rights.73  No responsible academic has taken this position and, indeed, it would contradict Madison’s own assurances that the addition of a bill of rights to the Constitution would not change it in any material way.

The other problem is that one cannot tell for sure whether Madison was in fact even talking about horizontal judicial review (i.e., reviewing the acts of another branch of the same level of government, as opposed to vertical judicial review, which pertains to the review of the actions of a subordinate level of government.)  That is because Madison’s proposed constitutional amendments included a provision which would make them applicable to the states as well as the federal government.  Although this provision was not adopted by Congress for submission to the states for ratification, it was clearly one of Madison’s favorites and Madison’s speech was given before Congress had rejected it.  Accordingly, although this oft-quoted portion of Madison’s speech seems to be addressing horizontal judicial review, when examined in context, it is not clear whether Madison was addressing horizontal judicial review or vertical judicial review, or both.

Moreover, even if one ignores the ambiguity of the historical record on this point, the ultimate flaw in the rights-based theory of judicial review is that it gives us only half a loaf.74  For even if one accepts the proposition that judicial review is somehow essential to the preservation of individual rights, what then justifies the exercise of judicial review where no individual rights are involved?   Although one can always artfully re-characterize any case involving institutional clashes so as to implicate the rights of some individual,75 the fact of the matter is that many of the most important examples of judicial review on both the state and the federal level – especially in recent years – do not involve the traditional rights of individuals.  On the contrary, they relate to how government itself works.76  If, then, judicial review is to be justified solely on the grounds that it is necessary to safeguard our personal rights as citizens, the logical conclusion of such a proposition is that the exercise of judicial review in cases involving only questions of the proper allocation of institutional authority is unnecessary and therefore illegitimate. 

Note  that the individual-rights theory assumes that the parties that we need protection from are the political branches.  Suffice it to say, however, that even when acting within the proper scope of their judicial function, judges themselves can, and sometimes do, take actions which infringe upon our rights as individuals.  For example, although citizens of New Hampshire and the United States are constitutionally guaranteed the right to be tried by an impartial trier of facts (Art. 35, Pt. I, N.H. Const. [“It is the right of every citizen to be tried by judges as impartial as the lot of humanity will admit.”]; 5th Amend., U.S. Const. [no one is to be deprived of life, liberty or property without due process of law]), the Supreme Courts both of the United States and New Hampshire have upheld the authority of a judge in certain contempt cases to act as prosecutor, judge and jury.  E.g., Green v. United States, 356 U.S. 165 (1957); State v. Martina, 135 N.H. 111 (1991).  Moreover, when courts act outside of their adjudicatory domain and engage in rule-making and administration (as they are increasingly doing these days in New Hampshire), their quasi-legislative and quasi-executive acts have just as much potential to trample upon individual rights as does any statute or agency practice.  E.g., Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985) (striking down N.H. Supreme Court rule imposing an in-state residency requirement upon the practice of law);  Smith v. Goodnow, C83-120-L (U.S. Dist Ct., N.H., Sept. 26, 1983) (ruling that N.H. Supreme Court practice of summarily affirming a criminal conviction without reviewing the record was improper where the defendant’s appeal involved a challenge to the sufficiency of the evidence).  To make matters worse, even when the legality of their own non-judicial acts is at issue, our courts have ruled that this does not disqualify them from being judges of their own cause.  Lorenz v. New Hampshire Administrative Office of the Courts, 151 N.H. 440 (2004); see Reiner’s Case, 152 N.H. 163 (2005) (Court ruled on the constitutionality of rules and practices under which an attorney was disciplined even though the rules and practices in question had been promulgated by the Court itself).

Assume, however, that we could satisfy ourselves with such a half-a-loaf brand of judicial review. This would narrow our inquiry to whether an individual-rights theory can justify the necessity for judicial review even within the limited context of individual rights jurisprudence.  There are many respectable observers who would answer that question with a resounding “no.”  Most prominently, law professor and author Mark Tushnet argues that the Constitution’s guarantees of individual rights such as equal protection of the laws and even freedom of expression are better controlled by the people themselves than by courts.77  Although the immediate inclination of today’s well-trained lawyer (i.e., trained to think of judicial review as ordained by the gods) is to reject such a notion out of hand, a more sober examination of the track record of our courts’ protections of individual rights, both on the national and the local level, will reveal that their performance has been  - dare we say it -  somewhat “spotty.”78 

Lest one think, moreover, that when Professor Tushnet suggests that courts are not necessarily the only (or even the best) way to guarantee the security of individual rights, he is some iconoclast out of touch with reality, it should be noted that he travels in quite respectable academic company.  This includes Tom Paine, John Adams, Thomas Jefferson and the other authors of the 18th century political tracts (including the Declaration of Independence) which defended the use of force - not the filing of a lawsuit - to vindicate the constitutional rights of the colonists.  More recently, none other than United States Supreme Court Justice Ruth Bader Ginsburg has argued that the Court’s heavy-handed approach to abortion in Roe v. Wade actually stymied the efforts of local legislators in many states which would eventually have established abortion rights in the good-old-fashioned-way, i.e., through the democratic process.79

The lesson to be learned from this is that while the protection of individual rights is indeed a justification for the doctrine of judicial review, rights-protection cannot be accepted as the justification for it.  Accordingly, as was the case with the doctrine of separation of powers, the theory that judicial review is necessary to protect our individual rights  simply does not ring true.80

                        3. Limitations on the Judicial Process  

On a very basic level, the argument for the necessity of judicial review is also belied by the fact that judicial review is subject to significant constraints inherent in the nature of the judicial process itself.  The first constraint is that judicial review may only be exercised in the context of a court’s adjudication of a case or controversy.  Judges operating within the Anglo-American tradition have no authority to roam the land like Don Quixote, striking down every instance of unconstitutionality they encounter. Even those courts with the authority to issue advisory opinions on constitutional questions may only do so when the question is presented to them by some other agency of government. And, finally, when a court is properly presented with a legal dispute within its jurisdiction, the specific issues it is permitted to resolve are generally limited to those raised by the parties. In other words, despite Chief Justice Marshall’s admonition that “If both the law and the Constitution apply to a particular case, ... the court must determine which of these conflicting rules governs the case,” our adversarial system of justice constrains the court from taking up a conflict between a law and the Constitution unless one of the parties chooses to make an issue of it. Taken together, these complementary characteristics of our traditional system of justice confine the exercise of judicial review to a relatively narrow sphere.  As a consequence, judicial review does nothing to address the innumerable extant instances of unconstitutionality which never find their way into court or, if they do, do not arrive there until after years or even centuries of practice.  Under such circumstances, it is difficult to see how judicial review can be considered to be necessary to either  our political system or the protection of our rights as individuals.               

      D.   Judicial Review as Judicial Self-Defense

So, then, if judicial review is not inherent in the office of judge and if no theory of necessity seems adequate to justify judicial review, how can one say that it is legitimate?  As we have already noted, judicial review is not explicitly mentioned in either the Federal Constitution or our New Hampshire Constitution.  As was noted above, it is most peculiar that if the Framers of either the United States Constitution or the New Hampshire Constitution really did intend that such an awesome power as judicial review should exist, none of them took care to memorialize that fact in the text of the constitution which they produced.  So what are we to make of this?

Some scholars suggest that the legitimacy of judicial review was so obvious that the Framers felt no need to express it; they just assumed it. In other words, it is as if judicial review was like those truths that Thomas Jefferson stated in the Declaration of Independence were “self-evident.” In this regard, history shows that, despite the fact that not one single Framing Era constitution, state or federal, explicitly provided for judicial review, 81  the courts of every American jurisdiction actually exercised it.  Unless we are to charge all of those courts with usurpation of authority, this fact alone is a powerful indication that the legitimacy of  judicial review — at least as practiced at the time — was generally accepted.

As is clear from the historical record, the practice of judicial review in the states was well-known to the delegates who attended the Constitutional Convention of 1787 in Philadelphia which framed the Federal Constitution.82  Moreover, although the Constitution which those delegates produced made no mention of judicial review, the subject was discussed by the Convention on several occasions.  Although the meaning of the Convention debates is equivocal — with some delegates speaking in favor of judicial review and some speaking against it83 — it is my opinion that a close reading of the Convention records indicates that there probably was at least a  vague understanding among the delegates that the new federal judiciary would have the power of horizontal judicial review.  I also believe that a similar understanding is reflected in the debates in the state ratifying conventions which actually enacted the Constitution.84  And, of course, there is Alexander Hamilton’s famous essay in THE FEDERALIST PAPERS, No. 78, where he asserts that the Framers intended that the Constitution be enforced “through the medium of courts of justice, whose duty it must be to declare all acts contrary to the tenor of the Constitution void.”85 

One cannot be as confident about any shared acceptance of judicial review in connection with the adoption of the New Hampshire Constitution.  To begin with, no journal was kept of the debates in the several conventions which crafted the document eventually ratified as our Constitution in 1784.86  Moreover, even the extant secondary material from this period is fairly sparse and, more importantly, on this particular issue, of essentially no help.87  Accordingly, there is no contemporaneous evidence that either the Framers of or the citizens who adopted our own Constitution specifically contemplated the existence of judicial review (although, admittedly, there is also no evidence that they did not). 

The case for the legitimacy of judicial review in New Hampshire, therefore, does not rest upon constitutional text, political theory or legislative intent.  Its legitimacy in New Hampshire – even more so than at the federal level – rests upon practice.  And by practice, I mean the practice of the courts themselves.  As is made clear in both Mr. Lambert’s article on the Ten Pound Act Cases and in Mr. Lawrie’s article on the Supreme Court precedents for Merrill v. Sherburne,  judicial review was established in New Hampshire by the judges who dared to exercise it. Did they have the constitutional authority to do so?  Who knows?  All that we really know is that they did it. On the other hand, we also know that the early exercises of judicial review were quite controversial.  As Mr. Lambert reported in his article on the Ten Pound Act Cases, in June of 1787, articles of impeachment were actually drafted up by the New Hampshire House against the judges of the Rockingham Inferior Court of Common Pleas.  The charge, of course, was that the judges had refused to enforce an act of the legislature. Although the crisis was averted when the House abruptly changed course two days later and, instead of impeaching the judges, voted to repeal the Ten Pound Act,88 one cannot be sure that the court’s apparent victory was, in fact, all about judicial review.  My guess is that at least some members of the legislature voted to repeal the Ten Pound Act because they just didn’t like the statute.  In any case, the controversy generated by the lower courts’ exercise of judicial review in the Ten Pound Act Cases certainly contradicts any notion that the power was just assumed by everyone to exist.89                                   

On the other hand, the real measure of the victory of the doctrine of judicial review in New Hampshire is the fact that by 1818, when the New Hampshire Supreme Court decided Merrill v. Sherburne, the Court essentially took the doctrine for granted.  Even the legislature took it for granted because its response to the Court’s decision in the case was not to challenge the Court’s power to declare statutes unconstitutional, but to inquire of the Court whether the decision was limited to the facts of the case at bar or whether it was still open to the legislature to pass similar legislation in the future.90                          According to Mr. Lawrie, this was the last time that the New Hampshire Legislature purported to pass a special act granting a new trial to a private litigant. By 1825, former Governor William Plumer, writing under the pen name Cincinnatus, reported that the legislature had not only come to accept the proposition that it had no authority to grant new trials, but it had apparently also come to accept the doctrine of judicial review:  “From the adoption of the constitution in 1783, to the present time, this court has been considered as authorized, whenever the legislature passed an act, infringing the constitution & affecting the rights of individuals, to declare such law void & of none [sic] effect.  This, the Superior Court have done in a variety of cases, but more formerly than recently; for the legislature, convinced of the propriety of the judges’ decisions, have become more cautious of transcending the limits of their authority.”91

What could be the explanation for how the courts were able to pull off legitimizing such an awesome power as judicial review when they had so little to work with?  Some commentators contend that the change of heart about judicial review reflects a conservative backlash in the 1780s and 1790s against democratic institutions.92  There is no doubt that concerns about the excesses of democracy played a significant role in the politics of post-Revolutionary War America.  Such things as Shay’s Rebellion in Massachusetts in 1786-1787 did indeed cause many of that era, especially men of wealth and property, to distrust an unrestrained populace in control of the levers of government.  And it certainly is true that the outpouring of anti-creditor legislation from the popular assemblies of the newly independent states lent some credibility to the fears of the moneyed classes.  As James Madison put it in THE FEDERALIST No. 48, “The legislative department is everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.”93  To the extent, therefore, that judicial review was available as a device which could be used to put the brakes on the zeal of legislatures, it would not be surprising if it came to be looked upon with favor in some quarters.94

Nevertheless, this sociological explanation for how judicial review got its traction in the early years of the Republic fails to account for the fact the parties who came to accept it were the very parties who were its victims.  In other words, as we described above, by the time that Marbury v. Madison and Merrill v. Sherburne were decided, even the legislatures whose statutes were being struck down by the courts were submitting to the practice with hardly a whimper of objection.95  Personally, I do not believe that this level of acquiescence would have been achieved if those early legislatures had foreseen in the courts’ initial exercises of judicial review a full-scale challenge to their legislative prerogatives.

There is a school of thought, most prominently represented by Robert Lowry Clinton in his 1989 book MARBURY v. MADISON AND JUDICIAL REVIEW, that the Framers did indeed contemplate judicial review, but only with respect to the acts of the other branches which threatened the judiciary’s own turf.96  In this construct, judicial review was only appropriate in the following circumstances: (1) where the political branches arrogated unto themselves powers exclusively exercisable by the judiciary, (2) where the political branches foisted non-judicial powers upon the judiciary, or (3) where the political branches attempted to interfere with the judiciary in the exercise of its judicial powers.  In other words, judicial review was intended purely as a defensive device for the judiciary to protect its own turf.  This theory is, of course, an unabashed half-a-loaf theory of judicial review.  It does not purport to justify the exercise of constitutional review by the judicial branch against the political branches where the dispute involves only the allocation of power between the other two branches themselves or only the allocation of power between one or both of the political branches, on the one hand, and the people, on the other hand.  Under this theory, abuses of power which do not involve the judicial branch’s turf are checked through other means.

Although this theory draws support from various fragments in the historical record, much of its weight rests on comments recorded by Madison in his notes of the debates in the Philadelphia Convention regarding the adoption of the “arising under” provision of Article III of the Constitution.97  When Samuel Johnson moved to add “this Constitution” to the provision granting the Supreme Court jurisdiction over cases arising under federal laws, Madison records himself as saying that he “doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution [and] whether it ought not to be limited to cases of a Judiciary Nature.  The right of expounding the Constitution in cases not of this nature ought not to be given to that Department.”98  Then, after noting that Johnson’s motion passed unanimously, Madison adds, “it being generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature.”99

Professor Clinton and others have interpreted Madison’s comments to mean that the members of the Convention specifically contemplated that the exercise of judicial review by the federal courts would be limited to matters affecting the judiciary.100  However, an equally plausible interpretation of Madison’s comments is that the Framers were addressing the issue of justiciability and that their intent in limiting the Court to “cases of a Judiciary nature” was to prohibit advisory opinions.101   My own opinion is that the latter interpretation is more likely the correct one.  As usual, however, the historical record does not give us a definitive answer to this question. 

On the other hand, the debate over the meaning of the words “cases of a Judiciary nature” does provide some valuable insight into how judicial review was able to successfully sink its roots into America’s soil.  It is my view that judicial review established its legitimacy because of the nature of the cases in which our early courts first exercised it. In this regard, I do not believe that it is purely coincidental that each one of the instances before and including Merrill v. Sherburne in  which the courts of New Hampshire exercised their claimed power of judicial review to strike down an act of the legislature had, in some way,  involved the business of the judiciary itself.  For example, the constitutional issue in the Ten Pound Act Cases involved the responsibility of the court to furnish a party who had invoked the judicial process with a trial by jury.102  Similarly, the constitutional issue in Merrill and its Supreme Court predecessors concerned whether the judiciary would consent to conduct a legislatively-ordered new trial for a litigant against whom the courts had previously rendered a final, adverse judgment.103

New Hampshire’s experience was not unique; the pre-Marbury instances of the exercise of judicial review by the courts of the twelve other original states, for the most part, also involved cases “of a Judiciary nature.”104 The same was true on the federal level. Even Marbury v. Madison was a “case of a Judiciary nature”, for it involved the question of whether the Supreme Court would exercise original jurisdiction over a case within its grant of authority under the Judiciary Act of 1789, but beyond its grant of authority  in the Constitution. Similarly, most of the cases which presaged Marbury’s assertion of the federal courts’ power of judicial review also involved matters which directly affected the judiciary.  For example, in 1792, two U.S. Supreme Court justices sitting on circuit expressly held unconstitutional an act of Congress which would have allowed members of the executive branch to review and reverse decisions made by the Justices with respect to certain pension claims against the Federal Government.   As in Marbury, the case concerned an act taken by the political branches which purported to direct how the judiciary was to conduct its judicial business.105 

Notwithstanding, therefore, the  grandiose pretentions of some of its recent practitioners, the origins of judicial review are really rather pedestrian .  In particular, early judicial review was not the embodiment of some abstract political theory which just materialized, fully-formed, like Athena springing from the brow of Zeus.106   As the prominent historian Clinton Rossiter observed, “The antecedents of this doctrine are, of course, extremely murky.  Even today, with all the extant records of the colonial, Constitutional, and Federal periods laid open for our inspection, we cannot say for certain just when and where the doctrine was born or how and why it came to maturity in the minds of men.107  As best we can determine, judicial review was just something which the judges of the period devised to protect themselves and their own interests.  In the final analysis, therefore, what we now celebrate as judicial review started off as little more than judicial self-defense.108

E. Conclusion          

Later on, of course, judicial review came to be exercised in cases having nothing to do with judicial affairs.  Does this mean that the judges of the 19th & 20th centuries slipped one over  on us?  I do not think so.  I think that judicial review is just one of those things which changed its shape incrementally as it responded to new opportunities for its application. And, as more of those opportunities presented themselves – both in quantity and quality – theories were developed to justify the facts that the judges were creating on the ground.  As I said above, judicial review established its legitimacy by being practiced.

If this appears to be a less than ringing historical endorsement of judicial review’s legitimacy, it is.  The fact of the matter is that the pedigree of judicial review is a lot more fragile than many people assume. On the other hand, regardless of anyone's lingering doubts about judicial review's legitimacy, we are where we are and judicial review is a fact of life in 21st century America. Even constitutional originalists such as Justice Antonin Scalia agree with this proposition; for as he once said: "[No] theory of interpretation put into practice in an ongoing system of law ... can remake the world anew. It is of no ... consequence whether Marbury v. Madison was decided correctly."109

The real point of all this is that the doctrine's humble origins hardly justify the modern, chest-thumping brand of judicial review we are now experiencing in America. The lesson, therefore, to be learned from all this is that if judicial review is to be preserved, it should not stray too far from its origins.  This is not meant to suggest that the courts of today should revert back to exercising it only in “cases of a Judiciary nature.” Nevertheless, it does mean that today’s judges should recognize that they are on much firmer ground when they are defending their own turf than when they are trespassing upon the turf of others.110  As Justice Felix Frankfurter sagely advised, “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”111

I hope to expand upon these points in a future paper.  That paper will discuss those things which have converted judicial review into judicial sovereignty, i.e., its claims to finality, supremacy, exclusivity, universality and self-enforceability.  For now, however, it is enough to say that if one truly believes in limited government, one cannot accept the existence of a Judiciary which claims to recognize no limits.  As Thomas Jefferson said, “The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”112                                                              

Endnotes

1.     1 N.H. 199 (1818).  

2.     5 U.S. (3 Cranch) 137 (1803).  

3.     Richard M. Lambert, The “Ten Pound Act” Cases and the Origins of Judicial Review in New Hampshire, 43 N.H.B.J. 37 (2002).  

4.     Despite the conventional wisdom that Merrill v. Sherburne was the first N.H. case to articulate the doctrine of judicial review, the reality is that the Court in Merrill simply took judicial review for granted.  See also, Morey v. Proprietors of Oxford Bridge, Smith’s Reports 91, 94 (1804) (If Legislature were to pass an act contrary to a provision of the Constitution, it “would be an unconstitutional act which no court could or would regard”) (dictum).  The real issue in Merrill was not the Court’s power to determine issues of constitutionality, but whether the legislative act in question was in fact constitutional.  Frank R. Kenison, The Judiciary Under the New Hampshire Constitution, 1776-1976, p. 19 (N.H. American Revolution Bicentennial Comm.  1977). See also, n. 102 & 103, post.  Interestingly enough, Marbury v. Madison suffers from the same popular misconception.  Although Chief Justice Marshall did raise a question as to whether the Court had the power to declare an act of Congress unconstitutional, he did it in such a way that an affirmative answer appeared to merely state the obvious: “If An act of the Legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect?”  Marbury v. Madison, 5 U.S. at 177.

5.     39 Am. J. Legal Hist. 310 (1995).  

6.     46 N.H.B.J. 34 (2006).  

7.     Id. at 32.  

8.     71 P.3d 1269 (Nev., 2003). See also, Gerber v. King, 107 N.H. 495 (1967) (invalidating an amendment to the NH Constitution on the grounds that it was that vague).

9.     112 P.3d 923 (Kan., 2005).

10.   As the court put it, “[W]hen constitutional provisions are incompatible with one another or are unworkable, or when the enforcement of one prevents the fulfillment of another, this court must exercise its judicial function of interpreting the Constitution and attempt to resolve the problem.”  Guinn v. The Legislature of the State of Nevada, supra n. 8. See also, Gerber v. King, 107 N.H. 495 (1967) (invalidating an amendment to the N.H. Constitution on the grounds that it was too vague.)

11.   See, e.g., Special Meeting Minutes, Kansas State Board of Education (July 5, 2005), www.ksde.org/commiss/july_05_5_05_special_min.htm.

12.   Rose v. Council for Better Education, Inc., 790 S.E.2d 186 (Ky. 1989) (emphasis supplied).  This, of course, is the case which our own Supreme Court cited with approval in Claremont v. Governor, 142 N.H. 462, at 479 (1997) and from which it took its celebrated “benchmarks” for what it said would constitute an adequate education under the New Hampshire Constitution.  On the other hand, unlike the courts of Kansas and Arkansas, at least our court had the good sense not to quote the Kentucky court.  See also, Merrill v. Sherburne, 1 N.H. at 201 (“[W]e have in the present cause, experienced considerable embarrassment; but duty has compelled us to act, and it hardly need be repeated, that we have attempted to divest ourselves of every feeling, except an earnest desire to perform what duty dictated.”) Compare, Montoy v. State of Kansas, supra n. 9; Lake View School Dist. No. 25 v. Huckabee, 351 Ark. 31, 54-55, 91 S.W. 3d 472 (2002).

13.   Martha Neil, Half of U.S. Sees “Judicial Activism Crisis,” ABA Journal Report (September 30, 2005), www.abanet.org/journal/ereport/s30survey.html .  (For example, 58% of respondents believed  that judges who repeatedly ignore the established values of the people should be impeached.) See generally, Judges in the Culture Wars Crossfire, ABA Journal, p. 44 (October, 2005).

14.   Many people rightly criticize use of the phrase “judicial activism” because it often means no more than the fact that the speaker disagrees with the outcome of a particular case or group of cases.  See, e.g., Lino A.Graglia, Our Constitution Faces Death By “Due Process”, Wall Street Journal, 5/24/05 (calling the U.S. Supreme Court “activist” because of its decisions interpreting the Due Process Clause of the 14th Amendment).  See also, Mark A. Levin, MEN IN BLACK - HOW THE SUPREME COURT IS DESTROYING AMERICA (Regnery Publishing, 2005).  However, when I use the phrase, I am not referring to a court which expansively interprets some particular provision of the Constitution, I am speaking about a court which, more generally, sees itself as having been commissioned to “do justice” rather than to interpret the law. See generally, e.g., Christopher Wolfe, JUDICIAL ACTIVISM - BULWARK OF FREEDOM OR PRECARIOUS SECURITY?  (Brooks/Cole Pub., 1991); William Gangi, SAVING THE CONSTITUTION FROM THE COURTS (U. of Okla. Pres, 1995); Ross Sandler & David Schoenbrod, DEMOCRACY BY DECREE (Yale U. Press, 2003).

15.   That could actually happen in New Hampshire as early as the summer of 2007. In its recent decision in Londonderry School District v. State, ___ N.H. ___ (September 18, 2006), our Supreme Court gave the legislature until June 30, 2007 to come up with a new definition of an "adequate" education. The Court threatened that if the legislature failed to comply with its order by this deadline, the Court itself would write a definition of adequacy. If that were to happen, there is a distinct possibility that the other two branches of government will simply ignore the Court and its orders. On two separate occasions, the New Hampshire House of Representatives fired just such a warning shot across the bow of our own Supreme Court.  In 2002 and 2003, the House passed House Concurrent Resolution 14, a resolution which announced the House’s disagreement with the Court’s decisions in the Claremont case and warned that if the Court were to issue an order which purported to affirmatively implement some judicially-created education funding plan, the House would not consider such an order to be binding upon it.

16.   In response to the supreme court’s order in Montoy, the Kansas Attorney General prepared a memorandum  which addressed the various responses to the court’s order which might be open to the Legislature and the Governor.  Among those options were non-compliance.  While showing appropriate professional courtesy to the court, the A.G. made it clear that he would defend the rights of the members of the political branches to perform their constitutional responsibilities as they themselves saw fit.  Memorandum of Kansas Attorney General Phill Kline (June 14, 2005), http://www.kssmallbiz.com/articles/article_341asp. See also, Ross Sandler & David Schoenbrod, Courts Flunk the Civics Test, Wall Street Journal, p. A9 (April 8-9, 2006) (commenting upon the March 23, 2006 opinion of the N.Y. Court of Appeals in Campaign for Fiscal Equity, Inc. v. New York ordering the New York Legislature to raise millions of dollars to fund an “adequate education” for the children of New York City and suggesting that the Legislature ignore the Court’s directive.) 

17.   I do not deal in this paper with the other issue of judicial review's legitimacy, i.e., its compatibility with the political theory that we all agree animates our system of government in America – democracy. Because democracy assumes that it is the will of the majority which should ultimately dictate how public affairs are to be conducted, the notion that the will of the majority can be thwarted by an unelected judiciary's exercise of the power of judicial review poses what is know as the "countermajoritarian difficulty." Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Yale U.Press, 1962) (inventing the phrase and eloquently describing the nature of the dilemma). See generally, e.g., Barry Friedman, The History of the Countermajoritarian Difficulty: Part One: The Road to Judicial Supremacy, 73 N.Y.U.L. Rev. 333 (1998). Despite the rationalizations of the many (indeed, too many to cite) academicians who have attempted to dismiss this as a non-issue (either by arguing that we really are not a democracy or by arguing that the courts really are democratic institutions), I admit to being a true believer in the reality of the countermajoritarian difficulty. Like Judge Learned Hand, if I had to choose between "being  governed by a "Bevy of Platonic guardians" and democracy, I would take democracy – with all its warts and blemishes. Nevertheless, the thrust of this paper is not to assume we are starting from scratch and to decide whether judicial review is a good thing or a bad thing. The question that this paper addresses is whether judicial review, either explicitly or implicitly, was a part of the original constitutional scheme.

18.   In New Hampshire, this lack of any explicit textual authority for judicial review was, until fairly recently, compounded by the fact that the very existence of a court to exercise such a power was not even guaranteed by our Constitution.  All that our Constitution provided for in this regard was that the Legislature was granted “the full power and authorization to erect and constitute judicatories and courts of record.”  Art. 4, Pt. II, N.H. Const.  (emphasis supplied).  But see, Art. 35, Pt. I and Arts. 40, 59, 74 & 76, Pt. II, N.H. Const.  Indeed, it was not until 1966 that the New Hampshire Constitution was amended to specifically mandate that there at least be such a thing as a supreme court. Art. 72-a, Pt. II, N.H. Const.  See generally, Richard F. Upton, The Independence of the Judiciary in New Hampshire, 1 N.H.B.J. 28 (1959). 

19.   Even Alexander Hamilton, whose essay in THE FEDERALIST No. 78 is perhaps the most widely quoted defense of judicial review after Marshall’s opinion in Marbury v. Madison, acknowledged in his essay in THE FEDERALIST No. 81 that the doctrine of horizontal judicial review “is not deducible from any circumstance peculiar to the plan of the convention [i.e., the Constitution itself]; but from the general theory of a limited constitutution.” On the federal level, however, there is also such a thing as vertical judicial review.  This is the power of courts in a hierarchical political system, both at the upper level and at the lower level, to determine whether the acts of officers of the subordinate polity are consistent with the constitution of the superior polity. There is one other form of judicial review which, like vertical judicial review, is a creature of our federal system and which has to do with the authority of courts (both federal and state) to police the boundary between the powers of our national government and the governments of the several states.  This concerns the exercise of judicial review to determine whether the national government has exceeded its enumerated powers and/or encroached upon the reserved powers of the states.  If we are to retain our special construct for the various forms of judicial review, this can be considered a combination of horizontal and vertical judicial review.  On the one hand, it involves the federal judiciary striking down some act of its coordinate branches, which is essentially a form of horizontal judicial review.  On the other hand, since questions of the federal government exceeding its enumerated powers are usually thought to implicate issues of federalism, a judicial declaration that one of the political branches has exercised a power not constitutionally delegated to it also partakes of vertical judicial review.  For want of a better term, therefore, we will call this subset of horizontal judicial review “diagonal” judicial review.

Like pure horizontal judicial review, diagonal judicial review finds no express support for its legitimacy in the text of the Constitution.  On the other hand, diagonal judicial review implicates the same principles of federalism which animated the Framers’ decision to expressly install vertical judicial review in the Supremacy Clause.  Accordingly, although the legitimacy of diagonal judicial review is subject to many of the same criticisms as are leveled against horizontal judicial review, it may safely be said that the power of the courts (especially the federal courts) to exercise diagonal judicial review has a much stronger claim to legitimacy than does horizontal judicial review.  For example, although James Madison rejected the legitimacy of judicial review to enforce the separation of powers among the three branches of the federal government (see materials cited in n. 74, post), he was of a very different mind when it came to the Judiciary’s power to confine the federal government to its enumerated powers:   “[T]he proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several states a residuary and inviolable sovereignty over all other objects.  It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government.  The decision is to be impartially made, according to the rules of the constitution; and all the usual and most effectual precautions are taken to secure this impartiality.”  THE FEDERALIST, No. 39 (emphasis in original).

The Federal Constitution provides firm textual support within its four corners for vertical judicial review. The operative provision here is the Supremacy Clause, which reads as follows:

“This Constitution...shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitutuion or laws of any state to the contrary notwithstanding.” Art. VI, S 2, U.S. Constitution.

Although this provision appears to be addressed to the power of state courts to strike down state laws which conflict with the Federal Constitution, it takes only a small leap in logic to deduce that federal courts were expected to have the same power.  Michael J. Klarman,  How Great Were the “Great” Marshall Court Opinions, 87 Virg. L. Rev. 1111, 1118-1120 (2001); Saikrishna Prakash & John Yoo, The Puzzling Persistence of Process-Based Federalism Theories, 79 Texas L. Rev. 1459, 1468-9 (2001).   Since the legitimacy of vertical judicial review in our federal system is not controversial, I do not discuss it in this paper except by way of comparison.  Compare, James Crawford, Marbury v. Madison at the International Level, 36 Geo. Wash. Int’l. L. Rev. 505 (2004) (describing the equivocal acceptance of vertical judicial review in the international arena).  Accordingly, unless I indicate otherwise, all future references herein to “judicial review” mean horizontal judicial review and, where applicable, its subset on the federal level, diagonal judicial review. 

20.   Not everyone agrees with this.  Some commentators contend that the U.S. Constitution does indeed contain a  textual basis for the exercise of horizontal judicial review by the federal courts.  See generally, e.g., William Gangi, supra n. 14 at 40-64.  First and foremost, they contend that Article III’s grant of jurisdiction to the federal courts over cases “arising under this Constitution” constitutes an express  grant of the power.  See, e.g., Akil Reed Amar, AMERICA’S CONSTITUTION - A BIOGRAPHY, p. 225-9 (Random House, 2005); Edwin Meese III, et al, THE HERITAGE GUIDE TO THE CONSTITUTION, p. 232 (Regnery Pub., 2005) (essay by Robert Pushaw); Saikrishna B.  Prakash & John Yoo,The Origins of Judicial Review, 70 U. Chi. L.Rev. 889, 901-903 (2003); Brinton Coxe, AN ESSAY ON JUDICIAL POWER AND UNCONSTITUTIONAL LEGISLATION, p. 336-342 (DeCapo Press reprint, 1970) (originally published in 1893).  Chief Justice Marshall discussed the “arising under” language of this clause in Marbury v. Madison.   He, however, treated it as a jurisdictional provision, not as a grant of authority for the exercise of judicial review.  5 U.S. at 178-9; see Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824).  See generally, Alexander M. Bickel, supra n. 17 at 13-14.  See also, Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. ___ (2006); Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971); Bell v. Hood, 327 U.S. 678 (1946).  Alexander Hamilton, on the other hand, claimed that the reference in Article III to cases arising under the Constitution was to the prohibitions therein upon the powers of the states and, therefore, that the language was intended to provide a basis for vertical judicial review.  THE FEDERALIST, No. 80.  (“It has been asked, what is meant by ‘cases arising under the constitution,’ in contra-distinction from those ‘arising under the laws of the United States?’  The difference has already been explained.  All the restrictions upon the authority of the state legislatures furnish examples.”)  Whether Marshall, Hamilton or any other theorist is right in this regard is impossible to determine.  As with other aspects of the issue of judicial review, the records of the debates in the Constitutional Convention shed but a dim light on this point.  The most, therefore, that can be said about the “arising under”  clause is that its meaning is unclear.

21.   See generally, e.g., Michael J. Klarman, supra n. 19 at 1113-1120; Dean Alfange, Jr., Marbury v. Madison and Original Understandings of Judicial Review, 1993 Sup. Ct. Rev. 329, 415-420; Leonard W. Levy, JUDICIAL REVIEW AND THE SUPREME COURT (Harper Torchbooks 1967).

22.   Annals of Congress, 7th Cong., 1st Sess.  C. 179 (1802).  Note that Senator Breckenridge’s speech was given on the very eve of the Supreme Court's decision in Marbury v. Madison.  Indeed, the repeal of the Judiciary Act of 1801 provoked a full-scale debate in Congress about the legitimacy of judicial review under the Federal Constitution.  Debates in Congress of the United States on the Bill for Repealing the Law “For the More Convenient Organization of the Courts of the United States” During the First Session of the Seventh Congress (Collier and Stockwell, 1802).  See generally, Grant B. Mindle, Congress and Judicial Review, in Sarah B. Thurow, ed., Vol. II, E PLURIBUS UNUM - CONSTITUTIONAL PRINCIPLES AND THE INSTITUTIONS OF GOVERNMENT, p. 150-165 (U. Press of Am., 1988).

23.   12 Sergeant and Rawle 330 ( Pa. 1825) (Gibson, J. dissenting).  See generally, Robert Clinton, Eakin v. Raub: Refutation or Justification for Marbury v. Madison, 4 Const. Commentary 81 (Winter, 1977).

24.   For example, although neither the principle of separation of powers nor the concept of federalism is explicit in the U.S. Constitution, both of them are generally acknowledged to be implicit in the  federal constitutional scheme and, thus, available as interpretative guides when construing the text.  For the doctrine of separation of powers, see the sampling of cases cited in n. 50, post.  On federalism, see, e.g., Alden v. Maine, 527 U.S.706 (1999); Printz v. United States, 521 U.S. 898 (1997); Gregory v. Ashcroft, 501 U.S. 452, 457-464 (1991).  However, for the view that the Federal Constitution is simply a collection of political compromises and that it does not embody any grand, unifying themes which can be used (especially by courts exercising judicial review) to read things into it which are not explicitly stated therein, see M.E. Bradford, ORIGINAL INTENTIONS: ON THE MAKING AND RATIFICATION OF THE UNITED STATES CONSTITUTION (U. of Ga. Press, 193).

25.   Art. III, § 1, U.S. Const.; Art. 72-a, Pt. II, N.H. Const.

26.   Note that, arguably, this theory was not available to establish the legitimacy of judicial review by the New Hampshire Supreme Court until 1966 when our Constitution was amended to grant that court constitutional stature.  However, that technicality can be overcome if one relies instead upon Article 37, Part I, of the New Hampshire Constitution, the separation of powers provision, which describes “the three essential powers” of government, among which is  the “judicial” power; this presumably assumes the existence of some type of Judiciary.  Justice Woodbury makes this same argument in Merrill v. Sherburne, 1 N.H. at 207-209.  In addition, he states that the phrases “powers judicial”, “judiciary powers” and “judicatories” appearing in various places in the New Hampshire Constitution are “used to designate with clearness that department of government which it was intended should interpret and administer the laws.”  Id. at 203.

27.   As U.S. Supreme Court Justice Joseph Story put it in his supposedly authoritative COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, “No man can doubt or deny that the power to construe the constitution is a judicial power.”  Vol. III, § 376, p. 348 (Fred B. Rothman & Co. reprint, 1991).  Notwithstanding Justice Story’s certitude about what comprises the “judicial power”, suffice it to say that this is a subject upon which reasonable men can and frequently do disagree.  See generally, e.g., G. Alan Tarr, Interpreting the Separation of Powers in State Constitutions, 59 NYU Annual Survey of Am. Law 329 (2003).

28.           5 U.S. at 177-178.  See also, THE FEDERALIST, No. 78 (Alexander Hamilton making the same argument.)

29.           1 N.H. at 201.  See also, State v. LaFrance, 124 N.H. 171, 177 (1983) (“The judiciary whose duty it is to expound what the law is, simply compares the legislative act with the constitution; since the constitution clearly cannot be adjudged void, the courts have no choice but to declare any act which is inconsistent with it to be of no effect.”); Perry v. Keene, 56 N.H. 514, 530 (1876) (“The court have only to place the statute and the constitution side by side, and say whether there is such a conflict between the two that they cannot stand together.”)

30.   See generally, Suzanna Sherry, The Intellectual Background of Marbury v. Madison in Mark Tushnet, ed., ARGUING MARBURY V. MADISON, p. 47, 52-3 (Stanford U. Press, 2005); Henry P. Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 11-14 (1983); William E. Nelson, Changing Conceptions of Judicial Review: The Evolution of Constitutional Theory in the States, 1790-1860, 120 U. Pa. L. Rev. 1166, 1169-1172 (1972).

31.   E.g., Dow v. Northern Railroad, 67 N.H. 1, 58-60 (1886); Amar, supra n. 20 at 210-11. But see, Robert Reinstein & Mark Rahdert, Reconstructing Marbury, 57 Ark. L. Rev. 729, 803-804 (2005) (noting that when Parliament acted to resolve such a dispute, it did so through the House of Lords, which “acted as the highest court of the land.”); THE FEDERALIST No. 81 (Hamilton).  See generally, Charles H. McIlwain, THE HIGH COURT OF PARLIAMENT AND ITS SUPREMACY:   AN HISTORICAL ESSAY ON THE BOUNDARIES BETWEEN LEGISLATION AND ADJUDICATION IN ENGLAND (Yale U. Press, 1910).  It is, of course, true that England’s constitution was unwritten and that the great innovation of American constitutions was that they were written down (a point emphasized by Marshall in his Marbury decision, 5 U.S. at 176-7), but that is surely a distinction without a difference when it comes to judicial review. Whether a constitution is written or unwritten goes to its definity versus its mutability, not to the identity of its expositor.  The mere fact that most American constitutions were written does not, by itself, establish that their framers intended them to be enforced by courts.  E.g., Gordon S. Wood, The Origins of Judicial Review Revisited or How the Marshall Court Made More Out of Less, 56 Wash. & Lee L. Rev. 787, 799 (1999).  For example, neither Connecticut nor Rhode Island had written constitutions for many years after the founding of the Republic and yet the courts of both of these states claimed the power of judicial review and engaged in its practice.  See generally, e.g., Calder v. Bull, 3 U.S. (3 Dall.) 386, 392-3 (1798) (discussing Connecticut’s lack of a written constitution).  But see, William E. Nelson, supra n. 30 at 1170 n. 23 (claiming that Connecticut’s and Rhode Island’s colonial charters functioned as their initial constitutions). Ironically, one of the earliest instances of the exercise of judicial review among the thirteen newly-independent Americn states involved a decision of the Rhode Island Supreme Court in the case of Trevett v. Weeden. See generally, Bernard Schwartz, Vol. I, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY, p. 147 (McGraw-Hill, 1971). See also, n. 104, post.

32.   Quoted in Charles G. Douglas III, Judicial Review and the Separation of Powers Under the New Hampshire Constitutions of 1776 and 1784, 18 N.H. B.J. 250, 260 (1977).

33.   77 Eng. Rep. 646 (C.P. 1609)  (“And it appears in our books, that in many cases, the common law will controul acts of parliament and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it and adjudge such Act to be void.”).

34.   Larry D. Kramer, The Supreme Court 2000 Term Foreword: We the Court, 115 Harv. L. Rev. 4, 23-5 (2001); William N. Eskridge, Jr., All About Words: Early Understandings of the “Judicial Power” in Statutory Interpretation, 1776-1806, 101 Colum. L. Rev. 990, 1005-1006 (2001).

35.   In fact, as practiced in America, the construction of ambiguous statutes so as to make them consistent with a constitution is a device to avoid the exercise of judicial review.  As such, this practice is not an example of judicial review, but of judicial restraint, the name we have given to that group of prudential doctrines which the courts have developed in order to minimize the inter-branch confrontations which are an inevitable consequence of the exercise of judicial review.

36.   12 Sergeant and Rawle 330, 348 (Pa. 1825).

37.   Id. at 355.

38.   The efforts of Chief Justice Marshall and Justice Woodbury to justify judicial review on the grounds that it is nothing more than the Judiciary’s responsibility to prefer a superior law to an inferior law as if they were otherwise of the same caliber has had the unfortunate and (presumably) the unintended consequence of inducing courts and other political actors - at least in later years - to conceive of judicial review as just a routine part of the judiciary’s everyday business.  This is best exemplified by the virtual explosion of cases on both the federal and the state level in recent years in which the courts have declared the acts of their coordinate branches unconstitutional.  See, e.g., Thomas Keck, THE MOST ACTIVIST SUPREME COURT IN HISTORY (U. of Chi. Press, 2004) (reporting that the Rehnquist Court had, as of the date of publication, struck down 33 federal laws since 1995, the highest annual average in history); Laura Langer, JUDICIAL REVIEW IN STATE SUPREME COURTS, p. 8-10 (State U. of N.Y. Press, 2002) (summarizing the extant studies on the expansion of the exercise of judicial review in state courts in the last several decades).  (Although no one has done a specific analysis of the recent decisions of the New Hampshire Supreme Court, it is fairly clear that our experience mirrors that of the Supreme Court of the United States and the supreme courts of the other states.)

39.   By pointing out that whether judges must have certain powers in order to be able to effectively decide a dispute depends upon how one defines the dispute which they are authorized to decide, I do not mean to suggest that there is no core to the judicial power.  On the contrary, I  accept the notion that the Judiciary’s adjudicatory function is comprised of certain essential attributes.  E.g., Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) (judges must have the power to render a final judgment as between the parties to the case); Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792) (same); Merrill v. Sherburne, 1 N.H. 199 (1818) (same); United States v. Klein, 80 U.S. (13 Wall.) 128 (1872) (judges must have the power to decide cases according to existing law); White Mts. R.R. v. White Mts. R.R., 50 N.H. 50 (1870 (same).  My point, however,  is   that  the power of judicial review  is simply not one of them.  See generally, Evan Caminker, Allocating the Judicial Power in a “Unified Judiciary“, 78 Texas L.Rev. 1513 (2000) (arguing that not all judges need have the power of judicial review because judicial review is not an intrinsic attribute of being a judge - but, unlike myself, arguing that judicial review is a “systemic” necessity in that it must exist somewhere within the judicial branch of government, especially in a  federal system). Indeed, there are numerous examples on both the federal and our local state level of tribunals which have judicial or quasi-judicial authority to adjudicate legal disputes, but which have no power to determine issues of constitutionality.  E.g., Yakus v. United States, 321 U.S. 414 (1944) (sustaining a federal statute which set up an administrative system to establish wartime price controls on certain commodities, but which prohibited challenges to the constitutionality of the regulations from being raised in an enforcement action even though such action was brought in a U.S. District Court); Ravindran v. INS, 976 F.2d 754, 762 (1st Cir., 1992) (Bureau of Immigration Appeals); Petition of Gregorio B. Guardarramos-Cepeda, 153 N.H. ___ (August 2, 2006) (Sentence Review Division); Metzger v. Town of Brentwood, 115 N.H. 287 (1972) (zoning boards of adjustment); Edes v. Boardman, 58 N.H. 580, 595-6 (1879) (town selectmen in tax abatement cases).   The fact that these adjudicative bodies have no jurisdiction to “question the authority of the lawgiver” does not diminish their ability to resolve the legal disputes which are properly presented to them.  Finally, perhaps the best evidence that the power to question the authority of the lawgiver is not essential for a court to be able to successfully perform its adjudicatory function is provided by the very structure of our national and local judicial systems themselves.  The fact of the matter is that, in both systems, most of our judges only possess this power in special circumstances.  This is because trial judges and intermediate appellate judges (who comprise the vast majority of both our federal and our domestic benches) are bound to follow the legal pronouncements of their supreme courts.  For example, if their supreme court has spoken on a constitutional issue and if it has said that the lawgiver (i.e., the legislature) has the authority to do a certain thing, inferior court judges are bound by the precedents set by their superiors and litigants in their courts may not revisit the issue.  E.g., Lockyer v. City and County of San Francisco, 2004 WL 1794627 (Cal.), p. 24 (August 21, 2004) (noting also that when a judge does this, he is not violating his oath of office to support and defend the Constitution because that oath “requires a public official to act within the constraints of our constitutional system, not to disregard presumptively valid statutes”).  Supreme courts, on the other hand, are (rightly or wrongly) free to revisit any issue at any time, regardless of how firm or hoary the applicable precedent.  In other words, not all judges are created equal and the only judges who have the power of judicial review all the time are those few judges who sit on a supreme court.  See Mark Tushnet, Transcript of the Oral Argument in Marbury v. Madison in Mark Tushnet, ed., supra n. 30 at 34-5.

40.   McCulloch v. Maryland, 17 U.S.  316 (1819);  Merrill v. Sherburne, 1 N.H. at 202.  (“Our confidence, also, in the liberality of the legislature is such, that when through inadvertence or mistake, they have passed an unauthorized act, we believe, that should the unpleasant task of adjudging it void, devolve upon us, they would think the task is performed only from a conviction that the act is in the clearest manner, unconstitutional, and that our right and duty so to pronounce it are both unquestionable.”). 

41.  E.g., Bowen v. Kendrick, 483 U.S. 1304 (1987) (Rehnquist, J.) (referring to “the presumption of constitutionality which attaches to every Act of Congress”); Petition of New Hampshire Bar Association, 151 N.H. 112, 115 (2004) (“It is axiomatic that the constitutionality of a legislative act is to be presumed.”); State v. Marshall, 64 N.H. 549, 550 (1888); Rich v. Flanders, 39 N.H. 304 (1859).

42.           Bush v. Gore, 531 U.S. 98, 111 (2000) (“When contending parties invoke the process of the courts . . . it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.”); Cohens v. Virginia, 19 U.S. 264, 404 (1821) (“The judiciary cannot, as the legislature may, avoid a measure because it approaches the constitution . . . [I]t cannot pass by it because it is doubtful.  With whatever doubts, with whatever difficulties, a case may be attended, [a court] must decide it, if it be brought before [them].”); Monier v. Gallen, 122 N.H. 474, 476 (1982) (“[I]t is the role of this court in our co-equal, tripartite form of government to interpret the Constitution and to resolve disputes arising under it.  We would shirk our duty were we to decline to act in this case merely because our task is a difficult one.”)

43.   Unfortunately, the question of whether some function is “inherent” in the judiciary’s adjudicatory function is often reduced to word-play.  For example, see the extended discussion in Petition of Governor and Executive Council, 151 N.H. 1 (2004) of how the Judiciary’s administrative powers are supposedly inherent in its judicial powers.  See also, Petition of Mone, 143 N.H. 128 (1998). Compare, e.g., District of Columbia Court of Appeals v. Feldman, 460 U.S. 462,486-7 (1983) (distinguishing between the legislative nature of a court’s promulgation of a bar-admission rule and the judicial nature of that same court’s application of the rule to a specific case).  See generally, Robert Pushaw, The Inherent Powers of Federal Courts and the Structural Constitution, 86 Iowa L. Rev. 735 (2001).    The device at work here is simply to assert that something is inherent.  As Humpty Dumpty said to Alice, “When I use a word, it means what I choose it to mean - neither more nor less.”

44.   See generally, e.g., John A. Ferejohn and Larry D. Kramer, Independent Judges, Dependent Judiciary:   Institutionalizing Judicial Restraint, 77 N.Y.U.L. Rev. 962 (2002); Mark A. Graber, The Passive-Aggressive Virtues: Cohens v. Virginia and the Problematic Establishment of Judicial Power, 12 Const. Comm. 67 (1995).

45.   At the outer edge of the continuum of prudential doctrines which the courts invoke to avoid deciding an issue is the “political question” doctrine.  This doctrine is aptly named, not just because it concerns issues which are more suitable for resolution by the political branches of government, but also because a court’s decision as to whether an issue is best left to a determination by its sister branches is itself a political decision.  See generally, e.g., Robert J. Pushaw, Jr., Judicial Review and the Political Question Doctrine:   Reviving the Federalist Rebuttable Presumption Analysis, 80 N.C.L.R. 1165 (2002).  Chief Justice Marshall acknowledged the first of these propositions in Marbury, but not the second. Marbury v. Madison, 5 U.S. at 169-170.

46.   The discretionary and therefore essentially political nature of judicial review was best described by Alexander M. Bickel in his seminal work on the subject, THE LEAST DANGEROUS BRANCH, supra n. 17.  Since Bickel wrote,  courts have continued to discover new and ingenious ways to exercise their power of judicial review in a discretionary manner.  E.g., Marshall v. Marshall, 547 U.S. ___ (2006); Tenet v. Doe, 544 U.S. ___ (2005) (Stevens, Jr., concurring).

47.   Marbury v. Madison, 5 U.S. at 177.

48.   Cooper v. Aaron, 358 U.S. 1, 18 (1958).  (emphasis supplied).  Many years earlier, Justice Bushrod Washington confronted the proposition that a particular land title dispute was subject to neither the jurisdiction of the Federal courts nor that of the courts of Virginia or Kentucky (from whence the parties to the dispute came), but instead was to be resolved by commissioners appointed by those two states.  Posing the hypothetical that the states might fail to appoint such commissioners, Washington exclaimed: “The supposition of such a state of things is too monstrous to be for a moment entertained.  The best feelings of our nature revolt against a construction which leads to it.”  Green v. Biddle,  21 U.S. (8 Wheat.) 1, 91 (1823).  While Justice Washington was indeed correct that it would be “monstrous” if there were no courts to resolve traditional legal disputes between private parties, it was a giant leap for the Court in Cooper v. Aaron to suggest in equally strong language that it is “indispensable” that there be a judicial forum to resolve constitutional disputes.  On the other hand, it is important to remember that Cooper v. Aaron involved a question of federal-state relations and that the Supremacy Clause and the Civil War Amendments to the Federal Constitution do supply the textual support for the exercise of judicial review in this area.  Nevertheless, the problem with the Court’s pronouncement in Cooper is that it does not rely upon a textual mandate; on the contrary, the Court  purports  to justify the imperative for judicial review upon some emanation from the  nature of our political system. See also, United States v. Morrison, supra no. 40 (a diagonal judicial review case) (stating that judicial review is a "permanent and indispensable feature of our constitutional system").

49.   124 N.H. 171, 178 (1983) (emphasis supplied).

50.   E.g., Miller v. French, 530 U.S. 327, 341 (2000) (“The Constitution enumerates and separates the powers of the three branches of Government in Articles I, II and III, and it is this ‘very structure’ of the Constitution that exemplifies the concept of separation of powers.”) See also, e.g., Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219-225 (1995); INS v. Chadha, 462 U.S. 919, 946 (1983); Humphrey’s Executor v. United States, 295 U.S. 602, 692-630 (1935); Meyers v. United States, 272 U.S. 52, 115-123 (1926); Kilbourne v. Thompson, 103 U.S. 168, 190-192 (1881).  See generally, e.g., Peter L. Strauss, Formal and Functional Approaches to Separation of Powers Questions - A Foolish Inconsistency?, 72 Cornell L. Rev. 448 (1987); Arnold F. Burns & Stephen J. Markman, Understanding Separation of Powers, 7 Pace L. Rev. 575 (1987).  Note that an explicit separation of powers clause was proposed as a constitutional amendment by James Madison in the very first session of  Congress. However, it was rejected by the Senate and never became a part of the Bill of Rights.  Maeva Marcus, ORIGINS OF THE FEDERAL JUDICIARY, supra n. 18 at p. 282.

51.           “In the government of this state, the three essential powers thereof, to wit, the legislative, executive, and judicial, ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity.” Art. 37, Pt. I, N.H. Const.

52.   Almost every discussion of the doctrine of separation of powers attributes its origin to Baron de Montesquieu’s famous work THE SPIRIT OF THE LAW. E.g., THE FEDERALIST, No. 47 (Madison).  On the other hand, Montesquieu is not cited in support of the uniquely American proposition that the doctrine of separation of powers, in turn, mandates the existence of judicial review.  Indeed, as acknowledged by Hamilton in a footnote to THE FEDERALIST, No. 78, “Montesquieu, speaking of them, says, ‘of the three powers above mentioned, the JUDICIARY is next to nothing.’”

53.   Eakins v. Raub, 12 Sergeant and Rawle at 346.

54.  Note, however, that this argument assumes the existence of the doctrine of separation of powers.  As noted previously, Rhode Island did not even have a written constitution at the time that it entered the Union and yet its courts exercised the power of judicial review.  Moreover, when Rhode Island eventually did adopt a written constitution in 1843, it included no separation of powers provision.  Despite agitation in recent years for a constitutional amendment to add an express separation of powers clause,  Rhode Island still has none.  Rhode Island Lawmakers Face a Test of Self-Denial, Boston Globe (January 26, 2003).  But see, Thomas Durfee, Judicial History of Rhode Island, in William T. Davis, ed., Vol. IV, THE NEW ENGLAND STATES, p. 2362, 2380.  (D.H. Hurd & Co., 1897) (discussing decisions of R.I. Supreme Court reading the doctrine into the 1843 constitution’s grants of distinct powers to each of the three branches). 

55.   Those who contend that some form of institutional check is critical if government is to be kept within its constitutional bounds typically claim that, otherwise, a constitution will be nothing more than a “mere form of words”.  E.g., Kelo v. New London, 545 U.S. ___, 162 L. Ed.2d at 461 (2005) (O’Connor, J. dissenting).  But government enforcement of a constitution is not the only alternative.  Recent scholarship by Professor Larry Kramer and others suggests that the Framers understood constitutional law as something which was to be directly practiced by the people.  See, e.g., Larry D. Kramer, THE PEOPLE THEMSELVES:   POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (Oxford U. Press, 2004);  Sylvia Snowiss, JUDICIAL REVIEW AND THE LAW OF THE CONSTITUTION (Yale U. Press, 1990); Larry D. Kramer, Putting the Politics Back Into the Political Safeguards of Federalism, 100 Colum. L. Rev. 215 (2000); Gordon S. Wood, supra n. 31. Compare, L Kinvin Wroth, The Constitution and the Common Law: The Original Intent About the Original Intent, 22 Suffolk L. Rev. 553 (1998).  Indeed, Professor Kramer argues that judicial review itself was really not a form of institutional constitutional review; it was merely an instance of judges doing what all citizens were expected to do when confronted with an unconstitutional law - ignore it, refuse to enforce it and, if necessary, disobey it.  Larry D. Kramer, supra n. 34 at 51-61.

56.    Legal Affairs, p. 1 (July/August, 2005).

57.  152 N.H. 276, 288 (2005) (emphasis supplied).  See also, Petition of Mone, 143 N.H. at 139 (“The constitution compels us to protect the essential functions of all three co-equal branches from improper encroachment.”) (Emphasis supplied.)

58.   In their recent paper on the origins of judicial review, Saikrishna Prakash and John Yoo echo the sentiments of Madison in THE FEDERALIST, No. 51, that the logic of the doctrine of separation of powers is that all three branches of government should have a power of constitutional review.  Prakash & Yoo, supra n. 20 at 921-6. In other words, they believe that the judiciary’s power of judicial review is in fact dictated by the doctrine of separation of powers, but that the doctrine also dictates that the legislature and the executive also have a like power.  Although I do not believe that separation of powers dictates that any branch of government - as opposed to the people themselves - must have the power to judge the constitutionality of the acts of another branch of government, at least the Prakash/Yoo thesis is more logically consistent than the notion that only the judiciary can do this job.

59.  “Limitations [on the legislative authority] can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void.  Without this, all the reservations of particular rights or privileges would amount to nothing.”  THE FEDERALIST No. 78 (Hamilton).  At least one scholar claims that all Hamilton was really arguing here was that the power to determine whether government officials were acting consistently with the Constitution had to rest somewhere within government and that although the judiciary was not the only place it could rest, it was the best place.  William Gangi, supra n. 14 at 42-3 & 63.  For an excellent discussion of Hamilton’s intellectual and political contribution to the development of the doctrine of judicial review, especially through his authorship of THE FEDERALIST, No. 78, see Clinton Rossiter, ALEXANDER HAMILTON AND THE CONSTITUTION, p. 93-98, 220-225, 240-3 (Harcourt, Brace & World, 1964).

60.           See, e.g., James Beardsley, Constitutional Review in France, 1975 Sup. Ct. Rev. 189.  Although the power of the executive branch vis-a-vis the legislative branch has waned in most civil law countries  in recent years, the political branches still collectively dominate the judicial branch.  On the other hand, there are several theocratic countries, notably Israel, which have a form of judicial review which is even more virulent than our own. See generally, Robert Bork, COERCING VIRTUE, supra n. 38.  One possible explanation for this phenomenon is that it is due to the combination of American notions of a robust judicial review (introduced by the many Jewish-American lawyers who emigrated to Israel) with the concept of a theocratic state.  Another example of this phenomenon is the new Iraqi constitution, which provides that the Supreme Court of Iraq shall have the duty to “oversee the constitutionality of federal laws before they are issued” and of “overseeing the constitutionality of the laws and the standing regulations”.  The Iraq Constitution also provides that “no law can be passed which contradicts the undisputed rules of Islam” and that “the Supreme Federal Court will be made up of a number of experts in sharia and law”.  Federalism Keeps Negotiators Talking in Baghdad, http//www.npr.org(8/25/2005).  Again, Americans have been heavily involved in the drafting of a constitution for a country where the law of Man purports to incorporate the law of God.  Although Israel claims to be a democracy and Iraq aspires to be one, it is a fair question to ask whether, in the long run, either can survive this lethal mixture of judicial review and religion.  Richard B. McNamara, The Koran, the Whip and the Value of the Legal Profession, N.H. Bar News, p. 4 (May 19, 2006).

61.  See generally, e.g., Mark Tushnet, Marbury v. Madison Around the World, 71 Tenn. L. Rev. 251 (2004); Mark Miller, Judicial Activism in Canada and the United States, 81 Judicature 262 (1998).

62.   See generally, Gottfried Dietze, Judicial Review in Europe, 55 Mich. L. Rev. 539 (1956-57).  See also, Jeremy Rabkin, Continental Drift, Claremont Review of Books, 46-52 (Fall, 2005) (describing the EU’s Human Rights Court and European Court of Justice).   One early American, James Madison, understood very well that the judiciary could itself violate the Constitution.  As he wrote in 1800 in his famous Report on the Alien and Sedition Acts, “[T]he Judicial Department may also exercise or sanction dangerous powers beyond the grant of the constitution” and the right of the people “to judge whether the compact has been dangerously violated, must extend to violations ... by the judiciary, as well as by the executive, or the legislature.”  Jack N. Rakove, ed., WRITINGS OF JAMES MADISON, p. 608, 613 (1999).  

63.   For example, the body of France which under the 1958 national constitution was granted the ultimate say on constitutional matters is the Conseil Constitutionnel.  It is composed of a number of public members, some appointed by the President of the Republic and some by the Presidents of the National Assembly and the Senate, plus all living former Presidents of the Republic.  See generally, James Beardsley, supra n. 60.

64.   Robert J. Reinstein & Mark C. Rahdert, supra n. 31 at  821-833.  

65.   This proposal was modeled after New York’s system of constitutional review which had been in place since 1777.  See generally, e.g., James Bradley Thayer, supra n. 40 at 136.  Pennsylvania had a somewhat similar body called the Council of Censors which was first elected in 1783 and was to sit for a year, after which it was to be re-established at seven year intervals.  The function of the Council was to “inquire whether the constitution has been preserved inviolate in every part” and, if not, to recommend legislative changes and/or to order impeachments for the violators.  Julius Goebel, Jr., supra n. 20 at 102-3. Although the academic literature has essentially ignored the precedent, our own New Hampshire Constitution  contained a similar extrajudicial institutional mechanism for constitutional review.   This was Article 99 of the 1784 Constitution which provided for the mandatory calling of a constitutional convention every seven years “to preserve an effectual adherence to the principles of the Constitution, and to correct any violations thereof, as well as to make such alterations therein, as from experience may be found necessary.”  This provision was amended in 1792, however, so as to require that only the question of whether to call a convention be submitted to the voters every seven years.  See generally, Eugene M. Van Loan III, Amending the Constitution by Convention, 42 NHBJ 55 (2001).

66.           Madison’s support for this proposal echoed his earlier support for the establishment of a somewhat different, but also non-judicial, mode of constitutional review for his home state of Virginia.  Commenting in 1788 upon Thomas Jefferson’s proposal for a council of revision in his draft of a constitution for Virginia, Madison stated that although he approved of the creation of a “check to precipitate, to unjust, and to unconstitutional laws,” this would “be more effectually secured . . . by requiring bills to be separately communicated to the Exec & Judicy. depts.”  Madison’s suggestion was that if either or both of the other branches of government objected, the legislature could still enact the bill into law, but only if either two-thirds of the House or three-fourths of the Senate, respectively, voted in its favor.  Similarly, although Madison generally believed “that it is more convenient to prevent the passage of a law, than to declare it void after it is passed”, he also proposed that if an already enacted law were challenged by one of the other branches of government, the measure would be suspended pending a fresh election to the lower house of the legislature and a re-submission of the law to the new legislature.  Again, if the law were then re-passed by a supermajority of either of the two houses, it would be immune from further constitutional attack.  See generally, Jack N. Rakove, Judicial Power in the Constitutional Theory of James Madison, 43 Wm. & Mary L. Rev. 1513, 1520-1529 (2002).

67.  Some scholars contend that the Convention’s adoption of the Supremacy Clause, which implicitly recognized the propriety of vertical judicial review, was part of a trade-off for the Convention’s rejection of both the Council of Revision concept and several proposals for a direct Congressional veto over state laws.  William Gangi, supra n. 14 at 45 & n. 77.  See also, FERC v. Mississippi, 456 U.S. 742, 744-5 (1982)  (O’Connor, J., concurring & dissenting).  On the other hand, even if this is true (which it might be), this only proves that the Framers preferred judicial review over some other form of constitutional review, not that they believed that it was indispensable, even on a vertical level.

68.   In fact, a good argument can be made for the proposition that no single device - including judicial review - is appropriate or sufficient to enforce the separation of powers because every possible mechanism, when taken alone, either under-enforces the Constitution or over-enforces it.  E.g., Mark Tushnet, New Forms of Judicial Review and the Persistence of Rights - and Democracy - Based Worries, 38 Wake Forest L. Rev. 813 (2003) (suggesting that the growing trend in other countries to adopt some weak form of judicial review may be doomed to failure and that any system of constitutional review will inevitably lead to the dominance of either the Judiciary or the Legislature).

69.   124 N.H. at 177.  Accord, Londonderry School District v. State, supra n. 15 ('[T]he judiciary has a responsibility to insure that constitutional rights are not hollowed out and, in the absence of action by other branches, a judicial remedy is not only appropriate but essential"); In re Mussman, 112 N.H. 99, 102-103 (1972) (“The protection of constitutional rights is a core function of the judiciary.”).

70.   319 U.S. 624, 638 (1943).

71.   It is true that Merrill v. Sherburne contains an extensive discussion of how the legislature’s grant of a new trial to Merrill infringed upon the vested rights of Sherburne in his judgment, but even in that instance the Court was expressing its concern with the legislature’s exercise of a prohibited power (the passage of a retrospective law) as opposed to its infringement upon a protected right.  1 N.H. at 212-216.  More importantly, the Court’s discussion on this point was clearly directed to the question of whether the act of the legislature was in fact unconstitutional, not to whether the Court had the power to declare it unconstitutional.

72.  Louis H. Pollak, ed., Vol. I, THE CONSTITUTION AND THE SUPREME COURT - A DOCUMENTARY HISTORY, p. 126-7 (Meridian Books, 1966). See also, Letter of Thomas Jefferson to Madison of March 15, 1789, Helen E. Veit, et al, eds., CREATING THE BILL OF RIGHTS, p. 218 (Johns Hopkins Press, 1991) (arguing for a bill of rights because of "the legal check which it puts in the hands of the judiciary").

73.   Saikrishna Prakash & John Yoo, supra n. 19 at 1470.

74.   For example, even if one accepts the proposition that Madison supported the exercise of horizontal judicial review to enforce the specific guarantees of individual rights in the Bill of Rights, the historical evidence makes it quite clear that he did not support horizontal judicial review as a device to enforce the separation of powers.  For example, in his 1788 memorandum commenting upon Jefferson’s draft of a constitution for Virginia, Madison made the following observation: “In the State Constitutions & indeed in the Fedl. one also, no provision is made for the case of a disagreement in expounding them; and as the Courts are generally the last in making their decision, it results to them, by refusing or not refusing to execute a law, to stamp it with its final character.  This makes the Judiciary Dept paramount in fact to the legislature, which was never intended, and can never be proper.” Observations on the “Draught of a Constitution for Virginia “(October 15, 1788), JAMES MADISON: WRITINGS, p. 417 (Jack Rakove, ed., 1999).  Even more telling is a speech which Madison made in the House of Representatives virtually contemporaneously with his speech introducing his proposed amendments to the Constitution.  It involved a bill to place limits upon the President’s power of removal of subordinate executive officers.  Responding to the suggestions of others that the House of Representatives ought not to concern itself with issues of constitutionality because such matters were the sole province of the judiciary, Madison responded as follows: “ But the great objection, drawn from the source to which the last arguments would lead us, is, that the legislature itself has no right to expound the Constitution; that wherever its meaning is doubtful, you must leave it to take its course, until the judiciary is called upon to declare its meaning.  I acknowledge, in the ordinary course of government, that the exposition of the laws and Constitution devolves upon the judicial; but I beg to know upon what principle it can be contended that any one department draws from the Constitution greater powers than another, in marking out the limits of the powers of the several departments.  The Constitution is the charter of the people in the government; it specifies certain great powers as absolutely granted, and marks out the departments to exercise them.  If the constitutional boundary of either be brought into question, I do not see that any one of these independent departments has more right than another to declare their sentiments on that point.”  Jonathan Elliot, Vol. IV,  DEBATES, supra n. 18 at 382-3.  Finally, Madison is on record in many places as expressing a general distrust of the efficacy of mere “parchment barriers” to control a government that was determined to abuse its powers.  See, e.g., Letter from Madison to Jefferson (October 17, 1788), 11 PAPERS OF JAMES MADISON 295, 297-9 (Robert A. Rutland, et al, eds. 1977).  See generally, William Gangi, supra n. 14 at 58 & n. 105.  As Madison so famously said in THE FEDERALIST, No. 51, “If men were angels, no government would be necessary.  If angels were to govern men, neither external nor internal controls on government would be necessary”.  See also, William Plumer, Cincinnatus Essay #LXXVII 1 (November 27, 1822) (N.H. Historical Society).

75.   For example, we could expand our definition of individual rights on the federal level to include the rights of states and/or individuals to have the Federal Government held to its constitutionally delegated powers because the Framers did, in fact, view rights as being the flip side of powers. See generally, Eugene M. Van Loan III, Natural Rights and the Ninth Amendment, 48 B.U.L.Rev. 1 (1968).

76.           E.g., Mistretta v. United States, 488 U.S. 361 (1989) (control over special prosecutor); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (seizure of steel mills by President Truman);  United States v. Nixon, 418 U.S. 683 (1974) (executive privilege); Robert A. Baines, Major of the City of Manchester v. New Hampshire Senate President, 152 N.H. 124 (2005) (what is a “money bill” that must originate in the N.H. House of Representatives); Petition of New Hampshire Bar Association, 151 N.H. 112 (2004) (regulation of the practice of law); Petition of Governor and Executive Council, 151 N.H. 1 (2004) (power to appoint the Chief Justice of the Supreme Court); Opinion of the Justices (Prior Sexual Assault Evidence), 141 N.H. 562 (1997) (authority to promulgate rules of evidence). Another problem with the half-a-loaf theory is that it could easily become a no-loaf theory.  Again, if judicial review is premised upon some notion that its function is to enforce the rights-protecting provisions of our constitutions, what does one do with the fact that of the thirteen original states, several of them had no bill of rights in their constitutions?  Does that mean that, as to these states, there was no need for judicial review?  If it does, their supreme courts were guilty of judicial usurpation because, sooner or later, judicial review became an established fact in every state.

77.  Mark Tushnet, TAKING THE CONSTITUTION AWAY FROM THE COURTS (Princeton U. Press, 1999).  Professor Tushnet hypothesizes a society in which there is no judicial review and concludes that there is no reason to assume that individual rights would be any less protected in such a society than they are in the one we have now.  See also, Stephen M. Griffin, The Age of Marbury: Judicial Review in a Democracy of Rights in Mark Tushnet, supra n. 30 at 104, 138-141; Henry Steele Commager, Judicial Review and Democracy (1943), reprinted in Leonard W. Levy, supra n. 21 at 64.

78.  E.g., Korematsu v. United States, 323 U.S. 214 (1944) (approving of the W.W. II internment of Japanese-American citizens); Plessy v. Ferguson, 163 U.S. 537 (1896) (accepting government-sanctioned segregation so long as it was “separate but equal”); Dred Scott v. Sandford, 60 U.S. 393 (1857) (holding that slaves were not “citizens” entitled to any of the rights guaranteed by Federal Constitution ); Wyman v. Degregory, 103 N.H. 214 (1961) (upholding the McCarthy Era witchhunts for “subversives”); Wyman v. Uphaus, 100 N.H. 436 (1957) (same); Nelson v. Wyman, 99 N.H. 33 (1954) (same). See generally, e.g., Akil Reed Amar, THE BILL OR RIGHTS: CREATION AND RECONSTRUCTION, p. 305 (Yale U. Press, 1998) (accusing the federal bench of "betraying" the Bill of Rights and noting that "judges are not exactly the heroes and heroines of my tale").

79.           Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U. L. Rev. 1185 (1992).  See also, Gerald N. Rosenberg, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (U. of Chi. Press, 1991).  Note also that by emphasizing the role of the courts as the sole protectors of our liberties, we release the political branches from any obligation to do likewise.  This is a huge mistake.  Protecting individual liberties should be the business of all institutions of government, not just the judiciary.  Missouri, Kansas & Texas Ry. Co. v. May, 194 U.S. 267, 270 (1904) (Holmes, Jr.) (“It must be remembered that legislatures are ultimately guardians of the liberties and welfare of the people in quite as great a degree as the courts.”); United States v. Butler, 297U.S. 1, 87-88 (1936) (Stone, J., dissenting) (“Courts are not the only agency of government that must be assumed to have the capacity to govern... [We must reject] the assumption that the responsibility for the preservation of our institutions is the exclusive concern of any one of the three branches of government, or that [the courts] alone can save them from destruction.”)

80.           Note that the theoreticians of judicial review cannot dodge this bullet by arguing that horizontal judicial review is necessary to the preservation of our form of limited government because of a combination of separation of powers and individual rights justifications.  Although this would give us a full loaf, it does not dispense with the fact that (as we hopefully articulate in the text) judicial review is really not necessary for the protection of either.  As none other than Justice Oliver Wendell Holmes once said, “I do not think the United States would end if we lost our power to declare an Act of Congress void.”  Oliver Wendell Holmes, Jr., “Law and the Court” Speech, (February 15, 1913), Oliver Wendell Holmes, Jr., COLLECTED LEGAL PAPERS, p. 295-6 (Harcourt, Brace and Howe, 1920).

81.           But see, Art. XII, Ky. Const. of 1792.

82.           See generally, e.g., Julius Goebel, Jr., supra n. 20 at 124-142;  2 William W. Crosskey, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES, p. 938-975 (1953); Prakash & Yoo, supra n. 20 at 933-940;  William M. Treanor, The Case of the Prisoners and the Origins of Judicial Review, 143 U.Pa. L. Rev. 491 (1994); Edwin S. Corwin, supra n. 20 at 118-119. 

83.           The literature attempting to interpret the Convention’s discussions of judicial review is voluminous.  For a sampling, compare, e.g., Charles Grove Haines, THE CONFLICT OVER JUDICIAL POWERS IN THE UNITED STATES TO 1870, P. 36-38 (The Lawbook Exchange reprint 2003) (originally published in 1909); with, e.g., Richard Fallon, et al., THE FEDERAL COURTS AND THE FEDERAL SYSTEM, p. 11-13 (Foundation Press, 4th ed., 1996).  See generally, Prakash & Yoo, supra n. 20 at 940-954; Larry D. Kramer, supra n. 34 at 60-67.  The issue is complicated by the fact that it is sometimes difficult to discern from the reports of the debates whether any given speaker was addressing horizontal, diagonal or vertical judicial review.

84.           E.g., Prakash & Yoo, supra n. 20 at 956-965; Robert J. Reinstein & Mark C. Rahdert, supra n. 31 at p. 804 & n. 338.  See generally, THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION (multivolume series published by the State Historical Society of Wisconsin beginning in 1976).

85.   But see, Larry D. Kramer, supra n. 34 at 67-73.Interestingly, Alexander Hamilton’s essay on judicial review in THE FEDERALIST, No. 78, which was available to Marshall and which was known by some of the members of some of the ratifying conventions, was never cited by Marshall in his Marbury opinion.  By the same token, Hamilton’s essay could not have been part of the “legislative history” of the New Hampshire Constitution.  That is because THE FEDERALIST PAPERS were written in 1787-1789, which was after our Constitution was adopted in 1784.  Id. at 68-9.  Nevertheless, in his discussion of the meaning of the judicial power in our Constitution in Merrill v. Sherburne, Justice Woodbury quoted extensively from Hamilton’s exposition in No. 78.  1 N.H. at 201-202.  The point is that neither Marshall nor Woodbury were basing their arguments about judicial review on evidence of original intent/understanding.  They were simply arguing that judicial review existed because it had to exist.

86.   Susan E. Marshall, THE NEW HAMPSHIRE STATE CONSTITUTION - A REFERENCE GUIDE, p. 29 (Praeger Publishers, 2004).

87.   But see, Letter of William Plumer to William Coleman (May 31, 1786), quoted in Lynn W. Turner, WILLIAM PLUMER OF NEW HAMPSHIRE, p. 34-5 (U. of N.C. Press, 1962) (“If our elective government is long supported, it will owe its existence to the Judiciary.  That is the only body of men who will have an effective check upon a numerous Assembly.”) By way of contrast, the documentary record is quite clear in establishing that the New Hampshire Constitution was intended to incorporate the doctrine of separation of powers.  Indeed, it is generally acknowledged that one of the driving forces for the substitution of our existing constitution in 1784 for its predecessor, the constitution of 1776, was to take the executive and judicial powers which had been exercised by the legislature pursuant to the exigencies of the Revolutionary War and to place them in separate, independent departments of government.  See, e.g., State v. LaFrance, 124 N.H. 171, 176 (1983). See generally, Lynn W. Turner, THE NINTH STATE – NEW HAMPSHIRE'S FORMATIVE YEARS, p. 18-29 (U. of N.C. Press,1983). On the other hand, the leap in logic that so many commentators make that this establishes evidence of the Framer’s intent to install judicial review in our Constitution is simply not justified.  As Justice Clarence Thomas pointed out with respect to the Federal Constitution in a speech he gave at the Federalist Society's 1999 annual meeting, "Sometimes, individuals mistake judicial independence for broader, and very different, notions of judicial review.... While judicial independence no doubt makes it easier for the courts to engage in judicial review, it is by no means clear that the Constitution included its protections for judges so that they could do so." Clarence Thomas, On Judicial Independence (The Federalist Society, November 12, 1999). The fact remains that although the record of the period is replete with discussions of the doctrine of separation of powers, it is essentially silent on the issue of judicial review. See generally, e.g., Richard Hesse, The Legislature, the Court and the Constitution, 41 N.H. B.J. 38, 39-40 (2000); Frank R. Kenison, The Judiciary Under the New Hampshire Constitution, 1776-1976, p. 14-19 (N.H. Bicentennial Commission 1977).

88.   Richard Lambert, supra n. 3 at 49-50.  Similarly, when the justices of the Rhode Island Supreme Court in the 1786 case of Trevett v. Weeden (see n. 31, ante.) purported to declare an act of the Rhode Island Legislature unconstitutional, they were hauled before that state’s  general assembly and interrogated as to the reasons for their decision, which, it was claimed, “may tend to abolish the legislative authority.”  Id. at 52.  Although no formal disciplinary action was taken against the judges, the next year when they stood for reappointment to the bench, four out of the five were voted out of office.  Ibid.

89.   Only two years after the controversy over the Ten Pound Act had been resolved, another conflict between the legislature and the judiciary almost resulted in the impeachment of a N.H. judge.  In 1789, after receiving complaints from a number of western communities that the justices of our Supreme Court were not performing their circuit-riding responsibilities, the legislature formed a committee to investigate the situation.  The committee, in turn, invited the justices to respond to the complaints.  Unlike the other members of the Court,  Justice Woodbury Langdon challenged the Legislature’s authority to inquire into his behavior.  As a result, on June 17,1790, the New Hampshire House forwarded articles of impeachment against Justice Langdon to the New Hampshire Senate.  After a series of false starts, the Senate convened in January of 1791 to try Langdon for dereliction of duty.  Meanwhile, Langdon had secured a federal appointment as a commissioner to settle accounts between the national government and the  states and, accordingly, on January 17, 1791, he submitted a letter of resignation of his Supreme Court position.  However, rather than just picking up his marbles and going home, Langdon used the occasion as an opportunity to berate the Legislature for what he alleged were its transgressions against the judiciary.  Prominent among his charges was that the “members of the late legislature discovered such a disposition to nullify the most solemn decisions of the Courts of law!” Lynn W. Turner, THE NINTH STATE, supra no. 87 at  122-3.  Justice Langdon’s effrontery apparently enraged the House of Representatives which, on January 22, 1791, passed a resolution that he not be permitted to resign and a second resolution censuring him for his letter.   Langdon eventually won this battle (the House nol prossed its impeachment charges and substituted a bill of address, but the Senate refused to concur in the bill). Lynn W. Turner, id. at 121-124.

90.           Timothy Lawrie, supra n. 6 at 39; William Plumer, Cincinnatus Essay # XCII (August 18, 1823) (N.H. Historical Society).  The Court merely responded to the inquiry by returning a copy of its Merrill decision with a note to the effect that it “involved most of the principles which would govern our opinion on the question proposed in the resolve.”  IbidSee also, Perkins v. Scott, 57 N.H. 53, 69-71 (1876) (argument of Attny. Shirley) (describing the consternation that greeted the Merrill court’s determination of the new trial issue, but not mentioning any remonstrance against its assertion of the power of judicial review). One of the best illustrations of the essentially uncontroversial status which judicial review had achieved by the time that our Supreme Court decided Merrill v. Sherburne is that the subject is only briefly adverted to in Professor John Phillip Reid's new book CONTROLLING THE LAW- LEGAL POLITICS IN EARLY NATIONAL NEW HAMPSHIRE (N. Ill. U. Press, 2004), a work which details the stormy relationship among the three branches of government over judicial affairs during the Framing Era. (see p. 197.)  See also, Lynn W. Turner, THE NINTH STATE, supra n. 87; Albert S. Batchellor, The Development of the Courts of New Hampshire in William T. Davis, supra n. 54 at Vol. IV, p. 2295-2314.

91.           William Plumer, Cincinnatus Essay # CXXV (November 12, 1825) (N.H. Historical Society).  Note that Plumer’s reference to the Superior Court is actually to what we now call the Supreme Court.  Susan E. Marshall, supra n. 86 at 100, 175 & 187.  Accordingly, I believe he was alluding to the unpublished Supreme Court cases cited by the Court in Merrill, not to the Ten Pound Act Cases.  This supposition is reinforced by the fact that Plumer was the counsel for the defendant in the 1791 unpublished Supreme Court case of M’Clary v. Gilman, one of the Merrill precedents.  Lynn W. Turner, William Plumer supra n. 87 at 33; Walter F. Dodd, supra n. 89 at 400.  However, as a member of the N.H. Legislature in 1785 when one of the Ten Pound Act Cases was decided, Plumer was also well aware of their existence and, apparently, was quite sympathetic with the court’s actions.  Lynn W. Turner, WILLIAM PLUMER, supra n. 87 at 18.

92.   E.g., Gordon S. Wood, supra n. 37 at 789-794.  See also, Lynn W. Turner, THE NINTH STATE, supra no. 87 at 23-27. Compare, William E. Nelson, supra n. 30 at 1172-1174. 

93.           For the classic statement of the proposition that the Federal Constitution was essentially a conservative document designed to thwart democracy and to insulate the rich and powerful from the propensities of a broad-based democracy to promote schemes designed to redistribute their wealth, see Charles Beard, AN ECONOMIC INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES (The Free Press, 1913).

94.  Indeed, the Ten Pound Act Cases could well be the poster-child for this theory of the development of judicial review.  For while it is true that the thing which the judges in those cases found constitutionally offensive was the denial of a litigant’s right to trial by jury, one should not lose sight of the fact that the purpose of the Ten Pound Act was to make it easier for debtors to contest their liability for their debts.  Richard M. Lambert, supra n. 3 at 38.

95.   This does not mean that the legislatures of the states necessarily welcomed the exercise of judicial review.  On the other hand,  even to the extent that there were legislative objections to the practice, their remonstrances were typically fairly genteel.  For example,  after several inferior court judges had tried to hold one of its statutes unconstitutional, an early Georgia Legislature passed the following resolution: "[T]he members if this general assembly view, with deep concern and regret, the . . . conduct of the said . . . judges . . . and they cannot refrain from an expression of their entire disapprobation of the power assumed by them of determining upon the constitutionality of laws regularly passed by the general assembly, as prescribed by the constitution of this state; . . . and hope that for the future this explicit expression of public opinion will be obeyed." Charles G. Haines, Vol. I, THE AMERICAN DOCTRINE OF JUDICIAL SUPREMACY, p. 260 (U. of Cal. Press, 1932).  See generally, Ethel K. Ware, A CONSTITUTIONAL HISTORY OF GEORGIA ( Colum. U. Press, 1947). 

96.   U. of Kansas Press.  (At the time he wrote his book, Clinton was an associate professor of political science at Southern Illinois University.)  On March 19, 2006, NYU Law Professor John Reid gave a lecture at the University of New Hampshire entitled “Legislating the Courts in New Hampshire, 1790-1920”.  As indicated above (supra n. 90), Professor Reid is the author of a new book on this subject called CONTROLLING THE LAW.  He is also the author of a much earlier book on the history of New Hampshire jurisprudence entitled CHIEF JUSTICE: THE JUDICIAL WORLD OF CHARLES DOE.  At the conclusion of his lecture, Professor Reid took questions from the audience.  I asked him this question: “Do you believe that the Framers of the New Hampshire Constitution of 1784 contemplated judicial review?”  Although his immediate response was a curt “no”, Professor Reid went on to explain.  He stated that although the Framers never contemplated the robust form of judicial review which we are experiencing today, they probably acquiesced to its  exercise in Merrill v. Sherburne because the Court in that instance was merely refusing to comply with a directive of the legislature which the legislature had no constitutional right to issue.  In other words, Professor Reid was espousing a theory of  judicial review rather similar to Professor Clinton’s theory that judicial review was really only legitimate when it was manifested as judicial self-defense. See also, Larry D. Kramer, supra n. 34 at 59-60, 65. The writings of N.H. Governor William Plumer may well exemplify this theory. Despite some remarks in his Cincinnatus Essays tending to indicate a more generalized support for judicial review, in Essay # XCIII of September 1, 1923, Plumer seems to reserve judicial review for cases like Merrill v. Sherburne involving a legislative encroachment upon the judiciary's turf. In all other cases of governmental overreaching – including by the judiciary itself – his preferred remedy is a political one. Here is what he said: "If the legislature encroached upon the right of the people by passing laws deciding claims and suits between individuals, which they have no authority to do, the party injured may obtain redress from the judiciary. If the executive or judiciary encroach upon each other, if they encroach upon the people, or upon the legislature, one house of the legislature may impeach, and the other house may convict and remove them from office. If the legislature encroach upon the rights of the people, and such instances have happened, the people have the remedy in their own hands – they may elect at stated periods, other and better men in their places."

97.           See discussion in supra n. 20.  By no means, however, is this the only evidence in the Convention records for Clinton’s proposition.  As noted ante, judicial review was discussed by the delegates in Philadelphia on a number of occasions.  Not infrequently, when a delegate acknowledged the propriety of judicial review, he did so in the context of it being exercised by the judiciary to prevent some infringement of its prerogatives by another branch of government, typically the legislature.  For example, in challenging the proposal for a council of revision, Elbridge Gerry of Massachusetts commented that federal judges “will have a sufficient check agnst. encroachments in their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality.” Max Farrand, ed., Vol. 1,  RECORDS OF THE FEDERAL CONVENTION, p. 430 (Yale U. Press 1966) (emphasis supplied).  Similarly, in arguing in favor of the council, James Wilson of Pennsylvania observed that there was weight in the observation that “the Judges, as expositors of the Laws would have an opportunity of defending their constitutional rights”.  Id. at 73 (emphasis supplied).

98.  Max Farrand, supra n. 96 at Vol. 2, 430.

99.           Ibid.

100.         But see, Saikrishna & Yoo, supra n. 74 at n. 127; Robert J. Reinstein & Mark C. Rahdert, supra n. 34 at 822-3 & n. 424.

101.         Larry D. Kramer, supra n. 34 at n. 346.  Advisory opinions are not “cases of a Judiciary nature” because they do not involve claims of legal entitlement or legal fault litigated by adverse parties through the medium of a case or controversy.  When judges issue advisory opinions, they are acting in a consultative role akin to that of a lawyer counseling his client; they are not deciding legal disputes.  Opinion of the Justices, 60 N.H. 585 (1881). 

102.         Professor Reid claims that the new trial case handled by William Plumer before he became Governor, Gilman v. M’Clary (see n. 91, supra), was presented by Plumer as one which involved the legislature’s interference with a litigant’s right to trial by jury.  John Phillip Reid, supra n. 90 at 197.  But see, Walter F. Dodd, Gilman v. McClary: a New Hampshire Case of 1791, XII Am. Hist. Rev. 348 (1907) (quoting the Court’s decision, which seems to be based on separation of powers considerations).  Indeed, Professor Reid suggests that it was the fact that the Court in Merrill phrased the issue as one involving an encroachment upon the prerogatives of the judiciary which distinguished it from its predecessors and which resulted in the legislature’s acceptance of the legitimacy of judicial review.  Although I believe that characterizing the issue as involving an infringement upon the right of trial by jury would still qualify the case for categorization as a “case of a judiciary nature”, the connection is admittedly not as apparent as it is when the issue is articulated in terms of the legislature’s exercise of or infringement upon the judiciary’s power to grant new trials.

103.         Alternatively, one could view the issue in Merrill and its forebears as involving whether the legislature could exercise a judicial power, i.e., the power to grant a new trial.  See Merrill v. Sherburne, 1 N.H. at 211-217.  Regardless, however, of whether one characterizes the legislature’s practice (known as “restoring a party to his law”) as the exercise of a judicial power or as an interference with a judicial power, Merrill was clearly a “case of a judiciary nature.”

104.         In fact, almost every one of the other known pre-Philadelphia Convention instances of the exercise of or even the assertion of the power to exercise of judicial review involved matters of a “Judiciary nature”.  For example, like the Ten Pound Act Cases, Holmes v. Walton (N.J. 1779-80), Trevett v. Weeden (R.I. 1786) and Bayard v. Singleton (N.C. 1787) all involved statutes which purported to deny a party in a particular class of cases his constitutionally protected right of trial by jury.  See also, Remonstrance of the Virginia Court of Appeals of 1788 (statute imposing new duties upon the court without additional compensation);  Rutgers v. Waddington (N.Y. 1783) (statute prohibiting reliance upon the law of nations as a defense to acts of trespass during Revolutionary War);  Symsbury Case (Conn. 1784) (power of Legislature to resolve conflicting land claims of private parties); but see, Commonwealth v. Caton (Va. 1782) (application of constitutional provision regarding authority of the Legislature to grant pardons in cases of treason )  (advisory opinion requested by Legislature).  See generally, Edwin S. Corwin, supra n. 20 at 114; Julius Goebel, Jr., supra n. 20 at 125-142.  See generally, William Treanor, Chpt. II, Judicial Review Before Marbury, 58 Stanford L.Rev. 455 (2005). For a comprehensive examination of the cases in which state courts exercised the power of judicial review, decided between the adoption of the Federal Constitution in 1789 and the time when Merrill v. Sherburne was decided in 1818, see William Treanor, supra at Chp. III.  See also, Charles G. Haines, supra n. 83 at 148-164; William E. Nelson, supra n. 30 at 1169-1174.  Professor Treanor summarizes these cases as follows: “The nineteen cases in which statutes were invalidated fall into three categories.  In two cases, state statutes were invalidated on Federal Contract Clause grounds.  In both, the statute appears to have been clearly unconstitutional.  In five cases, state statutes that affected the jury trial right were overturned; in two, there were plausible arguments on behalf of the statute.  In eleven cases and one advisory opinion, state statutes affecting judicial matters were overturned.  I argue that none of these statutes was clearly unconstitutional.”  Id. at 517.  As may be gleaned from this quotation, Professor Treanor’s thesis about early judicial review is quite similar to mine.  He argues that the early courts were most willing to exercise their powers of judicial review where a legislative act affected the judiciary’s own business, even to the extent of striking down a number of such statutes which really were not unconstitutional.  In general, Professor Treanor challenges the notion that the early courts always granted statutes a presumption of constitutionality; on the contrary, he suggests that when matters involved the judiciary’s own turf, they applied a presumption of un-constitutionality.

105.         Hayburn’s Case, 2 U.S. 408 (1792).  Three other Supreme Court justices expressed the same view in letters they wrote to the President about the matter.  Ibid.  See also, United States v. Yale Todd,  (discussed in the note of the Chief Justice attached to the decision in United States v. Ferreira, 54 U.S. (13 How.) 40, 52 (1851) & Appendix to 131 U.S. (1889)).  See generally, Susan Low Block & Maeva Marcus, John Marshall’s Selective Use of History in Marbury v. Madison, 1986 Wisc. L. Rev. 301.  (Note also that in Marbury, when Marshall gave several hypothetical examples of cases which he claimed would call for the exercise of horizontal judicial review, at least one and perhaps two out of the three involved “cases of a Judiciary nature”.  5 U.S. at 179.)   By the way, a court exercises its power of judicial review when it upholds the constitutionality of some act of the political branches just as much as it does when it invalidates such an act.  Viewed in this light, the Supreme Court and/or its individual members exercised the power of horizontal judicial review on a number of occasions before Marbury.  The critical difference, however, between these cases and Marbury is that, for the most part, these cases did not involve matters of a judiciary nature. For example, in 1796, the Court upheld the constitutionality of a federal tax; although the justices’ decision was in favor of the tax’s constitutionality, they implicitly assumed that they had the power to rule it unconstitutional.  United States v. Hylton, 3 U.S. (3 Dall.) 131 (1796) (diagonal judicial review case).  See also, Hollingsworth v. Virginia, 3 U.S. (3 Dall.) (1798) (rejection of a challenge to constitutionality of method of adoption of 11th Amendment on grounds that Congress’ proposal thereof to the states had not been submitted to and endorsed by the President) (by implication). But see,  Stuart v. Laird, 5 U.S. (3 branch) 299 (1803) (decided within days of Marbury) (sustaining the constitutionality of Congress' repeal of the Judiciary Act of 1801, thereby legislating several feeral circuit courts out of existence and also removing from their judicial offices the supposedly life-tenured judges who had been appointed to sit on those courts); United States v. Ravara, 2 U.S. (2 Dall.) 297 (1793) (Justice Wilson and Pa. District Court Judge Peters, on circuit, rejecting a claim that the Judiciary Act of 1789 could not constitutionally vest jurisdiction in the circuit courts over a criminal action involving the conduct of a foreign consul).   For a review of the other pre-Marbury Circuit Court cases in which judicial review was exercised - most of which involved the validity of a state statute - see William Treanor, supra n. 104 at Chp. IV.  See also,  Cooper v. Telfair, 4 U.S. (4 Dall.) 14, 19 (1800) (rejection of a challenge to a Georgia statute confiscating the property of persons who sided with the British in the Revolutionary War on the grounds that the law violated guarantees in the Georgia Constitution of the right to trial by jury and trial in the county where the crime was committed.)  Like Professor Treanor, I do not believe that it is a pure coincidence that most of these early cases where the Court did not find some act of the political branches unconstitutional also did not involve matters “of a Judiciary nature.” Note again the similarity between how the early exercise of judicial review played itself out on the federal level and  our experience in New Hampshire.  Like Marbury v. Madison, Merrill v. Sherburne was preceded by a case in which the Court proclaimed its power to declare a legislative act unconstitutional, but instead held that the statute at issue was constitutional.  The case to which I refer was the famous Dartmouth College case, which was decided the year before Merrill. Trustees of Dartmouth College v. Woodward, 1 N.H. 111 (1817), reversed on other grounds, 17 U.S. (4 Wheat.) 518 (1818).  See generally, John M. Shirley, THE DARTMOUTH COLLEGE CASES AND THE SUPREME COURT OF THE UNITED STATES (lawbook Exchange, 2003) (reprint of 1895 edition by G. I. Jones, Chicago); Lynn W. Turner, THE NINTH STATE supra n. 87 at 295-343. Although not declaring the legislature’s takeover of the  previously-private educational institution unconstitutional, the New Hampshire Supreme Court clearly expressed its opinion that it had the power to do so.  1 N.H. 115 (“[I]f clearly convinced that an act of the legislature is unconstitutional, we should be unworthy of the station in which we are placed if we shrunk from the duties which the station imposes.”) On the other hand, as with the Hylton case on the federal level, I suggest that it is not a coincidence that our Court’s failure in the Dartmouth College case to  declare a legislative act  unconstitutional came in a  case which  did not involve a matter of a “Judiciary nature”.

106.         This probably explains why the exercise of judicial review was so seldom accompanied by any elaborate theoretical justification; for, contrary to conventional wisdom, judicial review  was the product of judicial experience, not judicial philosophy.   Donald F. Melhorn, supra n. 95 at 54-6.  It should be noted that even when the academics of the Framing Era tried their hands at discussing the theory of judicial review, they - like their modern counterparts - came to differing conclusions as to its legitimacy.  See generally, Donald F. Melhorn, Jr., A Moot Court Exercise: Debating Judicial Review Before Marbury v. Madison, 12 Const. Commentary 327, 333-340 (1995) (discussing the conflicting views on the subject of  Professor James Wilson of the College of Philadelphia, Professor James Kent of Columbia College, Professors George Wythe and St. George Tucker at William and Mary and Judges Tapping Reeve and James Gould of the famous  Litchfield Law School).  See also, Andrew M. Siegel, “To Learn and Make Respectable hereafter”: The Litchfield Law School in Cultural Context, 73 N.Y.U.L. Rev. 1978 (1998) (reviewing the state of legal education in America in the late eighteenth century).

107.         Clinton Rossiter, supra n. 59 at 95. Historian Leonard Levy attributes the development of judicial review on the federal level to a sort of “perfect storm” confluence of precipitating factors:   “The reality of the federal system and of the need for one supreme law throughout the land speedily accounted for the emergence of federal judicial review.  Similarly the realities of political partisanship had as much to do with the growth of national judicial review as did abstract theories of constitutionalism.  However inadequate may be the evidence for the Framers’ intendment of national judicial review, a remarkable convergence of forces and ideas constituted a pressure cooker for its speedy development.  Federalism, the Bill of Rights, separation of powers, arguments appeasing public fears about usurpations of power by Congress, a written constitution, higher-law theories, and, above all, politics explain judicial review.”  Leonard W. Levy, ORIGINAL INTENTIONS AND THE FRAMERS’ CONSTITUTION, p. 121 (MacMillan, 1988).  Peculiarly, however, Levy fails to include among his factors the influence upon the early cases of the fact that many of them (whether accidentally or otherwise) involved “cases of a Judicial nature”.  I suggest that this is peculiar because Levy, at several points in his work, seems to espouse the theory that, at least as a matter of original intent, judicial review was indeed associated by the Framers with judiciary matters. Id. at 99 & 105-6.

108.         Perhaps the best example of the fact that the early exercises of  judicial review usually involved the judiciary’s  self-interest comes out of the circumstance surrounding the legislative reorganizations of the New Hampshire Supreme Court in 1813 and 1816.  In 1813, for example,  despite widespread reservations by the replacement justices themselves concerning whether the law which had created their positions by wiping out those of their predecessors was constitutional, the entire panel of new justices accepted their appointments.  John H. Morison, LIFE OF JEREMIAH SMITH, p. 265-279 (Little & Brown, 1845); Albert Batchellor, Tenure of Office of the Judges of the Supreme Court of the State under the Constitution - An Address Prepared for Delivery Before the New Hampshire Bar Association, p. 12-14 (Rumford Press, 1902); Lynn T. Turner, THE NINTH STATE supra n. 87 at 284-9.  On the other hand, claiming that the reorganization was unconstitutional, several of the ousted judges refused to acquiesce in the disestablishment of their offices and continued to hear cases.  See generally, Richard F. Upton, supra n. 18 at 30-31; John H. Morison, ibid; Lynn W. Turner, ibid.  Suffice it to say that it could not have been lost on the new judges that accepting the constitutionality of  the legislative reorganization allowed them to assume their new positions and it could not have been lost on the old judges that challenging the constitutionality of the reorganization allowed them (at least temporarily) to keep their old jobs.  Accordingly, even where a situation clearly involved a matter “of a Judiciary nature”, the decision of each group of judges to exercise or not to exercise judicial review seems clearly to have been dictated by whether they personally would be advantaged or disadvantaged.  Similarly, compare, Stuart v. Laird, supra n. 105 (decision of the U.S. Supreme Court upholding Congress’ repeal of the Judiciary Act of 1801 which resulted in legislating several inferior courts, but not the Supreme Court itself, out of existence), with, Richard Bassett, The Protest of the Hon. Richard Bassett, One of the Judges of the Circuit Courts of the United States, For the Third Circuit, Against Two Acts of Congress of the 8th of March and 29th of April 1802, Attempting to Abolish the Offices and Salaries of the Circuit Courts of the United States (Bronson & Chauncey, 1802). One of the coincidences in federal and the New Hampshire "reorganizations" of their respective judiciaries in the early 19th century is that our own Jeremiah Smith was involved in both. In the federal purge, he was a victim because he was one of the judges of the new New England Circuit whose positions were abolished in 1802. In the New Hampshire purge, however, he was a beneficiary because he was appointed to fill a vacancy created by the N.H. Legislature's replacement in 1813 of our supreme court with a new top court. Although Judge Smith protested to President Jefferson about the un-constitutionality of the former, he quietly accepted his good fortune on the home front. See generally, e.g., Lynn W. Turner, THE NINTH STATE, supra no. 87 at 284-8 & 310-312.

109.         Antonin Scalia, A MATTER OF INTERPRETATION; FEDERAL COURTS AND THE LAW, p. 138-9 (Princeton U. Press, 1997).  

110. The point is that the more obvious it is that the judiciary is acting to defend its own turf, the more likely it is that its exercise of judicial review will be accepted as legitimate. This is clearly the lesson to be learned from the Supreme Court's decision in Merrill v. Sherburne versus the several Superior Court decisions in the Ten Pound Act cases. On the other hand, even limiting judicial review to matters of a "Judiciary nature" is not necessarily a magic bullet which, by itself, is capable of reining in the advance of judicial sovereignty. Just as in the case of the political question doctrine, it is still the judiciary who gets to decide what is judicial turf and what is not. See n. 45, supra. Suffice it to say that, when given the option whether to take or to reject jurisdiction, our courts are more likely to take than to give. See n. 43, supra.

111.         Henslee v. Union Planters Nat’l Bank & Trust Co., 335 U.S. 595, 600 (1949) (dissenting).

112.     Letter to Spencer Roane (September 6, 1819), Merrill D. Peterson, ed., THOMAS JEFFERSON-WRITINGS, p. 1426 (Library of America, 1984).

Author

Eugene M. Van Loan IIIEugene M. Van Loan, III, is a partner in the law firm of Wadleigh, Starr & Peters, P.L.L.C, Manchester. He has a special interest in constitutional law.  He last wrote for the Bar Journal in the Winter 2006 issue, providing an introduction to an article previously published but relatively unnoticed in New Hampshire, on the separation of powers and the New Hampshire judiciary’s initial steps at the turn of the 18th Century towards the establishment of judicial review.

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