History of Judicial Review

In “Judicial Review of Congress Before the Civil War” (THE GEORGETOWN LAW JOURNAL, Vol. 97:1257), by Keith E. Whittington, she said:

“There is a standard story about the exercise of the power of judicial review by
the U.S. Supreme Court before the Civil War. In this story, the Court was
primarily focused on establishing the Constitution’s, the federal government’s,
and the federal Judiciary’s own supremacy over the states. It was a time for
contracts, commerce, and the limitations on state power. Judicial review of
Congress was exceptional and idiosyncratic. There was Marbury v. Madison in
1803, Chief Justice John Marshall’s great maneuver to establish the power of
judicial review,1 and then there was Dred Scott v. Sandford in 1857, Chief
Justice Roger Taney’s great folly that attempted to impose a pro-slavery reading
on the Constitution and instead became the Court’s “self-inflicted wound,” and
there was little else.

The standard story is wrong. The U.S. Supreme Court was more active in exercising its power to interpret the Constitution and limit the legislative authority of Congress than is conventionally recognized. Marbury and Dred
Scott were the tips of the iceberg of federal judicial review, not the entire
edifice. They were, to be sure, among the most politically contentious uses of
that power by the Court during the early republic and, thus, historically memorable.”

…..

In “Changing Conceptions of Judicial Review: The Evolution of. Constitutional Theory in the States, 1790–1860 (120, University of Pennsylvania Law Review) by William E. Nelson.

Any complete study of the history of the Supreme Court of the
United States must inevitably raise questions about the origins of the
peculiarly American doctrine of judicial review of legislation. The
first two volumes to appear in the projected eleven-volume History of
the Supreme Court of the United States funded by the Oliver Wendell
Holmes Devise 1 are no exception. Both Julius Goebel’s Antecedents
and Beginnings to 1801 and Charles Fairman’s Reconstruction and
Reunion, 1864-88 are remarkably thorough works of scholarship, and
each contains important material on the topic of judicial review.

The study of early traditions of judicial control over legislation is
a prominent theme in Professor Goebel’s opening volume of the Court
history.2 After tracing judicial review back to early English enforcement
of provisions in municipal charters prohibiting ordinances contrary
to the common law, Goebel discusses at length the 1728 case of
Winthrop v. Lechmere,8 which held that colonial assembles could not
enact laws inconsistent with charter provisions affirming the primacy
of the common law. To the English, for whom colonies were the legal
equivalent of municipal corporations, the decision in Winthrop broke
no new legal ground, but to Americans the case was a disturbing challenge to their legislatures’ supremacy. Four decades later, however, as
they searched for ways to limit the supremacy of Parliament, Americans
found judicial review more appealing, and they themselves took further
steps toward it, until by the outbreak of the War of Independence “a
distinctly native doctrine of [judicial] control over legislation” had
begun to emerge.4

As Americans during the 1770’s and 1780’s established their new
governments and framed their new constitutions, the doctrine of judicial
review matured and gained increasing acceptance. Goebel discusses
five leading cases in which state courts confronted the issue of judicial
review in the 1780’s; ‘ he concludes that in four of the cases the courts
ruled they had power to invalidate unconstitutional legislation, while
in the fifth a New York court effectively struck down a statute under
the guise of interpretation. There were other cases in Massachusetts ”
and New Hampshire,7 holding legislative acts unconstitutional and in
South Carolina narrowly circumscribing some 1787 legislation.’ Goebel
maintains, moreover, that judicial review was widely approved both at
the federal constitutional convention and in the state ratifying conventions.
He points to numerous statements ” arguing or assuming that
the Supreme Court would exercise the power of review and observes
“that the antifederalists, who were quick to pounce on anything that
could be converted into a reproach of the proposed system, [did] not
immediately [join] issue”; 1 his view is that the doctrine of judicial
review was “preached . . . [during the 1780’s] apparently without Goebel somewhat overstates his case, however, for while there was
substantial support for judicial review in the 1780’s, there was also
substantial opposition. Goebel himself calls attention to some of it.
He takes note, for instance, of the “angry reaction” 12 of some of the
state legislatures whose acts were invalidated, as well as of fears expressed
both at the federal convention and during the ratification debates
that a Court possessed of the power of review might become “‘by degrees
the lawgiver.’ ” ” But Goebel ignores the opposition of many
other men,’ 4 most notably James Madison, who wrote that judicial invalidation
of legislation would make “the Judiciary Department paramount
in fact to the Legislature, which was never intended and can
never be proper.” “5 In truth, judicial review was a question for which
the nation as a whole had no final answer in the 1780’s; it was, as
James Monroe noted in 1788, an issue “calculated to create heats and
animosities.” 1″

Professor Goebel’s volume ends immediately before Marbury v.
Madison,’7 the first decision 18 in which the Supreme Court invalidated
an act of Congress, and neither volume discusses Scott v. Sandford,9
the second such decision. But Professor Fairman’s volume, which begins
with the year 1864, demonstrates that, after the Dred Scott case,
the Court began to strike down congressional legislation with regularity.
Between 1864 and 1873, during the tenure of Chief Justice Salmon P.
Chase, the doctrine of judicial review was firmly established, with the Court invalidating federal statutes in at least eight cases,2
” including
Hepburn v. Griswold,21 the first of the Legal Tender Cases and one of
the more important cases in American constitutional history. The doctrine
remained prominent during the next six decades as the Court held
some sixty additional acts of Congress unconstitutional. 2
Taken together, the Goebel and Fairman volumes of the Supreme
Court history therefore indicate that judicial review became an unchallenged
dogma of American constitutional law sometime between the
1780’s and 1860’s. But neither volume even asks the questions of when
and why this development took place. Perhaps those questions are
outside the proper scope of a history of the Court, for the Justices invalidated
acts of Congress on only two occasions between 1790 and
1860-in Marbury and in Dred Scott-and accordingly, they have left
historians with little material with which to address the questions.
Nonetheless, the questions are important ones, and answers should be
sought, although in sources other than the Supreme Court’s records.
State cases passing upon the validity of state legislation under state
constitutions offer a promising, although not fully complete source.
They suggest that by 1820 the doctrine of judicial review had attained
general acceptance. By then eleven of the original thirteen states were
publishing reports of their cases, and the courts of ten of them had either
invalidated acts of their legislatures or unequivocally asserted their right
to do so. 23 Moreover, all five of the states admitted to the Union between 1790 and 1815 had accepted judicial review by 1820,24 while the
four states admitted between 1815 and 1819 all accepted the doctrine
in cases published in the first two volumes of their reports.2 5 By 1820,
in short, the principle of judicial review was “well established by the
great mass of opinion, at the bar, on the bench and in the legislative
assemblies of the United States.” 26
As they accepted the doctrine, judges and lawyers also articulated
a rationale for it-a rationale that was continually reiterated in opinions
in judicial review cases. The premise of the rationale was a novel
American conception of sovereignty that had developed during the
Revolutionary Era’s debates. Americans rejected the traditional British
view that the legislature possessed complete sovereignty and argued
instead that sovereignty lay with the people,27 who by a constitution
delegated limited power to the legislature.2 Legislators were mere
“servants of the people,” 29 and a constitution, “the commission from whence [they] . . . derive[d] their power.” ” It “follow[ed], that
any act in violation of the constitution, or infringing its provisions
must be void, because the legislature, when they step beyond the bounds
assigned them, act without authority, and their doings are no more than
the doings of any other private man.” 31 The judiciary, whose duty
was “to expound what the law is,” 32 simply “compared[d] the legislative
act with the constitution;” since the constitution clearly
“[could not] be adjudged void,” the courts had no choice but to declare
any “act which . . . [was] inconsistent with it . . . [to] be no
law.” ” For judges to do otherwise would be to violate their oaths 35
and to join with the legislature in violating the constitution.36 Thus,
judicial declarations of unconstitutionality were unavoidable and did
not “suppose a superiority of the judicial to the legislative power,” 37
but only “that the power of the people is superior to both.” 3s

The doctrine of judicial review, moreover, was not thought to
authorize courts to “determine upon the equity, necessity, or usefulness
of a law.” ” No one doubted that courts should ignore considerations
about the wisdom or expediency of a law when passing upon its validity;
to weigh them “would amount to an express interfering with the legislative
branch.” 40 On the contrary, everyone agreed that courts should decide constitutional cases on the basis of “fixed principles . . .stamped
with the seals of truth and authority.” “‘ Their agreement was merely
a corollary of an established tenet of late eighteenth-century jurisprudence
that judges ought not to “pronounce a new law, but to maintain
and expound the old one,” 42 and, although that tenet was slowly
breaking down in the early nineteenth century,43 men remained convinced
until the 182 0’s that judges could draw a line between “legal
discretion” and “political discretion,” ” between the exercise of “judgment”
and the “exercise [of] will,” 45 and between “declaring what the
law is, and . . .making a new law.” 46 Judicial review, as it developed
after the 1780’s, was thought, in sum, only to give the people-a single,
cohesive and indivisible body politic-protection against faithless legislators
who betrayed the trust placed in them, and not to give judges
authority to make law by resolving disputes between interest groups
into which the people and their legislative representatives were divided.
This conception of judicial review had not matured in the 1780’s,
perhaps because it was inconsistent with a reality in which the courts
in several cases took sides upon important social issues of the day that
divided men into opposing political factions. One issue underlying
state-wide political divisions of the 1780’s was whether to permit
former Tories to recover their property and their civil rights after the
War of Independence had ended.” Legislatures in the 1780’s adopted
numerous acts discriminating against the Tories, and in three cases
courts effectively invalidated three such acts; 48 in one of those cases,
at least, the court’s decision provoked a stormy legislative response.49
A second divisive issue arose out of the economic dislocation of the
post-war years, which had a particularly heavy impact upon debtor elements
of society. Throughout the 1780’s debtors sought and often
obtained legislative aid in the form of tax relief, stay laws, and the issuance
of paper money,”° and the most controversial of all the judicial review cases of the decade was Trevett v. Weeden,51 holding Rhode
Island’s issuance of paper money unconstitutional. Trevett provoked
the legislature into an attempt to impeach the judges, and although that
attempt did not succeed, the electorate accomplished the same result
when at the next election it declined to return all but one of the judges
to office.52

For several decades after 1790, however, state courts did succeed
in leaving to legislatures the resolution of social conflicts among politically
organized or identifiable interest groups. One reason is that
during those decades state courts were rarely called upon in constitutional
litigation to resolve such conflicts. Many judicial review cases,
for example, were of immediate concern only to the rather small number
of individuals directly involved; they decided no more than the constitutionality
either of private acts granting new trials in pending litigation
” or of such trivial or parochial matters as the right of a sheriff to
plead his recapture of an escaped debtor as a defense to a suit by a
creditor, 4 the power of the City of Philadelphia to enact a building
code,” and the liability of delinquent clerks to certain statutory penalties.5

6 Other cases, while arising out of poltically divisive circumstances,
could be disposed of on grounds that were not divisive. A
New Jersey case concerning the right of a United States senator simultaneously
to hold the office of county clerk” is a prime example: it
raised an issue concerning which of two political factions would control
an important local office, but the court was able to avoid that issue and
deduce its holding from widely accepted principles of republican government.
As a result, the case did not permanently favor one faction over
the other or involve the judiciary in the decision of fundamental social
issues underlying the factional split; it left the factions free to contest
those issues in the legislative and electoral forums. The same was true
of a series of cases in which state legislatures sought to take alleged
property rights from original owners and grant them to others.5 s The
most famous of the taking cases-the Dartmouth College case 59
— grew out of a political controversy that had aroused statewide attention,60
but that controversy involved mere questions of patronage and personality
unrelated to the legal issues on which the parties argued and the
courts disposed of the case. Since American society as yet was unaware
of the significance of the legal issues posed by the taking cases,
and no organized or identifiable groups or parties had yet formed to
urge decision of those issues in any particular way,61 the outcome of the
case seemed nonpolitical. In short, the issue decided in the taking cases
-the scope of state power to seize private property-was not yet a
politically divisive one, but one for which judges could find answers by
reference to broadly shared beliefs about the nature of republican
government.

Another large category of cases in which courts did not reconsider
legislative policy judgments involved judicial review of statutes altering
the composition,” jurisdiction,” or procedure ” of the courts. These
statutes had been passed after a campaign by radical reformers during
the three decades following the Revolution. The purpose of the campaign
was to substitute popular for professional control of the legal
system. Nevertheless, the statutes represented a rejection of the radical
demands and a conscious policy decision by legislatures not to change
the legal system fundamentally. 5 When their constitutionality was
later challenged in the courts, there was no opportunity for reconsideration
of this policy decision. All the courts could do was affirm it, for
their only options were either to invalidate the statutes and thereby
preserve the legal system without any change or to uphold them and
thereby acquiesce in the legislature’s policy of minor but not fundamental
change.
There were, of course, some cases after 1790 in which the courts
could have overturned legislation resolving divisive social conflicts between
competing political interest groups. But the key fact is that the
courts did not invalidate such legislation before 1830. The relation of
church and state, for example, was a prime cause of political division
in Massachusetts and Virginia in the decades near the turn of the century. In both states, legislatures after a decade of debate took steps
in the direction of disestablishment; 66 in both, the courts accepted legislative
policy judgments and upheld the constitutionality of the disestablishing
acts.”‘ Another social conflict that produced political divisions in many states arose from squatters placing improvements
upon land they were wrongfully occupying; 68 when the Tennessee
legislature adopted an act giving squatters the right to recover the
value of their improvements if the true owners sued successfully to
recover the land, the Tennessee courts again accepted the legislature’s
resolution of the conflict and upheld the act’s constitutionality. 9 State
courts also upheld other potentially sensitive legislation, such as a
Georgia act postponing debt collection suits ” and a Pennsylvania act
for regulation of the militia.” And, on the federal level, where the
government’s conduct of foreign relations had provided the chief impetus
to the creation of party division, the courts again sustained a
significant legislative decision-the Embargo Act of 1807.72

Thus, as one surveys the cases between 1790 and 1820 involving
claims that state statutes violated state constitutions or that federal
statutes violated the Federal Constitution, a persistent pattern emerges.
The pattern discloses that courts by 1820 had begun to hold legislation
unconstitutional with some frequency, but that their working understanding
of the scope of their constitutional activity was sufficiently
different from ours that, although we term their activity judicial review,
we must not lose sight of the difference. Early nineteenthcentury
courts, unlike our own, still sought to leave, and in fact succeeded
in leaving to legislatures the resolution of conflicts between
organized social interest groups. Once a legislature had resolved a
conflict in a manner having widespread public support, judges would
in practice view the resolution as that of the people at large, even
though one or more organized interest groups continued to oppose it,
and would give it conclusive effect, at least as long as a finding of
inconsistency with the constitution was not plain and unavoidable.

Judges of 1820, that is, unlike judges of today,73 did not see judicial
review as a mechanism for protecting minority rights against majoritarian
infringement. Early judicial review rested upon a perception
of political reality that differed sharply from current perceptions.
Judges of the early nineteenth century viewed “the people” as a
politically homogeneous and cohesive body possessing common political
goals and aspirations, not as a congeries of factions and interest groups,
each having its own set of goals and aspirations.7

‘ The concern of
judges in early constitutional cases was with the potentiality of conflict
between legislators and their constituents-with the possibility that
faithless legislators might betray the trust placed in them by the people.
The perceived purpose of judicial review was to protect the people
from such possible betrayals, not to interpose obstacles in the path
of decisions made by the people’s agents in due execution of their trust.
Beginning in the 1820’s, however, changes in the types of legislation
invalidated by the courts and changes in men’s conceptions of
law and politics began to transform the nature of judicial review and
to undermine its theoretical basis. Of course, courts continued to invalidate
legislation having little political significance and arousing little
political controversy.” They also continued to proclaim the traditional
arguments for judicial review developed near the turn of the century.7

However, important changes began simultaneously to occur.
One change began around 1830, when courts again started to
strike down legislative acts resolving social conflicts between politically
organized groups. One case concerned the propriety of government
aid to banks. Whether such aid was proper was a most divisive issue
in the 1830’s,7 but when the legislature of Tennessee granted aid to
the state bank in the form of special remedies in suits against its defaulting
debtors, the state’s highest court made no attempt to avoid
reconsidering the legislature’s policy judgment; it implicitly rejected
that judgment and invalidated the act. 78 Another divisive social issue
throughout the South around 1830 was whether to impose stricter legal
controls on Negroes, 9 but again, when one state legislature deprived
manumitted slaves of equitable remedies to secure their freedom, the
court ignored the legislature’s resolution of the policy conflict and held
the statute unconstitutional.8

” Finally, the scope of the eminent domain
power for the first time around 1830 became an issue productive of
political division,8 ‘ but judges nonetheless continued to declare some
legislative takings invalid.8

The trend toward judicial reevaluation of legislative policy determinations
grew during the 1840’s and 1850’s. Three major issues on
which organized political groups took stands and which sometimes influenced
the outcome of elections during those decades concerned the
authority of the states to prohibit the sale, ownership, or consumption
of alcoholic beverages; 8 the wisdom of granting state or municipal aid
to railroads or other public works and appropriating tax money therefor;
” and the propriety of giving increased legal protection to property
rights of married women. On all three subjects, courts invalidated
legislation in a number of cases.88 The relationship of banks and state governments also remained a divisive issue,s8 and one upon which one
state court ignored a legislative policy judgment and held unconstitutional
a statute permitting incorporation of banks without legislative
approval of individual charters.”8 In yet another case, a court entered
the political thicket when it held invalid a pardon to Thomas Dorr, a
leader of a divisive 1842 rebellion that temporarily overthrew the
government of Rhode Island.”9
In all such cases, the courts could readily see “that . . . results of
vast moment h[u]ng on . . . [their] decision . . .. ” ” Even when
they were passing upon the validity of private acts or of other legislation
affecting only a small number of individuals, courts after 1820 were
more aware of the public interest in and general significance of their
decisions. Thus, the Supreme Court of Vermont noted “the interest
which seem[ed] to have been excited in the publick mind” over its
prospective invalidation of a private act releasing a debtor from imprisonment,91
while the Court of Appeals of Maryland recognized the
“grave and delicate character . . . [and the importance] as respects
the interests involved, and the results to the community” of a case challenging
the constitutionality of a legislative revocation of the state
university’s charter. 2 Similarly, the Virginia Court of Appeals observed
that a case involving the power of a private corporation to raise
subscriptions was “of great interest as regards the commonwealth and
individual stockholders . . . and on principle . . . [was] deeply interesting
to every citizen of the state.” 03 In short, courts after 1820 found
themselves in a situation similar to that in which courts of the 1780’s
had found themselves: they were being asked to render judgments that
would reopen socially divisive controversies that had tentatively been
settled in a legislative forum.
Meanwhile a second change-this one in legal theory-served to
underscore the political character of judicial review. By 1820 law was
no longer seen as a body of fixed and immutable principles, but as “essentially
variable, extending and contracting itself according to the
condition of the nation, accommodating its flexible character to the
manners, habits, and employments of the people”; ” law, men now
thought, “must necessarily vary with the varying tempers of ages and nations.” ” Moreover, men had come to see that the basis of law was “[g] eneral expediency, public policy” 96 and that when courts changed
or otherwise made law, they were often “governed . . . by ideas of
political expediency.” 97 In short, the courts realized by the 1820’s
that “[j]ustice is regulated by no certain or fixed standard, so that the
ablest and purest minds might sometimes differ with respect to it.” ”
They further came to see that constitutions were not fixed and certain,
that a “constitution . . . [often did] not define what . . . [was]
meant” by its various provisions, 9 and that the power of judicial review
therefore gave judges a “latitudinarian authority” 100 that was
“great and . . . undefined.” 101 They accordingly grew concerned
that decisions invalidating legislative acts would “not be . . . judgment[s]
on what was the pre-existing law of the case, but on what it
is after we shall have so amended and modified it so as to meet our
ideas of justice, policy and wise legislation, by a direct usurpation of
legislative powers.” 102

The changes in the types of cases coming to the courts and in the
conception of law thus combined to give judicial review a political cast.
But even with that cast, review of legislation might still have been justified
as insurance against the danger that legislators would betray their
trust and violate the constitution, had not a third change occurred.
That change was the increasingly democratic nature of the American
political system before and during the Age of Jackson.’ As the system
became more democratic, the prospect of legislative betrayal seemed
increasingly remote. In place of conflict and betrayal, courts began
after 1820 to assume that legislators were “in direct communication
with the people, and responsible to them.” 104 American courts had
always “conceded that all power is inherent in the people,” and the further
concession that the “voice” of the people was “heard through the
legislatures” 105 led to a conclusion that legislatures were “representatives
of the sovereign power” and were therefore possessed of “the right to exercise sovereign power,” 100 which courts, in turn, ought not
obstruct.

Taken together, these three changes shifted judicial review into a
new context. Courts could no longer conceive of review as the mere
comparison of a legislative act with a fixed constitutional provision-a
comparison involving neither exercise of political discretion nor opposition
to the will of the people. Judges now acknowledged that most
constitutional provisions were vague and pliable and that when they
construed them so as to invalidate legislative acts, they often did so in
order to further political, social, or economic doctrines which they endorsed
but which the people had rejected in the more democratic legislative
process. This new context obviously made judicial review more
difficult to justify, for it made plain the doctrine’s anti-democratic
tendencies. The new context compelled men either to propose abandonment
of the doctrine or to articulate other values justifying its antidemocratic
nature.

Judge Gibson of Pennsylvania advocated the former course in his
1825 dissenting opinion in Eakin v. Raub.’ Gibson recited all the
common arguments. He noted that “repugnance to the constitution is
not always self-evident” and that, since men “seldom . . . think exactly
alike,” “conflicts” in interpreting constitutional provisions would be
“inevitable.” If the judiciary once entered into considerations of unconstitutionality,
he wondered “where shall it stop.” For Gibson there
were no clear lines, particularly since review of the constitutionality of
legislation required judges to make what he labelled “political” as distinguished
from “civil” or legal determinations. He further argued
that the legislature possessed “pre-eminence” in government; “the
power of the legislature,” according to Gibson, is “the power of the
people, and sovereign as far as it extends.” Gibson could simply see no
basis for courts to question political decisions made by the people; for
him, judicial review denied “a postulate in the theory of our government,
and the very basis of the superstructure, that the people are wise,
virtuous, and competent to manage their own affairs.” 108
Ultimately, though, in the 1840’s and 1850’s, Gibson’s views were
rejected, and judges in their opinions began to articulate new justifications
for judicial review. One justification was the weight of precedent:
by 1860 courts had held legislation unconstitutional in over one
hundred fifty cases. As one state judge observed in 1861, “[t]he right, and the duty of this Court, to give judgment on the constitutional
power of the Legislature in making statutes, . . . [has been] established
by so many elaborated opinions of this Court, and of the Supreme Court of the United States, and of our sister States, as to make a further
discussion or citation of authorities a useless attempt at a display
of learning.” 109 Courts would “not stop, at [that] late day, to inquire”
into “their duty to declare Acts of the Legislature, repugnant to the
Constitution, void,” for while “[t]hese grave questions once elicited
much discussion,” 110 the matter now seemed settled; “[t]he right of
courts to declare legislative enactments, in derogation of the constitution,
void . . . [had] been too long and steadily exercised in this
country to be now doubted or questioned.” “‘ Indeed, even judge
Gibson felt compelled by 1845 to recant his former views, in part because
of the weight of authority favoring judicial review and the apparent
acquiescence of the people therein.Y1 2
Gibson also came to favor judicial review “from experience of the
necessity of the case.” 11 “Experience [had] prove[d]” to Gibson
that the constitution was “thoughtlessly but habitually violated.” 14
Other judges agreed that “[g]reat wrongs may undoubtedly be perpetrated
by legislative bodies,” 115 which “from mistaken views of
policy” often passed legislation “greatly injurious to the best interests
of the State, or . . . oppressive in its operation on one class of citizens.”
116 One New York judge, for example, thought “excessive
legislation . . . [to be] the great legal curse of the age . . . drawing
every thing within its grasp,” “‘i while California and Indiana judges
found their “statute book[s] . . . replete with crude and unconstitutional
legislation” 118 and other “very odious enactment[s].” 119
The difficulty with legislatures was that they were too close to the
people. It was wrong to think that “no harm . . . [could] result
from allowing the people to exercise . . . the law-making power,” 120
for it was “easy to imagine” how “[i]nterest or passion, or perhaps
other dubious influences, often mould[ed] legislation.” 121 When the
people, for instance, were “smarting under losses from depreciated bank
paper, a feeling might be aroused . . . [to] return a majority to the legislature which would declare all banks a nuisance, [and] confiscate
their paper and the buildings from which it issued.” 122 The people, in
short, often yielded to “hasty and ill-advised zeal” to “unthinking
clamor or partisan importunity,” 123 or to erroneous “theories of public
good or public necessity . . .so plausible . . .as to command popular
majorities.” 124
It was appropriate, of course, for legislatures to yield to popular
majorities; as Madison wrote in 1833, near the end of his life, “the
vital principle of republican government is the lex najoris partis, the
will of the majority.” 125 By the mid-nineteenth century it was axiomatic
that the function of politics was “to secure to the majority of the
people that control and influence in every section of the state to which
they are justly entitled.” 128 Yet political majoritarianism raised difficulties.
Courts well knew that legislatures concerned only with the
interests of the majority would willingly sanction “the sacrifice of individual
right” since individual rights were “too remotely connected
with the objects and contests of the masses to attract their attention.” 127
Minorities, that is, could not protect themselves in the legislative
process. As one judge explained: 128
[W]hen, in the exercise of proper legislative powers, general
laws are enacted, which bear or may bear on the whole
community, if they are unjust and against the spirit of the
constitution, the whole community will be interested to procure
their repeal by a voice potential. And that is the great
security for just and fair legislation.

But when individuals are selected from the mass, and
laws are enacted affecting their property, without summons
or notice, at the instigation of an interested party, who is to
stand up for them, thus isolated from the mass, in injury and
injustice, or where are they to seek relief from such acts of
despotic power?.

The judge answered his question by granting to minorities a “refuge
. . in the courts, the only secure place for determining conflicting
rights by due course of law,” 129 without which refuge minorities would “stand in no better attitude, irrespective of the fundamental principles
and maxims of free government, than that of the most abject slaves to
the majority.” 130 Indeed, courts feared that, “if the rights of minorities
. . .[were] not observed, it . . . [would] not be long before the
majorities . . . [themselves would] be in bondage.” 131
By the 1850’s, the courts had articulated a new theoretical justification
for judicial enforcement of constitutional safeguards. Judges
viewed themselves as exercising their “conservative power” 132 in order
to protect the “vital principles” of “free republican governments.” 133
They believed judicial review was necessary to place “the broad shield
of the law over an innocent man . . . entitled to its protection,” 134
“‘To THE END IT MAY BE A GOVERNMENT OF LAWS AND NOT OF
MEN.’ “1. Indeed, judicial review was needed to protect “that
great idea” on which the nation had been founded-the idea of
“liberty regulated by law.” (Bradley v. Baxter, 15 Barb. 122, 126, N.Y. Sup. Ct. 1853). Most important, judicial review was
needed “to secure to weak and unpopular minorities and individuals,
equal rights with the majority,” 137 “to prevent majorities in times of
high political excitement from passing partial laws,” in Jones’ Heirs v. Perry (18 Tenn. 59, 71,1836), and to protect “minorities against the caprices, recklessness, or prejudices of majorities.”
19 Or, as one Viriginia judge had summarized the theory as
early as 1837 in Goddin v. Crump (35 Va. (8 Leigh) 120, 151, 1837).

It must be admitted that at the institution of civil government
founded on the rights of all, the will of the majority must prevail
over the opinions and interests of the minority: but when
such government is established, its great object is to protect
the rights of the minority from the tyranny of the majority; a
tyranny more inflexible and implacable than the tyranny of a
single despot. . . . To effect this relief against the tyranny
of majorities, written constitutions were devised by the
American people.

By the middle of the nineteenth century, in short, judicial review
had become reestablished in the state courts on a new basis-the basis on which it would function in Dred Scott,141 in the Legal Tender Cases,
and in numerous twentieth century cases. It had become a means for
interest groups lacking control of the legislative process to obtain reconsideration
of the legislature’s decisions and overturn the legislature’s
political judgments. It had become a vehicle through which judges
could impose their own views of proper economic and social policy on
the nation at large and keep the nation loyal to what they thought were
the fundamental precepts of American life. Contrary to its original
conception, judicial review had become a mechanism for the courts “to
protect the people against themselves.” (Beebe v. State, 6 Ind. 501, 527 (1855). The court in Beebe was in fact
concerned lest such a result should occur).