AMA: Eric Segall asks about originalism and judicial review

JB

ES: Jack, to the best of my knowledge, and maybe I'm wrong, you have never addressed the many historical sources collected by Sylvia Snowiss, Jack Rakove and others showing that the framers quite clearly had a conception of judicial review that was modest, humble, and centered around clear constitutional error (and the 14th did not change that according to the best historians of that time other than possibly for protecting the newly freed slaves). I review all that, including Treanor's views on the subject, in Chapter 1 of Originalism as Faith. Don't you have to deal with those historical sources to argue for a robust conception of judicial review?

JB: Your question raises two different issues.

First, you want to know whether fidelity to the Constitution's original public meaning precludes a conception of judicial review far more robust than Founding-era understandings and expectations. Another way of putting this question is to ask how the interpretation/construction distinction applies to "the judicial power" described in Article III, which "extend[s] to all cases, in law and equity, arising under this Constitution." You are asking whether judges today should be bound by the original expected application of the scope of "the judicial power" and by the legal practices associated with "the judicial power" roughly contemporaneous with the Founding.

Second, You make the historical claim that the practice and understanding of judicial review did not change very much from the Founding to the adoption of the Fourteenth Amendment, and that the Fourteenth Amendment had little effect on the practice of judicial review. Is this historical claim correct?

The answer to the first question is no. The answer to the second question is also no.

I. The Judicial Power and the Interpretation/Construction Distinction

Articles I, II, and III contain a list of the powers of the three branches. Thus, Article III states that "[t]he judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."

According to framework originalism, constitutional construction builds on top of the basic framework, through the creation and alteration of institutions, conventions, laws, and precedents. The theory of framework originalism does not exempt the judiciary. It applies to all three branches.

If the practical powers of the other two branches may change over time through construction, we should expect that the practical powers of the judicial branch may also change over time through construction-- with the proviso that any such construction must be consistent with original meaning.

For example, "the executive power" has been subject to construction over time. That is why the presidency has grown more powerful, especially in the twentieth century. It seems to me that there is nothing in the analogous phrase "[t]he judicial power" that would suggest that it is not also subject to constitutional construction over time. Indeed, if the Presidency becomes ever more powerful over time as a result of constitutional construction, it would seem very important that the powers of the other branches also be able to change through construction in order to check it.  What you describe as a "humble" version of judicial review at the Founding might not be adequate to deal with increasing problems of executive overreach.

Put another way, if only the executive's power can grow by construction, and the power of the judiciary must remain as it was at the Founding, this presents a very serious problem for the basic constitutional principle of checks and balances.

Now let me return to the question of original meaning, on which constructions must build. As you know, I hold to a thin theory of original public meaning. I do not accept that the original expected application of the Constitution's text is binding on subsequent generations, although it is an important aid to construction. The thin theory of original meaning applies to the phrase "the judicial power" in the same way that it applies to the phrase "[t]he executive power," or the phrase "Commerce .... among the several States" or to the phrase "the equal protection of the laws." One might argue that the term "the judicial power" was a generally used legal term of art among lawyers at the Founding that was derived from English common law. I am not sure that this is correct. But even if so, it would be subject to common law evolution like other common law phrases in the Constitution.

So your assertion that Founding-era conceptions of "the judicial power" were "modest, humble, and centered around clear constitutional error" does not settle the question of the correct construction of "the judicial power" today. (Also, your argument assumes a clear consensus about the practice of judicial review at the Founding that I think is questionable. But I put that objection aside for the moment.) To be sure, I do not think that modern constructions of the judicial power are always the best constructions. I would have judges be more deferential in certain contexts, and more engaged in others. But your question was a different one: You asked me whether I had to accept the initial construction of judicial power at the Founding. The answer is no.

II. The History of the Judicial Power in the Nineteenth Century

You assert that a limited conception of judicial review continued throughout the nineteenth century, and that the adoption of the Fourteenth Amendment did not significantly change it.

This is incorrect. The practice of judicial review evolved throughout the nineteenth century, even before the Fourteenth Amendment. As Keith Whittington explains, "The power of judicial review developed gradually over the course of the first half of the nineteenth century, facilitating the goals of national political actors and consolidating the Court’s claim to be able to define the constitutional limits of congressional power." Whittington's 2019 book, Repugnant Laws, shows that the familiar assumption that the Supreme Court did not use judicial review to limit or strike down Congressional statutes between Marbury and Dred Scott is false.  The courts employed judicial review on a number of occasions. Mark Graber made a similar point two decades ago. In other work Graber also pointed out that the Chase Court became activist during the 1860s because the Court contained several holdovers from the previous Jacksonian regime who were concerned about the emerging Republican hegemony.

And as to judicial review of state laws, it is hard to argue that the practice of the federal courts in the early nineteenth century was "modest, humble, and centered around clear constitutional error." To take only one example: Marshall's holding in McCulloch v. Maryland that Maryland's tax on the Bank of the United States was contrary to an intergovernmental immunity-- which appeared nowhere in the text and was created for the first time in that case-- does not seem very consistent with your account of judicial review. Nor are the Marshall Court's Contracts Clause decisions especially deferential to states.

Finally, conceptions of judicial review in the states significantly affected how federal judges understood their own practices of judicial review. Nineteenth-century state judges often did not have a conception of judicial review that was "modest, humble, and centered around clear constitutional error." Their practices influenced the federal courts throughout the nineteenth century. There are several reasons for this. First, judges were more likely to think of judicial review as a common practice among all judges and to view state and federal constitutions as exemplifying general principles of constitutional law. Second, the lower federal courts and the Supreme Court were often staffed by state court judges, who brought their understandings of judicial review along with them. The influence of state jurisprudence on federal jurisprudence is more or less the opposite of today, in which the decisions of federal courts are highly influential on state judiciaries. 

Contrary to your claim, the Reconstruction Amendments, and especially the Fourteenth Amendment, did not preserve the status quo. They transformed judicial review. First, as Howard Gillman has shown, the Reconstruction Republicans increased the jurisdiction of the federal courts and created federal question jurisdiction in order to ensure that Republican-appointed judges could protect both the Union and access to national markets. This multiplied the number of occasions in which federal courts would have to consider constitutional claims. Second, the text of the Fourteenth Amendment now held states and local governments to national standards of due process and equal protection, and allowed Congress to pass laws enforcing the Amendment against states. This increased exponentially the number of potential violations of constitutional norms that the federal courts could pass on.  And this, in turn, encouraged a more robust use of judicial review.

This increase in judicial power was not accidental. It was part of the point of adopting Sections 1 and 5 of the Fourteenth Amendment. Mark Graber has pointed out that Sections 2,3, and 4 were far more important to most Congressional Republicans. Nevertheless, Republicans wanted to make sure that a judiciary staffed by Republicans, in concert with a Republican-controlled Congress, would have the power to check former opponents of the Union in the states (and promote national markets).

Moreover, because the federal courts did not always review state laws through a "clear error" rule in the years immediately before the Fourteenth Amendment, they were not especially deferential after it was adopted either. (The matter is more complicated, because there were different standards for review of state legislation depending on how a case got to the Supreme Court.) Because of the Republican Party's expansion of federal jurisdiction and because of the language of the Fourteenth Amendment, the federal courts were increasingly busy in reviewing state and local laws, creating the norms and practices that would evolve into what we today would recognize as judicial review.

By the close of the nineteenth century, judicial review was well established and it was anything but "modest, humble, and centered around clear constitutional error." Rather, the political branches had constructed judicial review to facilitate the goals and values of national political actors, and this process would continue in the twentieth century and up to the present day. Judicial review, like many other government institutions and functions, was not frozen forever in time at the Founding. Rather, it is the product of successive constructions by the political branches as well as the courts. 

If one thinks, as I do, that the original meaning of our Constitution is part of a framework on which subsequent generations must build, then one must also accept the possibility that judicial review must be constructed over time, just like the other federal powers.