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From Fundamental Law to the Supreme Law of the Land: A Reinterpretation of the Origin of Judicial Review

Published online by Cambridge University Press:  16 December 2008

Sylvia Snowiss
Sylvia Snowiss
Affiliation:
California State University, Northridge
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Extract

For a long time the question of whether the framers of the U.S. Constitution intended to establish judicial review of legislation was the subject of extensive and repeated investigation. The issue, however, was never definitively resolved, a consequence, it is widely agreed, of ambiguities and internal contradictions in the early record. More recently, interest in this basic question has declined, and it has simply been assumed that some form of judicial review was contemplated by the framers. At the same time support for the practice has deepened, and the debate, although still heated, has shifted to different grounds.

Type
Research Article
Information
Studies in American Political Development , Volume 2 , Spring 1987 , pp. 1 - 67
Copyright
Copyright © Cambridge University Press 1987

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References

Research for this article was supported, in part, by a National Endowment for the Humanities Younger Humanist Fellowship, the Earhart Foundation, Ann Arbor, Michigan, and the California State University Foundation, Northridge. I am grateful to Mary Cornelia Porter, who was responsible for presentation of an earlier version of this work to the American Political Science Association, and who has continued to give this project indispensable support; and to the editors of this volume, whose contribution went beyond that involved in the customary responsibility. I would also like to thank my colleague Lonnie S. Turner for many fruitful conversations, and this volume's anonymous reviewer for a careful reading of an earlier draft.

1. See, for example, Choper, Jesse H., Judicial Review and the National Political Process (Chicago: University of Chicago Press, 1980), 62–63Google Scholar, and accompanying notes; Murphy, Walter F. and Pritchett, C. Herman, eds., Courts, Judges, and Politics, 3rd ed. (New York: Random House, 1979), 12Google Scholar; Wood, Gordon S., The Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1969Google Scholar; reprint ed., New York: W. W. Norton & Co., 1972), chap. 7, and particularly, pp. 291–305.

2. The seminal statement of the fundamental values approach is Bickel, Alexander M., The Least Dangerous Branch (Indianapolis: Bobbs-Merrill Co., 1962), 23–28Google Scholar. For subsequent development of the position, see Grey, Thomas C., “Do We Have an Unwritten Constitution?” Stanford Law Review 27, no. 3 (02 1975): 703–18CrossRefGoogle Scholar; and Dworkin, Ronald, Taking Rights Seriously (Cambridge: Harvard University Press, 1977), chap. 5Google ScholarPubMed. On interpretivism, see Bork, Robert H., “Neutral Principles and Some First Amendment Problems,” Indiana Law Journal 47, no. 1 (Fall 1971): 4–20Google Scholar; Linde, Hans A., “Judges, Critics, and the Realist Tradition,” Yale Law Journal 82, no. 2 (12 1972): 253–56CrossRefGoogle Scholar; and Linde, Hans A., “E Pluribus—Constitutional Theory and State Courts,” Georgia Law Review 18, no. 2 (Winter 1984): 193–96Google Scholar.

3. Least Dangerous Branch, 14.

4. ”To the Public,” in Life and Correspondence of James Iredell, ed. McRee, Griffeth J. (New York: Peter Smith, 1949), 2: 145–49Google Scholar.

5. Least Dangerous Branch, 16–23.

6. See Thayer, James Bradley, “The Origin and Scope of the American Doctrine of Constitutional Law,” Harvard Law Review 7, no. 3 (10 1893): 129–56CrossRefGoogle Scholar; Frankfurter, Justice in West Virginia Board of Education v. Barnette, 319 U.S. 624, 646 (1943)Google Scholar, dissenting opinion, and Dennis v. United States, 341 U.S. 494, 517 (1951), concurring opinion; Black, Justice in Adamson v. California, 332 U.S. 46, 68 (1947)Google Scholar, dissenting opinion; Ely, John Hart, Democracy and Distrust (Cambridge: Harvard University Press, 1980)Google Scholar.

7. This article is a condensed version of a forthcoming book on the same subject.

8. Blackstone, William, Commentaries on the Laws of England, 4 vols. Facsimile of the 1st ed. 1765–1769 (Chicago: University of Chicago Press, 1979), 1: 91Google Scholar. Latin spelling is as in the original.

9. A full account of Rutgers v. Waddington, including the court opinion, is available in The Law Practice of Alexander Hamilton, ed. Goebel, Julius Jr (New York: Columbia University Press, 1964) 1: 282–315, 393–419Google Scholar.

10. It was also argued that the statute violated the peace treaty between England and the Americans, which contained an implied amnesty for the alleged trespass.

11. See Law Practice of Hamilton, ed. Goebel, 1: 314–15.

12. Ibid., 416–17.

13. Ibid., 312. For Blackstone's formulation see Commentaries, 1: 91.

14. “The Case Trevett against Weeden” (1786). Available in microprint, American Antiquarian Society, Early American Imprints Series.

15. Ibid., 38–39.

16. Ibid., 11.

17. Ibid., 15.

18. Ibid., 30, 33.

19. I Bay (S.C.) 252 (1792).

20. Ibid., 254. Spelling in original.

21. Lindsay v. Commissioners, 2 Bay (S.C.) 38 (1796).

22. 4 Gall (Va.) 5 (1782).

23. Ibid., 7–8.

24. Ibid., 17.

25. “Doctrine of Constitutional Law,” 138.

26. I Va. Cases 20, 78 (1793). Emphasis in original.

27. Correspondence of Iredell, ed. McRee, 2: 174.

28. 2 U.S. (2 Dall.) 304, 308 (1795).

29. See I Va. Cases 20, 27–28, 36–38, 46–48, 57–58, 69–74 (1793) for the discussions of Judges William Nelson, Spencer Roane, James Henry, John Tyler, and St. George Tucker, respectively.

30. Ibid., 57–58.

31. Ibid., 37.

32. Ibid., 74. Emphasis in original.

33. Commonwealth v. Caton, 4 Call (Va.) 5, 17 (1782). Quoted above at n. 24.

34. 2 U.S. (2 Dall.) 304, 308 (1795). For other formulations of the same point, see Kamper v. Hawkins, 1 Va. Cases 20, 25–30, 36–38, 59, (1793), Judges Nelson, Roane, and Tyler, respectively; James Iredell, “To the Public,” in Correspondence of Iredell, ed. McRee, 2: 145–46, quoted and discussed below, 20–21; Alexander Hamilton, The Federalist, No. 78, Modern Library (New York: Random House, n.d.), 505–06, quoted and discussed below, 32–35.

35. Commonwealth v. Caton, 4 Call (Va.) 5, 17 (1782), quoted in full above at n. 24.

36. This is part of Tucker's formulation of the period 1 opposition to judicial review, which he summarized before rebutting in his Kamper opinion. His full statement of the period 1 position is as follows: “But here an objection [to judicial authority over legislation] will no doubt be drawn from the authority of those writers who affirm, that the constitution of a state is a rule to the legislature only, and not to the judiciary, or the executive: the legislature being bound not to transgress it; but that neither the executive nor judiciary can resort to it to enquire whether they do transgress it, or not” (Kamper v. Hawkins, 1 Va. Cases 20, 77 [1793]; emphasis in original).

37. 4 Call (Va.) 5, 17 (1782). Quoted above at n. 24.

38. Richard Spaight to Iredell, James, 08 12, 1787, Correspondence of Iredell, ed. McRee, , 2: 169Google Scholar.

39. Ibid., 169–70.

40. See Iredell's formulation of the period 1 opposition to judicial review, which he summarized before rebutting in “To the Public”: “The great argument is, that though the Assembly have not a right to violate the constitution, yet if they in fact do so, the only remedy is, either by a humble petition that the law may be repealed, or a universal resistance of the people. But that in the mean time, their act, whatever it is, is to be obeyed as a law; for the judicial power is not to presume to question the power of an act of assembly” (Correspondence of Iredell, ed. McRee, 2: 147; emphasis in original). This is the most succinct statement of the two components of the period 1 debate: the agreement that the legislature could not violate the Constitution, and the disagreement over judicial authority should the legislature nevertheless violate it.

41. Thayer had argued in 1893 that period 2 judicial review was limited to the concededly unconstitutional act and suppported his argument with numerous references to eighteenthand early nineteenth-century defenses of judiciary review which insisted that the judiciary could refuse to enforce an act only where there was no doubt about the legislation's unconstitutionality (“Doctrine of Constitutional Law,” 139–42). Although no one has ever challenged Thayer's evidence, his general analysis remains unpersuasive. I am not attempting here to revive Thayer's position, but rather to show that it was only partially correct. That the doubtful case rule was an operative part of 1790s judicial review is clearly the case. What Thayer missed was that it was part of a practice different from that which he and we know.

42. Madison, James, “Vices of the Political System of the United States,” in The Writings of James Madison, ed. Hunt, Gaillard (New York: G. P. Putnam's Sons, 1900–1910), 2: 365–67Google Scholar.

43. Wilson, James at the Constitutional Convention, The Records of the Federal Convention of 1787, ed. Farrand, Max, 4 vols. (New Haven: Yale University Press, 1937), 2: 73Google Scholar. See also Alexander Hamilton in Federalist 78, 509, where unjust legislation is distinguished from unconstitutional legislation and is excluded from the judicial authority being claimed. Hamilton's position is discussed below at n. 100 and accompanying text.

44. The trial, jury cases were Holmes v. Walton (New Jersey, 1780)Google Scholar; Trevett v. Weeden (Rhode Island, 1786); Bayard v. Singleton, 1 N.C. 5 (1787); Bowman v. Middleton, 1 Bay (S.C.) 252 (1792); VanHorne's Lessee v. Dorrance, 2 U.S. (2 Dall.) 304 (1795); and Stidger v. Rogers, 2 Ky. Decisions 52 (1801). There were altogether about a dozen cases in which the issue of judicial review was raised. In some, judges claimed authority over unconstitutional acts without exercising it in the particular case. See, for example, Commonwealth v. Caton, 4 Call (Va.) 5 (1782). In others, judges avoided implementing legislation through statutory construction. See, for example, Rutgers v. Waddington (New York, 1784), reprinted in Law Practice of Hamilton, ed. Goebel, 1: 393–419. For a review of the most significant cases, see Haines, Charles Grove, The American Doctrine of Judicial Supremacy (New York: Macmillan Co., 1914), chaps. 4, 5, and 7Google Scholar.

45. Haybum's Case, 2 U.S. (2 Dall.) 409 (1792), and Kamper v. Hawkins, 1 Va. Cases 20 (1793).

46. Marbury v. Madison, 5 U.S. (1 Cr.) 137, 176 (1803).

47. Ibid., 177.

48. Least Dangerous Branch, 2 and 3.

49. Iredell to Spaight, , 08 26, 1787, Correspondence of Iredell, ed. McRee, , 2: 174Google Scholar; Tucker, Judge in Kamper v.Hawkins, 1 Va. Cases 20, 79–81 (1793)Google Scholar; Paterson, Justice in VanHorne's Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 309 (1795)Google Scholar.

50. Correspondence of Iredell, ed. McRee, 2: 145–49.

51. The North Carolina court did refuse to enforce the act in Bayard v. Singleton, 1 N.C. 5 (1787).

52. Correspondence of Iredell, ed. McRee, 2: 172–76.

53. Wilson opposed a prohibition on ex post facto laws, at the Constitutional Convention, agreeing with Oliver Ellsworth that such laws were “void of themselves” and thus not in need of prohibition. Wilson added that a prohibition “will bring reflections on the constitution—and proclaim that we are ignorant of the first principles of Legislation.” He went on to observe that similar provisions in the state constitutions had proven useless, as their violations went unchecked (Records of the Federal Convention, ed. Farrand, 2: 376). Edward S. Corwin noted a change in Wilson's attitude toward judicial review between the convention, which ended in September 1787, and the Pennsylvania Ratifying Convention, which convened in November 1787. He did not offer any explanation for this change (“The Supreme Court and Unconstitutional Acts of Congress,” Michigan Law Review 4, no. 8 [June 1906]: 620).

54. Correspondence of Iredell, ed. McRee, 2: 146. Emphasis in original.

55. Ibid., 172–73. Emphasis in original.

56. Ibid., 147.

57. Ibid. Emphasis in original. The full quotation is given above, n. 40.

58. Ibid., 148. Emphasis in original.

59. “Doctrine of Constitutional Law,” 138, quoted above at n. 25.

60. For another statement of the period 2 position that articulates more clearly this reading of Iredell, see Tucker, Judge in Kamper v. Hawkins, 1 Va. Cases 20, 78–81 (1793)Google Scholar, quoted and discussed below at n. 70 and accompanying text.

61. See the discussion of Marbury below at n. 104 and accompanying text.

62. See the discussion above at n. 57 and accompanying text.

63. “To the Public,” Correspondence of Iredell, ed. McRee, 2: 148, quoted above at n. 58.

64. Ibid., 174.

65. Eakin v. Raub, 12 Sergeant & Rawles (Pa.) 330, 343 (1825), dissenting opinion.

66. “Doctrine of Constitutional Law,” 138–56.

67. Eakin v. Raub, 12 Sergeant & Rawles (Pa.) 330, 352 (1825).

68. A full discussion of Gibson's position is beyond the scope of this article. Here I can only note that Gibson's criticism of Marbury maintained the period 2 perception of fundamental law as different in kind from ordinary law. Gibson had, however, lost touch with the practical dimensions of periods 1 and 2 judicial review, particularly with the urgency of checking concededly unconstitutional acts. See Gibson's comments on Paterson's period 2 defense of judicial review, ibid., 356, and quoted below at n. 88. Gibson's criticism of emerging period 3 judicial review, thus, came from a unique perspective, reflecting fully neither periods 2 nor 3 assumptions.

69. See below at nn. 90–100 and 84–86.

70. 1 Va. Cases 20, 78–81 (1793). Emphasis in original.

71. The only exception, and it is a partial and indirect one, is Hamilton's argument in Federalist 78. See the discussion below at nn. 92–97.

72. 1 N.C. 5, 7 (1787). Emphasis added.

73. 1 Va. Cases 20, 38 (1793). Emphasis added.

74. Correspondence of Iredell, ed. McRee, 2: 173. Emphasis added.

75. The only textual exegesis anticipating modern practice in a period 1 or 2 case is to be found in Kamper v. Hawkins. Even here it was scanty by modern standards. See 1 Va. Cases 20, 34–35, 52–53, 63–64, 88–91 (1793) for the textual exegesis of Judges Nelson, Henry, Tyler, and Tucker, respectively. Kamper, as did Marbury, overturned an act dealing with judicial organization. It did not, as did most other periods 1 and 2 cases, involve a preexisting natural or common law principle.

76. 1 N.C. 5, 7(1787).

77. “For that if the Legislature could take away this right, and require him to stand condemned in his property without a trial, it might with as much authority require his life to be taken away without a trial by jury, and that he should stand condemned to die, without the formality of any trial at all: that if the members of the General Assembly could do this, they might with equal authority, not only render themselves the Legislators of the State for life, without any further election of the people, from thence transmit the dignity and authority of legislation down to their heirs male forever” (Ibid.).

78. 2 U.S. (2 Dall.) 304 (1795).

79. Ibid. Paterson's discussion in VanHorne's Lessee was a jury charge.

80. The references were to a statement of the inherent and inalienable right to property; a provision protecting trial by jury; a statement that the Declaration of Rights was part of the Constitution; and a prohibition against legislative interference with any part of the Constitution.

81. 2 Bay (S.C.) 38 (1796).

82. Ibid., 57.

83. Kamper v. Hawkins, 1 Va. Cases 20 (1793) and Lindsay v. Commissioners, 2 Bay (S.C.) 38 (1796) followed Hamilton; VanHorne's Lessee v. Dorrance, 2 U.S. (2 Dall.) 304 (1795) followed Wilson.

84. The Works of James Wilson, ed. McCloskey, Robert Green (Cambridge: Harvard University Press, Belknap Press, 1967), 1: 309CrossRefGoogle Scholar.

85. Ibid., 329–30.

86. Wilson used this formulation (ibid., 330) outside the federalism context of the supremacy clause, where it appears in the U.S. Constitution.

87. 3 U.S. (3 Dall.) 386, 399 (1796). It is also worth noting that Iredell's famous debate with Justice Samuel Chase, in this same case, was not, as is generally thought, one between a positive and natural law understanding of judicial review. Rather, each justice was stressing one of the two elements in period 2's merger of positive and natural law.

88. Eakin v. Raub, 12 Sergeant & Rawles (Pa.) 330, 356 (1825). Emphasis in original.

89. The closest Marshall came to an explicit discussion of this aim was in the first paragraph of the defense of judicial review in Marbury v. Madison, 5 U.S. (1 Cr.) 137, 176 (1803).

90. Iredell's formulation of the conflict of laws analogy was as follows: “It is not that the judges are appointed arbiters, and to determine as it were upon any application, whether the Assembly have or have not violated the Constitution; but when an act is necessarily brought in judgment before them, they must, unavoidably, determine one way or another. If it is doubted whether a subsequent law repeals a former one, in a case judicially in question, the judges must decide this; and yet it might be said, if the Legislature meant it a repeal, and the judges determined it otherwise, they exercised a negative on the Legislature in resolving to keep a law in force which the Assembly had annihilated. This kind of objection, if applicable at all, will reach all judicial power whatever, since upon every abuse of it (and there is no power but what is liable to abuse) a similar inference may be drawn” (Iredell to Spaight, Correspondence of Iredell, ed. McRee, 2: 173; emphasis in original).

91. The Federalist, 505–06.

92. Ibid., 506. Emphasis in original.

93. Quoted above at n. 91. This is Hamilton's formulation of the first proposition of period 1 judicial review—that the legislature cannot violate the Constitution.

94. See above at nn. 70–74.

95. See Hylton v. United States, 3 U.S. (3 Dall.) 171, 173, 175 (1796); Calder v. Bull, 3 U.S. (3 Dall.) 386, 395, 399 (1798); Cooper v. Telfair, 4 U.S. (4 Dall.) 14, 18, 19 (1800); Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 270, 294 (1827); Craig v. Missouri, 29 U.S. (4 Pet.) 410, 444, 446, 458–59(1830).

96. See the discussion below at nn. 101 – 14.

97. See the discussion below, at nn. 118–59.

98. The Federalist, 505.

99. Ibid., 508.

100. Ibid., 509.

101. 5 U.S. (1 Cr.) 137, 176 (1803).

102. Failure to discuss this issue is the classic modern criticism of Marbury. See Bickel, Least Dangerous Branch, 3.

103. 5 U.S. (1 Cr.) 177 (1803).

104. Ibid., 177–78.

105. Quoted above at nn. 92 and 70, respectively.

106. See Pendleton, Judge in Commonwealth v. Caton, 4 Call (Va.) 5, 17 (1782)Google Scholar; James Wilson, Lectures on the Law, Works of Wilson, ed. McCloskey, 1: 330; Tucker, Judge in Kamper v. Hawkins, 1 Va. Cases 20, 77 (1793)Google Scholar; Paterson, Justice in VanHorne's Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 309 (1795)Google Scholar.

107. Lectures on the Law, Works of Wilson, ed. McCloskey, 1: 330.

108. For statements of the modern Marbury doctrine, see Cooper v. Aaron, 358 U.S. 1, 18 (1955) and United States v. Nixon, 418 U.S. 683, 703 (1974).

109. 5 U.S. (1 Cr.) 137, 178–79 (1803).

110. Ibid., 178.

111. Compare ibid., 179, and 1 Va. Cases 20, 79–81 (1793).

112. 5 U.S. (1 Cr.) 137, 179–80 (1803).

113. Ibid., 180. Emphasis added.

114. The word is used nine times in Marbury. I have found it ten times in period 2 discussions: twice in Iredell to Spaight, Correspondence of Iredell, ed. McRee, 2: 173, 174; twice in Tucker's Kamper opinion, 1 Va. Cases 20, 77, 78 (1793); once in Nelson's Kamper opinion, ibid., 23; five times in , Paterson's VanHorne's Lessee opinion, 2 U.S. (2 Dall.) 304, 308, 314 (1795)Google Scholar.

115. See William Johnson to Thomas Jefferson, December 10, 1822, quoted in Morgan, Donald G., Justice William Johnson: The First Dissenter (Columbia: University of South Carolina Press, 1954), 181–82Google Scholar.

116. See Craig v. Missouri, 29 U.S. (4 Pet.) 410 (1830), in which certificates issued by Missouri were stuck down as bills of credit prohibited by the Constitution.

117. The most notable exception was Ogden v. Saunders, 25 U.S. (12 Wheat.) 213 (1827). Craig v. Missouri, 29 U.S. (4 Pet.) 410 (1830), was decided by a 4–3 vote, with Justices Johnson, Thompson, and McLean dissenting.

118. 10 U.S. (6 Cr.) 87 (1810).

119. Ibid., 139.

120. Ibid., 143.

121. Marshall invoked natural law only one other time, in dissent in Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 344–47 (1827). It is unlikely he would have done so if he were writing for a majority.

122. Terrett v. Taylor, 13 U.S. (9 Cr.) 43, 52 (1815). Court opinion by Justice Joseph Story. Discussed below at n. 126 and accompanying text.

123. Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 654, 666 (1819). Concurring opinions by Justices Bushrod Washington and Story. Discussed below at nn. 129–31 and accompanying text.

124. See Johnson's, Justice characterization of the Sturges opinion in Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 272–73 (1827)Google Scholar.

125. 13 U.S. (9 Cr.) 43 (1815).

126. Ibid., 52.

127. 17 U.S. (4 Wheat.) 518 (1819).

128. Ibid., 643–45.

129. Ibid., 683.

130. Ibid., 665.

131. Ibid., 663–64.

132. Ibid., 650.

133. 17 U.S. (4 Wheat.) 122(1819).

134. 25 U.S. (12 Wheat.) 213 (1827).

135. Ibid., 272.

136. See Sturges v. Crotvinshietd, 17 U.S. (4 Wheat.) 122, 202 (1819), and Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 265–69, 286–90, 303–07, 328–31 (1827).

137. 17 U.S. (4 Wheat.) 122, 197 (1819).

138. Ibid., 198.

139. Ibid., 202.

140. Ibid.

141. The three cases areSturges v. Crowninshield, ibid.; Ogden v. Saunders, 25 U.S. (12 i Wheat.) 213, 332 (1827); and Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 437 (1827). Brown was a federalism case, and in this opinion Marshall made the fullest statement of the applicability of the rules of statutory interpretation: “In performing the delicate and important duty of construing clauses in the constitution of our country, which involve conflicting powers of the government of the Union, and of the respective States, it is proper to take a view of the literal meaning of the words to be expounded, of their connection with other words, and of the general objects to be accomplished by the prohibitory clause, or by the grant of power.”

142. 17 U.S. (4 Wheat.) 122, 202–03 (1319).

143. 25 U.S. (12 Wheat.) 213, 273 (1827).

144. Justice Washington, ibid., 259.

145. Ibid., 256.

146. Ibid., 259–60.

147. Justice Washington, ibid., 270; Justice Thompson, ibid., 294.

148. Ibid., 299.

149. Ibid., 286.

150. Ibid., 290.

151. Justice Washington, ibid., 265–67; Justice Johnson, ibid., 286; Justice Thompson, ibid., 303–04.

152. For a chronology of changes in the wording of the supremacy clause made at the Constitutional Convention see Records of the Convention, ed. Farrand, 2: 28–29, 389, 603.

153. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 189 (1824).

154. Ibid., 194–95.

155. Ibid., 223.

156. Ibid. Emphasis in original.

157. Ibid., 225–26.

158. Ibid., 229.

159. Ibid., 226–27. Emphasis in original.

160. 4 U.S. (4 Dall.) 14 (1800).

161. Corwin, Edward S., “The Basic Doctrine of American Constitutional Law.” Michigan Law Review 12, no. 4 (02 1914): 247–76, and particularly, 247–55CrossRefGoogle Scholar.

162. See above at n. 25.

163. See Murphy, Walter F. and Tanenhaus, Joseph, eds., Comparative Constitutional Law: Cases and Commentaries (New York: St. Martin's Press, 1977)CrossRefGoogle Scholar.

164. “Doctrine of Constitutional Law,” 56.

165. “The Contribution of an Independent Judiciary to Civilization,” in The Spirit of Liberty, ed. Dilliard, Irving (New York: Alfred A. Knopf, 1952), 181Google Scholar. Emphasis in original. See also Dahl, Robert A., “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of Public Law 6, no. 2 (Fall, 1957): 279–95Google Scholar.

166. This is Elv's formulation in Democracy and Distrust, 69.

167. See above at n. 84.

168. The Ninth Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

169. Both Bickel and Dworkin have made comparable arguments. See Bickel, Least Dangerous Branch, 23–28, and Dworkin, Ronald, “The Forum of Principle,” New York University Law Review 56, nos. 2–3 (05–06 1981): 469–518Google Scholar, particularly 517–18. Neither, however, sees Court fulfillment of such a function as part of a new field of law, and neither has separated it sufficiently from enforcement conceptions of ordinary law. These points are discussed more fully below at nn. 173–79.

170. Democracy and Distrust, 56–58.

171. See Levi, Edward H., An Introduction to Legal Reasoning (Chicago: University of Chicago Press, 1948), 1–8Google Scholar.

172. See Eakin v. Raub, 12 Sergeant & Rawles (Pa.) 330, 352 (1825).

173. (Indianapolis: Bobbs-Merrill, 1962).

174. Wechsler, Herbert, “Toward Neutral Principles of Constitutional Law,” Harvard Law Review 73, no. 1 (11 1959): 1–35CrossRefGoogle Scholar.

175. Least Dangerous Branch, chap. 1.

176. Ibid., 23–28.

177. See Bickel, Alexander M., The Supreme Court and the Idea of Progress (New York: Harper & Row, 1970)Google Scholar.

178. See Grey, “Unwritten Constitution,” 703–18, and Dworkin, Taking Rights Seriously, chap. 5.

179. Substantive due process originally took the form of liberty of contract and was a major vehicle through which the Court overturned attempts at governmental regulation of the economy. It arose in the 1880s and was abandoned in the Court crisis of the 1930s.

180. Least Dangerous Branch, 64.

181. See Bork, “Neutral Principles,” 4–20; Linde, “Judges, Critics,” 253–56; and Linde, “Constitutional Theory,” 193–96.

182. Poe v. Ullman, 367 U.S. 497, 540 (1961).

183. Ibid.

184. Ibid., 543.

185. See, for example, Alberts v. California, 354 U.S. 476, 496 (1959), and Barenblatt v. United States, 360 U.S. 109 (1959) (freedom of speech and association); Wesberry v. Sanders, 376 U.S. 1, 20 (1964), and Reynolds v. Sims, 377 U.S. 533, 589 (1964) (reapportionment); Mapp v. Ohio, 367 U.S. 643, 672 (1961), andMiranda v. Arizona. 384 U.S. 436, 504 (1966) (criminal procedures); Harper v. Board of Elections, 383 U.S. 663, 680 (1966), and Shapiro v. Thompson, 394 U.S. 618, 655 (1969) (fundamental rights and equal protection).

186. For Harlan, see, for example, Roth v. United States, 354 U.S. 476, 496 (1957), and Cohen v. California, 403 U.S. 15 (1971) (freedom of speech); Poe v. Ullman, 367 U.S. 497, 522 (1961), Griswold v. Connecticut, 381 U.S. 479, 499 (1965), and Boddie v. Connecticut, 401 U.S. 371 (1971) (fundamental rights and due process). See ahoKatz v. United States, 389 U.S. 347, 360 (1967), Williams v. Illinois, 399 U.S. 235, 259 (1970), and Chambers v. Maroney, 399 U.S. 42, 55 (1970) (criminal procedures).

187. Poe v. Ullman, 367 U.S. 497, 539–40 (1961). See also, ibid., 542 and 544.

188. Ibid., 542.

189. Ibid.

190. Griswold v. Connecticut, 381 U.S. 479, 501 (1965).

191. Ibid.

192. Poe v.Ullman, 367 U.S. 497, 542 (1961).

193. Griswold v.Connecticut, 381 U.S. 479, 501–02 (1965).

194. New York Times, September 20, 1971, 20.