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Iredell Reclaimed: Farewell to Snowiss's History of Judicial Review

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Iredell Reclaimed: Farewell to Snowiss's History of Judicial Review Chicago-Kent Law Review Volume 81 Issue 3 A Symposium on The People Themselves: Popular Constitutionalism and Article 5 Judicial Review June 2006 Iredell Reclaimed: Farewell to Snowiss's History of Judicial Review Gerald Leonard Follow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreview Part of the Law Commons Recommended Citation Gerald Leonard, Iredell Reclaimed: Farewell to Snowiss's History of Judicial Review, 81 Chi.-Kent L. Rev. 867 (2006). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol81/iss3/5 This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected], [email protected]. IREDELL RECLAIMED: FAREWELL TO SNOWISS'S HISTORY OF JUDICIAL REVIEW GERALD LEONARD* An unfortunate distortion has crept into the recent historiography of judicial review. This distortion is not the doing of Larry Kramer, the honoree of this symposium, but his accomplished history of the origins of judicial review does its little bit to perpetuate it. I refer to the idea that the early theorists of judicial review saw that practice as distinctively "political-legal"' or a "substitute for revolution,' 2 rather than a straightforwardly legal or purely judicial practice. The modem source of this idea is Sylvia Snowiss's influential book, Judicial Review and the Law of the Constitution.3 Snowiss argues that virtually no one thought of the Constitution as a source of judicially expoundable law until well into the nineteenth century, after some decades of John Marshall's working his magic on the United States Supreme Court. The political scientist Dean Alfange methodically exposed many of Snowiss's misreadings of evidence and corrected her major claims shortly after the book's publication, 4 but that review has had surprisingly little effect. Scholars have continued to echo Snowiss's argument right through to the present and even, as in Kramer's case, when their own arguments need not rely on any of Snowiss's claims. 5 I will not recapitulate Alfange's * Professor, Boston University School of Law. Ph.D., 1992; J.D., 1995, University of Michigan. My thanks to Mary Bilder for comments on this essay, to all the symposium participants for intellectual stimulation, and especially to Dan Hamilton for a uniformly great event. 1. LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW 63 (2004). 2. SYLVIA SNOWISS, JUDICIAL REVIEW AND THE LAW OF THE CONSTITUTION 50 (1990). 3. Id. 4. Dean Alfange, Jr., Marbury v. Madison and Original Understandingsof Judicial Review: In Defense of Traditional Wisdom, 1993 SUP. CT. REV. 329, 333-49 (1993). 5. In addition to Kramer, see, e.g., Evan H. Caminker, Thayerian Deference to Congress and Supreme Court Supermajority Rule: Lessons from the Past, 78 IND. L.J. 73, 80-81 (2003); William R. Casto, James Iredell and the American Origins of Judicial Review, 27 CONN. L. REV. 329 (1995); Matthew P. Harrington, JudicialReview Before John Marshall, 72 GEO. WASH. L. REV. 51, 88 (2003); Samuel R. Olken, The Ironies of Marbury v. Madison and John Marshall'sJudicial Statesmanship, 37 J. MARSHALL L. REV. 391, 405 (2004); 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 (1999). Harrington's momentary echoing of Snowiss is especially perplexing because he otherwise offers a sensible reading of Iredell not so different from my own. CHICAGO-KENT LA W REVIEW [Vol 81:867 article here, but I do want to correct a part of Snowiss's book that Alfange ignored and that Kramer implicitly endorses: Snowiss's treatment of James Iredell of North Carolina, the man widely regarded as the most compelling early theorist of judicial review. This essay is meant to reclaim what I think is the proper and simple meaning of Iredell's work from Snowiss's needless complications. In the process, perhaps it can reinforce Alfange's more general effort to correct Snowiss's distortion of the early history of judicial review. I will take the first few pages below to criticize Kramer just a bit but mostly to critique Snowiss's book. Then I will spend the balance of the essay explicating Iredell's famous 1786 essay "To the Public." My reading of Iredell will echo some traditional views of his work, clearing away what I think are Snowiss's distortions, and then I will add what I hope are some original insights into the meaning of his work. I. KRAMER AND SNOWISS Kramer rightly attributes to Iredell the "most thoughtful presentation of this new principle," the principle that courts might be relied on for "constitutional enforcement."'6 He then goes on to offer a characteristically sensible reading of Iredell's famous essay, "To the Public," in which he emphasizes Iredell's premise that the judiciary, the same as the legislature, acted as the people's constitutional agent and thus was required to implement only constitutional statutes. 7 So far, so good. But I lose Kramer when he says that judicial review was therefore understood by Iredell and his like as a substitute for revolution: "Judicial review, in other words, was not an act of ordinary legal interpretation. It was a political-perhaps we should say a 'political-legal'-act of resistance."'8 Of course, there is a grain of truth in this characterization, in the sense that all authorized acts of government are substitutes for revolution; if the sovereign people did not have their three branches exercising their delegated powers, they would be left to a sort of permanent state of revolution. But there is not much indication in Iredell's essay that he thought judicial review "political-legal" rather than just "legal"-a straightforward judicial exercise of the constitutional authority delegated to that branch.9 6. KRAMER, supra note 1, at 60. 7. Id. 60-63. 8. Id. at 63. 9. Kramer inserted into the argument a nice quotation from the early case of Trevett v. Weeden, which serves him comparatively well, at least better than Iredell's essay does, but that doesn't much affect my point. See id. at 63 (citing JAMES M. VARNUM, THE CASE, TREVETT AGAINST WEEDEN 26 (Providence, John Carter 1787)). 2006) IREDELL RECLAIMED Happily, not much in Kramer's argument actually rides on the suggestion that Iredell thought judicial review "political-legal." His more general history of the early, extrajudicial development of American constitutionalism stands strong, leaving this distortion of Iredell as a somewhat marginal mischaracterization. For Snowiss, however, on whom Kramer relies only for this section, the distortion of Iredell played an important and telling role. Snowiss sought to show that, before Marshall, judicial review was not thought a matter of applying law at all, at least not in any conventional sense. For her, Iredell's argument is neatly of a piece with what she calls "period 2" judicial review, characterized by the notion that the judiciary should never expound but only notice the Constitution, exercising review only as the first line of revolutionary resistance; judicial review was an act of political resistance-not legal interpretation-by men who just happened to be judges, compelled to come face to face with a legislative usurpation. 10 If they refused to apply a statute to a case on constitutional grounds, it was not because they had carefully expounded the law of the Constitution and found it to preclude implementation of the statute at issue. Rather, barred from expounding the Constitution at all, the judges could refuse to implement a statute only when the legislative act flouted the Constitution so flagrantly that its usurping character could be seen by all without the least need for constitutional interpretation." l This version of judicial review directly implied, for Snowiss, the "doubtful case rule," the rule that declared the judiciary's unwillingness to strike down a statute in any but the clearest cases of unconstitutionality. 12 This rule was frequently endorsed then (and more even today than is normally recognized' 3), but it was rarely, if ever, explained by the judges and often ignored. 14 For Snowiss, the rule was merely a corollary of the assumption that judicial review was political rather than legal. If judges could not construe or expound the Constitution (a legal activity), but could refuse to implement statutes only when necessary as an act of political resistance, then such an act--open resistance to constituted authority- 10. See, e.g., SNOWISS, supra note 2, at 73-74. 11. Id. at 45-89. 12. Id. at 63-65. 13. See Caminker, supra note 5, at 85-86. 14. For examples, see the line of Pennsylvania cases endorsing the rule with little explanation: Moore v. Houston, 3 Serg. & Rawle 169, 178 (Pa. 1817); Commonwealth ex rel. O'Hara v. Smith, 4 Binn. 117, 126 (Pa. 1811); Emerick v. Harris, 1 Binn. 416, 423 (Pa. 1808); Respublica v. Duquet, 2 Yeates 493, 498 (Pa. 1799). CHICA GO-KENT LAW REVIEW [Vol 81:867 could only be justified in such clear cases of usurpation as would justify any faithful citizen's resistance. 15 Snowiss's argument is clever, but there is an alternative and much simpler version of the early history. It is that judicial review rapidly gained adherents by force of the legal logic of the Revolution, not by the positing of some extra-legal, quasi-revolutionary role for the judges. As the fundamental transition from legislative to popular sovereignty began to be understood, 16 the legal logic of judicial review became quite powerful, although never, of course, unanswerable.
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