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South Carolina Law Review Volume 57 Issue 1 Article 3 Fall 2005 Historicizing Judicial Scrutiny G. Edward White University of Virginia School of Law Follow this and additional works at: https://scholarcommons.sc.edu/sclr Part of the Law Commons Recommended Citation White, G. Edward (2005) "Historicizing Judicial Scrutiny," South Carolina Law Review: Vol. 57 : Iss. 1 , Article 3. Available at: https://scholarcommons.sc.edu/sclr/vol57/iss1/3 This Article is brought to you by the Law Reviews and Journals at Scholar Commons. It has been accepted for inclusion in South Carolina Law Review by an authorized editor of Scholar Commons. For more information, please contact [email protected]. White: Historicizing Judicial Scrutiny HISTORICIZING JUDICIAL SCRUTINY G. EDWARD WHITE* I. INTRODUCTION .............................................. 2 II. REPUBLICAN CONSTITUTIONAL THEORY AND JUDICIAL REVIEW: THE TRADITIONAL REGIME ...................................... 7 A. Republican ConstitutionalThought and the Principleof DepartmentalDiscretion ................................... 7 1. The Role of Judges in American Constitutional Republicanism ........................................ 8 2. DepartmentalDiscretion Cases, 1819-1855 ................ 16 a. McCulloch v. M aryland ............................ 16 b. Foster v. Neilson .................................. 21 c. Luther v. Borden .............................. 27 d. Murray's Lessee v. Hoboken Land & Improvement Co ... 31 B. The DepartmentalDiscretion Principle and JudicialReview of Police Powers Legislation ................................. 35 1. The Impact of the Reconstruction Amendments ............. 35 2. Municipal Bond Cases ................................. 39 3. Rate Regulation Cases ................................. 40 4. The Emergence of JudicialBoundary Tracing .............. 44 5. James Bradley Thayer and the "ClearMistake" Rule: The DepartmentalDiscretion Principleand DeferentialJudicial Scrutiny ............................................ 46 C. The End of the TraditionalRegime .......................... 50 III. MODERN DEMOCRATIC CONSTITUTIONAL THEORY AND THE COLLAPSE OF DOCTRINAL FORMULAS IN CONSTITUTIONAL INTERPRETATION ............................................. 53 A. The Emergence of Democratic ConstitutionalTheory ............ 53 1. Modernity, Republican ConstitutionalTheory, and CausalAgency ................................... 54 2. Toward Democratic ConstitutionalTheory ................. 54 3. Democratic Theory and ConstitutionalAdaptivity ........... 55 4. Democratic Theory and DoctrinalFormulas I: "Liberty of Contract". ................................ 57 5. Democratic Theory and DoctrinalFormulas II: "Liberties of the Mind".... ............................ 60 * David and Mary Harrison Distinguished Professor of Law, University of Virginia School of Law. B.A., Amherst College; M.A., Ph.D., Yale University; J.D., Harvard Law School. My thanks to Bethany Bryant for research assistance, and to my colleagues at the University of Virginia School of Law for their comments on an earlier draft, which was delivered at a faculty workshop in February 2005. Particular thanks to Curtis Bradley, Norm Harrison, Caleb Nelson, and Ann Woolhandler. Published by Scholar Commons, 2005 1 South Carolina Law Review, Vol. 57, Iss. 1 [2005], Art. 3 SOUTH CAROLINA LAW REVIEW [Vol. 57: 1 B. Democratic Theory and the Collapse of DoctrinalFormulas ...... 63 1. Comm entary ........................................ 63 2. The Abandonment of DoctrinalFormulas .................. 65 IV. THE ORIGINS OF SCRUTINY LEVELS JURISPRUDENCE ................ 65 A. IncorporatedRights Cases ................................. 65 B. Police Power Cases ...................................... 68 C. Cases Involving Executive Discretion in Foreign Relations ....... 76 V. CONCLUSION: THE EMERGENCE OF SCRUTINY LEVELS JURISPRUDENCE ............................................... 80 I. INTRODUCTION The practice ofjudicial scrutiny of legislation and executive action challenged on constitutional or other legal grounds has long been understood to be a necessary corollary of the principle of judicial review.' But judicial scrutiny stands in a curious position in contemporary constitutional scholarship. On the one hand, anyone who teaches or writes about constitutional law recognizes that, at least since the 1930s, the decision by a majority of Supreme Court justices to apply a particular level of scrutiny to constitutionally challenged actions of the other branches is an essential first step in the Court's analysis of the constitutionality of that action, and often the crucial factor driving the analysis. Moreover, constitutional law specialists recognize that the scrutiny level decision, once made, brings a set of doctrinal baggage with it. Levels of scrutiny come with their own doctrinal tests for evaluating legislation; those tests come with their own refinements. The scrutiny level decision, in sum, spawns a complex web of formulas and judicial guidelines for the levels' application that takes up a lot of the doctrinal space in modem constitutional law. It seems not much of an overstatement to say that the Supreme Court's constitutional jurisprudence for the last sixty-odd years has been consistently preoccupied with what level of judicial scrutiny to afford constitutionally challenged actions by other branches of government.2 Nonetheless, there has been very little discussion among commentators-and most of that attenuated-about how or why the Court's scrutiny levels jurisprudence emerged. There has been ample discussion of the particular scrutiny level choices Court majorities have made and some effort to instruct the Court about the 1. At least after Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), Martin v. Hunter'sLessee, 14 U.S. (1 Wheat.) 304 (1816), and Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821). For more detail, see DAVIDP. CURRIE, THECONSTITUTION INTHESUPREME COURT: THEFIRSTHUNDREDYEARS 1789-1888, at 67-74, 91-102 (1985); G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE, 1815-1835, at 495-524 (abr. ed., Oxford Univ. Press 1991) (1988). 2. This preoccupation may be underrecognized because Court opinions often do not openly acknowledge the scrutiny levels decision but instead merely employ a particular doctrinal framework associated with the level. But opinions in which the scrutiny levels decision is contested (which have consistently surfaced) reveal that the scrutiny level decision drives the Court's doctrinal framework. See, for example, the debate among the justices in Frontiero v. Richardson, 411 U.S. 677 (1973), and Craig v. Boren, 429 U.S. 190 (1976), as to the appropriate level of scrutiny to be afforded in gender discrimination cases. https://scholarcommons.sc.edu/sclr/vol57/iss1/3 2 White: Historicizing Judicial Scrutiny 2005] HISTORICIZING JUDICIAL SCRUTINY appropriate level of scrutiny to apply to a given line of cases There has been widespread recognition that the Court's scrutiny levels have changed over time, both in their formulation and in their application.4 There has been abundant criticism of the coherence of the levels, especially as the Court has applied them to cases. Recently, several commentators suggested that the Court's established scrutiny levels typology, which features at least three and possibly as many as six levels of scrutiny, is on the verge of degeneration! But there have been few efforts to analyze the scrutiny levels practice as a historical phenomenon.6 This seems all the more striking because for a time span of 150 years, in which the Court rendered numerous decisions reviewing the acts of legislatures on constitutional grounds, it made a quite different set of scrutiny level choices from the sets it has employed since the 1930s. During the period from Marbury v. Madison7 to United States v. Carolene Products, Co.,' the Court essentially subjected all challenged decisions of other branches to the same standard of review, but at the same time it often lingered over the question of whether it could constitutionally review a decision by the Executive or Legislature at all. Although the Court's posture of review during that time period can fairly be described as heightened, that description would be misleading because no other levels of scrutiny existed.9 Further, the Court did not employ any of the 3. Gerald Gunther's article, The Supreme Court, 1971 Term-Forward: In Search of Evolving Doctrine on a ChangingCourt: A Modelfor a Newer Equal Protection,86 HARV. L. REV. 1 (1972), is an influential example of scholarship that seeks to instruct the Court about relevant factors in a scrutiny levels decision. 4. See, e.g., JEFFREY M. SHAMAN, CONSTITUTIONAL INTERPRETATION: ILLUSION AND REALITY 74-102 (2001) [hereinafter SHAMAN, CONSTITUTIONAL INTERPRETATION] (discussing the Court's development and use of the multiple scrutiny levels); Jeffrey M. Shaman, Cracks in the Structure: The Coming Breakdown of the Levels of Scrutiny, 45 OHIO STATE L.J. 161, 162-63 (1984) [hereinafter Shaman, Cracks in the Structure] (discussing the changes in scrutiny levels jurisprudence from the Warren Court to the Burger Court and the creation of intermediate scrutiny). 5. See Shaman, Cracks in the Structure, supra note 4, at 172-77, 182-83; R. Randall Kelso, Filling Gaps in the Supreme Court's Approach to ConstitutionalReview of Legislation: Standards, Ends, and Burdens Reconsidered, 33 S. TEX. L. REV. 493, 514-16, 540-47 (1992); Calvin Massey, The New Formalism: Requiem For Tiered
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