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tional policies, in which the people have a role. La the process by which new constitutional law is made, It is distinguished from interpreting and enforcing existing constitutional law—tasks ultimately and »uthoritati%rc!y done tor us in courts and by judges. Gerald Leonard puts the point nicely in observing how we are inclined today "to see politics as working within a constitutional order rather rhan working out that constitutional order.^7
Tins modern understanding is, as we shall see, of surprisingly recent vintage. It reflects neither the original conception of constitutionalism nor its course over most of American history, Both in its origins and for most of our history, American constitutionalism assigned ordinary citizens a central and pivotal role in implementing rheir Constitution. Final interpretive authority rested with "the people themselves,'" and courts no less than elected representatives were subordinate to their judgments* It is the story of this practice of "popular constitutionalism" that emerges through our study of judicial review. Many, perhaps most, scholars today believe that "popular sovereignty" is and can be expressed only at rare moments, that "the people'* are otherwise either absent or present only as an abstraction, Such was the belief of neither our Founding Fathers nor of their children nor of their children's children, and in charting how they constructed an idea of judicial review we will also be charring their efforts to explain and preserve the active sovereignty of the people over the Constitution, And along the way, perhaps, we mav rind *ome reasons to reawaken our own seemingly deadened sensibilities in this respect.
1
In Substance, and in Principle^ the Same as It Was Heretofore
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* * *
The idea of a "constitution" was not new in 1787 or even in ijjh. Americans had a concept of constitutional law and well-developed ideas about the nature of a constitution long before they sat down to write any of their own. From a historian's perspective, this concept reached back at least as far as the struggles between James I and Parliament,1 though men of the seventeenth and eighteenth centuries liked to speak or'an "Ancient Constitution" whose practices had been followed since "time out of mind,1,2 Colonial Americans were wedded to the principles of this constitution, intimately familiar with its terms and convinced of its essential tightness and wisdom,3 The patterns of thought and action formed by this experience naturally shaped their understanding of the task of writing new constitutions after the Revolution and thus provide a necessary starting point in recovering the original Constitution.
"What, But immemorial Usage"
The word "constitutem' had several meanings in the seventeenth and eigh-rcenlh miturics, riot all of which correspond to modern understandings. According to one image, u "jaOHifilution* w;i* simply the arrangement ai
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existing laws and practices that, literally, constituted the government; it was neither anterior nor superior to government or ordinary law, making it possible to speak of a law being unconstitutional without it also being illegal.4 To just the opposite effect, another usage paired the constitution with ordinary law and constitutionality with legality. Writing in 1788, William Palcy described the constitution as nothing more than "one principal division, head, section, or ride of the code of publick laws."5 "The terms constitutional and unconstitutional* mean legal and illegal" he explained* for constitutional law is "founded in the same authority with the law of the land upon any other subject; and to be ascertained by the same inquiries."
Still a third usage, and the one most pertinent here because acted upon by American revotutionaric:*, equated the constitution with "fundamental law." Yet the phrase fundamental law itself was not always used consistently/ In some instances, fundamental law was used interchangeably with old and valued customs, customs that might or might not be capable of controlling the sovereign. In other instances, it described rules setting forth the procedures for exercising legislative power* such as the requirement that all three estates—King, Lords, and Commons—consent before a bill could become law. Most commonly, however, the term fundamental law was used as a synonym for what we still think of today as constitutional law: a body of immutable principles beyond the reach of any institution of government.
Compounding our confusion over the meaning of fundamental law was its (to modern eyes) muddled relationship with common law, the body of customary rules and principles that governed most or dinar}' legal affairs in a time before legislatures were active. Fundamental law drew upon and shared many of the abiding principles of the common law. Much fundamental law was, in fact, derived from common law—the right to trial by jury being an obvious and outstanding example. Yet not all common law constituted fundamental law* while much of what was recognized as fundamental law was nor derived from the common law. Despite substantial overlap, then, fundamental law formed a conceptually distinct body of principles and customs. Its precise boundaries vis-a-vis the common law may have been hazy, even to writers and speakers of the time, but boundaries nevertheless existed, and participants seemed capable of understanding one another and knowing when someone meant to invoke fundamental law in its strong sense.
More complex ihan the relationship of fundamental law to comutnu law was that of fundamental 1»W to natural law, Thar there was u Mluw ol nature" for, as some in the eighteenth lentuiv preferred to have it, 11 "law ol red son") wah taken lor giumrd, 11* wiu the inttural law* UUu^endfn<n nud nupiriority
to the positive law enacted by human institutions,7 Statements to this effect were virtual boilerplate in contemporary works of legal and political theory. Even Sir William Blackstone, the great positivist himself, began his Commentaries by recognizing a law of nature that "is of course superior in obligation to any other. It is binding all over the globe, in all countries, and at all limes: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original."" Yet the significance of natural laws preeminence was less clear in practice because human law somehow managed always to offer an acceptable solution.* As one sixteenth- century judge explained:
f W]e ought not to think that the founders of our laws were remiss in searching after the law of nature, or that they were ignorant of it. Nor have we any reason, from the laws which they have made, to conceive so low an opinion of them, for their laws argue to the contrary, and shew that they who made them were men of the greatest and most profound judgement, and acquainted as well with the law of nature as with the law of reason, and the law of God also. For there is nothing ordained In our law contrary to nature or reason or the law of God, bur our law is agreeable to them all."
Interpretive slippage of this sort was common when it came to fundamental law. For while fundamental and n antra I law may have beeti distinct, the generality and openness of their respective contents drained the distinction of its practical significance. Writers could (and did) presume that fundamental law conformed to the law of nature and so could (and did) draw interchangeably on both in making arguments. Fundamental law was, in part, an embodiment or expression of nature and reason in positive law. As one anonymous seventeenth-century pamphleteer put it, fundamental law was "a settling of the laws of nature and common equity (by common consent) in such a form of polity and government as that they may be administered among us with honour and safety.*11
The eighteenth-century constitutional law tradition truss bknded argn-ments from natural law with arguments from morality, from custom, and from common and statutory law in ways that blurred distinctions a modern lawyer nsMimes imisi be -li.uply articulated.1'' Nagging concern fm precision about hierarchic* and source* of law emerged later to become .1 luilJin.it k ol nineteenth- and twentieth icuiurv legal thinking. Lawyer* in the eighteenth century were wwnre of thete diminutions but in ci manner that wa* Meldorn
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formulated with exactitude because a sharing and concordance of principles made it unnecessary to emphasize purely conceptual differtneeb. So while the borders may have heen murky, still they existed, and a positive notion of fundamental law provided the hub around which constitutional argument was organized. Both before and after the Revolution, in short, American Whigs believed there existed a fundamental or constitutional law whose terms umark[cd] out and fix[ed] the chief lines and boundaries between the authority of rulers, and the liberties and privileges of the people,*13
What were the characteristics or properties of this law? First and foremost, k rested on consent the consent of the governed. The British constitution embodied a contract between the people and their rulers, whereby the people conferred certain powers, reserved certain privileges, and generally laid out the terms on which they agreed to be governed.1"1 This agreement was "the very essence of. . . Jurisdiction," for authority to govern could be derived only through a "Compact" whose commencement "carried with it... i he Consent of all Parties "l3 It was, necessarily, an agreement by implication, for no identifiable act marked the formal commencement of constitutional government. But this in no way diminished its popular basis, which rested • prescription, "However the historical fact may be of a social contract," explained Richard Wooddeson in 1792,
government ought to be, and is generally t-omufcred as founded on • MNseni, tacit or express, on a real, or quasi, compact. This theory is a r rimer nil basis of political rights; and as a theoretical point is not dif-ii' ull to Ik* maintained, For what gives any legislature a right to act, where no express consent can be shewn? what, bur immemorial usage? and whu» is the intrinsic force of immemorial usage, in establishing tins fundamental or anv other law, but that it is evidence of common acquiescent and conscnt?lh
Wooddeson's invocation of "immemorial usage"" is important for another n.i ...m. .ĺ r i runts to a second significant aspect of English constitutional Urn. Rather than being located in a single text or identified with a particular ■ mm orient, the content and authority of the British constitution derived hom principles long-enshrined in English legal culture and practice. We can, in other words, describe the body of fundamental law lhai m rhe eye» o| eighteenth-century Englishmen formed iheii tomiiiiirimi an n wtomary
. ■ -1 I  1 111 111. Ml
We should be careful in using the term "customary," for as we have already seen, sources of constitutional authority were not confined to custom. The convention of referring to England's constitution as "unwritten" is, in this sense, anachronistic, and it reflects a distinctly modern need to distinguish our own neatly written texts. Custom and practice were, of course, central sources of authority for fundamental law in the seventeenth and eighteenth centuries. But so, too, were a variety of written materials—including Magna Carta; the Bible; key statutes like the Declaration of Rights of i68n and Act of Settlement of 1701; prominent treatises, particularly those by Vat-tel, Pufendorf, and Grotius; and certain philosophical works, of which John Locke's were probably the most important,17
These textual sources were not themselves fundamental law, anv more than were the principles ot natural law regularly cited for support by disputants. The constitution consisted of immutable principles of English liberty that were derived from '"custom immemorial/ a bounded and very real canon whose roots were said to be lost in the distant Saxon past. Subsequent enactments, later developed practices, learned treatises, and arguments drawn from natural law were all useful in helping to illuminate, translate, and make sense of these ancient principles. Constitutional polemicists employed these diverse sources to articulate and apply the enduring precepts of fundamental law, often claiming implausible gothic roots for practices in a way that maddened both contemporary and subsequent historians.1" But, then, as John Reid lias convincingly demonstrated, the lawyers, politicians, and pamphleteers who invoked the principles of the British constitution were not doing history.3- They were employing a methodology that lawyers today typically associate with the common law: constructing arguments based on analogy, principle, and what Reid calls "forensic history" (which is to say law office history, which is to say not history' at all). Fundamental law was distinct from common law, inasmuch as its rules, its principles, and its sources were different, albeit with some overlap. Methodologically, however, the fundamental law and rhe common law were siblings. This is what we mean by calling the British constitution a form of customary law. It was, as Reid urges, not a fixed or identifiable program, but rather "a constitutional apparatus of forensic advocacy to propagate anew traditional forms of restraint upon the current sovereign.Put more simply, the customary' constitution was a framework for argument, in which historical accuracy was less important than analogical persuasiveness in maintaining over time an established balance between liberty and power despite new or lhanged ^ irniutsiiiiiceH.
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Like other forms of customary lawt the content of this constitution was uncertain and open-ended. IndeedT the requirements of fundamental law were considerably less clear even than those of rhe common law. which after the fifteenth century had become centralized in the royal courts, and thus rested less on societal custom and practice than on formal judicial precedent and the opinion oflegal professionals.-1 Mo similar development took place with respect to fundamental law, and courts had no special role in settling disputes over the meaning of the constitution^ Between its diverse sources, fluid nature, and the absence of any centralized forum for resolving conflict, fundamental law tended to be "whatever could be plausibly argued and forcibly maintained/" Yet this in no way reduced its status or significance. "Fundamental law contemplated unresolved controversy over contending legitimate interpretations* and uniikc ordinary law did not need authoritative resolution of this controversy in order to maintain its efficacy. In the absence of aiirhoritative determination of fundamental law's meaning, challenged governmental action stood, debate continued, and constitutional principles retained nil their vitality."34
It did not follow that nothing was fixed On the contrary, there- was consensus about a great deal of fundamental law. particularly in the eighteenth century, after its most controversial features (the scope of the Crown's prerogative ami rhe relationship between church and state) had been stabilized in ihc Glorious Revolution and its aftermath. These settled principles included both the existence of certain inalienable rights, such as the right to u jury or to petition the government* and matters of procedure and the eiuivuiC of executive or legislative power, such as the requirement that Parliament consent to legislation. Constitutional disputes might arise respecting iIil- precise meaning or application of these principles in particular contexts, Iiiit there was general agreement as to their existence and even as to their application in a fairly broad range of circumstances.
The British constitution was, again like other tortus of customary law, Miiiuhaiu'OLjsh immutable and evolving, unchanging yet always different- If this sounds paradoxical, think of Cokes timeless aphorism "out of the old Fields must spring and grow the new Com."25 Better still is Matthew Hale's famous analogy to the Argonauts: "As the Argonauts Ship was the same when it returned home, as it was when it went ourT rho' in that long Voyage m had successive Amendment*, and scarce came back with any of in former MatwlaU."3* Details, applications, even institution* might change, bur rhe fundamental Imw iMetl remained umntam arid retained it* etwntr.il substance u» 4 bubv.uk protecting liberty from power. Thi» capacity to impiovt without
changing was regularly singled out as one of the British constitutions cardinal virtues. Speaking at the end ot the eighteenth century, legal scholar John Reeves observed,'
That our Constitution is not precisely the same that it was in the Reign of Ja[mes] ITI am the last man to deny; because it is one of the strongest persuasions \ have, about its excellence, thar it is capable of, and is continually receiving, improvements, either by the accession of new benefits, or by the attainment of new securities to protect original rights. Many of these have accrued since the rime of James I. There was the Petition of Righr, which rather secured old Rights than gave new ones; the abolition of the srar Chamber was a new benefit; the Habeas Corpus Act was a new benefit, the Bill of Rights was rather a new security to old Rights. *., All these, without enumeraring others, were improvements in the Constitution, and nothing can be clearer, than rliat the Constitution is not now, in all its circumstances, though it is in substance, and in principle, the same as it was heretofore.17
Change in the customary constitution occurred chiefly through two mechanisms, corresponding to the two principles on which its authority rested, consent and prescription. Consistent with Whig theories of the contractual basis of fundamental law, the constitution could be altered by clear, convulsive expressions of popular wilLThc theoretical basis for this sort of change had been worked out during the exclusion crisis of i6y$-fa2H and put to the test in the Revolution of r6fl$—which in the eighteenth century epitomized the potential for constitutional change through popular action. Later historians have belittled virtually every claim made for rhe Glorious Revolution: that it reflected popular will, that it brought about sweeping reform, indeed, thar it "settled*1 much of anything at all. But men and Women of the rime did not doubt the significance of what had been accomplished,^ As they saw it. the people of England had summoned a convention, removed one monarch from the throne, replaced him with another (actually two others), drafted a Declaration of Rights, and settled the succession on a Protestant line. Extend one's view a tew years more, and dus same people had provided for elections every three years, ensured that the legislature would meet annually, made the judiciary independent, and ejected placemen from Parliament.
Nor was the significance of these developments lost In the colonies. Americans, Llhi, i-idii-rcd under Stuart oppn s^ori, and upheaval in the im»1 her country tri^nnl .....11t hi mm* rcbdlkim in New Knglnnd. Mew
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York, and Maryland.-10 The colonists believed themselves equal participants in a revolutionary moment, and they interpreted the Revolution of as confirming their entitlement to Che same rights and. liberties as their countrymen across the Atlantic,-1' Their efforts to mimic the Glorious Revolution in. the New World nevertheless produced mixed results. The Donunion oi" New England disappeared, and new governments were established (or old governments reestablished) both there and in New York and Maryland. But the efforts of various colonial legislatures to enact further measures imitating [lxiMe :uicprf:d hv Parliament were quashed in England. RemarkahtyT this seemed neither to dampen American enthusiasm for the Glorious Revolution nor to upset the colonists1 belief that tb&S represented a triumph of Whig ideals on both sides of the Atlantic. The colonics continued to press for change and gradually achieved most of their goals in practice, if not for-mally enacted law," Later, Americans would learn tliat they and the English had derived very different lessons from the Glorious Revolution, but no one on either side of the Atlantic (no Whigt at least) ever doubted that it had significantly, and legitimately, altered the content of fundamental law.
The second method of constitutional change—modification by prescription—was more Common. Precisely because the British constitution was rooted in custom, it could be amended by usage: by the inauguration of new practices that, once they had achieved a degree of acceptance, could be cited as "precedents,1" Preserving the customary constitution called for vigilance, as everything was potentially up for grabs, fty "such tacit agreement as this of prescription," explained Cambridge legal theorist Thomas Rutherforth in the mid-1750s, "[IJaws may he repealed, customs may be established into lawsf civil constitutions of government may be altered, subjects may enlarge rheir privileges, governors may extend their prerogative.*33 Nothing was fixed, nothing permanently settled "[Whatever constitution . , . might appear from Ibrmer usage to have been established in any civil society,h Rutherforth continued* "a different or contrary usage, after it obtains, will afford the same evidence, that the governors and the people have mutually agreed to change the constitution." Tlii* principle may ]i>ok familiar: courts today frequently ftive weight to estahlishcd practices. But appearance* can be misleading, for the eighteenrh-ecntury understanding was different and stronger, with each instance of acquiescence m i formerly uiicun*tmi(irm,iL practice carrying weight mughly akin to that accorded lower coun judicial precedent today
By way of i I Imitation, consider the debute of fhe 17001* between the A 11,111111L1 mi 1,1* und imperial nuthoritir* uv*r the «i£nilkanfc of Briiiiiu's iMvip.ariwi Lw' I'.nK.imcnt had matted «1 gir........iv tw h Kiw* to tttgulrilr
colonial trade in the century before the Revolution; some had been ignored, but there were at least ten to fifteen that had nor—more than enough to sustain a constitutional argument under prevailing standards. ^ Given American acquiescence to these laws, Massachusetts Attorney General (and loyalist) Jonathan Sewall argued, Britain's authority to exercise legislative jurisdiction over the colonics could no longer be challenged. Its claim was both old and established, having been "made* openly and expressly, before the grant of the charter [in 1691 j* and [having] ever since been uniformly exercised by therm and acknowledged by us,"35
This was not an argument to he lightly dismissed. Whig leaders responded by trying to distinguish the navigation laws in ways that would confine the effect of the precedent. John Adams argued that the first navigation act "was not executed as an act of parliament, but as a law of the colony, to which the king agreed.*511 By retnacting the law on its own, the Massachusetts assembly had deprived Parliament of a precedent supporting its authority to legislate without assent from the colonial legislature. Of course, Adams's response faded to answer the many subsequently enacted laws, not to mention the need--, of .itln't volinii<> whose legislatures had acceded to the English law. Abetter answer—from the American viewpoint, at least—was offered In John Dickinson in his famous loitersifram ft Farmer in Pennsylvania. According to Dickinson, the navigation laws wwere all intended solely as regulations of trade," not for raising revenue or regulating internal colonial affairs.17 They established Parliament's authority to enact a comprehensive scheme of imperial trade regulation, which the colonists were prepared to accept, but they could nnt be cited as precedent for anything more. Certainly they could not sustain cither a power to tax for revenue without consent or a power to legislate colonial affairs generally.
Anxiety abour allowing precedent to become established was a pervasive feature of eighteenth-century constitutional practice, which helps to explain the extravagant reactions of American dissidents even to Parliaments most modest interventions.The 1 ownsend Acts imposed very light duties on glass, paper, paints, and tea, but colonial Leaders understood that Parliaments real objective was to generate a precedent supporting its claim to bind the colonies by internal legislation. Hence, voters in one Rhode Island town charged the British with acting mi "the express purpose* of introducing "arbitrary power and Kliivciy,""1 while rhc Connecticut Assembly protested the "manner in und by whtch" rhr Acts were made, alleging not oniy that they "most undeniably deprivrjdj die L'olnniAtj i.i their essential rights as Englishmen.," Inn iIhii rluf.i] left umppjh^il. rhi kgiitlntiMu liiKVritened It ■ %l rip them of all
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that is good and valuable in life."" When Lord North offered to repeal three of the Acts, leaving only the impost on tea, colonial agents scoffed ''this will signify nothing/*1 A& the Virginia I louse of Burgesses explained in its petition to flic king, Americans could not accept even the tax upon tea because it was still being retained "for the avowed purpose of establishing a precedent against us.1"4'
A still better illustration of the role of precedent is the American response to the Tea Act of 1773, which actually reduced the price of tea, but in a way 1 hat implied Parliaments power to impose duties for the purpose of raising revenue and so compelled colonial rebels to destroy the tea rather than permit it to be landed. Under existing trade rules, tea was deemed * imported" once 1! had arrived in a colonial port. If the tea were not offloaded within twenty days, it would be seized bv customs officials who would retain a portion to satisfy import duties. Once in harbor, moreover, a ship bearing tea could not leave without obtaining a pass from Crown officials and could not return to England without violating laws against colonial re-exportation. This put the colonists in a bind. If a ship bearing tea had entered a colonial port, it would no! he permitted to leave without offloading its cargo. If the ship did ni"llo;n!. a dury would be paid, li it did not, customs officials would sei/e dw tea and, once again, a duty would be paid. Either way, London would get its precedent. It might be a flawed precedent, but from the Americans'perspective, even a tarnished precedent was to be avoided. Most colonies sidestepped the dilemma by warning pilots to anchor their ships outside the legal limits nl rhe harbor. But the captain of the Dartmouth ignored this advice and led several ship* into Boston harbor anyway, leading to the Boston 'lea Party. The Whigs of Boston had not wanted to destroy the tea, and they negotiated Innnkally to find another solution. But time ran out, and on rhe nineteenth d&V after the ships reached Boston—the day before its cargo would become forfeit and entered in customs house records—they concluded that they had no choice but 10 destroy the goods/^
And Adjudge Sue/? Act to be Vvid"
(milrut and prescription were devices for changing the constitution. Bur whut About ire dayM-day enforcement? Mow, i>r mthtr, by whom was this custnmwry comhTuliou, with it', varied sources and uncertain terms, iniei prctrd and enforced? Conventional window long held tlmr die Mulish con-ItfttttJOfl ncMed.m mnl rccojpixet) the Hupmn.u v >l IWluuneni. Hut "In >U
trine of legislative supremacy began to gain momentum only in the second decade of the eighteenth century, after Parliament extended its term from three to seven years in the Septennial Act of 1716,13 Parliamentary supremacy was not fully established even in England before the nineteenth century, and it never achieved acceptance in the American colonies."* Yet the concept of a constitution existed and was taken seriously and debated on both sides of the Atlantic throughout the seventeenth and eighteenth centuries. The unceasing struggles between Crown and Parliament were t'onsfitutionat struggles; they were, moreover, slrugglcs about what the constitution required or commanded, not about winch institution could "make*' it. The existence of extant fundamental or constitutional law binding on the whole government, in other words, was taken for granted by all involved, with no sense whatever that its creation or interpretation was an exclusively legislative prerogative.
Nor did the customary constitution contain anything even remotely like the modern concept of judicial review, which is to say a practice of regularly submitting tronstirutional disputes to judges for resolution in the context of ordinary litigation. Indeed, it is doubtful that the customary constitution made room for any form of judicial review of legislation at alL
This last point requires a bit more explanation given Sir Edward Cokes famously enigmatic opinion in Dr. Bonheak Case, which some historians and legal scholars have credited with inventing a doctrine akin to our modern practice. Thomas Bonham sued leading members of the Royal College of Physicians in London for having fined and imprisoned him without legal authority. In the course of upholding Bonhams action, the newly appointed Chief Justice Coke wrote in 1610: "And it appears in our books, that in many cases, the common law will controid acts of parliament, and sometimes adjudge them to be utterEy void: for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed., the common law will controul it, and adjudge such act to be void.***
The amount of ink spilled by many of our greatest legal scholars in the effort to make sense of this little passage is nothing short of astonishing—though not so astonishing, perhaps, as the fact that we arc still less than completely sure what Coke meant to say. The prevailing understanding today, first proposed by Samuel Thome in 1948, is that Coke was making n straightforward point based on "ordinary common law rules of statutory interpretation," to wit, ihsil x court could (and should) refuse to follow a -.Minn' .ifv.un! on it- \Mt- Although this might ut lirst seem an unobvkius rcadingnf CokVs language, mlia hnioi uns have -hown how Thome's reading mmriftiniem with rln n....... . m t\H . .1., .itnl rhr iwriiill fctrik'tuir of Coke'v
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opinion, as well as with Coke's other writings and the broader intellectual context of early seventeenth-century political thought.'4'' That said, rhere remain many excellent scholars who continue to believe that Coke meant to establish the authority of the courts and the common law over Parliament an J legislation.
Wc need not rehash these arguments here, for what Coke thought he was saying matters less than how he came to be understood, and here the evidence points strongly toward Thome's statutory reading. Dr. Bonhams Case was never an especially important precedent. It made sporadic appearances during the controversies surrounding rhe English Civil War, where it proved useful to royalists defending the kings prerogative because it supported their claim that Parliaments powers were limited-48 It also showed up as dictum in one or two judicial decisions.-^ But after the Glorious Revolution and Acts of Settlement, Dr, Bonham'i Case largely disappeared trom the courts. The opinion was still read by those who studied Coke, of course, and Cokes language was included essentially verbatim in various eighteenth-century treatises and digests.5"1 But for lawyers who may have thought to use it in court. Dr. Bonbam's Cast appears to have come through only as a doctrine of stamtory interpretation. That, at least, is how Blackstone restated the holding in the first volume of his Commentaries. Indeed, Blackstone sought to narrow Coke's position still further by limiting it to statutes that were "impossible to be performed" or to "collateral consequences" of other laws it these consequences were not clearly spelled out in the statutes language and were "manifestly contradictory to common sense."51
Some scholars respond that, whatever the case may have been in England, things in America were different. Whether rightly or wrongly, they say, the American colonists did read Dr. Bonhams Case as authority tor "a judicially enforceable higher law," and Cokes argument was the immediate source and direct forerunner of judicial review.12 In fact, there is little basis tor this belief.
To begin with, the only known seventeenth-century case on this side of the Atlantic to discuss Cokes doctrine rather clearly reflects the statutory interpretation view. The issue in Guidings v. Browne, decided in 1657, Wllti whether the Ipswich Town Meeting could vote a gift of a hundred pounds to build a house tor a minister. Magistrate Symonds ruled rh.U the town had exceeded its authority under colonial law. Noting that the statute on which the town relied would be inconsistent with fundamental law (hv authorizing ft Ofldftu -.at ion of property) were it construed to peimit the gili, Symonds ■ r.nrd "I . (uu ijvc ilt.it »1 11 in 1 xii.im dithonotii <     upon rhc |i olonial leg
islaturej. to make such a construction of their positive laws as doth infringe the fundamentall law of mine and thine; for it must needs be void, if it should indeed be necessarily construed against the right or liberty ot the subject. But the law in its true sense is good.*^3 Later in the opinion, Symonds added "a little about interpretation of lawes and of rules to be attended therein"—his first rule being "that where a law is such as that,, by wresting, a man may give such an interpretation as will overthrow it, when it might be construed to be good; this is a corrupt interpretation. So holy scripture may be wrested."*4 The analogy to Scripture is revealing. Obviously, no one could "overthrow" the Bible, much less find it void; the argument was that a construction that created such tension must be wrong.
Indeed, practically the only evidence ever cited to prove that Coke s statement "became a rallying cry for Americans"5^ is James Otis's argument in the Writs of Assistance Case. Known also as Petition ofLecbmere or Paxton v. Gray, the case was never formally reported and comes to us mainly through notes taken by John Adams and Josiah Quincy, who were in the courtroom to hear the arguments. In 2700 customs officials asked the Massachusetts Superior Court to issue general writs of assistance permitting them to command help from ordinary citizens in carrying out searches or seizures without individualized grounds tor suspicion or any other cause. Unsure whether issuing such writs would be proper, the court set the matter down for argument The question turned on whether there existed any source of authority for a colonial court, and in particular, for the Superior Court, to issue a general writ of assistance.
Jeremiah Gridlcy, arguing for the Crown, maintained that the power to issue such writs could be inferred as a matter of general principles from the "necessity* of the case, relying secondarily and for additional support on § 5(2) of the Act of Frauds of 1662.5* Otis contested both grounds. With respect to the former, he charged that general writs were contrary to fundamental principles >>j law ami no! supported by precedent. Turning to GridJcy s statutory- argument, Otis asserted, as recorded by John Adams: uAs to Acts of Parliament, an Act against the Constitution is void: an Act against narut.il P.quiry is void: ami if an Act of Parliament should be made, in the very Words of this Petition, it would be void. The Executive Courts must pass such Acts into disuse . . . Reason ot the Com" Law to control an Act of Parliament.*"1'
Was Otis calling t"> judicial review or mt he making a more conventional argument to con it true 11 * tutu to narrowly," Commentators who champion the former view &MUCtXltlv rrlv no n much larei description <>t iln in-
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provided by Adams.tH In letters written to William Tudor in E817-18, the aged ex-President re-created the circumstances surrounding the ease while breathlessly proclaiming that "the child Independence was born" the day Otis challenged the writer But it is hard to swallow Adams's report, written some fifty-six years after the fact, regarding the importance of Otis s speech to ihe American cause—particularly since, as other historians have noted, Otis's now-famous oratory received scant attention at the time.*" It seems clear that Adams was using his correspond*:[ice with Tudor (who was collecting material tor a biography of Otis) to indulge in a hit oť late-life romanticizing: seeking to secure the place in history he thought due his old companion, his native state, and, of"course, himself.111 More damning for our purposes, Adams pursued this goal by "makling] fairly tree with literal iact" and "putlting] into Otiss mouth as eloquent and impressive a discourse as could he thought up1*—going so far as to depict Otis making arguments not yet imagined in 1761 and thus leading the chief historian of the Writs of Assistance Cast to dismiss these letters as "all hut valueless1* in revealing what happened.*"
Nor do Adams's contemporaneous notes provide more or better support for the conclusion that Otis argued for judicial review, as opposed to urging that the statute could be narrowly construed. Adams records Otis essentially restating the Cokean position that an act against fundamental or natural law would be void and that the common law would therefore "control* it. But why should we infer from thus thai Otis was arguing anything othei titan sr.in:-tory interpretation: We have already seen how this narrower understanding of Coke was the most plausible one in the seventeenth and early eighteenth centuries, and we have no reason to believe this had changed by 1763, Why assume that a reading accessible to Coke's contemporaries and to us was not similarly accessible to Americans in the middle of the eighteenth century?1 Where, after all, did Blackstone get if from? Or the Massachusetts court that decided Giddings V. Btvwntf If the statutory reading seems a stretch to us today—or, to put It dJrTerendyt if the judicial review reading seems more natund—could this not be because our own familiarity with judicial review makes it so? And would not the opposite have been true for Otis? Would not the narrower reading have been more natural?
There is. moreover, an additional reason for thinking that Otis, like Black-stone onty a few years later, prc>bahly relied on Cuke as authority for reading the statute narrowly: namely, Otis did not need to push Coke's authority farther than this because the "Icjw sweeping" undemanding of Coke "suited LhUJ purpoHw PKJtctly""1 The ftiitute on which Cridley relied hii the court's
authority to issue a genera] writ, $ g(j) of the Act of Frauds, provided that "it shall be lawful to or for any Person or Persons authorized by Writ of Assistance under the Seal of his Majesty's Court of Exchequer^ to take a Constable, Headborough or other Publick Officer inhabiting near unto the Place, and in the Daytime to enterT and go into any ŕ louse. "The statute refers only to a "Writ of Assistance,1'without specifying whether the writ ran be general or must he specific. This ambiguity opened the way for Otis to argue that, since allowing general writs would contravene fundamental law, the court should construe the statute narrowly to require specific grounds. Indeed, this precise position had been taken in a recently published article in the London Magazine that was known to everyone in the case and on which Otis relied heavily in preparing his argument/*
If we put the Writs of Assistance Case aside, or even if we do not, the most telling fact is how little evidence supports the idea that Coke or Dr. Banbam were important to Americans in developing the principle of judicial review, ľhere áre, to be sure, one or two other suggestive references to the case:—3 baffling passage in a pamphlet authored by James Otis in 1764/5 and an argument made by George Mason in an obscure 177a case,*" But whatever one makes of these, much more impressive is how seldom Coke's authority was invoked in connection with judicial review.*7 This is particularly striking in the 1780s, when the matter was first openly argued and debated,6* The bottom line seems to be that even if there could have been an understanding of Coke that might theoretically have provided a foundation for judicial review, m fact Cokes writings were not important in its development—apparently because this was not how the case was understood. Instead, the concept of judicial review sprang from other intellectual and political sources: sources that were themselves not judicial in nature.
Ihe same point is true for the assorted principles of tuerarchicai review that already existed in colonial America. English legal practice had for centuries recognized an idea of superior and inferior law according to which courts would enforce superior laws over inferior ones, such as statutes over municipal by-laws and charters over statutes. Some commentators have assumed that ihcte forms of review were or would have been ptecedetit for a principle like judicial review, apparency because they assume that a constitution would have been treated us nothing more than another, albeit higher form of ordinary law—an assumption thai we shall see below is misplaced. Certainly the general notion that -.uiHinn loim-. nl hw rnpinp inferior ones had a putt in the concept of put lit ill review that substantially emerged, but it in nmleadhiK to deoc-ribc thew u 1 it r v* dm I prwticc*   * MUk'cnt or immature
THE PEOPLE THEMSELVES
THE CUSTOMARY CONSTITUTION
form of constitutional review, which is why the were not invoked by anyone to explain or justify it.
Reconciling the existence in the eighteenth century of a constitution that was "law1" with the absence of any notion that judges had a special role in determining its meaning has proved difficult for modern minds to grasp, in our world, there is law and there is politics, with nothing much in between. For uss the Constitution is a subset of law, and law is something presumptively and primarily, even if noil exclusively, within the province of courts. How, then, could the customary constitution have been "law" and yet not a matter for judges routinely and specially to address? This seeming paradox has led some historians to dismiss the idea that eighteenth-century fundamental taw really was law, as opposed to "cthice1" or \ kind of moral inhibition or conscience existing in the minds of legislators and others.
To say this, however, is to misunderstand the language and conceptual framework of eighteenth-century legal thought. Constitutional or fundamental law subsisted as an independent modality, distinct from both politics and from the ordinary law interpreted and enforced by courts. It was a special category of law. It possessed critical attributes of ordinary law: Its obligations were meant to be binding, for example, and its content was not a matter of mere will or policy but reflected rules whose meaning was determined by argument ba&ed on precedent, analogy, and principle ™ Yet constitutional law also purported to govern the sovereign itself, thus generating controversies that were inherently matters for resolution in a political domain.71 Modern discourse has so thoroughly confiated the meaning ot "constitution" with "law" and of M law" mth "courts11 that we no longer possess the language to describe a distinct category of this sort; the best way to capture its essence today may thus be (as one leading historian has done) to call it "political-legal."72
"Accountable to the Community*
Which still leaves the question: if neither judges nor legislators were responsible for interpreting and enforcing fundamental law, who was? The people themselves. Legislative power, it was said, is always "accountable to the Community" whose members could judge whether lawmaker hud acted consistently with "the fwiJamerita/ Rulr of society* and withhold VUpport from measures that "Breach (he Canxtifntwnwly John Dickinson repressed the ha?Jt assumption in hi* UUm'fim " fifcftPW in foiwyfoaHttt. ^Ottfjhl
not the people therefore to watch? to observe facts? to search into causes? to investigate designs? And have they not a right of judc:inc from the evidence before them, on no slighter points than their liberty and hupp west}"1*
This was not mere pabulum; nor was it a Lockean appeal to nature after a dissolution of government. It was, rather, the invrication of a specific set of legal remedies by which *the people"—conceived as a collective body capable of independent action—were empowered to enforce the constitution against errant rulers.75 The community itself had both a right and a responsibility to act when the ordinary' legal process tailed, and unconstitutional laws could be resisted by community members who continued to profess loyalty to the government and to follow its other laws.
Means of correction and forms of resistance were well established and highly strticturecL First and foremost, *va& the right to vote,™ though this was seldom discussed prior to American independence, because even in England most controversies involved the Crown, and because citizens in the colonies did not vote for Parliament and had to resort to other mechanisms. Next in importance, though perhaps not effectiveness, was the right to petition, together with what became its corollary, the newly emerging right of assembly.77 Publicly denouncing unconstitutional acts, explaining why they were unconstitutional, and requesting or den landing that authorities retract them were rights of considerable significance in the eighteenth century—truly fundamental, because necessary to explain, defend, and secure other rights.7" How else, urged one 1760s pamphleteer, can authorities learn "the real and the universal sense of the people'"?7" The first phase of American resistance to the Stamp Act consisted of petitions beseeching Parliament to reject the offending legislation. It wis only after Parliament ignored these petitions—worse, after it failed even to consider them—that Americans turned to more aggressive forms of resistance,w The right of petition (transformed by the Revolution from the humble request of a subject into a citizens right to remonstrate) nevertheless remained an important device for the public to express its views on constitutional issues, offering government officials an opportunity to measure popular opinion and, if necessary, to change their course of action. Ami-Federalists pressed tor an amendment guaranteeing the privilege,*5 which was duly incorporated into the First Amendment. and petitioning remained a prominent feature of American politics throughout rhe early decades of the Republic.KJ
It1 petitioning ;ind pjiripUrreering tailed to elicit a repeal, more assertive roniM nl it stance were available, invoked in many instances only after a 1".....'I i-uhlit .....i« r hml Ik-vii tMucil writ! a public meeting held.**The pro-
TMK PEOPLK THJT.MSKLVES
THF. CUSTOMARY CONSTITUTION
ce$$ of governing in the eighteenth century was necessarily a local affair, and the instruments and institutions of local government were in the hands of the community. Law enforcement was practically impossible if eommuniry sympathies were strongly on the side of an alleged lawbreaker*4 Professional police forces did not yet exist, and in most communities there was only a county sheriff and a handful of local magistrates The ability to arrest lawbreakers depended on institutions tike the "hue and cry' or, if greater force was needed, the patft (omitatus or the militia. Even if an arrest could be made without such assistance, friends and neighbors might intervene and demand that the prisoner be released. The townspeople of Lancsborough, Massachusetts, tor example, freed prisoners confined for resisting the Stamp Act and warned the sheriff against trying to apprehend anyone else. Attorney Joseph Hawley defended their action in a local newspaper, insisting that the sheriff "should have been resisted in his said exercise of arbitrary and unjust force/**1
If a defendant could be brought to trial, successful prosecution still depended on the willingness of a grand jury to indict and a civil or criminal petit jury to find guilt. Conversely, these same juries could become a potent weapon with which to frustrate any local official tbolish enough to enforce laws the community deemed unconstinirjonal. In 1760 a Suffolk County grand jury indicted General Thomas Gage, Governor Francis Bernard, the commissioners of the customs, and the collector and comptroller of the port of Boston "for writing certain letters to the secretary of state, and other [of] the kings ministers, and therein slandering the inhabitants of the town of Boston, and of the province of Massachusetts Bay."** The indictment came to naught because the prosecutor refused to proceed on instructions from London, hut rhe same grand jury was more effective in other cases. In one instance, just as John Hancock was about to be tried and most likely convicted in a (juryiess) vice-admiralty court, the Suffolk County grand jury indicted the prosecutions sole witness, who prompdy fled the count); forcing the Crown prosecutor to drop the case.*"
If, for some reason, control of local institutions was still not sufficient to bring about a change in the law, even more coercive means of popular opposition were available. Americans protested each round of British taxation by boycotting English goods; by 1768, America's Whig leadership was running a highly integrated intercolonial scheme of nonimportation agreements.1"' Imperial authorities searched in vain for arguments n. dn Lire these illegal Even Thomas Hutchinson, the staunchly mvalisi ^ovi-inm >•! Min,sachiiM.tts,
at one point conceded that "ftjhe Combinations against importing ,, . are Subversive of go\rernment, and yet arc justifiable as legal."*9
And then there was the mob, or "crowd," as historians have relabeled it to capture its rediscovered respectability. Mobbing was an accepted, if not exacdy admired, form of political action—common in England and on the Continent as well as in America.'0
Crowd action represented a direct expression of popular sovereignty, justified as a last resort in d\e writings of Grofuis, Pufendorf, and Locke, not to mention by long tradition/] Indeed, custom and ancient practice were more responsible than philosophy for shaping and legitimating crowd activity. The practice ofskinmiiugton" or "charivari"—in which local townsfolk, typically in rural areas, enforced codes of law and morality by publicly humiliating offenders to the accompaniment oi catcalls, beating drums, and clanging pots and pans—had deep roots in England and Europe.9-2 Transplanted to the colonies through immigration, these rituals were absorbed and politicized by urban communities in the second half of the eighteenth century, becoming critical elements of colonial opposition to imperial policy.93
Whether enforcing morality or law, eighteenth-century Whig mobs were generally conservative: organized to uphold community values against indifferent or ineffective public officials and illegal or unconstitutional government action. The)' consisted not of criminals or gangs or drunks and other riff-raff, but of what contemporaries referred to as the "middling sorts"—shopkeepers, artisans, farmers, and laborers—sometimes led by one of their own, but often led by local gentry.*1 These mobs demonstrated a "remarkable single-mindedness and discriminating purposefulness" in selecting their targets and in taking care not to inflict collateral damage.95 After the Boston Tea Party, an ""Impartial Ohserver" reported that no cargo other than tea had been disturbed and boasted that "such attention to private property was observed that a small padlock belonging to the Captain of one of the Ships being broke, another was procured and sent to him.1*** Mob action followed implicit, customary rules about how much violence was appropriate and which targets were permissible, making it possible for contemporaries to distinguish constitutional mob action from a simple riot.M7 'lTic crowd observed these rules with surprising (though obviously nor perfect) faithfulness, and the blame for injuries or death, when these occurred, typically lay with constituted authorities.'"' Such consequences were rare in colonial and Revolutionary America, however, for imperial government wns so weak that Crown oifii ials usually could do little more than stand helplessly by.uv
rill-   HtüPLK tHKMSEl.VKS
TUE CUSTOMARY CONSTITUTION
Bear in mind that rhese popular remedies were neither mutually exclusive nor necessarily invoked in a particular order. Opposition tended to begin nonviotently, with protesrs in the newspapers or organized conventions and petitions, and to become violent only if no redress was forthcoming. But this was not always true. Americans protested Parliaments abuses by simultaneously petitioning, mobbing, interfering with regular law enforcement, and running a nonimportation scheme. In American eyes, an unconstitutional law was void, "a mtrt nullity?™ Public officials who sought to enforce such taws were themselves outlaws who "ought to be deemed no better than a highwayman, and should be ptoceeded against in due course of law.7'501 Resistance through any or all of these means was thus a "political-legal1* duty, enjoined on everyone in the community concerned with maintaining liberty against arbitrary power.IDJ
Note, too, that while fundamental law was not parr of die ordinary business or responsibility of courts, it did sometimes find its way into judicial proceedings. Though constitutional challenges were infrequent, certain aspects of the constitution, such as the role of juries or of habeas corpus, dealt dirccdy with courts and the judicial process, and action by the executive might be reviewed as well. Hut courts also occasionally confronted broader questions of fundamental law in relation to litigation. This happened in two ways, both suggested above. First, /Jr. Honham\ Case had survived as a rule of statutory interpretation, albeit modified somewhat in Blackstone's hands. Infrequently employed, it nevertheless permitted judges to take fundamental law into account and to construe a statute narrowly if it conflicted with established principles, at least as to "collateral consequences" that were not spelled out clearly in the text. This is how James Duanc used Dr. Bonham in Riiigcrsv. Waddmgton}^ and the South Carolina court did something similar in Ham v. McLaws.}r>A
Second, lawyers argued fundamental law to juries, which rendered verdicts based on their own interpretation and understanding of the constitution.'^ This was consistent with the broad power of the eighteenth-century jury to find law as well as fact and to decide every aspect of a case,10* Judges might instruct juries, but it was, in the words of John Adams, "not only [every jurors] right but his Duty in that Case to find the Verdict according to his own best Understanding, Judgment and Conscience, tho in Direct opposition to the Direction of the Court."1"7 Placing juries in ihis dominant position, Adams explained, intnxiuccd "a mixture of populiu power"* into rhe execution of the law and w;is thus .in nn|n»i,mt protection ol liberty1"1 Tin-. wv, nnithulmlv true when it camp to lundamrimd Ijw, for dir jury win "tin
Voice of the People,"1'" the community personified m render judgment in a particular case. Who better to ensure that fundamental law was respected? "The great Principles of the Constitution, are intimately known, they are sensibly felt by every Briton," Adams gushed, **it is scarcely extravagant to say, they arc drawrn in and imbibed with Nurses Milk and first air."110 Juries thus played .m important role shaping or reshaping constitutional law, as happened, for example, in the famous trial of John Peter Zenger. Charged with seditious libel, Zenger argued that the nature of a publication as libelous was a jury question and that truthful statements could not be libelous—hoth arguments contrary to existing English precedent. The jury s subsequent verdict in Zcngers favor went against the court's instructions and was quickly incorporated into the Americans' understanding of fundamental law, becoming "staple elements of the colonial legal challenge.""1
Popular Constitutionalism* circa
The jury 1s power to address issues of fundamental law—along with voting, mobbing, petitioning, and the rest;—reflects and manifests the overarching rheme of the customary constitution, which was its essential character as what we might call "popular law." Fundamental law was different from ordinary law, or what we typically think of today as ordinary law, both in its conceptual underpinnings and in acma! operation. It was law created by rhe people to regulate and restrain the government, as opposed to ordinary law, winch is law enacted by the government to regulate and restrain the people. This inversion, in turn, inverted what today we take to be the usual assignment of authority to interpret and enforce, Government officials are our authoritative interpreters of ordinary law. We have indirect control over what laws the government promulgates by virtue of our ability to elect and remove most lawmakers. But once a Jaw has been enacted, ordinary citizens assume a subordinate position relative to government officials in ascertaining its meaning and imposing sanctions. We must still decide what we think a law requires or commands—thar is, we must still interpret the law to determine whaT obligations it enjoins. But our interpretations are mere projections, efforts to comply that lack formal legal significance or effect. If challenged, iln"-r mri.'ipvi'i.iimii-. Mr submitted to desisted public officials (administrators, prosecutors, nidge*, and the like) who decide if we are right or wrong and arrange an appropriate pumnhmfruf if the answer is wrong When it i iin - m oidumry law, in other woriL, thu gnvcminrni regulates lift
THE PEOPLE THEMSELVES
THE CUSTOMARY CONSTITUTION
This relationship was, in effect, reversed when it came to fundamental law. "A Conttitution* wrote Judge William Nelson of Virginia in the 17905» "is to the go-vtrnoriy or rather to the departments of governmetii, what a lavj is to individuals. "m The object of fundamental law was to regulate public officials, who were thus in the position of ordinary citizens with respect to it and required to do their best to ascertain its meaning while going about the daily business of governing, But their interpretations were not authoritative. They were now the projections, subject to direct supervision and correction by the superior authority of "the people''—conceived in this context, it should be remembered, as a collective body capable of independent action and expression. It was this inversion of interpretive authority, this turning upside-down of the structure of legal interpretation that accounted for die various features of fundamental law described above: its uncertain content, its fluid modes of revision, and its varied popular enforcement mechanisms.
What emerges is a constitutional system that was self-consciously legal in nature, but in a manner foreign to modem sensibilities about the makeup of legality: For us, legality is crucially (though, of course, not solely) a matter of authority. We expect to find a rule ol" recognition that assigns someone the power to resolve controversies with a degree of certainty and finality: so at the end of the day we have something we can point to and say 'yes, that is the law." Eighteenth-century constitutionalism was less concerned with quick, clear resolutions. Its notion of legality was less rigid and more diffuse—more willing to tolerate ongoing controversy over competing plausible interpretations of the constitution, more willing to ascribe authority to an idea as unfocused as "the people,'* It was, as Christine Desan has recently observed, a system "in which many actors participated in determining law," and in which processes wc think of today as only and necessarily "political" were understood by participants "to produce legality as opposed to acts of will, power, or grace."m
This system of constitutionalism rested and relied on a culture in which public officials, community leaders, and ordinary citizens believed in a distinction between law and politics, shared a set of conventions about how to argue within each domain, and took seriously the role difference thus produced. Desan names this "the public faitrT and describes it as a "commitment that bound members of a political community together," a commitment ultimately perpetuated and enforced in (he public sphere through continued participation (or not) in the life ot the nurniiiuiiity.11,1 John Reid, who h.r. done the most to help Lift recover this system'* tonnal »,trm hire .11 id Linguflgp, refer* to it an "Whig liiw"—i «cl ot 11 rule rut audi ng" 4<»d ronventinn* about
rights and liberty that, as we have seen, yielded a framework for argument rather than a fixed program ot identifiable outcomes.11*
What is most critical is understanding rhat participants in this culture took seriously the distinction between fundamental law and mere politics and responded to different arguments in each setting, giving the community at large a credible interpretive voice when it came to the constitution. Problems of fundamental law—what we would call questions, of constitutional interpretation—were thought of as "legal" problems, but also as problems that could be authoritatively settled only by "the people" expressing themselves through the popular devices described above. Constitutional law in such a setting might sometimes be hard to identify, but this uncertainty seems not to have troubled anyone overmuch, Ultimately, the constitution was, as Reid argues, "whatever could be plausibly argued and forcibly maintained.
To modern ears, it undoubtedly sounds paradoxical to speak of a system of law in which the taw is nothing more than that which can be "plausibly argued and forcibly maintained." What kind of legal system is that, particularly coming from a people celebrated for its supposed commitment to "an empire of laws and not men*?117 It is this tension that presumably lies behind the judgment of so many historians ro disregard the insistence of eighteen tl 1-century writers that this was law and to demote their constitution to the status of ethics or morality.
Yet this popular constitutionalism may be less foreign than it seems at first. Legal plulosophers have long recognized, as lawyers and fudges already knew instinctively, that determining the content and meaning of a functioning constitution—any constitution—inevitably presents problems of uncertainty.'18 And while such problems were potentially or theoretically widespread given the diverse sources of eighteenth-century constitutional law, in practice everything was hardly open or uncertain. On the contrary, as noted above, there was consensus on a wide range of issues. The customary consrimrion was, in this sense, neither better nor worseT neither more nor less settled, than other bodies of customary law whose status as law has seldom been questioned.
The real difference, it seems, is less the content of the customary con-■titi.it!:'ii 01 Hie extent to which it was unsettled than the notion that constitutional interpretation and enforcement were left to the community. Most modem legal scholars and political commentators assume that leaving questions of constitutional law to the community as ultimate decision makri would destabilize a legal oider.TlMy might even be right, but this is an empirical tafher than a theoretical claim.'Pho^c who make such an assump-
THE PEOPLE THEMSELVES
1 hie CUSTOMARY CONSTITUTION
rion presumably base it on the world with which they are familiar, our world, in which a constitutional system like that of seventeenth- and eighteenth-century Great Britain may seem almost fanciful. Yet this order existed and worked tolerably well for more than a cenmry and a half before the American Revolution occurred. In saying this, we need not follow Burke by ignoring the bloody years of the Civil War and Interregnum. But one is hard put to point to another system, even in the modern era, that has worked longer or better, which is why the British constitution was so widely admired among enlightened eightcenth-cenrury Europeans. And our own Civil War stands as a reminder of the need to avoid smugness.
A question nags: how did they do it? Certainly the modern assumption makes intuitive sense, and not only to us today. In Federalist 49, James Madison cautioned against "a frequent reference of constitutional questions, to the decision of the whole society," because he worried that such appeals could "deprive the government of that veneration . . . without which perhaps the wisest and freest governments would not possess the requisite stability."119 We will see in the next chapter how America's Founders, including Madison, dealt with problems of constitutional interpretation and enforcement (though, without looking too far ahead, we can say that it was not by embracing a modem doctrine of judicial review). In the meantime, one wonders how the customary constitution lasted as long as it did.
Developing a complete answer to this question is a topic beyond the scope of the present inquiry. For our purposes, what matters most is tbarthis system dít/last and that it provided rhc context within which American constitutionalism developed after the Revolution. A few, fairly obvious factors should be acknowledged, however, for they arc relevant to what comes later.
First, opportunities for constitutional conflict were limited. The scope of the eighteenth-century British constitution was narrow, at least in comparison to modern constitutions. Its terms were spare (though not necessarily uncomplicated), and the space it purported to occupy was relatively uncrowded—again, by comparison to what came later. The main points of contention, the relationship of Crown to Parliamenr and of church to state, had been settled in compromises that were widely accepted. Plus, demands on government were modest, further reducing the number of controversies likely to arise. According to Whig theory, the main task of a representative assembly was defensive: checking arbitrary action by the Crown, rather than governing through legislation.1*' For most of the eighteenth century, l\ulu mcnt did not do thai much, especially at homc.ul What laws ir paused were
rvpu.ilh   Itivllgjllnl l»i   individuul  |n-1ilnnr. i.n-kiri^   11,In.1. -.1   1  (i.ijii. ul.o
grievance or permission to undertake some local activity, meaning rharM|rJhe great mass of legislation was personal and 1lh-j1 In scope, largely consisting of enclosure bills, turnpike and canal bills, and narurali7ation bills."121 This inactivity was more pronounced and lasted longer in the colonies than in the mother country W At the time of the American Revolution, the notion that lawmaking should be the chief activity of a representative assembly was just beginning to find acceptance,124
Second, social and political deference (not to mention economic dependence) of the masses to a relatively homogeneous elite helped to keep the number of disputes down; this same deference and dependence also worked to ensure that, when problems arose, things did not spin too far out of control.sn We must be careful not to overstate cither the extent of deference or the degree to which the ruling elite was homogeneous, for this was an exceedingly complex system.1*1 Members of the laboring classes were hardly automatons, particularly in the colonics.u;r Otikeholding may have been "securely in the hands of upper-class groups,"12* but the conventions that secured their dominance rested on cultural and ideological understandings that limited as well as empowcrcd.liv There were, moreover, schisms and divisions within the aristocratic classes that controlled politics and government—divisions manifested in such ways as the persistence of Whig and Tory factions, the rise of competition for office, and the emergence of a radical critique bewailing constitutional "corruption" and decline.1*1 Still, radicalism remained at the fringes, and the ruling aristocracy was generally effective when it came to protecting its broadly shared interests in keeping conflict to tolerable levels.131
Maiidy, however, the customary constitution worked because people believed in it: because they accepted its premises and were willing to bve up to the roles it assigned them. This was not an act of tree will or seU-conscious choice—no more, anyway, than our own belief in a very different kind of constitution was freely chosen. The customary constitution made sense to people in the eighteenth century. It made sense because it fit the world they had inherited and the world they experienced. It would not have occurred to them to question whether such a system was possible because it was all around them and because its very existence shaped their understanding of the possibilities. Edmund Morgan made essentially this point in Inventing
Clovciruncrii require4* nuke believe Make believe thai the king U ilivinr, m.ilu lit'lirvc flint In- "Aii do im wrong or make believe that the
THĽ PEOPLE THEMSELVES
voice of the people is the voice of God, Make believe thai the people have a voice Of make believe that the representatives of the people are the people- Make believe that governors are the servants of the people. Make believe that all men are equal or make believe that they are not.
The political world of make-believe mingles with the real world in strange ways, for the make-believe world may often mold the real one. In order to be viable, in order to serve its purpose, whatever that purpose may beT a iiction must bear some resemblance to fact. If it strays too far from fact* the willing suspension of disbelief collapses. And conversely it may collapse if facts stray too far from the fiction f.
Morgan's model is a familiar pragmatist one. The social world is constructed of and by a web of beliefs and practices. We choose our practices in light of beliefs about whether the practices are good or bad, yet we understand the content and meaning of these same taJlefs only as refracted through the practices they purport to explain, Tlie process is one of moving constantly back and forth, resolving whatever tensions we uncover on a piecemeal basis. \\- L)<in I icr7,0£ explains, "[w]c confront anomalies within our beliefs, within our practices, and most important in the relationships between the two. And our goal is always to make the broader web of beliefs and practices as coherent as we can."m
What may seem anomalous to us, however, did not seem so to people in eighteenth-century England and America, To themT belief in a customary constitution that limited the government and was enforced by the people themselves made sense. This belief was neither fact nor fiction, It was an interpretationl a strategy to explain the world they experienced, but one that, at the same time, helped shape that world. It was not until something about their practices or their belief^ or both, had changed that they would have any reason to doubt.
A Rule Obligatory upon Every Department
THE ORIGINS OF JUDICIAL REVIEW
The foregoing description of eighteenth-century constitutionalism is misleading in one respect: it privileges a version embraced by American Wnigs. Their understanding was at one time close to that held bv Whigs in England, but Englishmen and Americans faced different problems and had To address their problems in different institutional settings. Not surprisingly, they came over time to see the customary constitution through different lenses.1 The concept of fundamental law in the mother countrv and in the colonies diverged, evolving gradually in England into the system of legislative sovereignty so famously celebrated by Blackstone.2 This development was by no means unheeded or unopposed, and pockets of resistance could be found even in London well into the nineteenth century.1 rJut holdouts were few in number, and by the middle of the eighteenth century the orthodox ritw in England located sovereignty in Parliament rather than in the people out-of-doors. And wirh this development, the tradition of constitute nal-i mi described earlier began to lose its grip, particularly the idea of "legal1* resistance to unconstitutional legislative measures. This is why many in I iiu-l.iriil vvrn: l'.c-iiui.'m'li |>u>>lal, ,iin! urn merely angered, by the rebellion in America '
American* Whi>rK never aurpTcd ihr ide.i ol parliamentary sovereignty. Fur them, the (Itnrinurt Revolution wan hor.h a ■t-.ifhnii.iimri i»j pupuJaj
THK PEOPLE THEMSE l,V KS
THE ORIGINS OP JUDICIAL REVIEW
sovereignty and a confirmation of the continuing viability of the customary constitution as a check on government.5 The colonists were informed about events across the Atlantic, but conveniently inattentive to their potential significance. They managed, through impressively persistent and clever political maneuvering, to keep both king and Parliament at bay and so to avoid any major confrontations until the early 1760s." By then, six decades of nearly-continuous war had strained even the powerful British finance system, and Britain needed money.' Parliament cracked down on smuggling and tried to force the colonies to bear a reasonable share of the expenses of empire.14 Americans awoke, startled and anxious, to discover that they could no longer ignore their differences with Britain. Within a decade, and much to their own amazement, they iound themselves declaring independence.
'In Order to Support Its Fundamental. Constitutional Lain"
We need note only two things about the controversies leading up to 1776. First, the period 1763—76 consisted of a series of disagreements about the meaning and proper interpretation of the customary constitution.'' This doca nor mean that the Revolution was caused by these disagreements. An event this wrenching—one that shredded lifelong community bonds, that forced colonials to reconstitute their identities, to abandon their Bririshncss and become "Americans"—plainly had multiple and complex causes: social, cultural, economic, and political, as well as legal. But the triggering events in the eyes of the Americans themselves consisted of Great Britain's persistent and repeated efforts to deprive them of what they viewed as their constitutional rights. Writing in 1824, an aged Thomas Jefferson romantically credited the American Revolution to the laws of nature, "We had no occasion," he mused, "to search into musty records, to hunt up royal parchments, or to investigate che laws and institutions of a semi-barbarous anccstrY."31' Yet the influential Summary View ofthe Right* of British America that Jefferson penned in 1774 did precisely that, and it reads just like a lawyers and a historians brief asserting the legal and constitutional rights ot Americans.11 This is equally if not more true of the more famous Declaration that Jefferson authored two years later John Reid rightly brands the claim that American independence was based on natural law "one of the most widely repeated errors of American history"*1
Anyone giving a reasonable reading to the enrur Declaration ol Inder pendente, not juxi to the rhetorical preamble where "iitituri' und narurc'«
God" are mentioned, will readily sec that document accused the 1mwv of Great Britain of violating only the legal and constitutional righif. \*i American colonists. It did not, in a single instance, accuse George III of violating a natural right. In fact, natural law was never cited by .in official colonial governmental body to identity a right claimed, except rights that were also claimed as constitutional rights. Natural law simply was not a significant part of the American whig constitutional case; certainly not nearly as important as some twentieth-century writers have assumed.u
The colonists made their case and presented their grievances in legal and constitutional terms right up to and including the moment they declared independence, seeing themselves always as defenders of ancient liberties and the British constitution from the malefic scheming of corrupt imperial authorities. America became an independent nation, James Varnum observed a few years later, only "in order to support 1 l- timI, o>nstitutional law,
against the encroachments of Great Britain."13 This matters, because it tells us what to took for in examining the constitutions Americans created alter the Revolution. It was a rebellion in defense of a concept of constitutionalism, a concept Americans did not suddenly decide to abandon or repudiate upon achieving independence.
A second point to note about the Revolution is that American opposition to England was not only defended and justified in terms of the British constitution: it was also waged on such terms. What Americans did, as well as how they explained their actions, offers a detailed portrait ol the eighteenth-century customary constitution in action. A crucial check was missing, inasmuch as Americans had no actual or even virtual representation in Parliament and so could not use elections or instructions to affect imperial policy1* Lacking the ability to change law peaceably from within, Americans resorted to the full array of alternatives—peaceable and otherwise—for combating unconstitutional government action. They were successful for a time, too. The Stamp Act was repealed, and Brttains every other effort to tax or regulate was either similarly withdrawn or effectively disabled by local opposition.
Unfortunately, because London viewed American resistance as illegitimate and illegal, it kept raising the stakes—culminating eventually in the Coercive Acts (or, as Americans called them, the Intolerable Acts), which led the colonic* to invoke their ultimate right of revolution. Yet the Declaration of Inricpnulnii c ww" less i t.iilurr <»1 ironstitutiorifl] process than evidence of
THE PEOPLE THEMSELVES
genuinely irreconcilable differences: differences so little understood by the combatants on either side that their repeated efforts to bridge the gap only succeeded in making it wider. For our purposes, in any event, we need simply to observe rhat Americans saw themselves as having conducted a struggle to preserve constjnitional rule through the use of constitutional forms of opposition.
We might also note that no one, at any time, seems ever to have considered bringing these constitutional disputes before a judge to have them settled—a point so obvious one would be embarrassed to mention it, but for the need to underscore the absence of anything resembling modern judicial review before the Declaration of Independence. Constitutional issues did crop up in a few court proceedings, usually as arguments to a jury.15 Such arguments were an accepted feature of the customary constitution, an appeal to "the Voice of the People" and so an instance of the same 'political-legaT opposition to unconstitutional laws as that engaged in by Whig mobs or by merchants enforcing nonimportation agreements.
In at least one instanceT moreover, the call for resistance in the courtroom extended beyond jurors to include the judges as well. Most of the documents that required stamps under the Stamp Act were for use in legal proceedings. Whig mohs could (and did) ensure that stamped paper was unavailable, hut the efficacy of their action would be blunted if the courts responded by shutting down, since this could be interpreted as signaling the judiciary's acceptance of the Acts constitutionality. "A suspense from business implies a tacit acquaintance [i.e., recognition] of the law," worried Charles Carroll of Car-rollton, "or at least the right of the power of imposing such laws upon us."16. Opposition leaders therefore urged judges to join their protest instead, by remaining open and conducting business without stamped paper.17 Because the Stamp Act is "utterly void, and of no binding Force upon us," the Whigs of Boston reasoned, "therefore in a legal sense we know Nothing of it"18 It followed that "therefore [the judges] should pay no Regard to tt1^8 SimUar entreaties were made throughout the colonies,21*
The argument met with only limited success," mainly because lawyers and judges feared that "if the Parliament of England should determine ro force the Act down our Throats, they would immediately set Prosecutions on foot against the principal civil- officers who had venmred to risque the Penalties."22 But lack of success in jrcrsuading judges to embrace civil disobedience and risk punishment .11 ihi-. eailv stage is less significant than what I he argument pmteiuird loi ilc lutitrc. for here we !<cc the beginning*) «>J something lhar would subsequently evolve mm a hr<-t uppnumiMTioii     unlit i.il review
THE ORIGINS OF JUDICIAL REVIEW
an argument that judges, no less than anyone else, should resist unconstitutional laws. This obligation did not arise from any special competence the judges }k>sscsscd as judges, and it certainly was not based on the notion that constitutional law was ordinary law subject to judicial control, it was, rather, simply another instance of the right of every citizen to refuse to recognize the validity of unconstitutional laws—a apolitical-legal" duty and responsibility rather than a strictly legal one.
'The Peopk Themselves... Can Alone Declare Its True Meaning
Many things started to change after the colonies declared their indepen-ileritr, Wiib respca to constitutional law, the most important turn was, of course, the drafting of new constitutions in the states. This was a legal as well as a practical necessity because, by proclaiming independence, Americans had abrogated their existing constitutions—not just the imperial constitution that governed relations with England, but also each individual colony 5 internal constitution, which was embodied in a charter granted by the Crown.21
Some Americans had begun to question the continued authority of royal government even before July 4. "The Continuing to Swear Allegiance to the power that is Cutting our throats is Certainly absurd," offered Caesar Rodney of Delaware,24 In making American independence official, however, die Continental Congress left no doubt that every trace of imperial authority was to be effaced. On May 15, 1776, the delegates smoothed the way for their more famous declaration of July 4 with a resolution recommending the establishment of new state governments. The preamble declared that it was "necessary that the exercise of every kind oi authority under the said crown should be totally suppressed, and all the powers of government, exerted under the authority of the people of the colonies.'*35 The initial reason for preparing written constitutions was thus to fill a gap created by having renounced allegiance ro the Crown.
It followed that the main order of business was to replace what had been abolished by reestablishing the hasic structures needed to govern: new legislature's, new exemtivc'., :ir..;l new judiciaries. A few srates added Declarations of Rights, white others embedded rights in the text, the more clearly to • liihlish iiud expand ujhui the lumlamentul liberties that Great Britain had tried 10 deny them Ai the level of structuring institutions, radical experiment!) werr tried m "new modeling' Kfttc government—mostly thing* that
THE PEOPLE THEMSELVES
THE OKltiCNg OF jLrtHC^AL It^VlV.W
had been well-mooted in the Revolutionary and pre-Revolutionary pamphlet literature but never before tried in practice. The new states were all to be republican, ot course; there would be no Icings or nublcs in the United State«, The executive power was drastically limited, with most authority transferred to the popularly elected lower houses of the legislature (the body that, at the titne, was thought most trustworthy in safeguarding liberty), Pennsylvania, followed for a short time by Georgia and Vermont, went so far as to eliminate an upper house altogether, establishing unicameral legislatures subject to frequent election. Other innovations were also tricd1 varying from state to state, but including such measures as a broadened suffrage, explicit guarantees of the right to instrucr, required rotation in office, and a formal process fur revising the constitution.
These were, beyond doubt, momentous changes. The various experiments in institutional form, not to mention ongoing debates about such issues as how to adopt and change a written constitution, testify' to how earnestly Americans in this period wrestled with basic problems of constitutional formation and meaning. Historians disagree abour how quickly they came to a robust and mature understanding of what it meant to create a written constitution, but all agree that the change thus produced in their thinking was profound.37
At the same time, and equally important though too often ignored, jk what did not change. "The men who crafted new state constitutions were building on an existing heritage: a theory and practice of constitutionalism many of whose fundamental premises were undisnirbed. Far from being overturned, these premises continued to be taken for granted. .Americans did nor for the rim time abruptly realize the benefits of having a const!rution in 1776. nor did they write constitutions out of some newly discovered desire to have written charters or a sudden appreciation of the advantages of a centra] text. New constitutions were needed in the states to replace those parts of the old ones that had been abrogated, to substitute new instimrions for institutions that no longer worked or did not fit republican ideals. But the texts wen; situated within an established constitutional tradition, and they took their place alongside existing practices and understandings, many of which remained viable.ilT
For rhis reason, Connecticur and Rhode Island concluded that they did not even need new constmimnv.. because theit L-xistLnj^ (. Ii.nn.rs already provided for the popular election of statewide officer*. Lacking .my uecc&Btty to replace royal official!* or fabricate new insnruir m rhch* former colonics needed only to ratnhHbh 1I1.11 ifurir exintiug ^ovetn incut* lenicd mi the inn
sent of the people and not the authority of the Crown. This was achieved in Connecticut by means of an ordinary statute confirming that the charter was etiil in effect, while Rhode Island resolved to substitute the name of the state for that of the king on official documents.2'That accomplished, the traditional constitutional practice was simply continued in both states, and nor until well into the nineteenth century did either replace its charter.
Evidence abounds of the ongoing vitality of the customary constitution after the Declaration of Independence and drafting of new state constitutions. The most obvious indication of the viability of its substantive principles is, ironically, the lawyers* arguments and judges* opinions in some of the earliest cases purporting ro exercise judicial review (to which we will return below). In the 17B0 case of J'fofmej v. Ufa/fant the New Jersey Supreme Court relied on seventeenth-century sources and traditions respecting the "Laws of the Land" in refusing ro apply a state stature that required loyalists whose property had been seized to challenge the seizure before a six-person jury,50 And in Trevettv* fVeeJcn^ James Vamunl cited Norman precedent in urging the court ro accept jurisdiction to decide whether a statute denying trial by jury altogether violated the states constitution." Responding to a claim that Rhode Island did not have a constitution! Varnum snarled, "Constitution!—We have none:—Who dares to say that?—None but a British emissary, or a traitor to hi& country,"70 Vamum cited a 1663 colonial stanite providing for trial by jury and explained: "This act. . . was not creative of a new law, but declaratory of the rights of all the people, as derived through the Charter from their progenitors, rime out of mind. It exhibited the most valuable part of their political constitution, and formed a sacred stipulation that it should never be violated.1,33
Additional examples abound. A series of South Carolina cases turned on Magna Carta, including one in 1791 that invalidated a land grant under k$ authority.^ Oliver Ellsworth opposed a prohibition on ex post facto laws in the Federal Convention because "there was no lawyer, no civilian who would not say that ex post facto laws were void of themselves. It cannot be necessary to prohibit them."iv James Wilson went a step further, saying that to include such a prohibition w{mld "bring reflexions on the Constitution—and proclaim that we we ignorant of the first principles of Legislation, or are con-stituting a Government which will be so.WJ* As William Treanor has shown, ic.Lsoiung oi Hun xorr— rxtratcxtual and based on custom and tradition—'was a pervasive fcauuv nl 1 unttilutiuuol arj^umcnt in the 17803 and 1790s.JV Other scholar* have traced the uitr of luch rcawminp; well beyond that into the miwtfwnlh emuury,"
the people themselves
Failure to appreciate the persistence of the customary constitution after the Revolution has led modern scholars to misunderstand or misinterpret important events of the Founding era. Consider the now-famous debate between Justices Chase and Iredell in the 1798 case of Calderv. Buff.** The Connecticut legislature had set aside a probate decree in Bull's favor and ordered a new trial. A unanimous Supreme Court rebuffed Bulls argument that this act violated the Ex Post Facto Clause of the Federal Constitution, which the Court said was limited to criminal legislation. In rhe course of his opinion. Justice Chase observed in dictum: "There are certain vital principles in our free Repuiflican governments, which will determine and over-rule an apparent and flagrant abase of legislative power.... An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compactcannot be considered a rightful exercise of legislative authority.'*w
Agreeing with Chase on the outcome of the case, Just ice Iredell nevertheless repudiated his colleague's account of judicial .minority. Some "speculative jurists7" may have reasoned that "a legislative act against natural justice must, in itself, be void/ Iredell conceded, but it did not follow that "any Court of Justice would possess a power to declare it so/43 Because *[t]he ideas of natural justice are regulated by no fixed standard" and "the ablest and the purest men have differed upon the subject," judges could have no basis for preferring their understanding of its "abstract principles'1 to those of the Legislature. Judicial review was limited to written constitutions, which "define with precision the objects of the legislative power" and "restrain its exercise within marked and settled boundaries.**2
Modem scholars have frequently wondered about Chase's seeming embrace of natural law as an independent ground for judicial invalidation of legislation, finding Iredell's text-bound positivism more familiar and comforting. Some simply refuse to believe that Chase departed from the modern tenet that constitutional principles must be derived, either directly or Indirectly, exclusively from the text. John Hart Ely worked zealously to bring Chase into the fold, insisting that Chase recognized ano judicially enforceable notion of natural law other than what the terms of the Constitution provide"; Chases reference to "great first principles," Ely concluded, meant no more than principles "embodied in our Constitution."43 Other scholars think Elys interpretation forced, unperturbed to find that Chase was measuring Connecticut's law against natural justice as well as the Constitution.41
As wc saw in chapter i, however, while few lawyers in the eighteenth century doubted eirlu-i the existence of natural tuw or the importance oJ nature as a source of rijghtt, thece right* were rurrU mrurivrd an having
the origins op judicial JtEVIKW
positive authority independent of their incorporation into fundamental law."15 Arguments based on natural law were part of a centuries-old constituttonal tradition that presumed a concordance between principles of the customary constitution and those of natural law, enabling legal actors to draw interchangeably on both. The arguments thus remained grounded in a kind of positive law, albeit one based on custom, prescription, and implicit popular consent. This, in fact, was Chase's position, lor he said, after elaborating with examples of laws contrary to "great first principles":
It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them. ... To maintain that our Federal, or State, Legislature possesses met pouters, if they had not been expressly resrrained; would, in my opinion, be a political heresy, altogether inadmissible in ourfree republican governments.**
This distinction between fundamental and natural law may seem overly fine to modern sensibilities, particularly as contemporary actors felt so little compunction to emphasize it. The point, however, is not to apologize for eighteenth-century constitutionalism so much as to identify its features and show how these help us to understand better the basis of Chases position. Chase's argument fit squarely within the customary constitutional tradition, and his opinion evidences its persistence alter the Revolution and the adoption of written texts.
Iredell s response should similarly be understood through this lens. For Iredell does not deny that laws against "great first principles" are void; he denies only that such taws can be declared so by courts. The newfangled practice of judicial enforceability, m Iredell's view, is a product of {and so limited to) written constitutions—a point to which we will return later.
The decision to include the Ninth Amendment in the Bill of Rights can also be explained by the continued vitality of principles derived from the customary constitution. Modern commentators are often baffled by this amendment, which too many mistakenly conclude was meant to preserve mmne ill ilcliiicd InKly of narur.il nghis.i; Once again, however, natural law wan a source of enforceable positive rights only in conjunction with and ihn»ugh in*ot 1 h»i.111.>n miii the 1 urtoffiary constitution. Rights under this 1 i»o*niwrmii wi 11 ,h iwm hum a v<uu'1y «j noun**, moreover, ol which mttural
THE PEOPLE THEMSELVES
THE ORIGINS OF JUDICIAL REVIEW
law was only oneT and not necessarily the most important one at that/51 The most logical reading of the Ninth Amendment's reference to "other" rights "retained by the people," then, is to rights already or potentially secured within the customary constitutional tradition.'19
Of greater interest than these legal arguments is the persistence of the customary constitution's methods of popular enforcement—evidence thai constitutions continued to be seen in their traditional light, as a torm of popular and not ordinary law. In his 1791 "Lectures on Law,™ for example, James Wilson described how the most powerful force in government, the legislative power, was controlled in the American system:
The effects of its extravagancies may be prevented1 sometimes by the executive, sometimes by the judicial authority of the governments; sometimes even by a private citizen, and, at all times, by the superintending power of the people at large. ♦. * [T]his general position may be hazarded—That whoever would be obliged to obey a constitutional law, is justified in refusing to obey an unconstitutional act ot the legislature—and that, when a question, even of this delicate nature, occurs, every one who is called to act, has a right to judge: he must, it is true, abide by the consequences of a wrong judgment.
la
Numerous instances of popular enforcement could be cited (for politics in the 1780s and 1700s was often an unruly affair)/l but the point is sufficiently illustrated by an example involving the Virginia judiciary In 1788 the state legislature enacted a law requiring judges of the court of appeals to sit on a newly created district court- The judges concluded that this amounted to a constitutionally prohibited diminution in their salary. They refused to appoint clerks (making it effectively impossible to transact business) and issued "The Respectful Remonstrance of the Court of Appeals/ drafted by Chancellor Edmund Pendleton." Formally addressed to the General Assembly, ir was in reality written for the benefit of the public. The Remonstrance laid out the judges* concerns about the law and appealed to state legislators to rectify their error.. Failing that, the judges concluded:
They see no other alternative for a decision between the legislature and judiciary than an appeal to the people, whose vervain-, both jre, and tor whose sakes 1>inh were iiciicI, .1 n d who may evenise their original .nnL supreme power whemoeurr they think propel. To 1h.1t tribunal, iheiv lore, flwcouri. Ill thM        -mmit rhcmnrlwi t'urtH'iou-. <*\
integrity in their intentions, however they may have been mistaken in their judgment.51
The legislature responded by suspending the challenged act and passing a new court reorganization law designed to meet the judges' objections.Si
The content of the Remonstrance (not to mention its mere existence) embodies and perfectly reflects the basic structure of popular constitutionalism described earlier—particularly the inversion ot interpretive authority that distinguished constitutional law from ordinary law. The legislature and the judiciary are, the remonstrants say, the peoples "servants.11 As such, acting with proper intentions and exercising their best judgment* they must try to comply with the constitution. If conflicts arise, however, it is "the people"1 who constitute the authoritative "tribunaT to whom such conflicts must be submitted. And make no mistake: this was neither empty rhetoric nor a veiled threat of revolution. It was the invocation of a very real, very available legal remedy, albeit one not to be called upon lightly
This view of the peoples role in constitutional law pervaded political and legal debate throughout the 1730s, and it remained the dominant understanding until well into die nineteenth century. It is this conception, for example, that lay behind Jefferson's proposal, in his 1763 draft of a constitution for Virginia, to permit the calling of a convention whenever ufa]uy two of the three branches of government concurl] in opinion ... that a convention is necessary for altering this constitution, or correcting brt&hn ofitm^ Jefferson hoped by this means to formalize the peoples role in supervising constitutional law while at the same time bringing some regularity to the process.
Madison went out of his way to criticize his friend's proposal in Ftderaiht ^9-50, and we should take a moment to examine Madison's argument, if for tto other reason than it was among the most elaborate statements on popular constitutionalism of the Founding era.5* In these oft-quoted essays* Madison surprisingly argued against popular participation in interpreting and enforcing a constitution: a position that resonates with scholars today, who tend to be skeptical of robust democratic participation, especially when it comes to matters of fundamental law. Vet it would be wrong to read Madison as repudiating or disavowing popular constitutionalism. Quite the contrary; as a careful reading makes clear, Madison—like Jefferson, like everyone else at (In- linn- lunk 1 hi- p: iuciplc Jiir grunted. Hisquarrel was not with the idea of popular constitutionalism* but with how best to make it operational.
ConiJKtr.nl with View* ckprr-;scd ll in mahout his lifetime, Jefferson wanted I<u[in1;,i pontic* to In Mir Aril and mnjor line of defence in securing crumti-
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THE ORIGINS OP JUDICIAL KtVlfcW
tutional limits, Madison disagreed, and he offered rhree pragmatic objections by way of explanation. First, as we saw in chapter i, he worried that a too-frequent appeal to the people would "deprive the government of that veneration, which time bestows on every thing, and without which perhaps the wisest and irce.sr government would not possess the requisite stability.* Second, he said, "ft] he danger of disturbing the public tranquility by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions, to the decision of the whole society." But "the greatest objection of all," according to Madison, was that the people could not be trusted because they would invariably side with the legislature in any conflict:
The members of the legislative department... arc numerous. They are distributed and dwell among the people at large. Their connections of blood, of friendship and of acquaintance, embrace a great proportion of the most influential part of" rhe society. The nature of their public trust implies a personal influence among the people, and that they are more immediately the confidential guardians of the rights and liberties of the people. With these advantages, it can hardly be supposed that the adverse party would have an equal chance for a favorable issue.57
It is worth noring that these arguments were penned in February of 1788, when Madisuns anxiety about popular politics and elected legislatures was at its pealc Having recently completed three frustrating years in the Virginia assembly, Madison was thoroughly disgusted with politics as it was then being practiced in his state.>fl His correspondence (torn these years bristles with con-:empi ir>: Ic^t.in »s who lack "'liberality or light" and barely suppressed fury at "those who mask a secret aversion to any reform under a zeal tor such a one as they know wrill be rejected."59 It was at this moment, still angry and bruised by his lack of success as a state legislator, rhat Madison led the movement to adopt a national constitution. The point deserves mention because scholars have too seldom appreciated that Madisons feelings abour republican politics in the years immediately following rhis unhappy experience were uncharacteristically pessimistic. Madison never wholly abandoned his fear of unbridled populism or legislative aggrandizement, but his alarm diminished in intensity over time—especially after he saw what someone like Alexander Hamilton could do will) executive pown il leli urn becked bv ihc people™
Vet cvtrn in i/Hft, when llir (u-mI. .rt ,n--., <j| popular politics loomed |;irg est in Madi*on* eye*, he recognised that constitutional dispute* could not
ultimately be resolved "without an appeal to the people themselves, who, as grantors of the commission, can alone declare its true meaning and enforce its observance."''1 This was not inconsisteni with Madisons simultaneous rejection of Jefferson's proposal, which Madison regarded as unworkable. He felt that Jefferson failed adequately to appreciate just how ticklish constant unmediated appeals to the people could become. The trick, as Madison saw it, was to devise a system that would reduce the need for such appeals—a problem he thought could be solved at the national level (he went on to explain in Fcderahtf 5/) by institutional design, diat is, uby so contriving the interior structure of the government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places."62This meant, in particular, such things as extensive size, bicameralism, an executive veto, and federalism.03 Through such means, Madison reasoned, ambition could be made to counteract ambition, most constitutional usurpations could be checked at their inception, and resort to die people would he necessary only on "certain great and extraordinary occasions,***
Madison was typical of Federalist leaders in this respect. The men who led the campaign for a new Constitution were not fans of the people out-of-doors; they preferred a more sedate style of politics, safely controlled by gentlemen like themselves.** Signs of popular unrest, of which Shays s Rebellion was only the most famous example, made them nervous. Their ho pi:, nnd 1 fir-impetus behind their reform effort, was to devise institutional solutions that could discourage these frequent popular interventions by "refining" them or otherwise rendering them unnecessary,
Yet that is a far cry from being anti-democratic. "A dependence on the people is no doubt the primary controul on the government," Madison wrote in Federalist yJ* Structural innovations were just "auxiliary precautions," contingent devices to forestall conflict, not an abandonment of the more basic commitment to popular constitutionalism. Certainly the Father of the Constitution never wavered in his belief that final authority to resolve disagreements over its meaning must always rest exclusively with the people. As he reiterated in 1789, during the debate over the President's removal power:
There is not one government on the face of the earth, so far as 1 recollect, there is not one in the United States, in which provision is made foi .1 ji.ii 1 it 11l.tr authority to dcrcrmiiie (he limits of the constitutional division ol pown bnw.rti the branches of the government, in all system* there ate point* which must be adjusted bv die drparrnu-ni fhfimwlvni, In which iw one of tlieui is competent. If it cannot he
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determined in this way, there is no resource left but the will of the community* to be collected in some mode to be provided by the constitution, or one dictated by the necessity of the case/'
Christopher Wolfe observes, rightly it seems, that Madison meant the amendment process when he referred to a "mode . . . provided by rhe con--cirution,,n and elections, impeachments, and other forms of political action when he referred to a mode "dictared by the necessity of the case."**
Recall, too, that Madison was not wholly allergic to popular appeals even in 1788, Federalist 49-30 dealt only with "keeping the several departments of power within their constitutional limits"**—that is, with separation of powers within the federal government. As we have seen* Madison worried rhat appealing to the people in this context would fail because the community would too often back the legislature, encouraging it to draw ever more power into its "impetuous vortex.1',r" In sharp contrast, Madison embraced the potential for appealing to the people when it came to keeping the new federal government from swallowing the states. In the context of federalism, Madison no longer feared that conventional forms of popular constitutionalism 1 nigh 1 work against the Constitutions design, because i| he explained in Federalist 4$~4h—"the first and most natural attachment of the people will be to the governments of their respective states," thus according states complete security from any risk of federal overreaching.71
Countless other examples can be cited similarly attesting to the persistence of popular constimtionalism in the early Republic. The peoples interpretive authority—their active control over the meaning and enforcement of their constitutions—is what James Wilson had in mind in 1787, when he exulted that "the people possess, over our constitutions, control in actv as well as in right.*17 It is what John Randolph meant when he insisted, in 1802, that while the branches may try to check one another, rhc people control the constitution through elections, "die true check; every other check is at variance with the principle, that a free people are capable of self-government,m ^[Ajn appeal . . . through the electionst" Randolph explained, ensured chat constitutional limits rhi power were interpreted by "the nation, to whom alone, and not 3 few privileged individuals, it belongs to decide, in I he last resort, on the Constitution.*'' It is what President James Madison was referring in in iHkj, when !»<■ declined to veto the bill establishing a Second Hank of the United States on const inn ion a I giound\ In f him though his own view* of it* uncon^ti mtiiMkiijiiv lenuiued uiiiilh'ird   the matter wan "precluded . . . by repeated
recognitions under varied circumstances of the validity of such an institution in the acts of the legislative, executive, and judicial branches of the Government, accompanied by indications ... of a concurrence of the general will of the nation."^' And it is why, in 1819, Thomas Jefferson could, without being the least bit ironic,, describe his own election two decades earlier as "the revolution of iKoo."7* The great controversies of the 1790s had been constitutional controversies: the power to incorporate a bank or encourage manufactures, the question of neutrality, the proper handling of the Whiskey Rebellion, the Jay Treaty, the Alien and Sedition Acts, rhe election deadlock—these all raised or were entangled in constitutional questions. The issues before the country in these years were constitutionalhsucs: strict versus broad construction, federal versus state power, the existence or not of federal common law, die meaning of freedom of the press. The escalating party struggles of the 1790s were, in Jefferson's eyes, an extended national referendum on whose views of the Constitution were correct, a referendum rhat reached its climax in the fiercely contested election of 1800. The people's unequivocal choice in that election had been tor Republican principles and the Republican Constitution. Jefterson was thus being both lire ml and sincere in calling die rejection of Federalism:
[A]s real a revolution in rhe principles of our government as that of 1776 was in its form; not effected indeed by the sword, as that, but by the rational and peaceable instrument of reform, the suffrage of the people. The nation declared its will by dismissing functionaries of one principle, and electing those of another, in the two branches, executive and legislative, submitted to their electionr77
Popular Constitutionalism^ circa iyS6
The continued vitality of these traditional constitutional understandings and practices—particularly the understanding of constitutions as popular rather than ordinary law—is hardly surprising. Firmly roored beliefs and deep-soared background assumptions seldom change quickly, Certainly they never do so unless something specifically forces those who share them to undertake a reexamination. If anything, however, the opposite was true of the American Revolution: its whole point had been, in a sense, to affirm the principles of popular «.ovcreigntv and the customary constitution. Nevertheless, the pructickdmc* of reestablishing government afrci independence inevitably
THF rF.CJPl.E THEMSELVES
THE ORIGINS OF JUDICIAL REVIEW
produced changes and exerted pressure on existing understandings and practices of fundamental law, Four factors, in particular, were significant in this respect, and from these emerged rhe first concept of something recognizable as true judicial review.
First, with independence came responsibility to govern. Suddenly, and for the first time, Americans had to handle for themselves all those matters that were formerly dealt with by Great Britain, This was obvious a I the national level, where inexperienced officers of a new and uncertain federal government had to manage and finance a war, deal with foreign affairs and interstate disputes, and find solutions to a variety of other thorny problems,78 But it was equally true in the states, which similarly found themselves forced id address numerous matters that had formerly been handled by imperial authorities. Plus, the Revolution changed the demands that were made of government, as modern conceptions of public power replaced older notions ni monarchical government. Gordon Wood explains:
From the outset rhe new republican states thus tended to view with suspicion the traditional monarchical practice of enlisting private wealth and energy for public purposes by issuing corporate privileges and licenses ro private persons, -.. Conscquendy, the republican state governments sought to assert their newly enhanced public power in direct and unprecedented ways—doing for themselves what they had earlier commissioned private persons to do. They carved out exclusively public spheres of action and responsibility where none had existed before. They now drew up plans for replacing everything from trade and commerce to roads and waterworks and helped to create a science of political economy tor Americans. And they formed their own public organizations with paid professional staffs supported by tax money, not private labor.7*
It was precisely this rage for reform that Madison lamented in his memo on the Vices ofthe PoliticalSystem of the United States, complaining of a "luxu-tiiUicy of legislation" that had, in a few short years, "filled as many pages as the century which preceded it.*™ Madison's explanation for the phenomenon— that state legislatures were too responsive ro the whims of majorities—simply tmdfiM (he fioiiu:wiih uuk-pe tide rice, arid lorlvrn-t m wmse, American legislatures found ihcuwcivcH doing far more than ever be lore.
SetoiuL tin- in-vv i. £ii)',ninMi»nu were written, Contrary to a common im*ptri< |iijmii anion-.', prt*errt*d,iy loii^itutionuJ liiwynn, pntnmr a eoiutim
tion into writing was not thought to alter its fundamental character,5,1 As we have already seen, customary constitutional law regularly drew on written sources, while lawyers and statesmen continued to rely on customary sources even after formal texts had been drafted,K The chief effect of writing constitutional principles down, as the Founding generation saw it, was to give these principles a degree of explkitness and clarity that was new. Recall that, while there was consensus about many principles of the customary constitution, it necessarily suffered the debility of uncertainty that inheres in all forms of customary law, "But, with us," boasted St. George Tucker in Kamper v. Hawkins, "the constitution is not an 'ideal thing,' but a real existence: it can he 'produced in a visible form:' its principles can be ascertained from the living letter, not from obscure reasonings or deductions only"''1 William Parerson made the same point in his charge to the jury in Vankornes Lessee v. Dortanw.
It is difficult to say what the Constitution of England because, not being reduced to written certainty and precis ion, it lies entirely at the mercy of the Parliament: It bends to every governmental exigency; it varies and is blown about by every breeze of legislative humor or political caprice, . , . Besides, in England then? is no written con^riiurion. no fundamental law, nothing visible, nothing real, nothing certain, by which a statute can be tested. In Amsrua the case is widely different Every State in die Union has its constitution reduced to written exactitude and precision.**
Paterson was, of course, exaggerating in both directions. The customary constitution was unambiguous in many respects, while two centuries of wrestling with written texts has made their imprecision abundantly dear. There was, nevertheless, a difference in degree that mattered, and by reducing their constitutions to writing, Americans made that much more immediately, easily useable.
One by-product of the new explicitness and clarity associated with written constitutions was the decision to create formal provisions for amending them.^ A distinction between "making" and "interpreting" fundamental taw already existed under the customary constitution, part of an intellectual tradition stretching hack to the ancients that had heen carried forward in the work of iueh figure* as Machiavcili, Locke, Montesquieu, and Rousseau.8* Yet the diminution had little practical significance. The foundational prin-i iplrti of ihe Ancient Constitution were thought to be immutable; improve-
the PEOPLE themselves
ments and alterations were possible only in their instantiation and application. Correction along these lines, in the meantime, occurred mainly through prescription and the accretion of precedent—a process of gradual evolution mat was seen more as adaptation to changing circumstances than the making of new law. Abrupt revisions were unusual, happening mostly during violent upheavals like the Glorious Revolution* and even these were justified on grounds of protecting or restoring ancient liberties. In short, circumstances and fortuity had deflected the need to worry much about any conceptual distinction between interpreting existing law and making new law.
Reducing constitutions to writing put new pressure on the distinction by making rhe terms of fundamental law specific and more easily demonstrable, and thus narrowing the space for "improvements" that were not undeniably alterations.87 The difficulty, moreover, was not just that written constitutions were more certain and precise, but also that rhe new American constitutions hazarded numerous innovations. Tins made it virtually certain, as Elbridge Gerry was to note during the debates over framing a new Federal Constitution, that "periodical revision11 would be necessary because of 4,[tjhe novelty 6t difficulty of the experiment.*''18
One could have left such problems to be handled by the people at large, as they always had been; Charles Pinekney said during the same debate as Gerry that he udoubted the propriety or necessity" of a formal amendment mechanism.8" But most Americans associated precipitous changes in fundamental law with violence and revolution, and many immediately perceived the benefits of creating a regular process to alter established law peacefully— a process that, as the townsfolk of Lexington put it in objecting to its absence from an early draft of the Massachusetts constitution, "might give Satisfaction to the People; and be an happy Means, under Providence, of preventing popular Commotions, Mobs, Bloodshed and Civil War.^1 George Mason made the case succinctly in supporting an amendment provision at the Federal Convention: 'The plan now to be formed will certainly be defective, as the Confederation has been found on trial to be. Amendments therefore will be necessary, and it will be better to provide for rhem, in an easy, regular, and Constitutional way than to trust to cluutce and violence""
Lawyers and scholars today generally misunderstand the part these amendment provisions originally played in a constitutional scheme. We imagine "the people" only as lawmakers—constitutional legislators for a day, as it were—but nothing more. Ratification make* ,1 constitution "law," hut also turns the constitution over 10 government agrtir. < mainly judge-.} who a valine rctponnihility for it* interpretation ami enforcement Hie people
THE ORIGINS OF JUDICIAL REVIEW
retain authority to correct mistakes or change courses, but only bv again exercising their original power to make law. That power might exist even without a formal mechanism for amendment, though such provisions are useful in a constitution because they make the people's authority explicit and establish known procedures for its exercise. Either way, this revision-ary, lawmaking power is seen as rhe sole means of direct popular control of constitutional law.
Eighteenth-century Americans had a less cramped image of popular constitutionalism. They took for granted the people's responsibility not only for making, but also for interpreting and enforcing their constitutions—a back ground norm so widely shared and deeply ingrained that specific expression in the constitution was unnecessary. Constitutional provisions for amendment made sense within this framework to deal with a new problem created by having embarked on a course of constitutional experimentation in written form. Anticipating a need for frequent revision of clearly established con-stitutional rules, the drafters of the new constitutions deemed it expedient to provide an easier, more orderly mechanism for changing them. This was intended nor to limit, but rather to respect and preserve popular authority over constitutions, while simultaneously reducing the prospect of political unrest.
Striking a proper balance among these various concerns was no simple task. Many participants worried that the amendment process could stir up more trouble than it prevented if it were made too easy. Gently chiding Jefferson for his harebrained piojiosal to have the laws and constitutions expire every nineteen years, Madison reiterated his arguments from Fetitraiiit 49 while adding a warning about the danger of "engender!ing] pernicious factions that might not otherwise come into existence.Different compromises with respect to the ease or difficulty of making amendments were reflected in the various approaches taken in different states and in the Federal Constitution,93 But in every case, choices were imagined and ultimately made against a background of unmcdiatcd popular intervention, which provided the implicit baseline for measuring legitimacy.
By the same token, adopting formal procedures to change fundamental law in no way altered the people's role when it came to conventional problems i>| constitutional inirrprelatw'ii. As we have seen earlier (and will SfiB .u'.ainJ, if a 1 (institution was unclear, government officials were expected to do then best to ascertain and follow Us requirements, subject to popular over-tight and review ecpfCltod by .1 nmgc of "political - legal" means. A separate problem mom: when n coiMUution wwn clcur—eirfu-i Wcause its text was
THE  PEOPLE THEM SELVES
THE ORIGINS OF JUDICIAL REVIEW
unmistakable or because an ambiguity had been resolved through a course of popular reactions—bur what was once clearly mandated no longer seemed desirable. Relying on traditional popular means to overturn entrenched rules or reform established institutions was difficult at best, often inviting violence and civil unrest. So Americans chose instead to address this problem by creating* in Mason's words, "an easy, regular and Constitutional way" ro make such changes. The amendment device could also be used to cure ambiguities, but this was neither its motivation nor its main purpose. 'Hie possibility of amendment was thus situated in a political and intellectual name-work in which interpretive authority remained where it had always been, with the people at large,
The synergy between these first two changes—more active government, on the one hand, and more explicit constitutions, on the other—produced yet a third. There were now many more opportunities for constitutional conflict: more problems to address, more questions that might arise, more disputes likely to become manifest. A number of additional factors exacerbated this state of affairs. It was a revolutionary time whose radical overtones did not fade quickly; institutions throughout rhe society were being overturned, sharpening an incipient class conflict as well as the ordinary' tussle or competing interests.9* It was, moreover, a time of economic hardship and dislocation,'^ with the inevitable concomitant pressures to stretch the law to provide relief. 1 lien there was the matter of loyalists and others who had backed the wrong side, as Americans proved no more capable than anyone else at keeping bitter memories and vindictive urges from overwhelming ordinary legal process, giving in to what Alexander Hamilton despairingly called a "popular phrenTy*of punitive legislation.*6 Lastly, as already noted, the new constitutions contained numerous innovations—institutions and ideas whose very novelty left their operation uncertain. In some instances, such as relations berween the state and federal governments, Americans knew they were in uncharted waters. In others, such as separation of powers, they did not discover how little they understood until they attempted to implement what they had written.
The fourth and most important change produced by the Revolution was the new nation's explicit, emphatic embrace of popular sovereignty, Thi* was not a new idea, for Americans believed it had always been a feature <>! 1 licit constitutions. But this belief was nor put to the rest until the Revolutionary crisis of i-jb^-ijjb, from whfch popular sovereignty emergen! more vlrarly < It-lined M llie central principle of American totistitiuioruliimr pTfldlHaOg ili:u ilun.u ruge for republicaniim documental In < •mdnn Wood tu f%
Creation of the American Republic?7 The concept of popular sovereignty predated 1776 by more than a century, but in American hands, and through the crucible or rhe American Revolution, it acquired a concreteness and importance that was wholly new and wholly different. Gerald Stourzh elaborates:
The rise of the constitution as the paramount fate, reigning supreme and therefore invalidating, if procedurally possible, any law of a lower level in the hierarchy of legal norms, including "ordinary* legislator-made law, is the great innovation and achievement of American eighteenth-century constitutionalism. Awareness of thu innovation, not of constitutions reduced to written documents, was what evoked the proud commentary of eighteenth-century Americans such as Tom Painejanies Iredell, and James Madison J"*
As it emerged, moreover, the principle of popular sovereignty was subtly transformed. Its movement from wings to center stage gave the principle an immediate serviceableness that it had not previously possessed. No longer just a background norm or explanation of original authority, the idea of popular sovereignty was right there on the surface, an immanent, impendent force to be dealt with.
While Stourzh is right, moreover, that putting constitutions into writing was not seen as a profound innovation, rhe process of doing so nevertheless gave a powerful boost to the new awareness of popular sovereignty. Reducing constitutions to writing may have begun as a matter ot practical necessity, but it did not end that way, The work itself infused "the people" with an immediacy and tangibleness that penetrated beyond the conscious, beyond the intellectual, to invigorate the affective side of rhe Revolution, "You and 1, my dear friend, have been sent into life at a time when the greatest lawgivers of antiquity would have wished to live,1* marveled John Adams:
How few of the human race have ever enjoyed an opportunity of making an election of governmcnt, more than of air, soil, or climate, for themselves or their children! When, before the present epocha, had three millions of people full power and a fair opportunity ro form and establish the wisest and happiest government that human wisdom can contrive?1^
Similar cxprcfttiom of euphoria and awe wt-rr- nbu|iin<uis a> men threw themwelven into the workol writing new coiim notions.Im
tu f. pro p i f. TiieM.in.vFj
TIIF OTUGTNS OF JUDICIAL REVIEW
This heightened awareness of popular sovereignty—the sense of "the people* as a palpable, active entity making conscious choices—transformed certain implicit understandings about the nature of a constitution. The customary constinition was popular law, but of a fundamentally conservative cast. Its defining tropes were all about antiquity, settled practice, and custom established since utime out of mind.1* It changed constantly, but changes were seen (and more importantly, were felt) primarily in terms of preservation: responses to events undertaken in order to maintain an ancient, unchanging balance between liberty and power Infused with Revolutionary fervor, the new American understanding of constitutionalism was active, reformist, optimistic, and progressive. In short, the customary constitution metamorphosed into something that could, for the first time, truly be called a popular constitutiorL
The new provisions for amendment were perhaps the clearest and most obvious manifestation of the new attitude.1" Haunted by the specter of "corruption" of the British constitution, Whig writers in the colonial period had directed all their energies toward preservation—toward restoring (as Jefferson once described it) *that happy system of our ancestors, the wisest and most perfect ever yet devised by the wit of man, as it stood before the Hth century.""112 Now, Americans looked eagerly forward, toward the future, instead of backward—trusting in their abilities to adjust and adapt and improve. One function of amendment remained to prorect the purity of the constitution, and no one doubted that a "frequent recurrence to fundamental principles'' was "absolutely necessary to preserve the blessings of liberty."11" But the old prcscrvarionisr mood was rapidly supplanted by a buoyant new willingness to experiment, of which the case of making amendments was an integral part. Fear not the possibility of mistakes, urged the drafters of Massachusetts's 17S0 constitution, for we can make repairs at a later date in whatever manner "Experience, that best Instructor, shall then point out to be expedient or necessary."ltM
The new possibility of amendment was just one reflection of the changing temper of the time. A sense of popular empowerment was pervasive, as Americans confidently decided that they could fashion their own constitution and government and control their own destinies.i0S Madison hit this note perfectly in rebuking opponents of the Federal Constitution for dreading its novelty:
But why is the experiment of an extended republic n» he rejected merely bck.mf h may compile    11.11 1 ri€W? K it Q01 the glory of the
people of America, that whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names* to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? ... Happily for America, happily we trust for the whole human race, [the Revolutionary generation] pursued a new and more noble course. They accomplished a revolution which has no parallel in the annals of human society: They reared the fabrics of governments which have no model on the face of the globe. They formed the design of a great contedi'rarv, which if ti incumbent on their successors to improve and perpetuate.M*
With so much in flux, complications were inevitable. Constrained as they were by the exigencies of war with England, and lacking useful precedents other than the problematic example of 1688, it took Americans a few years to work out a theory of the proper way to ratify a constitution and make it supreme, paramount law.10. In most states, new constitutions were adopted by ordinary legislative means, without either direct submission to the people or a special convention called solely for the purpose of creating fundamental law.:"-: The actual stanis of some of these first state constitutions thus remained ambiguous, with authorities as esteemed as John Adams and Thomas Jefferson suggesting that theirs could be altered by ordinary legislation."* More commonly, factors like those discussed above—revenge against loyalists, economic hardship, and the like—induced state legislators to ignore clear commands of their constitutions without bothering to make any fancy claims of authority to do so. Either way, blatantly unconstitutional laws became a too-common feature of politics in the 1780s. James Madison placed the "numerous1* state violations of the Articles of Confederation at the top of his list of "Vices," and he complained to Jefferson of "[repeated" transgressions of bills of rights committed "by overbearing majorities in every State."lw Alarm at just this sort of development provided one of the chief motivations for Federalist leaders in ^S;.111
"Being Judges for the Benefit of the Whole People"
This combination of fax tors more active government, more explicit consti-tutiont, more constitutional \ our)n 1 and arguably unconstitutional laws, and, .ibove all, a heightrmnl nt-iiNi r*l 11- >| -nJ.ir %overeignty—could be interpreted in
THE PEOPLE TH KM SELVES
THE ORIGINS OF JUDICIAL REVIEW
different ways, and it pulled people in different directions as they confronted i he new experience of managing a constitutional republic. The resulting tensions shaped the first concept of judicial review.
To many, respect for popular sovereignty demanded that pudges enforce duly enacted laws and leave constitutional questions to be settled elsewhere. No one doubted that a properly ratified constitution was, as Edmund Pendleton observed, "a rule obligatory upon every department, not to be departed from on any occasion."112 It did not follow, however, that the judiciary could therefore invoke the constitution's authority against another department. No one of the branches was meant to be superior to any other, unless it were the legislature, and when it came to constitutional taw, all were meant to be subordinate to the people. Just as it is not your place to punish me for %-iolaring ordinary law, so Loo in a regime of popular constitutionalism it was not the judiciary's responsibility to enforce the constitution against the legislature. It was the peoples responsibility: a responsibility they discharged mainly through elections, but also, if necessary, by other, extralegal means. For courts to interfere, to presume to judge the actions of a coordinate branch, was to meddle in affairs that were none of their business. Worse, it was to imply, as Judge William Nelson characterized rhc argument in Hamper■ v. Hawkins, "that the judiciary . . . claims a superiority over the legislature" on matters peculiarly within the legislative arena! which encompassed decisions respecting the constitutionality of legislation as well as its necessity.1 ]i This is what was meant when people said, as Sl George Tucker put it in the same case, that "the constitution of a state is a rule to the legislature oniy*iU
We need to be clear on this argument, which is critical if we are to understand the setting in which judicial review eventually emerged. In suggesting that the constitutionaliry of legislation was not a matter for judicial cognizance, no one was saying that the authoritative interpreter of the constitution was the legislature rather than the judiciary That would have been inconsistent with the whole framework of popular constitutionalism because it would have assumed that final interpretive authority rested with one or another of these public agencies. In fact, neither branch was authoritative because interpretive authority remained with the people. Of course* public officials still had to interpret the constitution in going a1*out rheir business, since they were the regulated entities (again, jusc as we must interpret ordinary law in going about our business). But underlying the argument described by NeLsoti and Tucker was an assumption that the peoples iwiicrmrn nn which laws could be enacted were directed to i he lawmaking branch, and not to the uthn
branches. It was the legislature's delegated responsibility to decide whether a proposed law was constitutionally authorized, subject to oversight by the people, Courts simply had nothing to do with it, and they were acting as interlopers if they tried to second-guess the legislature's decision. It would be as if the people had hired two agents to perform distinct tasks and one agent kept interfering with the other agent's job, insisting that it knew better.
Judging by the public response to early decisions exploring judicial review, this was the position of most Americans prior to the 1790s,11* Their reactions arc hardly surprising given the premises of popular constitutionalism and the lack of any previous experience with, or practice of, judicial monitoring of fundamental law. To be sure, some of those who rejected iudicial review were uncomfortable having to rely so heavily on traditional "political-legal" means of enforcing constitutional limits. These might have worked during the colonial era, when issues of fundamental law arose only rarely, and they remained essential for combating profound, pervasive usurpations* like those that led to the Revolutions of 1688 and 1776. But could these traditional devices control the numerous smaller unconstitutional measures that seemed daily to issue from state legislatures? Could they he relied upon to prevent laws that were supported by a majority of the community; such as paper-money laws or legislation confiscating rhe property of loyalists? Richard Dobbs Spaight fervidly rejected judicial nullification as "absurd, and contrary to the practice of all the world," but he acknowledged rhat some kind of better check might be absolutely necessary to our well-being."3He just could not think of one; "the only one that I know ot," he confessed, "is (he annual election.""7
Others were more imaginative. Many of the structural changes adopted by state constitution writers were at least pardy about constitutional control— not just annual elections, but also rotation in office, the right to instruct, bicameralism, and the like. Still other innovations were developed specifically and exclusively with the problem of preventing uneonsriuitional action jo mind. We have already considered Jeffersons proposal to "correct breaches" of the constitution by allowing any two branches to call a convention of the people. Hie anonymous aiithoT ol Four Letters o?i Interesting Subjects thought that ^preserving a Constitution" could easily be accomplished by electing at •some fixed interval ,La Provincial Jury ,., to enquire if any inroads have been mode in the Constitution [with] power to remove them"llE—a proposal adopted in slightly modified form by Pennsylvania and Vermont, both of which provided for w "council ul elisors" to review the state of the constitution rvrr v srvfin yearn and recommend change* to the people.1111 The drafters
THE people THEMSELVES
THE ORIGINS OF JUDICIAL HfcVlKW
of the New York constitution came up with the idea of a delaying veto, a sort of preemptive strike on potentially unconstitutional laws. New bills were submitted to a "council to revise" that consisted of the governor, chancellor, and high court judges and was empowered to investigate proposed legislation for its constitutionality; the council's veto could be overridden only by a two-thirds majority in both houses of the legislature.'0' Madison heartily approved this measure, which he urged at one time or another (though never Buccesstully) on Kentucky,JJI Virginia,323 and the Federal Convention.J2"J He later devised the most imaginative solution of the periodT deciding that still more and better protection could be provided simply by enlarging the sphere of the republic. The legislature of an extensive territory, Madison reasoned (though, once again, he failed to persuade others), would be less likely to enact unconstitutional laws and could be entrusted with a veto over the laws of the states.124
Not everyone agreed that judicial enforcement oi a constitution was improper, however. Interpreting the same events and circumstances differently, a few people reasoned that respect for popular sovereignty actually required judicial review. If the constitution was supreme, fundamental law, then legislative acts contravening its terms were ultra vires and void: not law at all judges before whom such acts were brought could not just ignore this fact. The principle of popular sovereignty demanded that they treat such taws as the nullities they were. Here was a truly novel idea, albeit one with trace roots in existing practices of enforcing superior laws over inferior ones. For unlike the Americans' other innovations, which they had expressly incorporated in the texts of their constitutions and which had long been part of Whig political tradition, no one before had proposed relying on courts for general constitutional enforcement.
The most thoughtful presentation of this new principle, which began making sporadic appearances in the early 17805,'^ was penned by future Supreme Court Justice James Iredell in 1786. Iredell was, at the time, representing a client whose property had been confiscated without a jury in a case still pending before the North Carolina courts. Writing pseudonymously ad "An Elector," Iredell published a newspaper essay in which he argued in favor of judicial authority to declare an unconstitutional law void; rhe court was evidently persuaded, for it ruled in his favor when it heard rhe case a year later."*
Iredell began his argument with a proposition thar even he conceded no one was denying; that the states constitution wan "theJhmfatmtifiit law, and unalterable by rhe legislature, which derives all itn power horn it Mtr Wi"iting
for rhetorical effect> he reminded readers of "the extreme anxiety in which all of us were agitated in forming the constitution," having been "sickened and disgusted for years with the high and almost impious language from Great Britain* respecting Parliaments supreme authority over the people. Bur things were otherwise in North Carolina, wh^re the legislature could act only as permitted by the constitution, "for we have as much agreed to be governed by the Turkish Divan as by our own General Assembly, otherwise than on the express terms prescribed,That established, Iredell moved on to what he called 4l|rjhe great argument1*:
tTjhat though the Assembly have not a right to violate the constitution, yet if rhey in fact do so. the only remedy is, either by a humble petition that the law may be repealed, or a universal resistance cf the people. But that in the mean time, their acr, whatever it is, is to be obeyed as a law [by the judges]; for the judicial power is not to presume to question the power of an act of Assembly.139
Iredell *not unconfidendy" reacted these remedies as insufficient.1"10 The "remedy by petition" presupposed "that the electors hold their rights by the favor of their representathvs," a claim so insulting the "mere stating of this is surely sufficient to excite any mans indignation," Popular resistance, on the other hand, was a proper remedy, but undesirable and deficient as an exclusive one. "We well know how difficult it is to excite the resistance of a whole people," which is why resort to such measures must be considered a "dreadful expedient" and a "calamitous contingency." Besides, since widespread popular resistance could be expected only where there was "unvver.uil oppression" many unconstirutional acts would go unrearessed "A diousand injuries may be suffered, and many hundreds ruined, before this can be brought about." In rhe meantime, individuals and minorities would suffer, and die only sale citizens would be rhose who managed always to stay in the majority, whom Iredell contemptuously dismissed as "sycophants that will for ever sacrifice reason, conscience, and duty, too the preservation of a temporary popular favor.1'
Having proved the inadequacy of these conventional remedies* Iredell argued that judicial review followed nam rally from the supposition that the constitution expressed the sovereignty of the people:
I ■■! 1I1.11 H'.cmit. .in .....1 \  1 :niik 11iconsis tent with the constitution+
in wid, in id cannot be obeyed, wit hum disobeying the superior law to
TTilí PĚííťLE themselves
the orhuns of judicial review
which wc were previously and irrevocably bound. The judges, there-lore, must take care at their peril, that every act of Assembly they presume to enforce is warranted by the constitution, since if it is not, they act without lawful authority, This is not a usurped or a discretionary power, but one inevitably resulting from the constitution ot their office, they being judges for the benefit of the whole people, not mere servants of tbeAssembfy^"
A number of observations are appropriate at this point. First, a word of caution: the whole idea of judicial review was new, and however obvious it may seem to us, only a small number encountered and understood die arguments purporting to justify it. No more than a handful of cases arose prior to 1787 in which a question of judicial power to declare legislation unconstitutional was clearly presented, and courts ducked the issue in most of these.1*2 Regularly published reports did not yet exist/" and what was known about the cases came mostlv from sketchy newspaper accounts or from letters and pamphlets written by lawyers who had sought judicial protection for their clients. The handful of men who were pondering judicial review had not yet worked out the theory's kinks, as they themselves well knew. This was part of the reason Edmund Pendleton chose not to address the matter in Commonwealth v. Catoth explaining that "how far this court... shall have power to declare the nullity of a law passed in its forms by the legislative power«■. is indeed a deep, important, and 1 will add, a tremendous question, the decision of which might involve consequences to which gentlemen may not have extended their ideas."134
This uncertainty about the precise terms of judicial review is found not only in the 17803, but for a number of additional decades to come. Judicial review was a moving target, one small piece in a much larger transformation of the role of the judiciary in American life.'* There was, at every moment, a nange of views both as to its propriety and its justifications- Movement was in the direction of increasing acceptance, fairly rapidly so after 1790, but accurately describing just ivhut was being accepted is complicated by the diversity of ideas about fundamentals.
Tliat said, Iredell's 17S0 essay is useful because it was the clearest and best-reasoned presentation of the initial justification for judicial review and because, in most respects, it reflected basic assumptions that were shared by most proponents. Chief among these were the assumptions of popular 1 omitinition-idisuv ihc s.mir aanumpUomt made by ftciftt who rejected judicial review. The coimtiuiTuni w.r.......laine-iinn law III mi i-. law nm\v by the pm
pie to regulate their rulers) and so not like ordinary law at all. Iredell never suggested* or even hinted, that courts should exercise judicial review because they possessed some special competence for rhe task or because interpreting and enforcing laws is what courts do. Rather, he argued that courts must exercise judicial review because they are the people's agents too.To ignore the unconstitutionality1 of a law presented in the course of litigation would he to violate rhcir agency. Hence, they must "take care at their peril" to enforce only constitutional laws or they themselves would be lawbreakers, acting "without lawful authority," Rather rhan overstepping its bounds or intruding on legislative tur£ a court that refused to enforce an unconstitutional law was following the people's command—acting within the scope of responsibilities delegated by the people to the judiciary, which encompassed adjudication.
Nor was this all, for judicial review offered significant pragmatic benefits as well. By exercising review, judges could act on behalf of the people, supplying a peaceful remedy' that substituted for die "dreadful expedient" of popular resistance and offered relief in circumstances where it might not otherwise be availablerm James Vamum likewise emphasized >lik );o-[ point in his argument to the court in "I\evf.ttv, Wecden:
But as the Legislative is the supreme power in government, who is to judge whether they have violated the constinitjonal rights of the people ?—I answer r , r the people themselves will judge, as the only resort in the last stages of oppression. But when [legislators] proceed no further than merely to enact what they may call laws, and refer those to the judiciary Courts for determination, then, (in discharge of the great trust reposed in them, and to prevent the horrors of a civil war, as in the present case) the Judges can, and we trust your Honours will, decide upon them.J37
Judicial review, in other words, was not an act of ordinary legal interpretation. It was a political—perhaps wc should say a "political-legal*—act of resistance. Gordon Wood rightly describes it as "akin perhaps ro the interposition of the states that Jefferson and Madison suggested in the Kentucky uid V ii;r.in,ia Resolutions of 1798."m Even closer to the point is the resistance to the Stamp Act sought by rebel leaders in 1763, when they urged courts to o uma ik open hi id carryon business without stamped paper.   In refusing to
enforce uucotim.....in nul taw*, judges were exercising the people's authority
to renint, providing a mipplruimiaj ftftttdy lor ultra vires legislative acts that averted the need lo mobilie popnU tipptrMtinn.
THE PEOPLE THEMSELVES
THE O R ] G1N S OF JUDICIAL REVIEW
Early proponents of judicial review were quite self-conscious in recognizing the awful nature of what they were doing: "awful" in the eightceth-ccntury sense of something lull of awe. Edmund Randolph initially rejected judicial review when he considered the issue for the first time while preparing to argue for the state in Commonwealth v. Caton. Randolph changed his mind as he worked through the issues,1A) but recognizing the extraordinary nature of what he was proposing, stepped out of his role as state attorney general and ascribed the position favoring judicial review to himself alone.141 1 le said:
Do 1 tremble at the decision of my own mind, that a law against the constitution maybe declared void? or do 1 dread rhe resentment of the court, when 1 bear testimony against their competency to pronounce the invalidity of rhe law?
TMo! The revolution has given me a coat of mail for my defense, while I adhere to its principles. That bench too is reared on the revolution, and will arrogate no undue power
I hold then, that every law against the constitution may be declared
George Wythe, who sat as a judge in the same case, was still more candid, mdodramatically proclaiming that, if ever a branch of the legistanire should overstep its constitutional boundaries:
I shall not hesitate, sitting in this place, to say, to the general court, Fiat justitta, ruat caelum; and, to the usurping branch of the legislature, you attempt worse than a vain thing; forT although, you cannot succeed, you set an example, which may convulse society to its centre. Nay more, if the whole legislature, an event to be deprecated, should attempt to overleap the bounds, prescribed to them by the people, I, in administering the public justice of the country, will meet the united powers, at my seat in this tribunal; and, pointing to the constitution, will say, to them, here is the limit of your authority; and, hither, shall you go, but no further.141
The clash between these opposing views i>f judicial review shaped the doctrine as it cmerged/l riose who rejected judicial nullification were plainly in the ascendant, ai. their position imnc ■ losrlv loiilnrmcd to conventional
wisdom and expectations. Judicial review was, in the context of the times, such a radical departure from experience that even proponents regarded its possibility with what Gordon Wood describes as "a sense of awe and wonder."144 "Most Americans," he says, "even those deeply concerned with the legislative abuses of the 1780s, were too fully aware of the modern positivist conception of law (made famous by Blackstone in his Commentaries of the J^iws of England), too deeply committed to consent as the basis of law, and from their colonial experience too apprehensive of the possible arbitrariness and uncertainties of judicial discretion to permit judges to set aside laws made by the elected representatives of the people.1*3,15 Hence, James Monroe can be found informing Madison as late as 178H that the Virginia legislature avoided discussing the issue "as calculated to create heats St animosities that will produce harm."14*
Advocates of judicial power were thus cautious in formulating the limits of the principle. 41 In all doubtful cases ... the Act ought to be supported,1' James Iredell conceded in a letter justifying his position to an incensed Richard Dobbs Spaight, "it should be unconstitutional beyond dispute before k is pronounced such,"147 This limiting principle instantly became an article of faith among the supporters of judicial review, accompanying virtually every statement of the doctrine. We should understand it, moreover, as grounded in something other than simple defensiveness. The principle that laws should l>e declared void only if "unconstitutional beyond dispute" was a logical corollary given the rationale for judicial action. Judges might be justified in acting as the peoples proxy, to avert reliance on dangerous and undefendable lorms of popular resistance. But they remained mere agents, acting in a manner they presumed their principal had commanded. Such presumptuousness could not be indulged lighdy but should await conditions of near certainty because the principal was capable of acting on its own and retained primary responsibility feit doing so.
"Such Power in Courts Wôtí/d be Destructive of Liberty'
Even thus confined, early efforts to exercise judicial review drew stinging 1-Imi.c:-. Rutgers !.< Wadtlingtm involved .1 stature that precluded defendants in m-.p.iv. .11 tion., from pleading in justification that their use of plaintiff's property wan authorized by military order of the occupying British forces. Representing the defendant, Alexaiulci Hamilton urged hr-n iliat 1 lie statute
the people themselves
the orioins of judicial review
was inconsistent with the law of nations, which lie maintained was incorporated into the New York constitution; and second that it violated the Treaty of Paris, which Hamilton said was binding national law. Following a suggestion in Hamilton's brief,1 *K the court sidestepped the problem, finding it unnecessary' to rule on the validity of the Trespass Act because the statute did not explicitly say that it revoked the law of nations or should apply if inconsistent with the treaty. James Duancs rambling opinion for the court is pure Blackstone, the heart of his analysis lifted straight from the great British jurists Commetttartes',
The supremacy of the Legislature need not be called into question; if they think fit positively to enact a law, there is no power which can controul them. When the main object of such a law is clearly expressed, and the intention manifest, the Judges are not at liberty, altho' it appears to them to be unreasonable, to reject it: for this were to set the judicial above the legislative, which would be subversive of all government,
But when a law is expressed in general "words, and some collateral matter, which happens to arise from these words is unreasonable, there the Judges are in decency to conclude that the consequences were not foreseen by the Legislature; and therefore rhey are ar liberty to expound the statute by equity, and only quoud hoc to disregard it.
When the judicial make these distinctions, they do not controuJ the Legislature; they endeavor to give their intention it's proper effect.I4W
Notwithstanding Duancs jurisprudential conservatism, merely exercising this aggressive form of statutory interpretation elicited outrage. The state legislature adopted a resolution denouncing the opinion as *in its tendency subversive of all law and good order, and leadfing] direcdy to anarchy and confusion,"1J,J which was apparently just enough to blunt a subsequent effort to impeach the judges as we]J. Shortly thereafter, Toe New York Packet and the American Advertiser printed an open letter from a committee of nine prominent citizens. Occupying nearly four full columns, the letter accused the court of exercising "a power to set aside an act ol the state,1* and warned:
That there should be a power veated in courts of judicature whereby they might controul the supreme Legislative power we think u abnurd in itself. Such power in courts would be destructive of liberty, and remove all Hecuriry of property. The design ot court* ol juutice m our
government, from the very nature of their institutions, is to declare laws, not to alter them.
Whenever they depart from this design of their institution, they confound legislative and judicial powers.
151
The same reactions followed the refusal of the New Hampshire courts in several cases to enforce a law eliminating trial by jury in cases for sums of less than ten pounds:"3 tocal newspapers published editorials condemning the decisions, and the legislature received petitions demanding that the judges be impeached. A morion to impeach was entertained but narrowly defeated. Instead, state legislators adopted a resolution affirming the laws constitutionality' (by a vote of 44 ro 14).w-1 Six months later, and in the face ot continuing pressure, tile legislature entertained a motion to impeach that was narrowly defeated, after which they decided to repeal the troublesome law."4 This initiated a tug of war between the branches in which the legislature continued to insist on its prerogatives despite the judiciary\ protests; it took nearly tliirty-tive years, until 1S18-TQ, before judicial review was firmly established in New Hampshire.1"
The case that lay behind fames Iredell's essay, Bayard v. Singleton provoked a similar outcry in North Carolina. In May 1786, Bayard brought an action to recover property confiscated by state authorities in 1777. A year before Bayard's suit had been commenced, the North Carolina legislature enacted a provision requiring the state's courts to dismiss actions by loyalists seeking to recover property taken during the war. When judges hearing Bayard's case failed promptly to grant the defendants motion to dismiss under this law, rhey were ordered to appear before the legislature, A committee that included two future delegates to the Federal Convention (William Davie, who was representing Bayard, and Richard Dobbs Spaight) found the judges guilty of the facts charged against them, though they did not recommend any formal sanction.1*""
Expecting this none-too-subtle legislative message to produce a more iigrceable outcome the second time around, the defendant renewed his motion to dismiss. The judges struggled to avoid ruling, trying by various means to persuade the parties to settle,^ Their efforts failed, and in May 7K7, "after every reasonable endeavour had been used in vain for avoiding a disagreeable difference between the Legislature, and the judicial power! —end ju*t *«• the Federal Convention wab getting under way—the court 'with much uppitnrtu reluct mice, bur with great deliberation and lirmnc&V denied the defendant'* motion on coiivtitntion.il ground*.1" It* action incited
r.
tuf. people themselves
the origins of judicial review
violent protest throughout the state and provoked the legislature to deny the judges a pay increase, though the controversy died down after a sympathetic jury prompdy returned a verdict for the defendant,160
And then there was Treveit v. Weeden. James Varnum argued to the court th;U Rhode Islands law requiring merchants to accept paper money at face value was unconstimtional because it could be enforced in civil trials without a jury; the court appeared to avoid the issue by dismissing for lack of jurisdiction instead.'*1 Although the judges had neither declared the law unconstitutional nor even stated forthrightly that they had the power to do so, the governor convened a special session of the legislature, which summoned the court to explain its actions. At first, the judges refused to answer, boldly asserting that they were "accountable only to God and [their] own consciences*"163 After further prodding, they tried to placate the irate legislators by explaining how they had not actually declared the law unconstitutional. The assembly nevertheless formally recorded its dissatisfaction .itid entertained a motion to dismiss the entire bench. The judges petitioned !■>! ,m additional hearing, accompanied by a written memorial udisclaim[ingJ and totally disavowing] any the least power or authority, or the appearance ihei't-ol, to contravene or controul the constitutional laws of the State."'*3 I I.- ambiguous declaration; appeased the *ssc:vl.h just long enough tor the judges to keep their seats until the next election, at which time all but one were turned out of office.1*4
Similar reactions were recorded throughout the 1780s whenever and wherever 0 court considered exercising review, with the possible exception of Virginia ^ Trie issue arose early in that state, in the 1782 case of Common-wealth v. Caton"'" Three prisoners condemned to death for treason petitioned the House of Delegates for a pardon. The House granted their petitiont but the Senate demurred. Under the Treason Act, both houses had to approve a pardon, whereas the state constitution appeared to vest this power in either the governor or the House of Delegates. Lawyers for the defendants asked the court to declare the statute void and grant rheir pardon under the House resolution. The case achieved a degree of notoriety in the statet with letters and newspaper accounts anticipating and debating what was soon being ictrt red t» 1 as"[ 1 |he great constitutional question."1*7 Ultimately, the Virginia court, tou, avoided having to decide by interpreting the state constitution to perm 11 the act, A number of the courts members ncvnrt heirs* opined on their power to set ihide unconstitutional legislation, with one (Peter Lyons) (irmly oppuMrd, two (George Wythe and Jtimr   M1u.1i |u,i .e, I irmly in
favor, and five others undecided or unwilling to address a question that was not necessary to decide the merits.,M
Unlike in other states, no public outcry followed. William Treanor reports that "[tjhere is no record of popular criticism of the rwo judges who asserted that the judiciary had the power to invalidate statues. There was no move in the Senate against them. Moreover, the Senate joined the House in providing the three prisoners rhe relief they had sought from the outset."1 ^Treanor attributes this to the unique structure of Virginia politics, whose controlling elite looked more favorably on lawyers and lawyering than in other states. But while rhis may have been sufficient to dampen public displays ol opposition, it did not mean there was none—as indicated by Monroe s report to Madison that state legislators avoided discussing the issue because it made people too angry.17" In any event, the Virginia experience was unique, and, elsewhere, talk of judicial review predictably embroiled courts in controversy.
The status of judicial review on the eve of the Federal Convention was thus uncertain at best. It was not even clear just what the argument was. There had been few cases, and no court had yet published an opinion affirmatively explaining, much less defending, judicial authority to nullify legislation. Although one or two courts had actually refused to enforce a law on constitutional grounds, most had avoided the issue. The extra-judicial literature was barely more informative. There was James Iredell's written justification, which made arguments similar to those advanced by James Varnum in Trevett v. Weeden. Roth men's views had been published, but neither publication circulated widely. Certainly there is nothing to suggest that theirs was a dominant view, even among those who might have looked favorably on judicial intervention.
A number of scholars have suggested that the doctrine of judicial review that emerged in the 1780s was limited to laws regulating courts and judicial process.171 They rely mainly on the fact that four of the six well-known Revolutionary era cases involved the right to trial by jury,172 while one other (Rutgers v. Waddington) technically concerned a pleading rule. Certain statements made at the time appear to support this narrow understanding of the doctrine. Rlbridgc Gerry observed at the Federal Convention that judges had "a sufficient check agst. encroachments on their own department by their exposition ol the laws which involved a power of deciding on their Constitutionality,'*17' while James Wilwn wanted a Council of Revision because, even assuming judicial review, "|l|he Judiciary ought to have an oppominity of remonstrating ag1** prnjri ted ciuToathmeim on rhe people as well as on
the people THLMKK1.vkk
the origins QV judicial review
themselves.*174 Against the background of the actual decisions, such statements make it seem plausible to assume the existence of a "middle" position confining review to laws directly regulating: courts.37''
Yet on closer inspection, it seems unlikely that anyone at the time was thinking in these terms. Most of the cases may have involved questions that would today be classified under rhe rubric of adjudicatory process, hut not all of them. Commonwealth v> Caton concerned the right to a pardon, which is a nonjudicial right, and the defendant's actual challenge in Rutgers jtt Wad-dington was to the legislatures power to eliminate a substanrive justification for his conduct, Given the small number of cases involved, these are telling exceptions.
Even the jury cases provide little support for the notion that judicial review was restricted to laws regulating courts. Today, we think of the jury mainly as a procedural device, but the eighteenth-century view was more complex. Juries existed first and foremost to protect the people from J he government, including courts. Laws restricting the right to a jury were seen nor as legislative encroachments on judicial power, but rather as governmental efforts to "destroy the Power of the People."17* One might just as well deprive citizens of the right to vote as deprive them of trial by jury, John Adams explained, for both rights equally prevented "Arbitrary Government" by requiring "the Concurrence of the Voice of the People."177 Where the franchise constituted "the Part which the People are by the Constitution appointed to take, in the passing and Execution of Laws," juries played a homologous role in the administration of justice: "As the Constitution requires, that, the popular Branch ot the Legislature, should have an absolute Check so as to put a peremptory Negative upon every Act of the Government, it requires that the common People should have as corn pleat a Controul, as decisive a Negative, in every Judgment of a Court of Judicature ,"178 All of which is not to deny that juries were part of the judicial process. But because juries were so much more, one cannot infer anything about the scope of judicial review from the fact that many of the early cases were concerned with them.
Read in context, even the remarks quoted above from Elbridge Gerry and James Wilson do not support a view of judicial review as limited to Uws regulating courts and process. Consider Wilsons discussion of the Council of Revision. The first thing one notice* is that others in the same discussion described judicial review in broader terms, yet did not seem to understand themselves (and were not understood by others) to be making a different point.17" The same is true of statement Wilson him.sell uuulr .ifm »1n t !oi» vention, which likewise refer injudicial review with Dp him I hat it u limited
to laws regulating judicial process,1"0 It is possible, of course, that Wilson changed his mind during the course of the discussions in Philadelphia and that he was persuaded to embrace a broader understanding of judicial review. It seems more likely however, that he was saying the same thing both times. To describe judicial review in terms of departmental self-defense was an eighteenth-century phrasing that meant no tiling more or different than judicial power to consider the constitutionality of laws generally.
Recall that the dispute over judicial review revolved mainly around questions of agency and delegated authority. Those who opposed the practice believed that constitutional limits were a direction from the people to the legislature alone; if the legislature overstepped its bounds, that was a matter for the people themselves to address. By investigating the constitutionality ot a statute, courts were meddling in legislative affairs. On the other side, some sophisticated legal thinkers had ron.. ludnl rhat constifurional limits bmtme a judicial matter whenever a potentially unconstitutional law was relied on in litigation. They pointed out that the constitution delegated responsibility for adjudication to the judiciary, which was acting within its proper arena when enforcing constitutional limits in the context of adjudication—which was, indeed, required to enforce constitutional limits in that context. For the legislature to expect, much less to require, a court to ignore constitutional limits was tantamount to forcing judges to act illegally, thereby corrupting the process of adjudication. This is what Wilson and Gerry meant when referring to judicial review in terms of encroachments on the judiciary: protecting adjudication from legislative corruption through the medium :>t unconstitutional laws. But their concern encompassed any unconstitutional law, without regard for its subject matter—which is why no court at any time ever drew the suggested distinction or implied that judicial review was applicable to less than rhe full panoply of constitutional measures.
In saying all this, we must be careful not to lose sight of how seldom the issue came up in the yeans before the Federal Convention. Obsessive attention to the minutiae of judicial review in the early 1780s can easily mislead. An argument to assign courts a role in enforcing the constitution may have been in the air. but it was hardly one that had achieved widespread notice or approbation so far as rhe general public was concerned or that could be called establislu-d. Dm inti-iisivi- locus on the question is an artifact of what judicial review subsequently became and of our natural curiosity', as a result, PO untleisi.iud iii origim, In trying to gci a sense of the historical context, however, it U important not lo exaggerate the significance of what was, in fact, 1nMifi.r11li1.u1l i>< '.In r.i.i majorit> ol Aioeru.uis fur most, including
thl heofle themselves
mast politicians and public leaders, the focus remained on traditional popular means of enforcing the constitution, the major change being a new emphasis on elections. Judicial review was either something they had never heard of or thought about, or, at most, a barely audible note in the background that had not, as yet, attracted their attention in a serious way.
The Power under the Constitution Will Always Be in the People
THE MAKING OF THE CONSTITUTION
* ★ *
mThe Supreme Law ofthe Respective States'
Llie delegates to the Federal Convention brought this whole range of attitudes and ideas with thein to Philadelphia. During the course of the deliberations, a number otdelegates assumed ot openly supported a power ofjudi-y:lilJ review.1 A few just as openly opposed it—the most forthright statement to this effect coming Irom John Francis Mercer, whose brother James had been one of the judges to affirm the power in Gaton1 Still others admitted to being uncertain,' while most of the delegates had probably not given the matter much thought. Of course, only a minority of the delegates, no more than ten out of titty-five, are recorded as having expressed any sentiment;; m .ill. Further complicating matters, there was no comprehensive or direct discussion of judicial review at any point in the proceedings, only a series of . urn m+Jibt* made during debates on other topics. Nevertheless, the record we have does support a few conclusions.
First, the Framers dearly opted for judicial review as a device to control *tarc law. Preventing "j encroachments of the States on the [federal] author ity** wo* 4 matter of paramo nut importance to constitutional reformers in ttre [7H0*. T.v.inipleN o| this ure numerous," Madison recorded in his VUes ........pundijiii, ".111,1 it.-perjnnnn may W fnrcsccn in almost every case where
1hl   ma KIN";  <>¥   Itllv rQNSTITUTION
any favorite ohjee r of a State shall present a temptation.7,5 Madison wanted to handle the problem by giving Congress a negative over state laws "in all eases whatsoever"*—an overambitious solution that the other Virginia delegates were willing to incorporate into rheir initial proposal to the Convention only in the watered-down form of a negative over "all laws passed by the several states, contravening in the opinion of the National Legislature the articles of Union,*7
I'lven rhis, as it turned our, was too much for the Convention's small-sure delegates, who countered in the New Jersey Plan with a proposal to make the laws and treaties of the United States "the supreme law of the respective States" and to provide that "the Judiciary of rhe several States shall be bound thereby in their decisions, any thing in the respective laws of the Individual States to the contrary notwithstanding."8 Here, as Jack Rakovc has convincingly argued, lie the seeds of judicial review as a formal element of the Federal Constitution.'' For the Convention eventually compromised by spurning New Jersey's weak scheme in favor of the nationalist Virginia Plan, but with a strengthened supremacy clause that replaced Madison's legislative negative and that could be enforced by state and national courts.10
The critical discussion took place on July 17, the day after Madison's and the other nationalists' bitter defeat on the issue of proportional representation in the Senate (the so-called Great Compromise). The proposal for a negative on state laws had previously been considered on June 8, with a slew of delegates offering reasons why it was a bad idea.11 This time, too, the debate began with a number of speeches opposing a legislative veto— including one by Roger Sherman, who for the first time suggested that it was "unnecessary, as the Courts of the States would not consider as valid any law contravening the Authority of the Union."12 Madison countered that reliance could not be placed on rhe judiciary. Any check that operated only after laws were enacted would come too late because these laws could "accomplish rheir injurious objects before they can be repealed by the Genl Legislre. or be set aside by the National Tribunals'' and because "Confidence can <rtot> be put in the State Trihunals as guardians of the National authority and interests."3t At that point, Gouverneur Morris—usually one of Madisons staunch allies, but fiercely opposed to the negative—reentered the debate. Although he had spoken against a congressional veto just moments before,1,1 he had not thought to make this point about judicial review. Morris jumped at Sherman* argument, stating that he wui "mote 6c more opposed to the negative" and that law that ought to be negatived will be wt asidr in 1 lie |udi«iah dipiittuil "' Ait* t vinifi Imtlu-i dim UMinn,
the negative was voted down 7^3. Immediately thereafter, Luther Martin moved to incorporate into the Constitution the proposed supremacy clause from the defeated New Jersey Plan, and this was agreed to unanimously without further discussion.
Martins decision to move this amendment after the negative had already taen defeated is exceedingly curious. If, as Sherman and Morris had suggested, a legislative veto was unnecessary because judicial review was already implicit, why move after the negative had been voted down to add a provision explicitly ordering state judges to treat federal law as supreme? And why do so if you are Luther Martin and interested mostly in keeping any limits on state power as weak as possible?
Two reasons seem likely, both related to Martins desire to ensure that the legislative veto was dead once and for all. First, some delegates were presumably willing to vote against Madison s negative only if they had assurances of an alternative check, even one generally regarded as weaker than the negative.1* Some of these delegates, moreover, surely shared Madison's concern that stare courts would not be eager to uphold national authority against the authority of their own legislatures; hence, the proposed clause "bound" state judges to give federal law priority. Second, adding the Supremacy Clause made explicit the authority to do something that might or might not have heen implicit without it. Sherman, Morris, and a few others may have been confident that courts would exercise judicial review, but not everyone was so certain—and with good reason, given rhe novelty of the idea and the spotty record in the states. By adding the Supremacy Clause, Martin removed all doubts, again allaying the fears of others who wanted guarantees of an effective alternative. An express command forjudges to prefer federal to state law answered the leading objection to judicial review, which was that judges had not been authorized by the people to make such decisions. From this point on. Then, the delegates assumed the existence of judicial review over state laws in their deliberations,17
No similar decision was made to endorse judicial review of federal legislation. For some participants, it may have been the case that no decision was necessary. As we have seen, a few of rhe delegates believed that courts should exercise review, presumably for reasons like those offered by Iredell,'* and thev DOuki also have assumed that courts would in fact do so. Yet whatever one's view* uti the former poiflt, even the most sanguine proponent of a liiilu ul check presumably would have rei o^ni/ed the uncertain status of the practice Thw i* why it mml* ntfiwc n • include the Supremacy Clause as a way In itn^Mir judii 111 rrvirw ft) ItfltC lawn. No similar proposal wan made, or even
THE V EOT LV. TM K.MSM.VKS
the MAKING of the constitution
suggested, when it came to review of federal legislation., a failure made all rhe more striking by the fact that the Supremacy Clause had been added.
While this silence may seem puzzling at first, the Convention's inaction is intelligible in context, The device offered in the Virginia Plan to address concerns about federal legislation was a Council of Revision, which would have joined federal judges with the executive to review and possibly veto proposed laws (subject to being overridden by a supermajority in Congress)}" The idea ran into trouble from the start, chiefly in the form of objections that it "involved an improper mixture of powers,"2P and that judges would be biased io applying a law if they had "participated in its formation."21 Llbridge Gerry suggested giving the revisionary power instead to the national executive alone, and it was in this connection that he made his comment about courts having Ka sufficient check agst. encroachments on their own department by the exposition of the laws, which involved a power of deciding on their Constitutionality-1'12 Despite protests from the likes of Wilson and Madison, who worried that the executive would be too weak to wield an effective veto without additional support, a purely executive check was approved by a substantial margin.23
The question of judicial involvement in the veto process was raised again on July 21, as the Convention was completing its formulation of general principles. James Wilson moved to reconsider the decision to limit the veto to the executive. Conceding rlur the proposition 41 had been made before, and failed,n Wilson explained that he was nevertheless "so confirmed by reflection in the opinion of its utility, that he thought it incumbent on him to make another effort/ A Council of Revision was needed, according to Wilson, because:
[t]he Judiciary ought to have an opportunity of remonstrating agst projecred encroachments on the people as well as on themselves. It had heen said that the judges, as expositors of the Laws would have an opportunity of defending their constitutional rights. There was weight in this observation; bur this power of the Judges did nor go far enough. Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect. Let them have a share in rhe Revisionary power, and they will have an opportunity «.»! taking mjiiu: of these characters of a law, ami of counteracting, by the weight ol ihrii opinions the improper views of rhe Legislature.^
The proposed Council was again defeated, this time after a somewhat fuller exchange in which a variety of arguments were offered for and against the idea.2*1 During the course of the discussion, two other delegates came back to Wilsons point about judicial review. Opposing rhe Council, Luther Martin reiterated the objection that, because "the Constitutionality of laws
. . will come before the Judges in their proper official character," putting them on a Council of Revision would give them "a double negative/'2* Responding to Martin, George Mason repeated Wilsons rejoinder that, nt their official character: "[The judges] could impede in one case only, the operation of laws. They could declare an unconstitutional law void. But with regard to every law however unjust oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course,"27 No one else is recorded as speaking to the ipsuc, which was dropped without resolution. And since Wilsons motion was rejected, while no other motion was made pertaining ro rh« role of fudges, we are left uncertain what role, if any, judicial review was expected to play when ii came to federal legislarion.
On further reflection, this silence is less inexplicable than it may seem at first. Judicial review was not the question before the Convention. The question was how best to prevent the enactment of unwise and unconstitutional tedcral legislative measures. The answer was an executive veto. (And not just a veto, either. Additional checks on the risk of bad legislation included i' lU ralism, bicameralism, and the likelihood that "the best men in rhe Community would be comprised in the two branches of [Congress].")" Some delegates were afraid that the executive might be too weak, but a solid majority felt otherwise and were concerned not to involve judges in the lawmaking process. That settledt there was simply no need to say or do anything more.
In die course of discussing the veto, a few of the delegates had expressed (he belief or hope that courts would also exercise judicial review. But unlike i he question of federal supremacy over state laws, there was no need to decide what role the judiciary should play when it came to federal legislation. Some delegates might have favored judicial review, others might have opposed it, but most were now satisfied that they had already done what was needed to make the Constitution work." Disagreements about the desirability or not
i in addition*] judicial check were irrelevant and moot. Ootmiglii will .isk w|<v none oi the pi opouciUs of judicial review thought to make a motion lo add thin powei u well Since no one did, we can only guein a* to then rcatoim. Onr lliiug t* certain, though" it was nor because
THE Pl-OPLR THEMSELVES
THE MAKING OK Tl-fF. CONSTITUTION
everyone, or even a majority, Agreed that the power was necessarily implicit and so nothing needed to be said. An assumption that judicial review is somehow natural or that it automatically inheres in the judicial power would not he made until the nation had considerably more experience with the practice than was true in 1767, As with other checks, judicial review of federal legislation would have been separately discussed and expressly incorporated into the text had the delegates contemplated using it to enforce the Constitution—as they had done, for example, with respect to federal supremacy over state law. Why did no one seek something similar when it came to the const i-tutionality of federal legislation? It could be that even those who recognized the possibility of judicial review \vc re not yet imagining a substantial or powerful enough check to make this worthwhile. Or they might have believed that any effort to add such a provision would fail, presumably defeated by a combination of delegates opposed to judicial review and delegates who did not want to invite needless controversy in getting the new Constitution ratified. Whatever the explanation, the power of courts to review federal legislation was left unaddressed*
The Dcg That Didn't Bark—and the One That Did
Thoughts expressed by the Framers behind closed doors in Philadelphiaare ultimately of less interest than the public debate that took place over ratification. After all, this is what elevated the Constitution to the status of law of rhe land, "As the instrument carne from |rhe Convention]," Madison was to observe a decade later, ^it ^vas nothing more than the draught of a plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people, speaking through the several State Con%rcntions.;,-il Understandings expressed during the discussions about whether to ratify, gathered from what was published in newspapers and pamphlets as well as from what was said in the state conventions, are what matter most.1- Not surprisingly, the evidence from this quarter suggests that Americans did nor suddenly discover the miracle that is judicial review.
In fact, the substance of the ratification debate was precisely what tiit-experience of the 17B0S should have led one to expect. A handful '•■! 1 i' pants saw a role tor judicial review, though few of them imagined it as 11 pow crful or important device and none seemed anxioun (o emphasize it, Othm were opposed to the notion of judicial review, citing in potability fu one nf rhe proponed CinwriiuHon'h li.iliibiiru.Thr VMt miijontv oi pari 11 ipiuiti were
1 u
sitill thinking in terms of popular constitutionalism and so focused on traditional popular and political means of enforcing the new charter. The notion of judicial review seems never to have crossed their minds.
it is striking, for example, that only a single exchange on judicial review can be described as anything other than cursory, that between Brutus and ius in the New York press. The Anti-Federalist Brutus sparked the dispute by devoting three essays in the New York Journal to showing how 'nothing could have been better conceived to facilitate the abolition of the Htflte governments than the constitution of the judicial/1-1 Blending the fallacious with the prophetic, Brums charged that, by conferring jurisdiction on the Supreme Court to decide cases in "equity" as well as law, the Framers had authorized the Justices to expound the Constitution "not only according to the natural and obf%rious] meaning of the words, but also according to the vpirit and intention of it.*w Add to that the Court's independent status and rhe finality of its judgments, which meant that w[t]he power of this court is in many cases superior to that of the legislature," together with the bias a national body must be expected to hold in favor of the federal government, md one could reliably predict that the Supreme Court would "extend the limits of rhe general government gradually, and by insensible degrees."1-
■Alexander Hamilton answered for Publius in the now-famous Federally j8* Hamilton's essay Is usually presented as staking out a thoroughly modern position on judicial review. In fact, Hamilton was refuting Brutus's -'iiggestion that the Constitution conferred sweeping power on the courts by instead defending the more limited power that had begun to find acceptance in n few comers during the T780S, Hamilton's argument thus followed (and in most respects parroted) that of Iredell point for point. The chief difference, as Syfvia Snowiss has noted, was "in tone and emphasis " as Hamilton "dropped Iredell's argumentativeness."17
Although Hamilton portrayed rhe case for judicial review as obvious and iiiKouirovcrsial, he also presented it in uncommonly strong language for the rime. He said at one point, for example, that constitutional limits could "be preserved in practice no other <way than through the medium of the courts "I nisriee*! and he disrnissed a suggestion that Congress could be the con--ii Million it! judge of its own power by urging that uli]t is far more rational to 11 Pi iosc 1 bat rhe courts were designed to he an intermediate body between the people and the legisbturc, in order, among other things, to keep the lat-frr within the limit* unsigned to their anihoriry."w Yet while comments such mi rhvirf Hppciit to niniign Cuufll an mi|Kumnf role, nothing Hamilton said whn moinip*tiln> wnh rhe ncrrpiod premlnet of populai coiiHtituiioiiuliNm,
the people themski.vfk
the making of the constitution
which, as Iredell and others had already argued, made room for courts to act as the people's agent in checking legislative mistakes or abuses.
Hamilton appears to hate edged closer toward sounding a modern note of judicial preeminence in observing that the "independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effect* of those ill humours which the arts of designing men... sometimes disseminate among the people themselves.1'1* That the people could alter or abolish their fundamental charter, Hamilton explained, in no way supported allowing their representatives to violate it ^whenever a momentary inclination happens to lay hold of a majority of their constituents incompatible with the provisions in the existing constitution." Unless and until properly amended, a constitution is "binding upon [the people] collectively, as well as individually l and no presumption t or even knowledge of their sentiments can warrant their representatives in a departure from it prior to such an act."411 Judges had a duty to resist invasions of the constitution, in other words, even if these had been "instigated by the major voice of the community."
Once again Hamilton's reasoning was consistent with the theory and practice of popular constitutionalism. Everyone agreed that a constitution was binding, just as everyone agreed that legislators could not ignore or depart from one, Most people (meaning nor just Federalists but also a great many Anti-Federalists) had learned from experience to fear what elected legislatures might do when overcome by "momentary inclinations*1 of the sort Hamilton mentioned. Rut rather than abandon republicanism or qualify popular constitutionalism, their solution was to slow politics down, to force greater deliberation by complicating the lawmaking process with a system of checks and balances along the lines sketched our by Madison in Federalist 5/\ The whole point was to preserve popular control of constitutional government by rinding (in Madison's words) "a Republican remedy for the diseases most incident to Republican Government."41
Federalist j8 attempts to integrate courts into this process—a position that would emerge more clearly and find widespread support in the 1790s as ^departmentalism." Judicial review was yet one more device with which to force popular reconsideration of possibly unconstitutional measures. It could be called into play in the relatively rare instance* in which such measures got past both Houses of Congress and the Executive, but judicial intflipretL-tions were no more final anil binding on the people than thou: ni these other branches. Final interpretive authority always and necessarily remained in the community. Hence, Hamilton emphasized how the 'Muuneroim innovation*" thai might Ih pi.ului nlbv 11     ■.....lujoruifh iml 1l1.1i 1 nold \\t checked by
judicial review "speedily give place to better in formation and more deliberate reflection. "4-
Could I lamtlton have been staking our a still more extreme position, defending an idea of judicial supremacy that assigned courts the final word on constitutional interpretation while confining "the people's" role to amendment? Anything is possible, though this would have been an exceedingly impolitic position for the politically savvy and strategically-minded Publius to have taken. The most conservative wing of the Federalist party would eventually find its way to this position, but it would take until at least the mid-i79os and require additional provocation from the French Revolution and the rise of an opposition party in the United States. Perhaps Hamilton was out ahead of everyone else in this respect. Certainly it would not have been the first time (or the last}. If so, however, Hamilton was indeed all alone, for no one else defended judicial review with an argument along These lines.
Whatever Hamilton's position, we can be fairly confident that it had no influence on ratification. This is because hardly anybody saw cither Federalist
t\i Brutuss essays during the campaign. Brutus was well regarded among 11 smaU circle of the most intellectual participants in ratification, but he was not widely circulated or read. Of Brutus's three essays on judicial review* two were not reprinted anywhere—not even in New York—while the third was reprinted only twice,4'* PubliuVs audience was hardly larger, the canonical *fatus of The Federalist most definitely being a post ■ ratification phnnm'.e jh in.44 This is particularly true of Federalist yS„ which was not included in the Original newspaper series and first saw the light of day only upon publication pf the second volume of The Federalist at the end of May 1788—too late to influence any ratifying convention except (possibly) that of New York, where 1 he question of judicial review never came up.45
No one else discussed the nature, importance, or role of judicial review in anywhere near the same depth as Brutin .irtd Hamilton. Indeed, only a handful of other Federalists mentioned the power at all.4* In most instances, I heir references were too fleeting or obscure to attract attention. Fabius, for rn.implc, sought to quell fears of federal overreaching by showing tliat the I i.iuutí took "the ttrongeet cautions against excesses":
In the senate the mJĚttišnÚi! Ol the several states will he squally ii'prc'MMired; iu the hum* 'r/^w^^Wi, the people of' the whole union wilJ be equally trfintsntttd, ,unl in the prvxfdrnt, and the federal indrptiidrni /m.V^-i. ......mh concerned in the execution itf the lawn,
u , ,
the people thkmsllves
mi making of the constitution
and in the determination of their constitutionality, the sovereignties of the several states and the people of the whole union, will be conjointly represented/'
In one or two instances, the reference to judicial review was more pointed and substantive, though in no case was it developed at length or presented as anything more rhan one among numerous safeguards. Ilie most elaborate presentation of this sort came from James Wilson in one of his less celebrated speeches at the Pennsylvania Ratifying Convention. Wilson responded to Anti-Federal charges that the federal government would swallow the states by citing the protections afforded by separation of powers, bicameralism, the structure of the Senate, and the power of election. In the midst of this rebuttal, he added:
I say, under this Constitution, the legislature may be restrained, and kept within its prescribed bounds, by the interposition of the judicial department. This 1 hope* sir, to explain clearly and satisfactorily I had occasion, on a former day, to state thar the power of the Constitution was paramount to the power of the legislature, acting under that Constitution For it is possible that the legislature, when acting in that capacity, may transgress the bounds assigned to it, and an act may pass, in the usual mode, notwithstanding that transgression; hut when it comes to be discussed before the judges—when they consider its principles and rind it to he incompatible with the superior power of the Constitution* it is their duty to pronounce it void.'*
A few other speakers made the same claim, albeit less emphatically than Wilson. Rapidly ticking off responses to the many objections raised against the Constitution by Patrick Henry at the Virginia Ratifying Convention, John Marshall came to what he cliaracterized as Henry's claim that "the Government of the United States [hasl power to make laws on every subject.' Not so, retorted Marshall, for federal lawmakers cannot go beyond their delegated powers, "If they were to make a law not warranted by any of the powers enumerated," Marsliall continued* "it would be considered by the Judges as an infringement of the Constitution which they are to guard:—They would not consider *uch a law as coming under their jurisdiction.— llu-y would declare it votd.""" Statement* Tu the ^mc rffcci were made by John Stevens, willing as "Amcrieanus"; by Oliver Kllnworlh in the Conncciuut KarilyinR Convert* ii-iu, . 13 a i L bv Samuel Ad.mit. 111 thr Munich Linens Com* hImhi '" In addition*
William Davie argued to the North Carolina Convention that federal courts would be able to prevent stares from violating the specific prohibitions of Article I, section io/S1
We thus find a smattering of references to judicial review from some fifteen or so speakers (of whom one-third were Virginians, where judicial review had achieved the greatest acceptance). This, in itself is not surprising. Given rhe national scope of the debate, it would have been unnatural had there not been at least a few references to the developing principle of review. What is extraordinary—particularly given the weight so many modern champions of judicial reiicw place on the so-called original meaning—is ihat this paltry collection of citations exhausts the discussion.
Few issues In American history have engrossed public attention like the debate about whether to adopt the Constitution. For more than nine months, from the middle of September, 1787, until at least the following July, the public was "wholly employed in considering and animadverting upon the form of Government proposed by the late convention."^ Writing to a friend overseas, one observer described how the Convention's handiwork "has put us all in an uproar:—Our public papers are full of attacks and justifications ol rhe new system: And if you go into private companies, vou hear scarcely jnything else,"53 Yet in all the flood of pamphlets and essays and editorials that streamed from rhe presses, and in all the voluminous records of debate uj rhe state ratifying conventions, there is no more than this handful of refer-c 1 ices to judicial review.
It is not as if the question of enforcing constitutional limits was not discussed. On the contrary, Anti-Federalists were convinced that the Con-wtitution's restrictions would be ju>rous and ephemeral, an indictment they pressed throughout the campaign. And because virtually every Anti-Federalist offered this threat as one of the best reasons to reject the Constitution (the absence of a Bill of Rights being the other), practically every Federalist was forced to refute the claim by showing how the Constitution would be enforced.
liut how did Federalists think this would happen, if not by judicial review? By now, the answer should be obvious: politics, the kind of politics that we have seen defined popular constitutionalism throughout the seventeenth and fighicrnth ccnturiev When Anti-Federalists insisted that Congress would disregard its limits. Federalists invariably responded that any effort to do 10 would run »mcu:k imo opposition Imm rhe people. Let Congress try to miitUhe itl power*, they *aid lime ami .i^.tiu, noil ledc-rul lawmakers would find ihrriiKlvcN Turing iiirmldthlr popular rcfliitancc—via election*, juries
1 'he people themselves
the making of the constitution
popular outcries, or, in the unlikely event that all these tailed, by more violent forms of opposition.
Arguments along this line dominated all others in both pervasiveness and emphasis.*4 Scarcely any Federalist responding to charges ot federal overreaching failed to make a point about popular control, and other arguments (such as references to the Constitutions structure) were offered as subsidiary elements of this more fundamental reply Even those sympathetic to judicial review emphasised politics as the primary, essential, and indispensable safeguard. Drawing on his experience in state government, Edmund Pendleton acknowledged to the Virginia Ratifying Convention that some constitutional violations had occurred in the state, adding:
An instance has been mentioned already, where [constitutional rulcsj have not been attended to. . . . My brethren in that department {the judicial) felt great uneasiness in their minds, to violate the Constitution by such a law. They have prevented the operation of some unconstitutional acts. Notwithstanding those violations, I rely upon the principles of the Government—that it will produce its own reform, by the responsibility resulting from frequent elections—We are finally safe while we preserve the representative character.55
John Steele of North Carolina likewise mentioned judicial review in conjunction with, and as a subordinate adjunct, to the more basic and fundamental popular check:
If the Congress make laws inconsistent with the Constitution, independent judges will not uphold them, nor will the people obey them. A universal resistance will ensue. In some countries, the arbitrary disposition of rulers may enable them to overturn the liberties of the people; but in a country like this, where every man is his own master, and where almost every man is a freeholder, and has the right of election, the violation of a constitution will not be passively permitted.^
The vast majority of speakers relied on the same logic without tying their arguments to or even mentioning courts. The national government will not violate the Constitution, a New jersey correspondent wrote, because "|e J very two years the people may change their Rcprcn-ut.itives if thev please, mul they certainly would please to s hancr those who would act wirh .> much baseness and treachery^ An exasperated Geuigr Washington complained
to his nephew Rushrod (a future Justice of the Supreme Court) about the stubborn unwillingness of Anti-Federalists to face this axiomatic point:
The power under the Constitution will always be in the People. It is entrusted for certain defined purposes, and for a certain limited period, to representatives of their own chusing; and whenever it is executed contrary ro their Interest, or not agreeable to their wishes, their Servants can, and undoubtedly will be, recalled.—It is agreed on all hands chat no government can be well administered without powers—yet the instant these arc delegated, alrho' those who arc entrusted wirh the administration are no more than the creatures of the people, act as it were but for a day, and are amenable for every false step they take, they are, from the moment they receive it, set down as tyrants—their natures, one would conceive from this, immediately changed—and that they have no other disposition but to oppress.58
Particularly with a proper scheme of separation of powers in place, the basic republican nature of American society would provide irs own security I tom abuse, "fl]f" we cannot entrust [the necessary powers of government] in fhe hands of our own citizenswrote Publicola, "persons of our own choice, and whom we may remove at stated, and short periods, we must be contented to live without any effective government."54 Comments along diese lines were legion,*0
By way of illustration, we may consider the debate over federalism, or, as it was framed at the time, over "consolidation," viz, whether the Constitution was calculated to annihilate .state sovereignty and "ultimately to make the states one consolidated government.The issue is worth special consideration not only because of its present-day importance but also because it was main substantive issue" for both sides ar rhe tunc, a question raised and argued at every turn and in every forum.*3
As wirh every other issue, the debate about federalism focused almost exclusively on popular and political checks. Quite a few Federalists emphasized the politics built into constitutional structure, arguing that state sovereignty was safe because "the general government depends on the state legislatures for its very existence11*11—an argumenr familiar to lawyers today In >m I ierbert Wechslcr* fanou* essay on "the political safeguards of feder-'i in ' In mntr»*t to hi', pnhtm nu v ircMiiurnl of judicial review, James WiImhi drvrlfipi-il ihm argument m length in the Pennsylvania Ratifying Convention/" The intciriiM- ikit .,i.ur ^nvrrnmeuM ;ire threatened wa*
THE PEOPLE THEMStl.VV.S
THE MAKING OF THE CONSTITUTION
"rather unnatural," Wilson noted dryly, inasmuch as. no government would endanger that "upon the very existence of which its own existence depends.1" Pointing to the House of Representatives, Wilson argued that the Framers had taken care to ensure that "even the popular branch of the general government cannot exist unless the governments of the states continue in existence" by leaving control over "the important subject of giving suffrage" in the hands of state legislators. As for the Senate, Wilson remarked sardonically/! i]n the system before you, ■.. those tyrants that are to devour the legislatures of the states, arc to be chosen by the state legislamrcs themselves. Need anything more be said on this subject?" The Electoral College was similarly arranged to protect states, by requiring that the President be chosen "by electors appointed in the different states, in such manner as the [state] legislature shall direct1'
Wilson's long speech is but one example among many, as speaker after speaker made the same points in response to Anti-Federal charges that state sovereignty was direatened—all without mentioning courts or judges or judicial review,*6 Note, too, that while many Federalists followed Wilson in describing an array of devices that guaranteed states a voice in the national government, most appreciated that the Senate had been particularly designed with this concern in mind. A considerable number thus singled out the upper chamber to highlight its role in safeguarding the interests of state governments,67
Yet here, too, the reliance on structure turns out on closer inspection to be nothing more than an application of a less formal but more basic popular check.65 With respect to federalism, moreover, the argument from popular enforcement was further refined in recognition of the special role state politicians could play by drawing on their inherent political strength to rouse public Support against unconstitutional federal measures. As Edmund Randolph explained to rhc Virginia Ratifying Convention, if Congress "attempt ... an usurpation, the influence of die State Governments, will stop it in the bud of hope. 1 know this Government will be cautiously watched* The smallest assumption of power will be sounded in alarm to the people, and followed by bold and active opposition.
Publius developed this line of reasoning at length. Using Tb* Federalist to gauge the perceptions of other participants in the Founding can he problematic, and it is often misleading to rely loo heavUy on this one source. On almost ever)1 issue, PubliusV, reasoning was more complex, his lngn nunc novel and striking, than that ot anyone else. In some Ihst.hu M.tdv.nu'i and IEtttkSftDnfr uouiou-ni. u-rn ■.....plv irir i tin- hr.idi ol other l4ciicriili«r*.lpfl
But not when it came to federalism. On this issue, what Publius had to say was no different from what every odier Federalist was saying; it was simply more cogendy articulated.
References to federalism arc pervasive in The Federalist, but Publius's principal discussion of the topic is in a series of eight essays, numbers $9-46, all written by Madison.7' Madison began his investigation by showing in Federalist jtf how the design of the new system was neither "national" nor "federal" (in the eighteenth-century sense, which today we would call confederal), but was rather "a composition of both."73 Five essays followed in which Madison recounted the reasons for bestowing each of the powers conferred on the national government. Finally, in Federalist 4^ Madison reached the critical question: whether, assuming uno one of the powers transferred to the federal Government is unnecessary or improper,... the whole mass of them will be dangerous to the portion of authority left in the several states."7* Madison's answer, in this essay and the next one, epitomizes basic Federalist convictions and illuminates how the Founders imagined this new system of federalism would work/*
The main reason states were safe in the new system, Madison conjectured, was simple.They would always have the political wherewithal easily to defeat the national government in any test of wills:
The State Governments will have the advantage of the federal Government, whether we compare them in respect to the immediate dependence of the one or the other, to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other.'5
In Federalist 46 f Madison made explicit what is here only implicit—that because efforts by cither side to extend its reach would depend on the ability "I «►! ticials at each level to gain popular support, the Constitution's allocation of authority was controlled by the people themselves:
Notwithstanding the different modes in which [the state and federal governments I are appointed, we must consider both of them, as sub-Nt initially dependent on ihr grcur body of the citizens of the United State*. M. 1 In- Wderal and Siaic Governments arc in fact but different agent* ami fni'.ieei. ot dir people. in\runr<\l unh ililtcrcnr powers, ami designated loi ddlrirni purpoftrfc. Tlie udwi^arirw nil "the Const itll
the  people themselves
THE MAKlNti OF THE CONSTITUTION
tion seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrouled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be remiiided of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone; and that it will nor depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expeiiee of the other. Truth no less than decency requires, that the event in every case, should be supposed to depend on the sentiments and sanction of their common constituents.'*
With this fundamental postulate established, Madison dedicated the remainder of the two essays to demonstrating the states' greater capacity to protect themselves through appeals to the "common superior," No mention was made of courts or judicial review, and only a single paragraph was spent describing the states' role in the composition of the federal government.77 Instead, Madison devoted almost the entirety of both essays to cataloguing the states' political advantages "with regard to the predilection and support of the people."7"
These advantages arc, he said, considerable. To begin with, the states will employ many more officials than the federal government, and the relationships these state officials form with their constituents will give them substantial influence in the event of a contest with the federal government/" Adding to this influence is the different nature of the powers exercised by the respective governments. It was in this connection thatMadison made his oft-quoted remark about how u[t]hc powers delegated by the proposed Constitution to rhe Federal Government, are few and defined" while those that remain to rhe states "are numerous and indefinite.'**11 lis point was less to appease anxieties about whether the federal government was already too powerful than it was to establish the basis for his claim that "the first and most natural attachment of the people will be to the governments ol their respective States.""' Because the limited powers delegated to the national government would "be exercised principally on external objects'" and were likely to be important only "in times of war and danger/ the operations ol the icderat government would rarely touch the lives of most citizens."7 "The power* reserved to the icveral States" in contrast, "will extend to all the objects, which, m the nrditiary CQUOC 6i affairs, concern tbe Itves, I the i tiro and properties ol the people: mid thr inier
nal order, improvement, and prosperity of the State.^ And because state officials would thus be responsible for "all the more domestic, and personal interests of the people,"6* it would be
[w]ith tile: affairs of [the state governments thatj the people will be more familiarly and minutely conversant. And with the members of these, will a greater proportion of the people have ties of personal acquaintance and friendship, and of family and party attachments; on the side of these therefore the popular bias, may well be expected most strongly to incline.H'
Given these advantages, ir was fatuous to say that the states had anything to tear from Congress. But suppose that Congress were to overreach, Madison queried, suppose it were to stretch its powers "beyond the due limits."1"' The states "would still have the advantage in the means of defeating such encroachments.^'' The greater sympathy of the people for their state governments, in conjunction with the superior capacity of state officials to rallv support, would ensure that Congress failed:
[SJhould an unwarranted measure of the Foedeial Government be unpopular in particular States, which would seldom fail to be rhe case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people, their repugnance and perhaps refusal to co-operate with the officers of the Union, the frowns of the executive magistracy of the State* the embarrassments created by legislative devices, which would often be added on such occasions, would oppose in any State ihl'ticultics not to be despised; would form in a large State very serious impediments, and where rhe sentiments of several adjoining States happened to be in unison, would present obstructions which the Foed-cral Government would hardly be willing to encounter.1
Nm did measures such as these exhaust the states' political resources in combating federal usurpation, for state officials could coordinate their efforts to lone Congress to repeal the offending legislation:
lint imihitioti'i cinm.ii, hiiicnt'. of iL Foederal Government . . .would not excite the opponinou ot .1 nugle State or of a few States onlv. lliev W'luid be ftiguahi oj n geurrnl alum. Ivvcry Government would espouse
Tři li ťLŮPLE THEMSELVES
the making of the constitution
the common cause, A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combination in short would result from an apprehension of the foederai, as was produced by the dread of a foreign yoke; Lind unless the projected innovations should be voluntarily renounced, flie same appeal to a trial of force would be made in the one case, as was made in the other,HW
In truth, Madison was quick to add, matters never would reach the extreme of armed conflict because, unlike in the showdown xvith Britain, the two contending sides were controlled by the same master: the people of the United States. The suggestion of military confrontation was a11 visionary supposition/ not to be taken seriously. "[Wjhat would be the contest in the case we are supposing?7* Madison wondered, "Who would be the parties? A tew representatives of the people, would be opposed to the people themselves; or rather one set of representatives would be intending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter."w
Of course, die results of such a clash, should it somehow occur, could never be in doubt. As "[tjhose who are best acquainted with the late successful resistance of this country against the British arms" would attest, the states and their multitudinous militia would easily prevail/' But fretting about this sort of nonsense was pointless, a waste of time. The states had nothing to fear because the regulation and control of political power at both levels of government is in the peoples hands, The point was decisive:
Either the mode in which the Foederal Government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constinjenrs. On the other supposition it will not possess rhe confidence of the people, and its schemes of usurpation will be easily defeated by the State Governments; who will be supported by die people,**3
Closely tracking the argument of his co-author Madison, Alexander Hamilton likewise reminded rhe New York Ratifying Convention why "(In.1 natural strength and resources, of state government* « ■ . Will ever give them .in important superiority over the general government'':
If we compare the nature of their different powers, or the means of popular influence which each possesses, we shall find the advantage entirely on the side of the states. This consideration, important as it is, seems to have been little attended to. . . , Whenever, therefore, Congress shall mediate any infringement of the state constitutions, rhe great body of the people will naturally take part with their domestic representatives. Can the general government withstand such a united opposition? Will the people suffer themselves to be stripped of their privileges? Will they sutler their legislatures to he reduced to a shadow and a name? The idea is shocking to common sense/*
The rcsulr. Hamilton said, and many many Federalists reiterated, was Aa complicated, irresistible check, which must ever support the existence and importance of the state governments.1*"
That the Founders expected constitutional limits to be enforced through politics and by the people rather than in courts is hardly surprising. Their history, their political theory, and their actual experience all taught thai popular pressure was the only sure way to bring an unruly authority to heel. We should not forget that the Founding took place againsr the background of the Glorious Revolution and rhe American Revolution, not the civil rights move: tic nr. The colonial experience resisting king and Parliament .served as the model from which rhe Founders constructed their theories, and the Revolution itself, beginning with the Stamp Act protests, provided their blueprint lor opposing a government that exceeded its constitutional authority. This ii why courts and judicial review were so rarely featured during ratification: members of the Founding generation had a different paradigm in mind. The of depending on judges to stop a legislature that abused its power never even occurred to the vast majority of participants in the debates.
- *»
Given that most of the Framers and Founders were nor thinking about judicial review, it may not be clear at the end of the day just what the few who had thought about it expected to happen. We should keep in mind, however, that even those who wanted or expected courts to review legislation wi'te thinking about rhe courts1 role in a world of popular constitutionalism, i! judical enforcement wait implicit in the Constitution, it was not because ■Ii' Oinstitution wa* the kind of taw th.it courts were normally responsible Iru ovtrwrriiig or In-, .him- it w;in »i LiuJ ol law 1 bar judges were uniquely
■ ■ i
THE PEOPLE THEMSELVES
qualified to interpret and enforce. The Constitution "was still fundamental law, made by the people to govern the governors. If judicial review was to occur, it would be on the terms described by men like Iredell and Vamum: as a "political-legal" act, a substitute for popular resistance, required by the peoples command to ignore laws that were ultra vires—though only when the unconstitutionality of a law was clear beyond dispute.
CourtSy as Well as Other Departments, Are Bound by That Instrument
ACCEPTING JUDICIAL REVIEW
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The United States experienced a run of dizzying economic growth in the 1790s. Propelled by war in Europe, demand for American produce and raw materia Is k y. ■ 1. k: ■v. ■■ I Profiling as well from Alexander Hamilton's brilliant ^ic wards hip of the Treasury Department, not to mention the advantage accruing to the United States as possessor ot the world's largest neutral fleet, die value of domestic exports more than tripled, while the value of re-exports increased hy fiftyfold and earnings from the carrier trades quadrupled. New wealth Seeped into every sector ot the economy and every region of the < .u 11 try as demand for skilled and unskilled labor mushroomed and wages
All the more remarkable in the face of this unparalleled good fortune, the ■ -u is were also a time of "vicious party warfare1* and 'almost hysterical fear."1' federalists delivered precisely the kind of good government they had promised during the ratification campaign, yet domestic political conflict achieved j level of ferocity exceeded only by the Civil War in its paranoid and frenzied overtimes Reassessing these years in 1K1 j, Thorn.*s Jefferson and John Adams ih'.,i;'reed about which side hoir the greater blame, but concurred that^ter-""" and"terromm" were apt tin* upturns uf what had transpired/
The source of all thin turmoil lay in in c^talatjng series of political and lOUMtuutional mflcit.....mi who Im*I • ollabomred fo......Iv .k.jdrs
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