TREANOR JUDICIAL REVIEW BEFORE MARBURY 58 STAN. L. REV. 455 12/1/2005 10:39:15 AM JUDICIAL REVIEW BEFORE MARBURY William Michael Treanor* While scholars have long probed the original understanding of judicial review and the early judicial review case law, this Article presents a study of the judicial review case law in the United States before Marbury v. Madison that is dramatically more complete than prior work and that challenges previous scholarship on the original understanding of judicial review on the two most critical dimensions: how well judicial review was established at the time of the Founding and when it was exercised. Where prior work argues that judicial review was rarely exercised before Marbury (or that it was created in Marbury), this Article shows that it was far more common than previously recognized: there are more than six times as many cases from the early Republic as the leading historical account found. This Article further shows that all the cases in which statutes were invalidated fell into one of three categories: courts invalidated statutes affecting the powers of courts or juries, even when the legislation could plausibly be squared with constitutional text and prior practice; state courts * Dean, Fordham Law School; B.A., J.D., Yale University; A.M., Harvard University. Earlier versions of this Article were presented over a period of more than a decade at workshops at the law schools of Fordham, Georgetown, Hofstra, Northwestern, N.Y.U., the University of Virginia, and William and Mary, at conferences sponsored by the American Society of Legal History and the Law and Society Association, and at a meeting of Washington, D.C.-area legal historians organized by Mel Urofsky and Maeva Marcus. I thank all those who participated in these events for their helpful comments. I am especially grateful to Richard Bernstein, Martin Flaherty, Jim Fleming, Barry Friedman, Mark Graber, Abner Greene, Tracy Higgins, Morton Horwitz, Vicki Jackson, Bob Kaczorowski, Charles McCurdy, Tom Lee, Bill Nelson, Jack Rakove, John Reid, Harvey Rishikof, Steve Thel, Mark Tushnet, Ted White, Ben Zipursky, and the late Kathryn Preyer. Maeva Marcus and Bob Frankel provided invaluable comments drawing from their work on The Documentary History of the Supreme Court. I would also like to express my gratitude for the very thoughtful comments of Dean Larry Kramer. While he and I disagree about many questions concerning early judicial review, this Article has been greatly sharpened by my discussions with him. I wish to acknowledge the staff of the Fordham Law School library, particularly Laurence Abraham, for expert research help. My assistants, Marilyn Force and Mary Hannigan, provided secretarial assistance with great efficiency and enthusiasm. I am also grateful for Fordham’s extraordinarily supportive and vibrant academic environment. This Article has been immeasurably strengthened by the countless conversations I have had with my colleagues over the years concerning this work. Liam and Katherine Treanor, now ten and eight, did not make many substantive suggestions, but they have made the past few years particularly enjoyable and always enjoy seeing their names in star footnotes. My greatest debt is to my wife, Allison Treanor, for providing the encouragement and support that made this Article possible. 455 TREANOR JUDICIAL REVIEW BEFORE MARBURY 58 STAN. L. REV. 455 12/1/2005 10:39:15 AM 456 STANFORD LAW REVIEW [Vol. 58:455 invalidated state statutes for inconsistency with the Federal Constitution; and federal courts invalidated state statutes—again, even when they could plausibly be defended as constitutional. Scholars have missed this structural pattern, and the dominant view has been that only clearly unconstitutional statutes were invalidated. This Article shows, instead, that the early case law reflects a structural approach to judicial review in which the level of scrutiny was closely linked to the nature of the challenged statute, and that courts aggressively protected their power, the power of juries, and the power of the national government. INTRODUCTION................................................................................................ 456 I. BACKGROUND.............................................................................................. 460 II. REVOLUTIONARY-ERA CASE LAW ............................................................. 473 A. Jury Trial Cases.................................................................................. 474 B. Rutgers v. Waddington........................................................................ 480 C. Symsbury Case.................................................................................... 487 D. Case of the Prisoners........................................................................... 489 E. Conclusion: Different Interpretive Approaches for Different Statutes.............................................................................................. 496 III. STATE COURTS IN THE EARLY REPUBLIC.................................................. 497 A. Challenges Not Implicating Judicial Powers or the Right to a Jury Trial................................................................................................... 498 B. Right to a Jury Trial............................................................................ 503 C. Statutes Affecting Courts..................................................................... 508 D. Conclusion: Significance of Type of Statute ....................................... 517 IV. CIRCUIT COURT DECISIONS ...................................................................... 517 A. Review of State Statutes in Circuit Courts .......................................... 518 B. Review of Congressional Statutes Affecting the Judicial Role: Hayburn’s Case and United States v. Ravara.................................... 533 C. Conclusion: Neglected Evidence of Judicial Review .......................... 540 V. SUPREME COURT CASE LAW...................................................................... 541 A. National Government Powers............................................................. 541 B. Judicial Role........................................................................................ 546 C. Review of State Statutes: Ware v. Hylton............................................ 549 VI. IMPLICATIONS OF THE CASE LAW ............................................................. 554 A. Marbury: Building on a Firmly Established Foundation.................... 554 B. Understanding the Scope of Judicial Review ...................................... 557 CONCLUSION................................................................................................... 560 INTRODUCTION One of the most significant questions for originalists—perhaps the most significant question—is: What was the original understanding of judicial review? Scholars and jurists have sharply disagreed on the answer. Opinions range from the claim that judicial review was not part of the original TREANOR JUDICIAL REVIEW BEFORE MARBURY 58 STAN. L. REV. 455 12/1/2005 10:39:15 AM November 2005] JUDICIAL REVIEW BEFORE MARBURY 457 understanding at all1 to the contention that the original conception of judicial review was so expansive that courts had the power to invalidate statutes on broad natural law grounds.2 The Supreme Court has claimed originalist sanction for the view that it is “the ultimate expositor of the constitutional text,”3 and in the past decade has struck down a string of congressional statutes on originalist grounds.4 The dominant scholarly view—presented most compellingly by Larry Kramer in his Foreword to the Harvard Law Review’s analysis of the Supreme Court’s 2000 Term5 and his recent book, The People Themselves6—is dramatically at odds with this approach and holds that, while judicial review was part of the original understanding, it was rarely exercised, and only clearly unconstitutional statutes were struck down. This Article presents the most complete historical account of the richest source of evidence on the original understanding: the case law before Marbury.7 It specifically focuses on the cases in which at least one judge found a statute unconstitutional.8 Far more than any previous work, this Article, rather than accepting at face value judicial assertions that only clearly unconstitutional statutes or statutes violative of natural law were being invalidated, carefully probes judicial reasoning and its application to statutory and constitutional text. This historical analysis leads to a view of judicial review in the founding era that is sharply different from all the varying schools of thought, both with respect to the frequency of judicial review and with respect to when it was exercised, and thus this Article supports a reconceptualization of the original understanding. This Article shows, first, that judicial review was dramatically better established in the years before Marbury than previously recognized. While there has been a range of opinions about early judicial review, none of the modern commentators has grasped how common it was for courts to invalidate statutes. The most influential modern account asserts that there were five such decisions in state and federal courts in the critical period between the Constitution and Marbury.9 In contrast, this Article discusses thirty-one cases 1. See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 1 (1962). 2. See Suzanna Sherry,