The History and Growth of Judicial Review, Volume 1: The G-20 Common Law Countries and Israel 9780190075774, 9780190075804, 9780190075781

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The History and Growth of Judicial Review Volume 1

The History and Growth of Judicial Review Volume 1: The G-​20 Common Law Countries and Israel S T EV E N G OW C A L A B R E SI

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3 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Steven Gow Calabresi 2021 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging-​in-​Publication Data Names: Calabresi, Steven Gow, editor. Title: The history and growth of judicial review /​Steven Gow Calabresi. Description: New York : Oxford University Press, 2021. | Includes bibliographical references and index. | Contents: Volume 1. The G-​20 common law countries and Israel—​Volume 2.   The G-​20 civil law countries. Identifiers: LCCN 2019054917 (print) | LCCN 2019054918 (ebook) |   ISBN 9780190075774 (v. 1; hardback) | ISBN 9780190075736 (v. 2 ; hardback) |   ISBN 9780190075798 (v. 1 ; epub) | ISBN 9780190075750 (v. 2 ; epub) |   ISBN 9780190075804 (v. 1 ; online) | ISBN 9780190075767 (v. 2 ; online) |   ISBN 9780190075781 (v.1 ; updf) | ISBN 9780190075743 (v.2 ; updf) Subjects: LCSH: Judicial review. Classification: LCC K3175 .H57 2020 (print) | LCC K3175 (ebook) | DDC 347/​.012—​dc23 LC record available at https://​lccn.loc.gov/​2019054917 LC ebook record available at https://​lccn.loc.gov/​2019054918 DOI: 10.1093/oso/9780190075774.001.0001 1 3 5 7 9 8 6 4 2 Printed by Integrated Books International, United States of America Note to Readers This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confirm that the information has not been affected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.) You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com.

These two books are dedicated to four great professors of comparative constitutional law and government, all of whom taught Professor Calabresi, at Yale University. Bruce Ackerman Mirjan R. Damaška Juan J. Linz and David R. Mayhew

Contents Acknowledgments

xiii

Introduction: The Birth and Growth of Judicial Review: 1607–2020 1 Chapter 1

The Common Law Legal Tradition: First Things First

Chapter 2

The Diffuse and Second Look Models of Judicial Review 23

Chapter 3

The Privy Council: The Umpire of the British Empire

Chapter 4 The United States: Creation, Reconstruction, the Progressives, and the Modern Era Chapter 5

Canada: From Privy Council to Supreme Court

15 35 97 183

Chapter 6 The Commonwealth of Australia: Umpiring without a Bill of Rights

229

Chapter 7 The Union of India: Umpiring and Rights from Wrongs

263

Chapter 8

The State of Israel

311

Chapter 9

The Republic of South Africa

337

Chapter 10 The United Kingdom of Great Britain and Northern Ireland: A Functional System of Second Look Judicial Review

363

Conclusion: The American and Westminster Models

391

Index

397

Detailed Contents Acknowledgments

Introduction: The Birth and Growth of Judicial Review: 1607–2020

xiii

1

hapter 1 C

The Common Law Legal Tradition: First Things First I. The History of the Common Law Tradition

15 16

hapter 2 C

The Diffuse and Second Look Models of Judicial Review I. The Diffuse Model of Judicial Review II. The Second Look Model of Judicial Review

23 24 28

hapter 3 C

The Privy Council: The Umpire of the British Empire I. Jurisdiction, Powers, and the Role of the Privy Council in Providing Judicial Review between 1607 and 1776 II. A History and Description of the Privy Council’s Role in the Thirteen North American Colonies

35







A. Professor Mary Sarah Bilder’s Scholarship B. The Historical Origins of the Judicial Committee of the Privy Council C. The Monarchy and the Privy Council D. The Effect on the Colonies of the Abolition of the Court of Star Chamber E. A History of Privy Council Governance of the Thirteen North American Colonies 1. Governance Prior to the Restoration of the Monarchy in 1660 2. Governance from 1660 to 1684 3. Governance from 1684 to 1776

III. The Coming of the American Revolution IV. Gordon Wood: The Emergence of Horizontal and Enumerated Powers Judicial Review between 1776 and 1787 V. The Privy Council from 1783 to 1833 VI. Reform of the Privy Council VII. The Decline of the Privy Council: 1875–​1986 VIII. The Ending of the Privy Council’s Jurisdiction

35 38 39 42 44 46 49 50 50 56

68 74 81 82 86 90

x  Detailed Contents

Chapter 4 The United States: Creation, Reconstruction, the Progressives, and the Modern Era 97 I. The Privy Council Umpiring Origins of Vertical Judicial Review to Rein in Errant Colonies 101 II. The Origins of U.S. Judicial Review from 1776 to 1803 102 III. U.S. Judicial Review from 1789 to 1894 106











A. Judicial Review in the Colonial and State Courts at the Founding B. The Constitution and the Bill of Rights: Fading Elite Hegemonic Preservation?

IV. Judicial Review in the U.S. Supreme Court: 1789 to the Civil War to 1894

A. Response to Professors Friedman and Delaney B. Judicial Review in the Wake of the Civil War: Rights from Wrongs, Elite Hegemonic Entrenchment, and Insurance and Commitment

V. The Progressive Era and the Federal Courts: A Study in Elite Hegemonic Control A. B. C. D.

Response to Professor Gillman The Transformation of the Republican Party The Rise of the Progressive Movement Woodrow Wilson and the Indian Summer of the Old Order E. President Franklin D. Roosevelt and the New Deal

VI. Judicial Review in the United States from 1937 to 2020 A. The Warren and Burger Courts B. The Rehnquist and Roberts Courts

107 116

126 127 140

149 150 151 153 156 158

161

164 167



VII. Departmentalism, Judicial Supremacy, and Professor Whittington VIII. Conclusion

169 179

hapter 5 C

Canada: From Privy Council to Supreme Court I. Constitutional History of Canada

183 188









A. Canadian Constitutional History from 1608 until 1867 B. The Canadian Federation from 1867 to 1931 C. Canadian Independence 1931 to 1982 D. The Constitution Act 1982 to the Present Day

II. The Canadian Second Look Model of Judicial Review in Comparative Perspective III. Judicial Review in Canada: 1867–2020

A. Federalism and Canadian Judicial Review B. Separation of Powers and Canadian Judicial Review C. More on Individual Rights and Canadian Judicial Review

189 194 197 199

204 208 209 217 219

Detailed Contents  xi

Chapter 6 The Commonwealth of Australia: Umpiring without a Bill of Rights I. History of the Commonwealth of Australia

229 231



244



A. The Constitutional Convention and the Setting Up of the High Court

II. Judicial Review in Australia

Chapter 7 The Union of India: Umpiring and Rights from Wrongs I. History of the Union of India





hapter 8 C



hapter 9 C

A. A Partial History of the Colonial Indian Judicial System in the Bombay High Court from 1862 to 1947 B. Indian Independence: Sharp Break with the Past or an Evolutionary Constitutionalism? C. B. R. Ambedkar’s (1891–​1956) Central Role in Drafting the Indian Constitution D. Post-​Independence History of Constitutional Dimensions E. The State of Emergency and Its Aftermath

II. Judicial Review in the Union of India A. Jurisdiction of the Courts in India B. Abolition of Jury Trial in India

III. What Explains the Origins and Growth of Judicial Review in India?

The State of Israel I. History II. Judicial Review in Israel

A. Judicial Review during the British Mandate B. Independence, the First Knesset, and the Harari Resolution C. 1951 to 1992—​Israel as a Westminster-​Style Democracy D. The Basic Law on Human Dignity, the Basic Law on Occupational Freedom, and the Bank Hamizrahi Decision

III. The Origins and Growth of Israeli Judicial Review IV. Conclusion

The Republic of South Africa I. History II. Judicial Review III. Origins and Growth of Judicial Review

232

263 265 277 278 282 284 289

292 302 304

307

311 312 319 319 320 324 327

332 334

337 338 352 360

xii  Detailed Contents

Chapter 10 The United Kingdom of Great Britain and Northern Ireland: A Functional System of Second Look Judicial Review I. History II. Judicial Review



A. Judicially Enforced Bill of Rights B. Umpire in Federalism and Separation of Powers Cases

III. The Origins and Growth of Judicial Review of Acts of Parliament IV. Conclusion

363 366 373

374

381

386 387

Conclusion: The American and Westminster Models

391

Index

397

Acknowledgments I want to begin by expressing my deep gratitude to Jasmine Owens who was my student in 2012 at Northwestern Pritzker School of Law, and who began this two volume book series with me as a third year law student doing a one year long senior research paper. We had many fun conversations, and she shared totally my interest in Comparative Constitutional Law and in the topic of these two books. By the end of the year we had an eighty page draft paper covering six or so jurisdictions and the origins of their systems of judicial review. Some of the words she wrote in 2012 are probably still in this book because I can no longer remember when in the last ten years every passage was added. Jasmine was a brilliant and easy person to work with, and I really enjoyed working with her on her senior essay. The project has percolated in my head for eight additional years now during which time I co-​edited an 1,800 page casebook entitled The U.S. Constitutional and Comparative Constitutional Law which gave me lots of material to add to this two volume series, which now covers seventeen jurisdictions. After eight years of writing and rewriting, and after going from an 80 page student paper to a 1,000 page manuscript without staying in touch with Jasmine since 2012, I concluded that I could not make her a co-​author of something which I had by then totally redone myself and in which I take controversial positions that she might not share. I say this with great reluctance because Jasmine’s enthusiasm and first draft definitely did help me get launched on this long project. Suffice it to say that Jasmine was more than just a research assistant on this project and that I will be eternally grateful to her for her help in getting me to finally write these two books as I have been meaning to do for a very long time! I owe a second debt of gratitude to Bradley Silverman, a former college student of mine at Brown University where he co-​edited with me my 1,800 page casebook. Bradley is also brilliant and is a wonderful friend. Some of his work on the casebook has found its way into these two books and for that I am very grateful. I am also grateful to him for getting the copyright permissions we needed to publish these two books—​an onerous but necessary task. With these two warm thank you’s complete, I now want to profusely thank my truly wonderful Deans, Jim Speta, Kim Yuracko and Dan Rodriguez of the Northwestern Pritzker School of Law, and Deans Heather Gerken and Robert Post of the Yale Law School, who supported my teaching and research both financially, and emotionally, over the last ten years. Special thanks are also due

xiv Acknowledgments to Professor Judith Resnick of the Yale Law School for including me in Yale Law School’s annual Global Constitutional Summit from which I have learned a great deal. Professor Resnick has been very patient over the years with my intense desire to ask as many questions of our guests as I possibly can and do. I also want to especially thank one of my two best friends,Yale Law Professor Akhil Reed Amar, who co-​taught comparative constitutional law with me, for five years at Yale, and who was indispensable to this project getting off the ground! Akhil gave me me my first chance to teach at Yale Law School, and I simply could not have written these two books without access to the brilliant foreign teachers and law students that Yale Law School offers in abundance. My other best friend (along with Akhil) is Gary Lawson, at Boston University School of Law, who has been an invaluable sounding board throughout the time I have worked on this project. I thank him from the bottom of my heart. He has given me countless hours of attention day and night and has been a pillar of support to me now for forty years! I would also like to thank, especially Monesha Mohandas, at Oxford University Press, for her patience, her skill in catching errors, and her wonderful editing of my text. This has been for my a superb editorial process for me, and Monesha, and her assistants at Oxford University Press made that happen! A special thanks is also due to the four Yale University faculty members who taught me comparative constitutional law and government and to whom this book is dedicated: Bruce Ackerman, Mirjan R. Damaška, Juan J. Linz, and David R. Mayhew. They all inspired in me a very deep love of this subject matter, and a belief in its tremendous importance to the future of mankind. My interest in Comparative Constitutional Law started when I  was an eighteen-​year-​old college student of Professor Linz’s in his summer school class in 1976 in Yale College on “The Crisis and Breakdown of Democracy in Weimar, Germany During the Interwar Years.” The opportunity to study with Juan Linz how it was that Adolf Hitler came to power through democratic means was an eye-​opening experience for me. Our seminar in the summer of 1976 consisted only of me and two political science graduate students, neither of whom ever spoke. The entire class was a dialogue between me and Professor Linz, who I really came to love and admire and whose memory I will always cherish. I saw him only once in his later life, when we served on a panel together at Yale Law School, and he was as brilliant, sparkling, and warm in his eighties as I had always remembered him to be. I continued to explore Comparative Government in the brilliant class on that subject, which I took from my good friend, Yale Political Science Professor, David R. Mayhew. Professor Mayhew was a resident fellow at Morse College, and I shared many meals with him there since Morse was my residential college, and I learned a huge amount in the process. Professor Mayhew was the first teacher who ever asked me to work as his research assistant, and I will never forget my

Acknowledgments  xv pleasure when he published some of what I had found in a footnote to one of his many books. I share with Professor Mayhew a love of our U.S. Constitution of checks and balances, and a strong belief in the deep wisdom in his brilliant book Divided We Govern: Party Control, Lawmaking, and Investigations, 1946–​2002. He has been, and he remains, today, a true and stalwart good friend. I continued to explore Comparative Law at Yale Law School where I had the great good fortune to be a twenty-​four-​year-​old law student in Professor Mirjan Damaška’s class on an “Introduction to Comparative Law.” I took the class in part on the advice of my small group leader, and mentor, Yale Law School Professor Joseph Goldstein. I  loved Professor Damaška’s class, and his elegant explanation of the remarkable rediscovery and revival of Roman Law, in eleventh-​and twelfth-​century Italy, and I was fascinated by the differences between the Civil Law and the Common Law traditions of which I was previously unaware. When I was hired at Northwestern University School of Law and was asked what two lecture courses I wanted to teach in each semester of my first year on the faculty, I answered by saying Federal Jurisdiction and Comparative Law because I was so inspired by how they had been taught to me at Yale. I taught Comparative Private Law for twelve years at Northwestern Law School out of a brilliant casebook principally edited by Mary Ann Glendon, Comparative Legal Traditions: Text, Materials and Cases on Western Law. Professor Glendon’s casebook was brilliant, thought-​provoking, and it ultimately inspired me to write my own casebook entitled The U.S. Constitution and Comparative Constitutional Law (2016). While I have moved away from comparative private law and toward comparative constitutional law, my thinking on Comparativism, in general, is greatly shaped by Professor Glendon’s many books! The fourth and final person who inspired me to start teaching not just Comparative Law, but Comparative Constitutional Law was Yale Law Professor Bruce Ackerman, whose class on “Social Justice and the Liberal State” helped to inspire me to co-​found the Federalist Society when I  was a law student at Yale Law School in April 1982. Bruce, as we all called him, was brilliant, witty, a great conversationalist—​one of the best I have ever known—​and a really nice guy to boot. In the year 2000, Bruce did me the enormous favor of criticizing my writings on U.S.  presidential power through a comparative constitutional law lens in the pages of the Harvard Law Review. I  might never have started teaching and writing in comparative constitutional law, and have produced these two books you now have before you, had it not been for the publication of Bruce Ackerman’s law review article on: The New Separation of Powers. Since Akhil invited me to co-​teach at Yale Law School, I have had many fun, dinners, lunches, and conference discussions with Bruce. He extended me the highest of compliments by inviting me to co-​teach Comparative Constitutional Law with him during a semester when Akhil had a research leave. This was an invaluable introduction to his brilliant new book, Revolutionary Constitutions: Charismatic

xvi Acknowledgments Leadership and the Rule of Law (2019). It is an all-​time classic in the still nascent field of Comparative Constitutional Law. The theory of the origins of U.S. judicial review in this book was learned over several happy lunch table discussions with Professor Gordon S. Wood, who is the Alva O. Way University Professor Emeritus at Brown University. Citations from one of his articles, Gordon Wood, “The Origins of Judicial Review Revisited, or How the Supreme Court Made More Out of Less”; and a book chapter, “Judicial Review in the Era of the Founding in Is the Supreme Court the Guardian of the Constitution? do not come close to doing justice to the insights I learned from talking about this subject with Gordon Wood on many occasions. I should add that any errors that remain in the books about the origins of American judicial review are solely my own. The theory that judicial review sometimes emerges for rights from wrongs reasons and not from federalism and separation of powers umpiring emerged from a lunch conversation that I  had many years ago with my Uncle Judge Guido Calabresi. I mentioned the importance of umpiring in explaining the emergence of judicial review, and my Uncle Guido countered by saying that umpiring had played no role at all in the emergence of Italian judicial review, which was a reaction to the rights abuses of the Fascists and Mussolini. Shortly after that, I  read Professor Alan Dershowitz’s powerful book, Rights from Wrongs: A Secular Theory of the Origins of Rights (2005), and I realized that there was a whole additional, major causal factor behind the emergence of judicial review, which no comparativists had written about. The Dershowitz Rights from Wrongs book was a great inspiration in writing these two books. I have also learned immensely from Yale Law School Visiting Professor Dieter Grimm, a former justice of the German Constitutional Court; and from Yale Law School Visiting Professor Aharon Barak, a former president of the Israeli Supreme Court. Both Professors Grimm and Barack made time for many lunches and dinners with me, and I count them both as good and inspiring colleagues and as good friends. Professor Barak hosted me for an unforgettably memorable trip to Israel, which I hope will be the first of many visits. I am also greatly indebted to Justice Rosalie Silberman Abella, a Canadian Supreme Court justice, who gave me extensive written and telephoned comments on my chapter on Judicial Review in Canada. Justice Dieter Grimm gave me similar comments on my chapter on Germany; and Laurent Fabius, the president of the French Constitutional Council gave me similarly helpful comments on my chapter on Judicial Review in France. I thank all three international jurists from the bottom of my heart for their comments, and I must say again that I am responsible for any errors in the manuscripts as to Germany, France, Canada, and Israel, which remain. I am also deeply grateful to my friend Robert Post for sharing with me his vast and hugely impressive Holmes’ Devise manuscript on the Taft Court. It was great

Acknowledgments  xvii fun to read, and I learned a lot about the period between 1909 and 1930, which I had not known. I am in debt to him for shaping my understanding of this time period and of the justices who served on the pre-New Deal Supreme Court. Three Northwestern colleagues with an interest in comparative constitutional law have also been a huge help: Professor Erin Delaney; Professor Pierre Le Grande of the Sorbonne, who regularly visits at Northwestern; and Professor Andy Koppelman. Erin Delaney gave me the most substantive advice I received from any law professor in the country on my two book series, tempered by some wise political advice, as well, which I tried, (probably unsuccessfully), to follow. Pierre Le Grande is a wonderful colleague who visits Chicago for six weeks every year, when he is on leave from the Sorbonne, and is teaching at Northwestern. We have coffee weekly, and he too has given me help on the Chapters on France and Canada. And, finally, my very good, and very loyal, friend Andy Koppelman gave me some good plain writing and editing advice that will, I hope, make the book more fun to read. They are all treasured colleagues along with many other such superb friends as: Marty Redish (who got me hired!), John McGinnis, Jim Lindgren, Shari Diamond, Josh Kleinfeld, Bob Bennett, Dan Rodriguez, Kim Yuracko, Jim Pfander, Ron Allen, Steve Lubbet, Tonja Jacoby, and, of course, Jim Speta, who I thank as a friend as well as as a Dean. My longstanding interest in Comparative Constitutional Law grew significantly because of my former colleague, Tom Merrill’s observation to me, in a conversation, that legal scholarship is short on Qualitative Empirical work: Work which brings new information or data to the table, historical or comparative, has the potential to make the world a better place. The best work Tom said is that which brings new information or data to the table. I remain an originalist on questions of constitutional and statutory interpretation, but I also think that as a child of the Enlightenment Qualitative Empirical scholarship has a lot to recommend it, and I consider these two books to be examples of Qualitative Empirical work. I have written five or so Quantitative Empirical articles (counting rights in state bills of rights in 1868; 1791; and 2018), which I am quite proud of, as well as countless originalist articles, which I am also proud of and still agree with. But, I think that in law, in particular, the Enlightenment commitment to scientific reasoning from empirically known facts will most often require Qualitative rather than Quantitative empirical work or positive doctrinal or textual analysis. Tom Merrill’s partial embrace of Qualitative Empiricism, as well as his traditional legal work, has been of great value to me in setting an agenda for my own scholarship. David Van Zandt’s emphasis on Quantitative Empiricism, and his disdain for Qualitative Empiricism or traditional legal analysis went too far in my personal opinion, but it was nonetheless an important intellectual influence

xviii Acknowledgments on me for which I will be eternally grateful. I doubt that I would have written these two books if it were not for Tom Merrill’s and David Van Zandt’s prodding ideas about what counts as valuable legal scholarship. I also want to mention here a huge institutional debt to Northwestern Law School’s founding Dean, and its most preeminent legal scholar of all time, John Henry Wigmore. Wigmore began his career as a young scholar, from 1889 to 1892, at Keio University School of Law in Japan, and his comparative law scholarship was extensive. He was probably one of the first Americans to teach in, or visit, Japan, to learn the language, and to publish an academic book in Japanese. Wigmore wrote in Japanese a detailed study of The Tokugawaa Shogunate in the Edo period, which was translated into English in the mid-1930’s under the title Materials for the Study of Private Law in Old Japan. Wigmore’s path-breaking comparative law treatise set the gold standard for the field in which these two books lie. John Henry Wigmore, A Panorama of the World’s Legal Systems published in three volumes in 1928 made him the Father and popularizer of the study of comparative law in the United States. Wigmore’s three volume Panorama of the World’s Legal Systems (1928) covered all sixteen world legal systems, which Wigmore knew about and had studied in all of human history. Wigmore’s sixteen human legal systems discussed in A Panorama of the World’s Legal Systems included: (1) Ancient Egyptian law from 4000 B.C. up to the Roman conquest of Egypt in 30 B.C. when the Emperor Augustus Caesar beat Mark Antony and Cleopatra in the Battle of Actium causing the two lovers to commit suicide. (2) Ancient Mesopotamian law, which lasted from 4,000 B.C. until 100 B.C. when Greek and then Roman law replaced it. (3) Ancient Hebrew law, which lasted from 2100 B.C. until 1600 A.D. when Wigmore notes that the Jewish people lost the ability to speak Hebrew. Wigmore would be stunned by the reemergence of Hebrew as a spoken language in 20th Century Israel. (4) Ancient Chinese law from 2500 B.C. up to the Chinese Constitution of 1931. Wigmore notes that the Chinese and Greek legal system are the only ones of the 16 he studied in human history that were entirely secular in origin. (5) The ancient Hindu, Buddhist, and Brahmin aspects of the law of the Indian Subcontinent from 1000 B.C. up to the British Raj in 1928. (6) The ancient Greek secular legal system from 1200 B.C. until the absorption of the Greek legal system into the Roman legal system in about 300 A.D.; (7) The ancient Roman legal system over all eight centuries of its evolution from 400 B.C. until the fall of the Roman Empire in the West in 476 A.D. (8) The Japanese legal system from 500 A.D. to 1928. (9) The Mohammedan legal system from 800 A.D. to 1200 A.D. (when it ruled the world) all the way up until 1928 (when it became plagued by backwardness). (10) The Keltic legal system from 50 B.C. up to 1928 in Ireland with a possible future in Scotland and Wales. (11) The Slavic legal system from 600 A.D. to 1928, which was destroyed by Soviet communism. (12) The Germanic legal

Acknowledgments  xix system from the 900’s A.D. to the 1100’s A.D. when German law was replaced by what Wigmore calls Romanesque Law, which we today call the Civil Law. (13) The Maritime legal system from 1500 B.C. in Egypt to 1924 A.D. (14) The Papal (or Canon Law) legal system from 91 A.D. to 1917 A.D. (15) The Romanesque legal system, which we today call the Civil Law legal system, which has subsisted from the 1100’s A.D., in Bologna, Italy, up to 2020. Two-thirds of the people in the world today live in civil law legal systems if one counts China as being a Civil Law regime. And, finally, (16) what Wigmore calls the Anglican legal system, and which we would call the Common Law legal system. Wigmore dated the common law legal system as beginning with William the Conqueror’s Domesday Book, published in 1085 A.D. and continued following it up to the publication of his Panorama in 1928. One third of the world’s people live today in common law countries or in Mixed Common Law and Civil Law regimes. All of this comparative law scholarship, was done, in addition, to Wigmore’s work on Evidence, as to which he is a founding figure as well. In fact, most lawyers think of Wigmore as an Evidence Scholar and not as the founder of Comparative Law in the United States. Moreover, in addition to Wigmore’s treatises on Evidence and on Comparative Law, the Northwestern Pritzker School of Law library has copies of more than 600 articles and books published by John Henry Wigmore over the course of his life! Wigmore was mentored after graduating from Harvard Law School by Supreme Court Justice Louis Brandies, himself a great empiricist, and Wigmore served as the Dean of the Northwestern Law School from 1901 until 1929. Few Deans, if any, have ever surpassed Wigmore’s scholarship. In writing these two comparative constitutional law books, I am to put it mildly standing on the shoulders of a giant who is recognized as such just for what he wrote about the common law of evidence! I am truly humbled to be teaching Comparative Constitutional Law at a law school with such an illustrious predecessor. Most of all, of course, I want to thank my beloved and devoted wife, Mimi Tyler Calabresi, and my four wonderful children: Robert, James, Elizabeth, and Tyler for their love, support, and patience while I labored on this project. They were in­dispensable at every turn in the road for making it possible for me to finish these two books. I love them all dearly. I would finally like to thank Foundation Press for graciously giving my per­mission to reprint material on the histories of the G-20 constitutional democ­racies, on the origins of the civil law and common law legal traditions, and on the various modes of judicial review in all the many country studies from my Foundation Press casebook. I also thank the many other publishers, whose work is listed herein, who gave me permission to quote from their publications.

xx Acknowledgments In addition, I am gratefully indebted to the following authors and publishers for permission to excerpt the following publications: Aucoin, Louis M., Judicial Review in France:  Access of the Individual Under French and European Law in the Aftermath of France’s Rejection of Bicentennial Reform, 15 B.C. Int’l & Comp. L. Rev. 443 (1992). Chen, Albert H.Y., ed., Constitutionalism in Asia in the Early Twenty-​First Century (Cambridge University Press, 2016). Currie, David P., The Constitution of the Federal Republic of Germany (University of Chicago Press, 1995). Ferraz, Octavio Luiz Motta, Harming the Poor Through Social Rights Litigation: Lessons From Brazil, 89 Texas L. Rev. 1643 (2011). Gardbaum, Stephen, The New Commonwealth Model of Constitutionalism: Theory and Practice (Cambridge University Press, 2013). Ginsburg, Tom & Huq, Aziz, eds., Assessing Constitutional Performance (Cambridge University Press, 2016). Goldsworthy, Jeffrey, ed., Interpreting Constitutions:  A Comparative Study (Oxford University Press, 2007). Grimm, Dieter, Constitutionalism: Past, Present, and Future (Oxford University Press, 2016). Howell, P.A., The Judicial Committee of the Privy Council 1833–​1876: Its Origins, Structure and Development (Cambridge University Press, 2008). Ibhawoh, Bonny, Imperial Justice Africans in Empire’s Court (Oxford University Press, 2013). Kende, Mark S., Constitutional Rights in Two Worlds:  South Africa and the United States (Cambridge University Press, 2009). Kommers, Donald P. & Miller, Russell A., The Constitutional Jurisprudence of the Federal Republic of Germany (3d ed. Duke University Press, 2012). Law, David S., The Anatomy of a Conservative Court: Judicial Review in Japan, 87 Texas L. Rev. 1545 (2009). Oliver, Dawn & Fusaro, Carlo, eds., How Constitutions Change:  A Comparative Study (Hart Publishing, 2013). Rogoff, Martin, French Constitutional Law:  Cases and Materials (Carolina Academic Press, 2010). Shapiro, Martin & Stone Sweet, Alec, eds., On Law, Politics, And Judicialization (Oxford University Press, 2002). Stone, Alec, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective (Oxford University Press, 1992). Taylor, Greg, The Commerce Clause—​Commonwealth Comparisons, 24 B.C. Int’l & Comp. L. Rev. 235 (2001).

Winds of the world, give answer! They are whimpering to and fro— And what should they know of England who only England know?— Rudyard Kipling The English Flag 1891

Introduction The Birth and Growth of  Judicial Review: 1607–2020 This is the first of two books on the birth and growth of judicial review of the constitutionality of legislation in the United States and in sixteen other western democratic constitutional jurisdictions. Historians and political scientists have looked at the birth and growth of U.S. judicial review in great depth.1 No one writing today in American law, history, or political science can fully explain the birth and growth of the constitutionality of legislation in the United States over the whole of the last 230 years. This is the case even though systems of judicial review to which the U.S. system might be compared now exist all over the world. 1 Judicial review is sometimes traced to Dr.  Bonham’s Case, 77 Eng. Rep.  638 (C.P.) (1610). Allen Dillard Boyer, “Understanding Authority, and Will”:  Sir Edward Coke and the Elizabethan Origins of Judicial Review, 39 B.C. L.  Rev. 43 (1997); Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 Stan. L. Rev. 843 (1978); Philip Hamburger, Law and Judicial Duty (2008); Scott Douglas Gerber, A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606–​1787 (2011); Suzanna Sherry, The Founders’ Unwritten Constitution, 54 U. Chi. L. Rev. 1127 (1987); J.M. Sosin, The Aristocracy of the Long Robe: The Origins of Judicial Review in America (1989); Sylvia Snowiss, From Fundamental Law to the Supreme Law of the Land: A Reinterpretation of Judicial Review, 2 Stud. Am. Pol. Dev. 1 (1987). Mary Sarah Bilder, The Corporate Origins of Judicial Review, 116 Yale L. J. 502 (2006) (summarizing scholarship on judicial review and offering a novel theory that we consider in Part I). Other accounts emphasize structural factors, including popular sovereignty and judicial independence. William E. Nelson, Marbury v. Madison: The Origins and Legacy of Judicial Review (2000); Christopher Wolfe, The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-​ Made Law (1986); William R. Casto, James Iredell and the American Origins of Judicial Review, 27 Conn. L. Rev. 329 (1995); Leslie Friedman Goldstein, Popular Sovereignty, the Origins of Judicial Review, and the Revival of Unwritten Law, 48 J. Pol. 51 (1986); Matthew P. Harrington, Judicial Review Before John Marshall, 72 Geo. Wash. L. Rev. 51 (2003); Jack N. Rakove, The Origins of Judicial Review: A Plea for New Contexts, 49 Stan. L. Rev. 1031 (1997); Gordon S. Wood, The Origins of Judicial Review Revisited, or How the Marshall Court Made More Out of Less, 56 Wash. & Lee L. Rev. 787 (1999). See also 2 William Winslow Crosskey, Politics and the Constitution in the History of the United States 1000 (1953); Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962); Robert L. Clinton, Marbury v. Madison and Judicial Review (1989); Saikrishna B. Prakash & John C. Yoo, The Origins of Judicial Review, 70 U. Chi. L. Rev. 887, 893–​94 (2003); William Michael Treanor, The Case of the Prisoners and the Origin of Judicial Review, 143 U. Pa. L. Rev. 491 (1994); William Michael Treanor, Judicial Review Before Marbury, 58 Stan. L. Rev. 455 (2005); Brinton Coxe, An Essay on Judicial Power and Unconstitutional Legislation (1893); 1 James B. Thayer, Cases on Constitutional Law 55–​80 (1895). The History and Growth of Judicial Review, Volume 1. Steven Gow Calabresi, Oxford University Press (2021). © Steven Gow Calabresi. DOI: 10.1093/oso/9780190075774.003.0001

2  The History and Growth of Judicial Review, Volume 1 The standard American account is that judicial review of legislation was foreshadowed in the The Federalist No. 78 and was announced in Marbury v.  Madison,2 but this begs the question of why the The Federalist No. 78 and Marbury endorsed judicial review and why Americans followed those sources and turned Marbury into a canonical text? Legal historians have recently recognized some pre-​1803 state cases as pre-​Marbury instances of the phenomenon of judicial review, but again what, then, explains the origin of those cases? No one has yet looked at the birth and growth of U.S. judicial review, comparatively, to see what insights Comparative Constitutional Law might offer into that question. I aim to fill that void drawing, in part, on insights from the historical work of Professor Gordon S. Wood. I will explain the ebbing and flowing of the power of judicial review over the whole 230 years of American history. I approach this subject as both an historian and as a comparatavist. Comparative government is a core discipline in political science and in law, and it is high time that that discipline, along with history, be brought to bear to answer the question of why judicial review of the constitutionality of legislation originated in the 1790’s and grew enormously in the United States, especially after Reconstruction, and then grew again between 1952 and 2020. Second, no scholar to date has written a history of the birth and growth of judicial review in the fifteen of the G-​20 nations that are constitutional democracies. In 1945, only three nations in the world: the United States, Canada, and Australia had judicial review of the constitutionality of federal legislation and only the United States had a judicially enforceable Bill of Rights. Today, in 2020, fifteen of the G-​20 democracies have judicial review of the constitutionality of federal legislation, and all but Australia have judicially enforced Bills of Rights. These fifteen countries include: (1) the United States, (2) Germany, (3) France, (4) Italy, (5) Japan, (6) India, (7) Indonesia, (8) South Korea, (9) South Africa, (10) the United Kingdom, (11) Brazil, (12) Mexico, (13) Canada, (14) Australia, and (15) the European Union. I will also examine, for reasons explained below, the birth and growth of judicial review in: (16) the European Court of Human Rights and (17) Israel. I will offer an explanation of the birth and growth of judicial review of the constitutionality of legislation in all of the jurisdictions mentioned above in a two book series with both volumes being published at the same time. Volume I will discuss the emergence of judicial review of the constitutionality of legislation in seven common law countries. Volume II will discuss the emergence of judicial review of the constitutionality of legislation in eight civil law nations, and in the two confederations of the European Union and of the European Court of Human



2

5 U.S. 137 (1803).

Introduction   3 Rights. I start Volume II with judicial review in Germany, which is the paradigm civil law model of judicial review. In the last seventy-​five years, the idea of judicial review of the constitutionality of laws has swept the world. The idea of a written constitution dates back to 1789, and most democracies in the world adopted written constitutions, enforced by the legislature, between 1789 and 1945. But, it is only starting with the post–​ World War II constitutions in: (1) in Germany, (2) Italy, (3) Japan, (4) India, and (5) France that judicial review of the constitutionality of legislation and of bills of rights came to be seen as being essential to constitutionalism itself. Over the years between 1945 and 2020, the U.S. idea of checks and balances and of judicial review of laws under a written Bill of Rights swept away older democratic systems like the Westminster Model of parliamentary sovereignty, in common law countries, and the fear of “gouvernement des juges,” in civil law countries. Judicial enforcement of a Bill of Rights is thus a central check and balance in all of today’s post-​1945 democratic constitutions. Today, Constitutional Courts and Supreme Courts are nearly as powerful as legislatures and the executive. The Westminster Model and fears of “gouvernement des juges” are both in the dustbin of history. But, how and why did these sweeping changes happen? I aim to explain the global birth and growth of judicial review in my two-​volume book series. I think that judicial review of the constitutionality of legislation has usually emerged historically, in part, for a combination of four reasons. Judicial review is a very complex social phenomenon and thus has multiple causes. First, I think judicial review of the constitutionality of legislation is a response to a nation’s need for an umpire to resolve federalism or separation of powers boundary line disputes. Judicial review umpiring can be either vertical, in which case a court determines whether the nation or a state is empowered to act; or it can be horizontal, in which case a court determines whether a Congress, a president, or a Supreme Court is empowered to act. Vertical umpiring in the form of reining in errant subunits of an empire or federal regime dates back to 1607 AD, in the Privy Council of the English Empire, as is proven in the work of Professor Mary Sarah Bilder in The Transatlantic Constitution:  Colonial Legal Culture and the Empire.3 Professor Bilder explains the reining in of the errant North American colonies through umpiring judicial review by the Privy Council. But, for all of its powers of vertical judicial review, the Privy Council did not have the horizontal power of judicial review to strike down acts of the king or of parliament as being unconstitutional. Today, the U.S. Supreme Court routinely exercises such a power of horizontal judicial review over both the President and 3 Mary Sarah Bilder, The Transatlantic Constitution: Colonial Legal Culture and the Empire (2004).

4  The History and Growth of Judicial Review, Volume 1 Congress. Today’s Supreme Court decides the year 2000 presidential election, and the constitutional right to same sex marriage, on a five to four vote. The explanation for the birth of this strong form of umpiring horizontal and vertical judicial review appears in the historical work of Professor Gordon S.  Wood, which we will discuss in Chapter Three on the birth of American judicial review. Professor Bilder’s theory of the origins of American judicial review does not explain enumerated powers judicial review or horizontal separation of powers judicial review. Professor Wood’s theory does explain these phenomena.4 In endorsing the thesis that federalism and separation of powers umpiring lead to judicial review, I am agreeing, in part, with Professor Martin Shapiro who has set forth this theory in his splendid essay, “The Success of Judicial Review and Democracy” in the book On Law, Politics, & Judicialization.5 I made this argument myself in 1995, and Professors,Mauro Cappelletti, John Ferejohn, Barry Friedman, and Erin Delaney have all also made this point in published scholarship that goes back to Cappelletti’s work in the 1970s.6 As Professor Shapiro writes: Until after the Second World War, constitutional judicial review, that is, the power of a court to invalidate a statute or other action of government because it is in conflict with the constitution, really only flourished in three countries: the United States, Canada, and Australia. This obvious finding of comparative law led to a number of causal hypothesis. *** 4 Gordon Wood, The Origins of Judicial Review Revisited, or How the Supreme Court Made More Out of Less, Wash & Lee L. Rev. 56 (1999); Gordon Wood, Judicial Review in the Era of the Founding, in Is the Supreme Court the Guardian of the Constitution? (Robert A  Licht, ed., 1993). Lunch conversation with Gordon Wood on January 17, 2020 at the Hope Club in Providence, RI. 5 Martin Shapiro, The Success of Judicial Review and Democracy, in On Law, Politics, & Judicialization 149–​83 (Martin Shapiro & Alec Stone Sweet eds., 2002). 6 I wrote in 1995 that “it appears that judicial review and federalism go hand in hand all over the world. A major impetus in the global spread of judicial review has been the need for central judicial umpiring of federalism guarantees.” Steven G. Calabresi, “A Government of Limited and Enumerated Powers”: In Defense of United States v. Lopez, 94 Mich. L. Rev. 752, 806 (1995) (emphasis in the original). Professors Mauro Cappelletti and William Cohen made essentially the exact same point about the emergence of judicial review in the United States, Canada, Australia, and India in 1979. Mauro Cappelletti & William Cohen, Comparative Constitutional Law 10–​11 (1979); see also Allen R. Brewer-​Carras, Judicial Review in Comparative Law (1989) (discussing then contemporary trends toward constitutionalism, judicial review, and federalism). Professor Shapiro has made the same argument in detail in his splendid essay; see Shapiro, supra note 5. And, most recently, Professors Barry Friedman and Erin Delaney have explained very convincingly that “judicial supremacy exists [in the United States] because it must: Federations need a ‘supreme arbiter’ to monitor the federal bargain. . . . With its duty to police the boundaries of the spheres of sovereignty (i.e., the division of competences), the [American] judiciary is placed at the apex of the [U.S.] constitutional scheme,” Becoming Supreme: The Federal Foundation of Judicial Supremacy 111 Colum. L. Rev. 1137 (2011). Professors Friedman and Delaney clearly show that it is the disagreements that occur between the nation and the states that served as the catalyst for judicial supremacy in the United States. See also Doreen Lustig & J.H.H. Weiler, Judicial Review in the Contemporary World—​Retrospective and Prospective, 16 Int’l J. Const. L. 315 (2020).

Introduction   5 First, successful constitutional judicial review is caused by and may be requisite to successful federalism. At the time these three countries were, with one more, the working federalisms among the nations of the world. And the one extra, Switzerland, also had a form of judicial review, although a much weaker one. This hypothesis was supported by the argument that a federalism required some institution to police its complex constitutional boundary arrangements. In more contemporary, public choice terms, the member States of a federation have entered into a joint contract, each because it sees more benefit from entering than not entering. Even though each will wish to violate the specific terms of the contract from time to time, each will see that it is to its benefit that all the others always obey the rules of the contract. Thus, each, in spite of its own urges to deviate, will continuously support the creation and maintenance of some institution designed to spot and deter non-​compliance by the others.7

Professor Shapiro then adds, and I completely agree, that federalism can only work if there is a judicial body that can police the state-​national bargain and that can police the lines that mark out the power of the Congress, the president, and the Supreme Court. Ideally, such a body ought to be picked half by national officials and half by state officials as actually happens in the Federal Republic of Germany; and as happens to some degree in the United States where the Senate, in which the states are equally represented, must confirm presidential Supreme Court nominees. Second, on the umpiring point, I also agree with Professor Shapiro that the need to police a separation of powers between the president of France and the premier of France elected by the National Assembly proved to be enough historically to help in creating judicial review, in 1958, in a society that had been very ideologically hostile to judicial review in the years between 1789 and 1958. I conclude, however, unlike Professor Shapiro, that French judicial review was also born in 1971, 1974, and 2008 and that the Constitutional Council is far more than just a separation of powers umpire as I will discuss further in my chapter on France.8 Professor Shapiro adds that judicial power is greatly strengthened not only by federal or separation of powers systems but that judicial power also grows because Supreme Courts and Constitutional Courts make law one case at a time.9 Classic examples of umpiring leading to judicial review include: 

7 See Shapiro, supra note 5. 8 Id. at 153. 9 “A second institutional strength of courts in general that protects constitutional courts in particular is the low visibility, technical, incremental, case-​by-​case model of judicial decision-​making.” I adamantly agree with this observation as well of Professor Shapiro’s, and I think the one case at a time rule has done a lot, along with umpiring federalism and separation of powers disputes, to lead to the origins and growth of judicial review of the constitutionality of legislation over time.

6  The History and Growth of Judicial Review, Volume 1 1) the U.S. since 1790; 2) Canada since 1867; 3) Australia since 1901; 4) Germany since 1949; 5) India, since 1950; and 6) the European Court of Justice from 1957 to 2020. I disagree, however, with Professor Shapiro to the extent that he argues that federalism and separation of powers umpiring is the sole, or, even the main cause, of the origins and growth of judicial review worldwide. I think that there are three other main causes of the origins and growth of judicial review, each of which are of equal importance to federalism and separation of powers umpiring. The second main cause of the origins and growth of judicial review of the constitutionality of legislation stems from what I call the rights from wrongs hypothesis. I think judicial review, and bills of rights to be enforced by courts, very often emerge as a response to an abominable deprivation of human rights, such as occurred with slavery, in the American South, the era of Jim Crow segregation in the American South, Nazism and the Holocaust in Germany, British racist colonialism in India, or South African apartheid, which was a totalitarian system of social relations. This phenomenon is brilliantly explained in a masterful book by Professor Alan Dershowitz, Rights from Wrongs: A Secular Theory of the Origin of Rights.10 Oftentimes, as in the United States and the Federal Republic of Germany, bills of rights and judicial review of the constitutionality of legislation originate for some combination of umpiring and rights from wrongs reasons put together.11 I focus in Volumes I and II on the historical emergence of judicial review primarily in the vertical federalism umpiring context in the British Empire; the vertical and horizontal umpiring context in the United States, between 1789 and 10 Alan Dershowitz, Rights from Wrongs: A Secular Theory of the Origin of Rights (2004). 11 It is important to indicate that I agree with Professor Dershowitz that in American constitutional law, the rights from wrongs approach leads in my opinion to the protection of rights that are very deeply rooted in American history and tradition as the U.S. Supreme Court held in its Washington v. Glucksberg, 521 U.S. 702 (1997). On the one hand, I thus do not agree with Professor Ronald Dworkin’s approach to deriving rights from ahistorical principles of natural law. Ronald Dworkin, Law’s Empire (1988). On the other hand, I do think that one of the most important historical rights in American Constitutional Law is the right conferred by Article I of the Massachusett’s Constitution of 1780, which provided that: Art. I.—All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness. It is thus true as a matter of original constitutional meaning that American courts should enforce Lockean unenumerated rights in constitutional law cases because the Lockean rights in this clause are deeply rooted in American history and tradition as I intend to show in a forthcoming book that I am writing that looks at state bills of rights in 1791, in 1868, and in 2018. Examination of these state bills of rights, at the three different constitutional moments (to borrow a helpful phrase coined by Professor Ackerman), shows that a supermajority of the states in 1787, 1868, and in 2017 recognized Lockean natural rights in their state constitutions. Such rights are therefore deeply rooted in American history and tradition, which explains why such cases as Griswold v. Connecticut, Lawrence v. Texas, and District of Columbia v. Heller are all rightly decided.

Introduction   7 1861; in Canada, between 1867 and 1982; in Australia, in India, in the European Union’s Court of Justice, in Germany, and in France in 1958. But, I also focus on the emergence of judicial review primarily in the rights from wrongs context in the United States, between 1865 and 1875, and between 1954 and 1969; and in Germany, after the Holocaust, and the Nazis; in Japan, after World War II; in Italy, after fascism; in South Africa, after apartheid; in South Korea, Brazil, Mexico, and Indonesia, after brutal military dictatorships; and in Israel, after the Holocaust and World War II. As these examples make clear, it would be a gross error to say that judicial review is solely a product of federalism and separation of powers umpiring. It is not. The rights from wrongs hypothesis is, at least as important, a cause of the origins and growth of judicial review worldwide as is federalism and separation of powers umpiring both in the United States after the Civil War and in many foreign countries after 1945. See Bruce Ackerman, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law (2019). A third major historical cause of the emergence of judicial review of the constitutionality of legislation is the out-​and-​out borrowing of the institution of judicial review of the constitutionality of legislation or of a bill of rights from either the United States’ model, the German Civil Law model, or, most recently, from the Canadian Second Look judicial review constitutional model. Borrowing is a third major cause of the origination of judicial review in G-​20 constitutional democracies such as the following:  (1) Canada, Australia, and India, which countries borrowed judicial review from the United States; (2) Germany, which borrowed judicial review from interwar Czechoslovakia and Austria, and, in a loose way, from the United States; (3)  Japan, which borrowed judicial review from the United States; (4) Italy, which borrowed judicial review from Germany; (5) France, which borrowed an expanded form of judicial review from Germany and Italy in the year 2008; (6) South Korea and Indonesia, which borrowed judicial review from Germany; and (7) Brazil and Mexico, which borrowed judicial review from the United States and from Germany to create a hybrid model of judicial review in those countries. Obviously, borrowing has been a major cause of the spreading of judicial review all over the globe. Of course, a complex social phenomenon like judicial review of the constitutionality of legislation is unlikely to have only one cause. A fourth major cause of the the birth and growth of judicial review is whether the country in question has a system of checks and balances, separation of powers, bicameralism, federalism, or of extreme proportional representation. In other words, is the Supreme Court one of only two players in a political system, as in Japan, or is it one of four or five or eight players in a political system, as in the United States and Germany and Israel. The more divided the political branches are, the greater will be the power of the Supreme Court or Constitutional Court.

8  The History and Growth of Judicial Review, Volume 1 Two scholars, Professors Ran Hirschl and Tom Ginsburg, have advanced arguments for the birth of judicial review, which I find are mostly not supported in my study of the seventeen jurisdictions, which my two books cover. Professor Hirschl argues that the origins and growth of judicial review of the constitutionality of legislation stems from the desire of founding elites to entrench hegemonically their values in a constitution in case they later lose political control over the legislature and executive. This theory has been developed in Ran Hirschl’s book, Towards Juristocracy.12 Hirschl applies this theory of the origins of judicial review to the countries of: (1) Canada, (2) South Africa, (3) Israel, and (4) New Zealand.13 I disagree with all of the examples Hirschl gives of fading elite hegemonic entrenchment. I do think, however, that Hirschl’s fading elite hegemonic preservation thesis explains the United Kingdom’s insistence on judicial review by the Judicial Committee of the Privy Council in Canada, in the 1870s; in Australia, in 1901; in South Africa, in 1909; and in India, in 1935. I thus think that while Hirschl describes accurately the judicial review power in an undemocratic empire that came to an end 75 years ago, his theory does not explain the birth and growth of judicial review in any of the seventeen jurisdictions covered in my two books. Another theory of the origins and growth of judicial review of the constitutionality of legislation is the desire of two evenly matched political forces, at the founding of a democracy, to engage in insurance and commitment to protect their most vital rights whenever they lose a national election. This theory of the origins and growth of judicial review of the constitutionality of legislation is set forth in Tom Ginsburg’s book, Judicial Review in New Democracies: Constitutional Courts in Asian Cases.14 Professor Ginsburg’s book argues that judicial review typically emerges when there are two parties or coalitions of parties, each of which has a realistic fear of losing power and each of which wants some degree of insurance to protect its vital interests if it loses an election. As Professor Ginsburg says: I call this the insurance model of judicial review. By serving as an alternative forum in which to challenge government action, judicial review provides a form of insurance to prospective electoral losers during the constitutional bargain. Just as the presence of insurance markets lowers the risk of contracting, and therefore allows contracts to be concluded that otherwise would be too risky, so the possibility of judicial review lowers the risk of constitution making 12 Ran Hirschl, Towards Juristocracy: The Origins And Consequences of the New Constitutionalism (2007). 13 See Ran Hirschl’s chapter, The Strategic Foundations of Constitutions, in Social and Political Foundations of Constitutions (Denis J. Gilligan & Mila Versteeg eds., 2015). 14 Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (2003).

Introduction   9 to those drafters who believe they may not win power. Judicial review thus helps to conclude constitutional bargains that might otherwise fail.

Professor Ginsburg’s book proposes an alternative theory to the ones discussed so far, and Ginsburg shows his thesis helps explain the origin and growth of judicial review of the constitutionality of legislation in: (1) South Korea, which is a G-​20 nation; (2) in Taiwan; and (3) in Mongolia. I disagree with Ginsburg as to South Korean judicial review, which I think emerged as a rights from wrongs reaction to decades of presidential dictatorship. Ginsburg is right, however, to study these three Asian countries because, collectively, they could inspire a similar development in China, which would be a huge boon for the Chinese and for all the world. I do think judicial review has grown in power for insurance and commitment reasons in every G-​20 nation I study, especially in France after 1974. Tom Ginsburg’s book is thus an extremely helpful addition to the literature. But, I think the insurance and commitment phenomenon less often explains the historical origins of judicial review than it explains the retention and growth of judicial review and of the power of Supreme Courts and Constitutional Courts in countries that already have them for other reasons. We should all as a normative matter favor judicial review of the constitutionality of legislation for Ginsburgian reasons of insurance and commitment. I should add that both Professors Mark Ramseyer15 and Matthew C. Stephenson16 also argue for the insurance and commitment theory of judicial review. Yet, another major cause of constitution writing; bill of rights adoption; and the adoption of judicial review of the constitutionality of legislation is best explained in a new book by Professor Bruce Ackerman, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law.17 Professor Ackerman suggests in this brilliant and erudite new book that constitutions emerge either as: (1) the result of a mass political mobilization as happened in India, with the Congress Party, or in South Africa, with the African National Congress; or (2) as a result of an elite bargain, as happened in Japan where General Douglas McArthur essentially imposed a constitution written by his own staff; or (3) as a result of an evolutionary form of constitutionalism such as that which exists in the United Kingdom or in Canada. The way in which a regime gets started—​revolution, elite

15 J. Mark Ramseyer, The Puzzling (In)Dependence of Courts: A Comparative Approach, 23 J. Leg. Stud. 721 (1994); J. Mark Ramseyers & Eric B. Rasmussen, Measuring Judicial Independence: The Political Economy of Judging in Japan (2003). 16 Matthew C. Stephenson, “When the Devil Turns . . .”: The Political Foundations of Independent Judicial Review, 32 J. Leg. Stud. 59 (2003). 17 Bruce Ackerman, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law (2019).

10  The History and Growth of Judicial Review, Volume 1 imposition, or evolution has strong implications for the form that judicial review takes under that regime’s constitution.18 Professor Ackerman thus offers an important additional account of the origins and growth of judicial review of the constitutionality of legislation. Since the triumph of constitutional democracy and the acceptance of judicial review in the 1980s in many parts of Central and Eastern Europe, in Latin America, and in South Korea, the Philippines and Indonesia, a particularly popular idea among law and economic scholars has been that constitutional systems with: (1) fixed veto points, (2) a system of checks and balances, (3) independent courts, and (4)  independent central banks are likely to be favored by international investors and thus to thrive economically. This argument was first advanced in 1989 by Professors Douglass C. North and Barry R. Weingast as an explanation for the success of the English Glorious Revolution of 1688; the system of constitutional government by the King-​in-​Parliament that it created; the decision in 1701 to give English judges tenure during good behavior; and the decision to create the Bank of England in 1694.19 Professors North and Weingast concluded that constitutional democracies with multiple veto points, or systems of checks and balances, and with independent judiciaries and central banks will be likely to thrive economically. The experience of the last sixty years supports that conclusion. The law and economics argument for the origins of judicial review has been elaborated in several other articles by Professors Barry Weingast, Matthew McCubbins, Roger Noll, Mark Ramseyer, and Matthew C. Stephenson.20 Other economic theories about the origins of judicial review of the constitutionality of legislation focus on the way in which judicial review best maximizes utility in constitutional democracies;21 and, coordination theories, which explain constitutionalism and judicial

18 I had the great privilege of co-teaching Comparative Constitutional Law with him in the fall of 2016, and I have a special understanding of Professor Ackerman’s views because of that wonderful experience. 19 Douglass C. North and Barry R. Weingast, Constitutions and Commitment: The Evolution of Institutional Governing Public Choice in Seventeenth Century England, 49 J. Econ. Hist. 803 (1989). 20 Matthew McCubbins, Roger Noll, & Barry R. Weingast, Administrative Procedure as Instruments of Political Control, 3 J.L. Econ. 243 (1987); Matthew McCubbins, Roger Noll, & Barry Weingast, Structure and Process, Politics and Policy:  Administrative Arrangements, and the Political Control of Agencies, 75 Va. L. Rev. 431 (1989); Mancur Olson, Dictatorship, Democracy, and Development, 87 Am. Pol. Sci. Rev. 567 (1993); Barry R. Weingast, Constitutions as Governance Structures: The Political Foundations of Secure Markets, 149 J. Institutional & Theoretical Econ. 286 (1993); Barry R. Weingast, The Political Foundations of Democracy and the Role of Law, 91 Am. Pol. Sci. Rev. 245 (1997). 21 See Mark Ramseyer, supra note 16; William M. Landes & Richard A. Posner, The Independent Judiciary in an Interest-​Group Perspective, 18 U. Chi. J. L. & Econ. 875 (1975).

Introduction   11 review as being useful conventions that people acquiesce in to best coordinate their behavior but to which they do not necessarily consent.22 The problem with this law and economics approach to the origins of judicial review is that all of these authors whose work is described in this introduction view the emergence and origins of judicial review through the lens of law and economics, which is not the stuff out of which Revolutions on a Human Scale grow, as Professor Ackerman’s new book brilliantly shows. One has to look at history and legal culture to understand why judicial review of the constitutionality of legislation originates and grows. An economic analysis of comparative constitutional law is for both me and for Professor Ackerman insufficiently explanatory. Popular mass movements like those in: (1) the United States, (2) India, (3) South Africa, (4) Italy, and (5) France do not march in the streets chanting, “we want a constitutional regime with multiple veto points!” The selection of such a regime and its growth happen after the institution of judicial review of the constitutionality of legislation has originated for other reasons. I have separated out my discussions of the fifteen G-​20 constitutional democracies, plus Israel and the European Court of Human Rights, into two separate books, which we will be published simultaneously. Each book discusses the birth of judicial review theses outlined above. As I said above, the four most common causes of the birth of judicial review are: 1) the need for an umpire; 2) the rights from wrongs phenomenon; 3) borrowing; and 4) the existence of enough political space for judicial power to flourish. I need to present my data in two separate books for space reasons. In addition, there are very important subtle differences between judicial review of the constitutionality of legislation in the common law nations from the same phenomenon in the civil law nations. It is thus essential to present this material in two separate, but simultaneously published, books. Volume I  in my series is devoted to the G-​20 constitutional democracies, which are common law countries and which were at some point a part of the British Empire. These countries include:  (1) the United States, (2)  Canada, (3) the Commonwealth of Australia, (4) the Union of India, (5) Israel, (6) the Republic of South Africa, and (7)  the United Kingdom of Great Britain and Northern Ireland. I have included Israel among the nations I study in Volume I because its constitutional system is so interesting and because it was once part of the British Empire. The common law countries I study in Volume I have all borrowed from one another extensively, and I think it makes sense to treat them as a book-​length unit. 22 Russell Hardin, Liberalism, Constitutionalism, and Democracy (1999). Russell Hardin, Why a Constitution?, in Social and Political Foundations of Constitutions (Denis J. Galligan & Mila Versteeg eds., 2013).

12  The History and Growth of Judicial Review, Volume 1 Volume II in my series addresses eight G-​20 constitutional democracies, which are civil law countries and two, which are mixed civil law/​common law jurisdictions. These countries include:  (1) the Federal Republic of Germany, (2) Japan, (3) the Republic of Italy, (4) the Republic of France, (5) the Republic of Korea, (6) the Federative Republic of Brazil, (7) Mexico, (8) the Republic of Indonesia, (9) the European Union post-​Brexit, and (10) the Council of Europe, which gave rise to the European Court of Human Rights. Germany is purposefully discussed first in this section both for chronological reasons and because of the enormous impact it has had on other democratic constitution-​writing endeavors since 1949. The civil law countries all borrow from one another as well. Taken together, my two books on the history and growth of judicial review cover rich and poor countries; countries from the Global South as well as the Global North; countries on all six inhabited continents; and, finally, the most populous Protestant, Catholic, Jewish, Hindu, and Islamic countries in the world. I focus on the seventeen jurisdictions described above because: 1) they are populous; 2) they are large; and 3) the G-​20 nations as a whole amount to 85% of world GDP. I think Hirschl’s and Ginsburg’s books focusing on four and three inconsequential nations are too small a data set from which to draw conclusions. I begin Volume I  with three very important background chapters before reviewing the seven case studies of the United States, Canada, Australia, India, Israel, South Africa, and the United Kingdom.23 The first background chapter explains the origins and development of the common law tradition, which it is essential to understand for our later chapters to make sense. The second background chapter explains the unique common law system of diffuse judicial review and its theoretical underpinnings. This system of judicial review is in place in six of the seven common law countries, and it differs in critical ways from the concentrated, Kelsenian systems of judicial review that prevail in Germany and in almost all of the civil law countries. The third and final background chapter in Volume I describes the history and workings of the Judicial Committee of the Privy Council and its antecedents, which was the Supreme Court of both the First and Second British Empires from 1607 until the present day. While neither the British Empire nor the Privy Council were democratically accountable entities until at least the great electoral reforms of 1832, 1867, and 1911, the British Empire and the Judicial Committee of the Privy Council, in my opinion, did set in motion the train of events, which led to the origins and growth of the power of judicial review of the constitutionality of legislation in all of the common law countries I discuss in Volume I.

23 I build here on the work of John Bell & Marie-​Luce Paris, Rights-​Based Constitutional Review (2016); and of an essay by Alec Stone Sweet, “Constitutional Courts.”

Introduction   13 These three background chapters may not be of interest to trained comparative constitutional law professors or to those who, for whatever reason, are uninterested in the federal judicial review process of the undemocratic British Empire. Those individuals may want to skip ahead and start the book with the chapter on the United States and read on from there. The book is written so that it will make sense whether readers choose to look at the three background chapters or not. Likewise, readers can choose to read only the volume on the civil law countries or vice versa. I have omitted from my two books on The Origins and Growth of Judicial Review: The G-​20 Constitutional Democracies any consideration whatsoever of the court systems of the five G-​20 countries that I do not believe are liberal, constitutional democracies, which follow the rule of law. These are the countries of Russia, China, Saudi Arabia, Turkey, and Argentina. I believe that my two-​book examination of The History and Growth of Judicial Review in the fifteen democratic G-​20 constitutional democracies and in Israel and the countries subject to the jurisdiction of the European Court of Human Rights, which account for most of the world of constitutional democracies, can shed great light on the history, origins, and growth of judicial review of the constitutionality of legislation as an institution.

Chapter One

The Common Law Legal Tradition: First Things First My two-​book study of The History and Growth of Judicial Review begins each country-​study chapter with some background history on the country whose constitutional law I will compare to U.S. constitutional law. But, I think it is also necessary for me to comment at the outset on the background history of the whole common law legal tradition in which all seven of the countries studied in this volume are immersed. This common law tradition is, and always has been, characterized by powerful judges and weak scholars and codifiers. This helps to explain why judicial review arose in the common law countries, long before it spread to the civil law countries, after 1945. I therefore begin Volume I  by giving you a quick look at the history and development of the common law tradition, as well as explaining why that tradition led to powerful judges who would eventually end up wielding the formidable power of judicial review. The common law G-​20 nations of the world include the following countries: the United States, the United Kingdom, India, Canada, Australia, and South Africa. In addition, Israel is a mostly common law jurisdiction, although it is not a G-​20 country. The mostly civil law legal jurisdictions, which may be compared to the common law countries, include Germany, Japan, Italy, France, South Korea, Brazil, Mexico, Indonesia, the European Union, and the Council of Europe. The common law and civil law traditions have existed side by side now for one thousand years, and each tradition has influenced the other quite a bit, although they remain in some respects quite different. The common law legal tradition even though it is not nearly as old, nor nearly as widespread, as is the civil law tradition, has played the leading role in “The History and Growth of Judicial Review.” This is the case even though the civil law legal tradition dates back to back to 250 BC, where it originated in ancient Rome. The common law legal tradition, by contrast, dates back to only 1066 AD when the Normans conquered England but agreed to follow the laws of England’s last Anglo-​Saxon king, Edward the Confessor. The civil law legal tradition is in place in about 150 countries around the world whereas the common law legal tradition is only in place in less than thirty countries, all of which were at one point, or another, parts of the First, The History and Growth of Judicial Review, Volume 1. Steven Gow Calabresi, Oxford University Press (2021). © Steven Gow Calabresi. DOI: 10.1093/oso/9780190075774.003.0002

16  The History and Growth of Judicial Review, Volume 1 or Second, British Empires. I start this two-​volume book series with a discussion of the history of the common law legal tradition because it is the prevailing legal tradition in the four countries with the oldest systems of judicial review of the constitutionality of legislation: the United States, Canada, Australia, and India.1 Judicial review of the constitutionality of legislation in these four countries is very much shaped by common law attitudes about the powerful role of judges and about the significance of precedent as a source of law.

I.  The History of the Common Law Tradition The common law legal tradition is characterized historically, in public law, by a belief in limited, constitutional government, and, since 1789, by a belief in the central importance of judicial review of the constitutionality of legislation. The common law’s belief in limited, constitutional government has characterized it since the reign of Edward the Confessor in England prior to the Norman victory in the Battle of Hastings in 1066. In private law, the common law tradition is characterized by judge-​made case law, which is the primary source of the law, instead of a massive code being the primary source of the law. Judges, rather than scholars, are the key figures who are revered in the common law legal tradition, and this is one of the key things that distinguishes the common law legal tradition from the civil law legal tradition. It is not an accident that judicial review of the constitutionality of legislation originated in the four common law countries of the United States, Canada, Australia, and India, and, from there, judicial review was spread all across the civil law world in the years between 1945 and 2020. Judicial review is a common law invention, so knowing something about the common law tradition is helpful to understanding “The History and Growth of Judicial Review.” The common law legal tradition originated in England, in the twelfth and thirteenth centuries AD, and it spread from there to Wales, Ireland, the United States, Canada, Australia, New Zealand, India, Pakistan, South Africa, Israel, and a number of other countries and islands that were at some point a part of the British Empire. The key event in the history of the common law legal tradition is

1 John Henry Merryman & Rogelio Perez-​Perdomo, The Civil Law Tradition:  An Introduction to the Legal Systems of Europe and Latin America (3rd ed. 2007); Mary Ann Glendon, Paolo G. Corazzo & Colin B. Picker, Comparative Legal Traditions: Cases, Text, and Materials on Western Law (4th ed. 2014).

The Common Law Legal Tradition  17 the refusal of England to receive Roman law when it was received by the countries of Continental Europe between 1100 and 1500 AD.2 The common law legal tradition originated in 1066 AD, as a result of the Norman victory in the Battle of Hastings, which put William the Conqueror on the throne of England. Prior to 1066, England had been governed as a recently unified kingdom under its last Anglo-​Saxon king, Edward the Confessor, who was a constitutional monarch. Edward the Confessor promulgated a code of laws, and he relied on a council of state to advise him in his rule. Edward the Confessor died, and there was a fight over who was entitled to succeed him between King Harold II and William the Conqueror of Normandy—​a fight that William won at the Battle of Hastings, in 1066, at which Harold was killed. William the Conqueror imposed French Norman rule on England, and he became king of England. King William fortified his government in England, after 1066, by building structures, like the Tower of London, all over England, since England was to him essentially a foreign land. William and his men spoke French as their first language, while the rest of England spoke an old English-​Germanic language. William had been Duke of Normandy, in France, prior to his becoming king of England, and William retained control over Normandy and over the Channel Islands, which were a part of the Duchy of Normandy. William the Conqueror’s invading army at the Battle of Hastings consisted of about ten thousand Norman French-​speaking troops, and the English nation that they subsequently conquered and governed contained somewhere between 1 and 2.5 million English speaking people. These numbers show the precarious situation William the Conqueror faced, even after he won the Battle of Hastings, and they explain why William was eager to govern England as a constitutionally limited monarch.3 William the Conqueror immediately wrapped himself in the mantle of Edward the Confessor, claiming that he was Edward the Confessor’s legitimate heir, as a constitutional monarch, and he had himself crowned king on Christmas day, 1066, at Westminster Abbey—​a church in London that had recently been built by Edward the Confessor and where the former king is buried in a shrine. William the Conqueror pledged in his coronation oath at Westminster Abbey that he would follow the Anglo-​Saxon laws of Edward the Confessor, the so-​called Leges Edwardae, and his son King Henry I made the same promise in his coronation oath in 1100 AD, which is usually called the Charter of Liberties.

2 The seminal academic source here is John H. Langbein, Renée Lettow Lerner, & Bruce P. Smith, History of the Common Law:  The Development of Anglo-​American Legal Institutions (2009); see also S.F.C. Milson, Historical Foundations of the Common Law (1981). 3 Id.

18  The History and Growth of Judicial Review, Volume 1 Both William I and Henry I governed with the advice of their barons using a council of state that came to be called the Curia Regis—​the Court of the King. They thus both governed as constitutional monarchs, like Edward the Confessor, and not as absolute monarchs, like King Louis XIV of France, who famously said in the seventeenth century, L’état, C’est Moi (I am the State). William the Conqueror, his son King Henry I, and his great-​grandson King Henry II all ruled England as constitutional monarchs following in the footsteps of Edward the Confessor, the last Anglo-​Saxon king of England. But, from 1199 to 1216, England was governed by bad King John, who attempted to rule absolutely. King John did not follow the Leges Edwardae; he imposed heavy taxes; and he interfered in the affairs of the Roman Catholic Church. His barons revolted against him, and he was forced on the field of Runnymede in England in 1215 AD to sign Magna Carta—​Latin for the great charter—​of English liberties. The theory of Magna Carta was that King John had acted unconstitutionally in ignoring the Leges Edwardae, and in imprisoning people who had not been convicted by their peers. It was also thought that King John deprived the people of legal rights that they already had, by refusing to follow the law of the land made by the king together with his barons. Magna Carta thus, in theory, did not do anything new—​it merely reiterated that the king of England was to govern under the law and was not, himself, the font of the law. Magna Carta enforced England’s “ancient constitution” of liberty, which dated back, it was said, to Edward the Confessor. This historical account is challenged as a myth by J.G.A. Pocock in his book and rebutted as being valid in another book applying it to the thirteen North American colonies by Professor John Phillip Reid.4 Pocock, and most other English historians challenge aspects of what I have just said, as being merely “The Whig Theory of History”—​a phrase that they mean to be derogatory. As John Philip Reid has shown, however, the New England colonists from the 1620s up through the ratification of the U.S. Bill of Rights in 1791 all believed in “The Whig Theory of History,” which they thought had been described as Gospel by Sir Edward Coke—​England’s most famous and influential judge (1552 to 1634). Judicial review originated in the United States between 1776 and 1803, and what matters for us therefore is the account of English legal history that was accepted as being true by most learned Americans between 1776 and 1803. There is no question but that colonial Americans all believed in “The Whig Theory of History” when U.S.  judicial review first appeared. For these reasons, I will offer you the rest of “The Whig Theory of History” in this chapter. 4 J.G.A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century (1987), which is powerfully rebutted in Jon Phillip Reid, The Ancient Constitution and the Origins of Anglo-​American Liberty (2005).

The Common Law Legal Tradition  19 King Edward I, Henry III’s son, recognized the two Houses of Parliament—​ the House of Lords and the House of Commons—​and he produced important laws. By the time of his reign—​from 1274 to 1307, it was absolutely clear that England was a constitutional and not an absolute monarchy. There was nothing yet remotely resembling the modern institution of judicial review, but there was a demonstrable commitment in the common law tradition to limited, constitutional government. Thus, between the death of Edward I, in 1307; and the rise of the Tudors, in 1485, five kings of England were deposed and executed with parliamentary approval: Edward II, Richard II, Henry VI, Edward V, and Richard III. The deposition and murder of these five kings prove that England was not prior to the rise of the Tudors, in 1485, an absolute monarchy. King Edward I had agreed in 1295 to govern and tax only with the consent of his House of Lords and of the House of Commons in Parliament. The very name “parliament” comes from the Norman French word parler, which means “to talk.” England, prior to the rise of the Tudors in 1485, was thus clearly an Aristotelian mixed regime with monarchical, aristocratic, and democratic components blended together. England was not a democracy between 1295 and 1485, and it did not have judicial review, but it did have an unwritten constitution that limited royal power in a mixed regime. In the late twelfth and early thirteenth centuries, three common law courts emerged from the Curia Regis—​the Court of the King. They were called the Court of Common Pleas, which heard cases between two subjects; the Court of Exchequer, which heard financial cases; and the Court of King’s Bench, which heard suits between citizens and government ministers. These courts were very powerful, and they sat and heard cases in Westminster Hall. On some occasions, English kings sat with their judges and decided cases or controversies themselves. They did this because, prior to 1641, the royal prerogative included the power for kings to decide judicial cases in England and Wales. The judges of the common law courts, their case law, and the lawyers who argued in these courts all established a firm presence early on after the Norman Conquest. Norman England was thus much more centralized and tightly ruled than were those areas in Continental Europe that eventually became France, Italy, and Germany. The net result was that when Roman law was rediscovered in Italy in the twelfth century, it met a competitor in the English common law, which it was never able to displace. The reason early English jurists looked at but did not follow Roman law is, in Professor John Henry Wigmore’s view, due to the fact that by the early 1300s, a “profession of law” was “already developing in the Inns of Court.”5 These Inns had begun in the early 1300s; they were the guilds of lawyers that grew up around the courts at London. Only four now survive—​Lincoln’s Inn, Gray’s Inn, 5 John Henry Wigmore: A Panorama of the World’s Legal Systems at 1064 (in three volumes 1928).

20  The History and Growth of Judicial Review, Volume 1 Inner Temple, and Middle Temple; the last two were so called from occupying the old quarters of the Knights Templars. But there were fourteen or more in all, at the height of their activity, and there were probably some two-​thousand members in all, each year. The most distinctive result, then, of [the] Norman’s zest for lawyers was that a legal profession arose [in England] at least two centuries before it did in Germany, [the] Netherlands, and Scandinavia, the other pure German countries. The Inns of Court were guilds of lawyers with their apprentices * * * [and they] lodged and ate and studied together in these Inns. They were like the colleges at Oxford and Cambridge [and they became] universities of law [as they were called] by Chief Justice Fortescue, in the late 1400’s, and by Chief Justice Coke in the 1600s. Lectures were given and moot cases argued by lawyers of experience; and that experience was founded on practice [in the English common law] courts.6

King Edward III  published yearbooks in manuscript and in print as soon as printing became available.7 Professor Wigmore argues that the development of the royal courts of justice, the publication of the judge’s opinions, and the emergence of universities of law at the Inns of Court gave birth to the common law of England, and made the common law sturdy enough to withstand the initial reception of Roman law in England.8 In 1485, King Henry VII came to the throne, and he consolidated royal power under his new Tudor dynasty by ruthlessly eliminating all enemies and by murdering all of his close relatives who might have a claim to the throne. He did this to permanently end the Wars of the Roses (1455 to 1485), which he succeeded in doing. At about this time, there emerged in England a new set of courts—​the courts of equity—​which were separate from the common law courts, and which were designed, in theory, to correct the excessive rigors of the common law by judgments based on fairness. The courts of equity, which King Henry VII created included the Court of Chancery, which survived the English Civil War; and the Court of Star Chamber, which did not. These English courts, along with the Admiralty Courts, did rely on Roman law, but there was to be no reception of Roman law in the 1500s and 1600s as a consequence of England’s Protestantism after Henry VIII’s break with the pope in 1634, and the association of Roman law by the English with the Catholic Church, which they came to greatly dislike. There was still no judicial review of the constitutionality of acts of parliament or of the king, but the three traditional Common Law Courts: the Court of King’s Bench, the Court of Exchequer, and the Court of Common Pleas were very powerful. The judges who served on those courts were among the most powerful judges in the land.

6

Id. at 1064. Id. at 1071. 8 Id. at 1077–1090. 7

The Common Law Legal Tradition  21 The Tudor dynasty governed England and Wales from 1485 until 1603. Three Tudor monarchs were immensely powerful, Henry VII, Henry VIII, and Queen Elizabeth I, but they were always careful to get Parliament’s support for any important thing they did, and none of them claimed absolute power. The Tudors were followed by four Stuart Kings: James I, Charles I, Charles II, and James II who believed in the French philosopher Jean Bodin’s theory about the Divine Right of Kings to rule absolutely. This idea was utterly foreign to England’s history as a constitutional monarchy with an Aristotelian mixed regime—​a history that went back to 1066 and the reign of King Edward the Confessor. The common law judges and lawyers, led by Sir Edward Coke, the Lord Chief Justice of England, challenged, King James I and King Charles I repeatedly in the first thirty years of the seventeeth century, and they asserted that England was a constitutional, limited, monarchy. Ultimately, Sir Edward Coke’s ideas prevailed: first, when Charles I fought and lost the English Civil War and was beheaded, in 1649; and second, in 1688, when the English people chased King James II off the throne, and replaced him with the constitutionally limited monarchs King William III and Queen Mary II. From 1689 to American independence in 1776, England was again a limited, constitutional monarchy with a mixed regime of the King-​in-​Parliament with the house of lords and house of commons. William Blackstone, the greatest commentator ever in English legal history, came up with the fiction that the King-​in-​Parliament was sovereign because it comprised the three great estates of English society: the monarchy, the aristocracy, and the people. Blackstone followed Hobbes and believed (idiotically) that sovereignty must reside in one institution, and he decided the eighteenth-​ century English mixed regime passed this test because sovereignty was vested in one place: the King-​in-​Parliament. Blackstone’s theory, which evolved into parliamentary sovereignty, made judicial review of acts of parliament inconceivable in Britain and for a time in her colonies. A British or colonial judge could no more engage in judicial review of the lawfulness of an act of the King-​in-​Parliament than an American judge could judicially review, today, a federal constitutional amendment. Both are conceptualized as being the voice of the sovereign speaking. Americans eventually came up with judicial review after sovereignty transferred from “the King-​in-​ Parliament” to “We the People” of the United States. Judicial review did begin to appear in England’s colonies from 1641 on, after Parliament abolished an English Roman Law court, the Court of Star Chamber, which Charles I had used in tyrannical ways. Specifically, Parliament in 1641 eliminated the king’s prerogative power to decide judicial cases and controversies in England and Wales. Parliament left untouched, however, the king’s prerogative power to decide judicial cases or controversies in the Channel Islands (which had been a part of the Duchy of Normandy), the Island of Man (in the Irish Sea), and in the thirteen North American colonies. As I will explain, in Chapter Three,

22  The History and Growth of Judicial Review, Volume 1 the king’s Privy Council was thus able to assert itself in a very vigorous way in the First and Second British Empires. In sum, the events of the seventeenth century in England were a war between the first four Stuart kings of England and the common law lawyers, led by Sir Edward Coke, and the common law lawyers won. The great names of English legal history are the names of judges, like Sir Edward Coke and Lord Mansfield, and not the names of codifiers or scholars, as in the civil law tradition. The legacy of the common law tradition for the United States, Canada, Australia, India, Israel, and South Africa was a legacy of strong and powerful judges. It is thus not at all surprising that judicial review of the constitutionality of legislation emerged in British colonies like the United States, Canada, Australia, and India and that it spread from there all over the world. I should say a few more words about the position of judges in the common law tradition in the eighteenth, nineteenth, and twentieth centuries. In the Act of Settlement of 1701, English judges were given tenure during good behavior for the life of the monarch who commissioned them. This was a Whig Party response to James I’s firing of Sir Edward Coke as Lord Chief Justice of England and Wales, and as a response to many other firings of royal judges by James I, Charles I, Charles II, and James II. The Act of Settlement reflects the fact that Coke and the common lawyers won the seventeenth-​century war between the Whigs and the advocates of absolute monarchy. In 1761, King George III signed parliamentary legislation giving British judges tenure during good behavior for life, and not only during the tenure of the monarch who appointed and commissioned them. This reflects the very high esteem that judges had acquired by 1761 in England. A principal complaint of the thirteen North American colonies was that their cases were heard by colonial judges, who did not have tenure during good behavior, or by British admiralty judges who were foreigners and decided cases without a jury. As a result, Americans from 1776 to 1787 gave state and federal judges life tenure during good behavior. It is fair to say that the great names of American legal history are either Supreme Court justices, like John Marshall, or famous appellate judges like Judge Learned Hand. In summary, the common law legal tradition is characterized by (1) constitutionally limited government, (2) the predominance of judge-​made case law, (3) trial by jury, (4) responsible parliamentary government, and (5) the traditional absence of a judicially enforced bill of rights. Common law countries like India (1947) and Canada (1982) have borrowed the U.S. idea of a judicially enforced bill of rights, with some modifications. One-​third of the world’s population, 2.3 billion people, live today in common law countries as compared to a majority of the world’s population, living in 150 countries that follow the civil law legal tradition.

Chapter Two

The Diffuse and Second Look Models of Judicial Review I am not yet able to turn to “The History and Growth of Judicial Review” in the common law countries without discussing one other introductory point. As readers of this two-​volume series will come to see, common law layers and civil law lawyers mean different things when they talk about the institution of judicial review. In the common law world, courts exercising the power of judicial review of the constitutionality of legislation or of presidential actions think they are interpreting and applying the text of the Constitution as if it were an ordinary, albeit superior statute. Common law lawyers thus think the Constitution is an ordinary law and can be applied as such by all judges in the system, including in the U.S. lower federal court judges, of whom there are about 1,700, and state court judges of whom there are about thirty thousand. In contrast, in civil law countries, the underlying theory of judicial review of the constitutionality of legislation is that a Constitutional Court actually “makes” law when it decides a constitutional case. Constitutional Courts are thus seen as being lawmaking bodies and are viewed as a kind of fourth branch of the government. Thus, it is inherently misleading to compare, for example, a U.S. Supreme Court decision with a German Constitutional Court decision. The U.S. decision is, in theory, the result of an act of interpretation, while the German decision is, in theory, an act of positive lawmaking. Because civil law countries think Constitutional Courts make law, no other ordinary court in a civil law legal system has the power of judicial review. Constitutional Court judges are picked through a high-​level political process and serve for constitutionally limited and staggered terms. Constitutional Courts also have the power to bind future parties and the legislature to follow their opinions, which have erga omnes effect. With this background in mind, I can now turn to the two systems of judicial review that are prevalent in common law countries: the Diffuse System of judicial review and the Second Look System of judicial review. The common law countries are all alike in having either Diffuse or Second Look or both systems of judicial review, while rejecting the Kelsenian Concentrated Constitutional Court system.

The History and Growth of Judicial Review, Volume 1. Steven Gow Calabresi, Oxford University Press (2021). © Steven Gow Calabresi. DOI: 10.1093/oso/9780190075774.003.0003

24  The History and Growth of Judicial Review, Volume 1 I should add, by way of introduction, that until 1945, almost no written constitutions in the world provided for judicial review, at all, of unconstitutional legislative action. The only three countries with judicial review of the constitutionality of federal legislation between 1789 and 1945 were the United States, Canada, and Australia, and, in 1945, only the United States had a judicially enforceable bill of rights. From the French Revolution to 1945, constitution makers relied on legislative or parliamentary supremacy to enforce written constitutions. Democratically elected legislatures were seen as embodying Rousseau’s volonté générale—​the general will of the people. It was just assumed that the legislatures would protect liberty, because they were popularly elected. A similar, naïve faith in all-​powerful legislatures existed in the United States in the years shortly after 1776, but this faith was replaced in the 1780s with a belief in the value of a system of constitutional checks and balances, including judicial review of legislation when the U.S. Constitution was written in 1787. Professor Gordon Wood identifies this as being a critical period during which horizontal judicial review was legitimated. It is also the period of time when Americans began to believe that their courts could police the limited and enumerated grants of power, which the Constitution made to Congress and the president.

I.  The Diffuse Model of Judicial Review The Diffuse Model of judicial review originated in the United States and has spread to India, Canada, Australia, the United Kingdom, most of the countries of Latin America, the Scandinavian countries (except for the Netherlands), and Japan. It is premised on the idea that a country’s written constitution is its supreme law and that courts, when exercising the power of judicial review in cases or controversies that are properly before them, are thus duty-​bound to follow the constitution, which is supreme law, and not a contrary statute whenever those two items conflict. Under the Diffuse Model, courts do not so much have an affirmative power of judicial review as much as they have a duty to let the constitution trump a contrary statute or executive branch action. The constitution is said to express the supreme will of the people—​the volonté générale—​and it overrides contrary statutes and executive branch actions. The act of constitutional interpretation is conceptualized as being like the act of statutory interpretation, and is, therefore, properly performed by ordinary judges. This vision of diffuse judicial review is most associated with The Federalist No. 78 (Alexander Hamilton) and with

The Diffuse and Second Look Models of Judicial Review  25 Chief Justice John Marshall’s famous opinion in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). One consequence of the rooting of the Diffuse Model of judicial review in the supremacy of the text of the constitution, as law, is that it empowers all the courts in a country’s legal system to exercise the power of judicial review and not just the Supreme Court or a Constitutional Court. In the United States, for example, the more than 1,700 lower federal court judges and the thirty thousand or so state court judges all have the power to judicially review the constitutionality of legislation and executive branch actions. The U.S. Supreme Court has the last word on the eighty or so questions of judicial review that it chooses to hear every year, but the lower federal courts and the state courts have the last word de facto on the hundreds of thousands of cases they finally hear and decide as well. U.S. judicial review is thus diffuse because all courts in the U.S. legal system, federal and state, have the power of judicial review. The system is a highly decentralized Hayekian system of spontaneous order.1 A second feature of diffuse judicial review is that it is closely tied to the bringing of a case or controversy, which alone can trigger the power of judicial review. Under the Diffuse Model in the United States, citizens and taxpayers lack standing to trigger a court’s power of judicial review unless they have suffered a legally cognizable injury, which is caused by the defendant who the plaintiff is suing, and which is capable of being redressed by a court. U.S. courts cannot and do not issue advisory opinions. Moreover, when a court does hold a statute or executive branch action unconstitutional, its holding is only binding as to the parties to the case before the court. Future litigants can challenge a prior court holding, even one that is squarely on point, and force the court to say again what it had said in a prior case about an action being constitutional or unconstitutional. Under the Diffuse Model of judicial review, a court holding that a statute is unconstitutional does not wipe that statute off the books: it merely renders the statute temporarily unenforceable in that case in that particular court. If the courts later change their mind about the constitutionality of the statute, it is still on the books and can come back to life. Judicial holdings of unconstitutionality thus have precedential weight, but they do not have the erga omnes effect of a statute or of a Kelsenian Constitutional Court ruling. Finally, in the United States, in particular, the written Constitution contains no written judicial review clause, even though it does contain a commerce clause and a commander-​in-​chief clause. The power of judicial review in the United 1 Friedrich Hayek, Law, Legislation, and Liberty: Volumes 1, 2, and 3 (Volume 1, 1973; Volume 2, 1976; Volume 3, 1979).

26  The History and Growth of Judicial Review, Volume 1 States is deduced in The Federalist No. 78 or in Marbury v. Madison, 5 U.S. 137 (1803) from a structural inference that the supreme law, issued by “We the People,” trumps the ordinary laws made by the people’s representatives in the legislature. The courts are the most familiar constitutional interpreters because of the high visibility of U.S. Supreme Court cases, but the federal and state courts do not have a monopoly on constitutional interpretation. Foreign affairs questions and questions concerning the constitutional legality of federal spending are not justiciable and are thus decided by the political branches alone, as are questions involving impeachment.2 Each branch, or department, of the federal government has the last word on what the Constitution means and has a duty to follow it when that department performs its own distinctive functions. Thus, Congress in legislating and presidents in executing the law are bound to act constitutionally, just as are the courts when they decide cases or controversies. Sophisticated departmentalists will acknowledge that courts play the leading role in the United States in interpreting the Constitution, but when a court gets things wrong, American legislators and executives do and should push back, if necessary, by forcing a court to reiterate a controversial opinion it has rendered in case after case. This is what President Abraham Lincoln pledged to do with the Dred Scott case. Lincoln said he would enforce Chief Justice Taney’s holding that Dred Scott was a slave, but that as president, he would issue passports to African Americans recognizing them as being citizens of the United States, and he would ask Congress to pass legislation outlawing slavery in all of the Western Territories. Lincoln would follow the court’s order, but he would not follow and was not bound to follow the reasoning in Chief Justice Taney’s Dred Scott opinion. U.S. judicial review is thus characterized by constant dialogue back and forth between the Supreme Court and the political branches. Thus, the Supreme Court essentially found the death penalty to be unconstitutional in 1972, but brought it back into existence in 1976, after a huge number of states had re-​enacted it with new procedural safeguards to address the Supreme Court’s 1972 concerns. The demise and resurrection of the death penalty in the United States was thus a function of a kind of Second Look judicial review. Second Look judicial review does not always end, however, with the U.S. Supreme Court backing down. In 1989, the Supreme Court struck down a Texas statute banning the burning of the American flag in Texas v. Johnson, 491 U.S. 397 (1989), and Congress promptly, and almost unanimously, passed a federal statute banning flag burning in response. The Supreme Court responded, in 1990, by striking down the federal statute banning flag burning, as well, in United



2

See (Walter) Nixon v. United States, 506 U.S. 224 (1993).

The Diffuse and Second Look Models of Judicial Review  27 States v. Eichman, 496 U.S. 310 (1990). As things turned out, the Supreme Court had the last word in the flag burning dialogue while the states had the last word in the death penalty dialogue. In Gonzales v.  Carhart, 550 U.S. 124 (2007), the Supreme Court upheld a federal statute banning partial-​birth abortions that was essentially identical to a Nebraska state ban on partial-​birth abortion, which the Supreme Court had struck down seven years earlier in Stenberg v. Carhart, 530 U.S. 914 (2000). The Supreme Court did not overrule its previous decision but distinguished it in a dissembling way instead—​a practice that the court does, at times, engage in. In summary, dialogue between American courts and the American federal and state legislatures is sometimes a two-​way street, and at other times ends with the courts having the last word. There is some pre-​judicial enforcement review by the political branches of the national government of the constitutionality of legislative action. Arguments are made in Congress as to the constitutionality of legislation before Congress adopts it, and the Congressional Research Service prepares memoranda for Congress, summarizing constitutional issues raised by proposed legislation. Within the executive branch, the Office of Legal Counsel (OLC) in the Justice Department; and the White House Counsel’s Office, in the White House, itself, advises the president, in scholarly opinions, about the constitutional issues raised by proposed bills or policy matters. OLC and the White House Counsel’s office draft signing statements, which the president issues when he signs bills. These signing statements sometimes identify parts of legislation that the president declines to execute, because he deems them to be unconstitutional. At other times, the president uses signing statements to “construe” congressionally adopted legislation so as to render it constitutional. Once federally adopted legislation becomes an issue in a case or controversy in the federal courts, it is given a weak presumption of constitutionality, because Congress and the president, in adopting and executing the legislation in question, have already made a determination that the legislation in question is constitutional, as well as being good policy. James Bradley Thayer argued in the 1890s that the presumption of constitutionality ought to be so strong that the federal courts should only strike down laws where the political branches have made a Clear Mistake in deeming them to be constitutional. Thayer’s suggestion was followed by former Supreme Court Justice Felix Frankfurter, but is otherwise ignored by the federal courts today. The presumption of constitutionality will only save legislation from federal judicial invalidation where the constitutional arguments for and against it are essentially in equipoise, which very rarely happens. I argue elsewhere for a presumption of liberty.3 3 Steven G. Calabresi, On Originalism and Liberty, Annual Simon Lecture at the Cato Institute, Cato Sup. Ct. Rev. 17 (2015–​2016).

28  The History and Growth of Judicial Review, Volume 1 Diffuse judicial review in the United States, for the most part, eschews balancing tests in which statutes are reviewed for proportionality, to see whether they properly balance the interests of society and of the individual in any given case. Most rights are held, at least in part, absolutely, and there is not a widespread reliance on judicial review of the proportionality of legislatively selected means in achieving legislatively sought ends. Constitutional change can occur through the Article V amendment process, and four U.S. Supreme Court decisions have been overturned by constitutional amendment. But most change on the Supreme Court occurs through the inexorable but slow process of presidents and Senates replacing Supreme Court justices when they retire or die in office. There is a long-​term social dialogue in the United States about Supreme Court holdings of unconstitutionality, but the court has the final word until and unless a new majority of justices who think differently are appointed to the bench.

II.  The Second Look Model of Judicial Review The Second Look Model of judicial review is the prevailing model of judicial review in the common law countries of (1) Canada, (2) Israel, and (3) the United Kingdom. The Second Look Model of judicial review grew up as a result of the writing of U.S. scholars who argued that judicial review in the United States was not necessarily counter-​majoritarian, because Congress and the states often repassed laws that the courts had held unconstitutional, and because the U.S. courts often deferred to the political branches once they had taken a second look at a legal problem. A classic instance of the U.S. Supreme Court deferring to a legislative second look at a problem was in the death penalty cases discussed earlier: Furman v. Georgia, 408 U.S. 238 (1972), followed by Gregg v. Georgia, 428 U.S. 153 (1976), while a classic example of the court not deferring to a legislative second look came in the flag burning cases: Texas v. Johnson, 491 U.S. 397 (1989), and United States v. Eichman, 496 U.S. 310 (1990). The Second Look Model of judicial review in the United States underlies Guido Calabresi, A Common Law for the Age of Statutes,4 and Alexander Bickel, The Least Dangerous Branch:  The Supreme Court at the Bar of Politics.5 Judge Calabresi has spoken extensively in favor of Second Look Models of judicial

4 Guido Calabresi, A Common Law for the Age of Statutes (1982). 5 Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962).

The Diffuse and Second Look Models of Judicial Review  29 review since at least the 1980s, building in this respect on the scholarship of Alexander Bickel. Proponents in the United States of a congressional power to strip the federal courts of all jurisdiction over a certain class of cases often defended their idea normatively, by saying it would reconcile democracy and constitutionalism, in effect, by allowing legislatures to take a second look at undemocratically reached court opinions. The text of the U.S. Constitution, however, does not, in my opinion, allow for Second Look lawmaking via jurisdiction stripping, which I think is unconstitutional.6 Nonetheless, Congress does frequently re-​enact statutes with provisions that the Supreme Court has struck down. It has done this by extensively legislating to create legislative vetoes, notwithstanding the U.S. Supreme Court’s ruling in INS v. Chadha, 462 U.S. 919 (1983), that legislative vetoes are unconstitutional. The essence of the Second Look Model of judicial review is that a Supreme or Constitutional Court ought to have the power of judicial review, subject to some kind of legislative power of override. This, it is said, best harmonizes the advantages of a written constitution and a bill of rights enforced by courts with the imperatives of democratic self-​government. Second Look judicial review thus injects constitutional principles into the political process and makes them salient, while avoiding the perils of a gouvernement des juges-​type of judicial activism. The underlying goal is to obtain the advantages of both constitutional government and also of democratic government. As I have already shown, these two features of constitutional democracies can, at times, be in sharp tension with one another. Professor Stephen Gardbaum defends Second Look judicial review as a compromise between the extremes of parliamentary supremacy and judicial supremacy in much the same way that the mixed economy is a compromise between capitalism and socialism: “a distinct and appealing third way between two purer extremes.”7 Professor Gardbaum also defends Second Look judicial review for encouraging the political process to more closely scrutinize the constitutionality of legislation, even before such legislation is actually adopted. Another recent and important study of bill of rights protection in Canada, New Zealand, the United Kingdom, and Australia that confirms Professor Gardbaum’s

6 See Steven G. Calabresi & Gary Lawson, The Hamdan Case, the Unitary Executive, and the Constitutionality of Jurisdiction Stripping: A Textualist Response to Justice Scalia, 107 Colum. L. Rev. 1002 (2007). See also Bradley G. Silverman, Note, Federal Questions and the Domestic Relations Exception, 125 Yale L.J. (2016) (arguing that federal courts must have jurisdiction over all federal questions). 7 Stephen Gardbaum, The New Commonwealth Constitutionalism:  Theory and Practice 51 (2013) (Reprinted with the permission of Cambridge University Press.)

30  The History and Growth of Judicial Review, Volume 1 conclusions appears in Delegating Rights Protections, The Rise of Bills of Rights in the Westminster World.8 The archetypical Second Look Model was created by the Canadian Charter of Rights and Freedoms, which was adopted in 1982. Canada was torn between the U.S. model of diffuse judicial review and the traditional U.K. preference for no written bill of rights and for parliamentary sovereignty. In response, Canada gave birth to a new model all of its own. Canada has a judicially enforced Charter of Rights and Freedoms, but judicial power is limited in two ways. First, under Section 33 of the charter, the national and provincial parliaments of Canada can override a Supreme Court opinion for five years under the Notwithstanding Clause. These legislative overrides can be re-​enacted perpetually every five years, and can be enacted prospectively before a court rules, as well as retrospectively after a ruling. The Canadian legislatures do thus, in theory, retain the last word on constitutional issues. As a practical matter, however, only three provinces—​Quebec, Saskatchewan, and Alberta—​have ever used the Section 33 power, and they only used it once for five years after which time the objected-​to Supreme Court opinion was allowed to go into effect. More importantly, all the uses of the Section 33 override power but for the ones by Saskatchewan and Alberta have been by the French-​speaking, Catholic province of Quebec. The national government, and most of English-​ speaking Canada, regard Section 33 as an embarrassing way of threatening judicial independence, which is simply not true under the premises of the Second Look model. Thus, even when a majority really disapproves of a Canadian Supreme Court opinion, the majority will not invoke Section 33, which makes Section 33 utterly useless in avoiding the counter-​majoritarian difficulty with federal judicial review in a country as regionally diverse as is Canada. Second, the national and provincial governments can also limit almost all charter rights by adopting laws under Section 1 of the charter, which explicitly says that “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (emphasis added). This, too, is meant to ensure that the Canadian courts do not engage in Lochnerizing, but practice instead a form of Thayerian judicial restraint.9 This supposed Second Look feature has now been in effect for thirty-​eight years and has produced a number of questionable outcomes. The Canadian Supreme Court has upheld almost all violations of Section 2b’s protection for

8 David Erdos, Delegating Rights Protection:  The Rise of Bills of Rights in the Westminster World (2010). 9 See James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129 (1893).

The Diffuse and Second Look Models of Judicial Review  31 freedom of expression including laws banning hate speech, regulating campaign finance expenditures, radical feminist anti-​pornography laws, and bans on commercial speech. Apparently regulating freedom of expression is almost always “a reasonable limit” in “a free and democratic society”. This was not the case when the Supreme Court of Canada discovered dubious rights to assisted suicide or to run a brothel with a pimp in Section 7’s protection of the “right to life, liberty, and security of the person.” The Supreme Court thinks those “made-​up” rights could not be regulated under Section 1 of the Charter. Section 1 in practice has made it easier and not harder for the Supreme Court to Lochnerize. Professor Gardbaum argues that four other British common law jurisdictions—​ New Zealand, the United Kingdom, the Australian Capital Territory, and the Australian state of Victoria—​have all also experimented with Second Look Models of judicial review since the 1990s. The model here was the tiny country of New Zealand, which adopted a statutory bill of rights together with a statute directing its courts, where possible, to construe legislation to be consistent with the bill of rights. For the record, it must be noted that New Zealand has a smaller population than the U.S. state of Louisiana, which calls its usefulness as a model into question. The United Kingdom adopted a Human Rights Act in 1998, whereby there is pre-​judicial review political scrutiny of constitutional questions raised by proposed legislation, and whereby the British courts are directed to construe U.K. law to be compatible with the European Convention on Human Rights and Freedoms, which the Human Rights Act incorporates into domestic U.K. law. If doing so is not possible then the courts can trigger a fast-​track parliamentary option to respond, and, in all but one instance, Parliament has repealed or modified legislation as to which the courts had issued a declaration of incompatibility. The U.K. Supreme Court’s Second Look caselaw has been as good as the Canadian Supreme Court’s caselaw has been dubious. Perhaps the U.K.’s directions about statutory construction, and its judges ability to trigger fast-​track House of Commons review of constitutionally suspect laws are better Second Look mechanisms than are Sections 1 and 33 of the Canadian Charter. The Australian Capital Territory Human Rights Act was adopted in 2004, and the Australian state of Victoria also adopted a Human Rights Act in 2006. Australia’s federal government rejected the recommendation of a national committee that it adopt a statutory bill of rights, like New Zealand’s, and the United Kingdom’s, in April 2010.10 The Australian state of Victoria, for the record, has a population about the size of Wisconsin’s, and the population of the Australian Capital Territory is much lower than the population of Wyoming, the least



10

Gardbaum, supra note 7, at 204–​6.

32  The History and Growth of Judicial Review, Volume 1 populous American state. Australia itself is less populous than Texas, and Canada is less populous than California. Even the United Kingdom itself is slightly less populous than the U.S. states of California and Texas combined. The new Second Look Model of judicial review is thus less important than are the U.S. Diffuse Model of judicial review, Germany’s Concentrated Model of judicial review, or Latin America’s Model of Hybrid judicial review, which is used by heavily populated countries like Brazil and Mexico. Nonetheless, the Second Look Model is an appealing middle way between two extremes, as Professor Gardbaum argues—​like the mixed economy—​so it bears watching and studying. In writing about the phenomenon of Second Look Models of judicial review, Professor Gardbaum, on the one hand, calls the Second Look Models of judicial review “the New Commonwealth Model of Constitutionalism.” Professor Erdos, on the other hand, calls the same phenomenon the “Westminister World” Model. Professor Gardbaum’s discussion is both elegant and sophisticated, and he makes a very useful contribution to the literature both of constitutional theory and of comparative constitutional law. I respectfully disagree, however, with Professor Gardbaum’s use of the term “The New Commonwealth Model of Constitutionalism” and with Professor Erdos’s term “The Westminster World” in place of the term “The Second Look Model of judicial review.” I find this nomenclature to be more confusing than it is enlightening because, as Professor Gardbaum admits, “only three out of fifty-​ [two] Commonwealth jurisdictions have adopted [The New Commonwealth Model of Constitutionalism] at the national level” as of 2013,11 while some very major and populous Commonwealth jurisdictions, like India and South Africa, have exceptionally robust systems of judicial review, in which parliaments cannot override high court decisions with which they disagree. In addition, there is a very important and vibrant system of Second Look judicial review—​Israeli judicial review—​that takes place in a non-​Commonwealth country, as Professor Gardbaum acknowledges.12 Moreover, Poland from 1989 to 1997, Romania down to the present day, and Ireland all have Second Look forms of judicial review, and none of them are Commonwealth countries either.13 I think the label “Second Look Model of judicial review” is more enlightening, descriptively accurate, and easily generalizable than the label “New Commonwealth Model of Judicial Review.” Nonetheless, Professor Gardbaum and I are largely discussing the same phenomenon, and the jurisdictions that Professor Gardbaum groups together do all recognize Queen Elizabeth II as



11

Gardbaum, supra note 7, at 11. Id. at note 38. 13 Id. 12

The Diffuse and Second Look Models of Judicial Review  33 their head of state, and were historically influenced by the British tradition of the sovereignty of the queen-​in-​parliament. In conclusion, the two models of judicial review present in common law jurisdictions are the U.S. Diffuse Model and the Canadian Second Look Model. Both differ fundamentally in their underlying premises from the German Concentrated Court Model of judicial review of the constitutionality of legislation discussed in Volume II. Having made this point clear, I can now finally at last examine the first common law court system of judicial review, which is the one associated with the Privy Council of the British Empire.

Chapter Three

The Privy Council: The Umpire of the British Empire The Judicial Committee of the Privy Council (JCPC), as it was known, from 1833 to the present day, is one of the greatest and most consequential courts ever to sit in human history. It is descended from the Privy Council, which governed the thirteen North American colonies from 1607 to 1776. The JCPC exercised the power of vertical judicial review by the British Empire over all British possessions at a time when one-​quarter of the world belonged to an empire “upon which the sun never set.” The JCPC, and the Privy Council before it, helped to legitimize, not only vertical judicial review, but also horizontal judicial review in the United States, Canada, Australia, India, South Africa, and Israel as well as in many other lands. It is important to note that the vertical federalism judicial review that the JCPC, and the Privy Council before it, legitimated consisted entirely of reining in errant colonial entities to make sure they did not adopt laws or decide cases that were repugnant to English law and not justified by special circumstances in the colonies. The Privy Council and later the JCPC had the power to strike down colonial actions as being ultra vires, but it did not have the power to strike down acts of the monarch or of the imperial parliament as being ultra vires. But, from 1867 and 1901 on, the JCPC did police internal federalism and separation of powers boundaries in Canada and Australia thus habituating those countries to judicial review in federalism and separation of powers case. The Supreme Court of Canada and the High Court of Australia did continue to exercise judicial review in federalism and separation of powers cases after achieving independence from the U.K.

I.  Jurisdiction, Powers, and the Role of the Privy Council in Providing Judicial Review between 1607 and 1776 I begin by discussing the Privy Council’s jurisdiction over the thirteen North American colonies between 1607 and 1776 to ensure that those colonies did

The History and Growth of Judicial Review, Volume 1. Steven Gow Calabresi, Oxford University Press (2021). © Steven Gow Calabresi. DOI: 10.1093/oso/9780190075774.003.0004

36  The History and Growth of Judicial Review, Volume 1 not adopt or follow laws repugnant to English law unless they were justified by different conditions in the colonies. The Privy Council had the jurisdiction to review colonial laws before they went into effect, to make sure that they complied with colonial charters, and it also had the jurisdiction to hear judicial appeals from colonial courts in the thirteen North American colonies. The council thus exercised legislative, executive, and judicial power over the thirteen North American colonies. This point is illustrated by the complaints in the Declaration of Independence about the misrule by George III’s Privy Council over the thirteen North American colonies. It is a stark fact of history that a power of imperial vertical judicial review in imperial federalism cases of the legality of colonial legislation did exist under British law from 1607 until the twentieth century, and such review continues to exist in a handful of jurisdictions even today. This federalism, vertical judicial umpiring power, conferred on the king by the royal prerogative, was exercised, in practice, by the Privy Council with great vigor, not only in North America, prior to American Independence, in 1776, but also, with even more vigor, after the brilliant reform of the Privy Council, in 1833, and continuing on down to the present day.1 The British Empire from 1607 to the present day thus was and remains a constitutional federal entity with centralized vertical federalism judicial review vested first in the Privy Council and then, after 1833, in the JCPC. Statutes were struck down if they were repugnant to British law but were upheld if they diverged from it in a legitimate way in light of differing local conditions and traditions. These two twin principles of repugnancy to British law, and legitimate divergence from it, were the twin pillars of Privy Council judicial review. Vertical federalism judicial review of errant English colonies by the Privy Council has had a lasting legacy on the legal systems of the United States, of Canada, of Australia, and of India, as well as elsewhere, in all of which places it helped to give rise to vertical federalism judicial review of the constitutionality of legislation by reining in federal subunits. It should be noted at the outset that the Privy Council was prior to 1833 a committee of royally selected members of the House of Lords, many, but not all, of whom were learned in the law, and who functioned as a kind of cabinet for the king of England, to use in administering his empire. The Lords on this committee were the king’s favorites, and they were sometimes called the Privy Council, sometimes called the King-​in-​Council, and sometimes called the Lords of Trade.



1

P.A. Howell, The Judicial Committee of the Privy Council 1833–​1876 (1979).

The Privy Council  37 The term Judicial Committee of the Privy Council (JCPC) appears by statute, in 1833, when the Privy Council was thoroughly modernized and democratized, which of course happened long after American independence. After 1833, only highly qualified barristers could be appointed to the JCPC, and the JCPC’s decisions were binding after 1833 on the monarch, which had not previously been the case. The JCPC, which governed Canada, Australia, India, South Africa, and Israel was thus a very different and much more competent body than was the Privy Council, which governed the thirteen North American colonies from 1607 until 1776 subject to the whims of King George III. The Privy Council, and later the JCPC, were used by British imperial elites to hegemonically entrench British power over colonies that were far away from Britain and about which the British had only limited information. The British use of Privy Council judicial review thus clearly comports with the theory of the origins of judicial review alluded to in the introduction of Ran Hirschl, and of Ran Hirschl’s book Towards Juristocracy.2 Eventually, as Britain’s colonies became more and more independent of Britain, the mother country became more and more eager to maintain JCPC judicial review over the various Dominions as an exercise in fading elite hegemonic preservation. Hirschl’s thesis as to the origins of judicial review is thus borne out by the United Kingdom’s increasingly desperate attempts to maintain JCPC vertical judicial review over Canada in 1875, Australia in 1901, India in the 1940s, and South Africa during the first half of the twentieth century. The United Kingdom lost that fight, and all of those Dominions terminated JCPC jurisdiction during the course of the twentieth century. The Privy Council and, from 1833 on, the JCPC were a key part of the glue that kept the huge British Empire together from 1607 to 1931. Even today, the JCPC retains the power of judicial review over all appeals from: (1)  The Commonwealth realms of Antigua and Barbuda, (2) The Bahamas, (3) Grenada, (4) Jamaica, (5) Saint Kitts and Nevis, (6) Saint Lucia, (7) Saint Vincent and the Grenadines Tuvalu, (8) the New Zealand associated states of Cook Islands and Niue, (9) the Crown Dependencies of Jersey, Guernsey (including Guernsey’s own dependencies of Alderney and Sark), and (10) appeals from the Staff of Government Division on the Isle of Man. The JCPC also has final jurisdiction over judicial cases in the British overseas territories of Anguilla; Bermuda; the British Virgin Islands; the Cayman Islands; the Falkland Islands; Gibraltar; Montserrat; St. Helena, Ascension, and Tristan da Cunha; the Turks and Caicos Islands; the Pitcairn Islands; the British 2 Ran Hirschl, Towards Juristocracy: The Origins And Consequences of the New Constitutionalism (2007).

38  The History and Growth of Judicial Review, Volume 1 Antarctic Territory; the British Indian Ocean Territory; and South Georgia and the South Sandwich Islands. And, finally, there are the U.K.’s sovereign base areas of Akrotiri and Dhekelia, in Cyprus. This is not even close to being a comprehensive listing of the whole of the JCPC’s jurisdiction today, which also extends to ecclesiastical cases and to any legal question to which the queen wants an answer. The JCPC was the court of last resort for devolution issues, until October 1, 2009, when this jurisdiction was transferred to the new Supreme Court of the United Kingdom. The judges of the JCPC are the very same Law Lords and Law Ladies who compose the Supreme Court of the United Kingdom. They sit in one room when they are acting, as the Supreme Court of the United Kingdom, and, in another room, when they are acting as the JCPC. Decisions of the JCPC include no written majority, concurring, or dissenting opinions, unlike all other U.K. court opinions. There is one unanimous per curiam opinion for the court issued by the JCPC, and no vote count of the judges is released so as not to foster discontent in Her Majesty, the Queen’s Empire. The decisions of the JCPC are binding on her Majesty the Queen, and she must issue them exactly as they are presented to her. This is specified in the JCPC Act of 1833.

II.  A History and Description of the Privy Council’s Role in the Thirteen North American Colonies I first became aware of the Privy Council, and of its role in U.S. history in fostering judicial review of the constitutionality of legislation when I read, in 1990, Professor Mauro Cappelletti and Professor William Cohen’s seminal treatise Comparative Constitutional Law:  Cases and Material.3 Cappelletti and Cohen began their book on Comparative Constitutional Law, in 1979, with the following insightful explanation of the history and origins of American judicial review: Under English law every corporation from private companies to municipal corporations ‘is entitled to act only within the limits of its own charter or constitution.’ From that principle, the conclusion is derived that every act that

3 Mauro Cappelletti & William Cohen, Comparative Constitutional Law: Cases and Materials (1979).

The Privy Council  39 exceeds the authority conferred on the corporation is null and void and cannot be enforced by the courts. The English colonies, often founded as commercial enterprises, were managed under Crown charters. These ‘charters’ may be considered the first constitutions of the colonies both because they had a binding effect on colonial legislation and also because they regulated the fundamental legal structure of the colonies themselves. Frequently, these ‘constitutions’ expressly provided that the colonies could pass their own laws only if those laws were ‘reasonable’ and ‘not contrary to the laws of the Kingdom of England.’ Such provisions clearly imply that the laws should not be contrary to the sovereign will of the English Parliament. Thus it was by reason of this supremacy of the English law and Parliament that in numerous cases the Privy Council of the King held that the colonial laws could not stand if they were opposed to the colonial charters or to the laws of the Kingdom. [Moreover in] America . . . the result was to empower the colonial judges to disregard local legislation not in conformity with the English law. [A similar process occurred in other ex-​ English colonies] including Canada, Australia, and India, which likewise adopted judicial review upon attaining independence.4

Professors Cappelletti and Cohen did not follow up this corporate law theory of the origins of judicial review of errant colonies insight, in 1979, with any further discussion at all that I are aware of. But, Cappelletti and Cohen did open the door to an understanding of how the very valuable institution of vertical federalism umpiring judicial review first emerged, historically, in the United States, in Canada, in Australia, and in India.

A. Professor Mary Sarah Bilder’s Scholarship Professor Mary Sarah Bilder, in her canonical article, “The Corporate Origins of Judicial Review,”5 confirms the Capelletti and Cohen insight that the American colonies were corporations, and she develops it into a full-​blown theory of the vertical corporate law origins of U.S. judicial review in cases that raise the issue of whether a U.S. colony was acting ultra vires of its charter or of British law. Professor Bilder argues very persuasively that under the British corporate law, which the Privy Council and the colonial state courts enforced from 1607 to 1776, acts of the colonies, which were repugnant to the constitution or laws of

4 5

Id. at 10–​11. Mary Sarah Bilder, The Corporate Origins of Judicial Review, 116 Yale L. J. 502 (2006).

40  The History and Growth of Judicial Review, Volume 1 England were null and void, while laws that legitimately diverged from British law, because of local colonial conditions or traditions, were to be upheld. Since the colonies themselves were English corporations, Professor Bilder argues they were subject to English corporate law. She thus proves that U.S. vertical judicial review in cases where the North American colonies were acting ultra vires and needed to be reined in emerged from the repugnancy doctrine of English corporate law. Professor Bilder’s article and thesis is one of the most interesting arguments that has been raised in this field in the last half-​century. It is quite important, however, to note the limits of Professor Bilder’s findings. She does not address vertical judicial review where the British monarch or parliament were acting ultra vires, and so her work does not necessarily legitimate federal court policing in the United States of the limited and enumerated powers of the U.S. federal government or violations of the Bill of Rights or the Fourteenth Amendment. Professor Bilder’s work also does not address the legality of horizontal judicial review where in the United States, for example, the courts might enforce the Bill of Rights against Congress or the president. Professor Bilder’s work is not hostile to these broader kinds of judicial review, but it does not necessarily endorse them either. Professor Bilder develops her theory of the origins of American judicial review further in her book, The Transatlantic Constitution: Colonial Legal Culture and the Empire.6 This book, in turn, builds on the definitive scholarly treatment of this subject in Joseph Henry Smith’s canonical book, Appeals to the Privy Council from the American Plantations,7 which also finds that there was, in effect, a transatlantic federal constitution under which the Privy Council reviewed the laws and cases of the thirteen original colonies to rein them in from time to time. My G-​20 Constitutional Democracies Study raises interesting questions as to whether Canada, Australia, and India also experienced a corporate law origin of their systems of judicial review. In each of those cases, imperial statutes like the British North America Act, 1867, in Canada; the Australian Constitution Act, 1901, in Australia; and the Government of India Act, 1935, in India, Pakistan, Bangladesh, and Myanmar were adopted to define as a matter of British imperial statutory and constitutional law the scope, for example, of the powers of the national governments in those countries vis-​à-​vis those countries’ provinces and states.

6 Mary Sarah Bilder, The Transatlantic Constitution: Colonial Legal Culture and the Empire (2004). 7 Joseph Henry Smith, Appeals to the Privy Council from the American Plantations (1950).

The Privy Council  41 Moreover, Parliament codified the repugnancy and divergence test of British corporate law in the Colonial Laws Validity Act of 1865, which governed the entire British Empire and which specifically provided that: any colonial law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of Parliament, or having in the colony the force and effect of such Act, shall be read subject to this Act, order, or regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.

Here Professor Bilder’s corporate law repugnancy doctrine appears in the leading statute of the Second British Empire—​setting out what is in effect the vertical, federalism constitutional law of that empire. It is certainly possible that even if they did not have royal charters, the provinces of Canada and the states of Australia, and of India may all have been corporations, as well as being statutory administrative entities. The same point might also be made about the national governments of Canada, Australia, and India. If so, then British corporate law explains not just the emergence of U.S. vertical federalism judicial review law, but also the emergence of a similar form of vertical judicial review by the JCPC of Canadian, Australian, and Indian judicial decisions. Another possibility, however, is that Britain simply borrowed the Privy Council’s conclusions about repugnancy and legitimate divergence from the history of Privy Council judicial review over the thirteen original North American colonies and codified them into imperial statutory law as to Canada, Australia, India, South Africa, and the British Empire generally in the Colonial Laws Validity Act, 1865. When the JCPC struck down national acts of the parliaments of Canada, Australia, and India as being “unconstitutional” on federalism or separation of powers or corporate law or administrative law grounds, the JCPC always called such acts ultra vires of the British statutory Constitutions of the Imperial Dominions of Canada, Australia, and India. But, this does not settle the question of whether there is or is not a corporate law origin for Canadian or Australian or Indian constitutional law. Courts use the language ultra vires to describe any unauthorized action whether it be by a corporation, or by an administrative agency, or in a statutory interpretation case, or in a constitutional law case. Ultra vires is merely the Latin term for exceeding one’s legal authority to act. An act of a government officer that was ultra vires historically left that officer liable as a personal matter for tort damages. Down to the present day, the Supreme Court of Canada calls federal usurpations of provincial power ultra vires of the Constitution of Canada.

42  The History and Growth of Judicial Review, Volume 1 Under the Colonial Laws Validity Act of 1865, Imperial British law governed the colonies where colonial law was repugnant to it, but the Privy Council in practice allowed a lot of divergence from British law where local conditions or traditions called for such divergence. Ultimately, the Statute of Westminster, 1931 repealed the Colonial Laws Validity Act of 1865, and, from that time on, the British colonies became in most respects free, independent, and sovereign nation-​states. Full freedom and independence was not achieved, however, until the Imperial Privy Council’s power to review colonial laws at the apex of the British Imperial structure was eliminated by the colonies. This mostly occurred in the 1940s, and thereafter, ending with the Australia Act 1986, as to the G-​20 constitutional democracies.

B.  The Historical Origins of the Judicial Committee of the Privy Council With these introductory remarks in mind, let me now set out on a discussion of just what the Privy Council was between the twelfth century, when it was created, and 1833 when it assumed a highly professional form as the JCPC. P.A. Howell’s book, The Judicial Committee of the Privy Council, 1833–​1876:  Its Origins, Structure, and Development8 is a helpful source on this, but readers may also want to look at David Rogers, By Royal Appointment: Tales from the Privy Council—​the Unknown Arm of Government.9 Joseph Henry Smith’s magisterial treatise on this subject entitled Appeals to the Privy Council from the American Plantation10 begins with a preface by Julius Goebel Jr. entitled “The Matrix of Empire.” Professor Goebel notes that English monarchs from the time of William the Conqueror up until 1776 possessed domains in which they were the feudal Lord but over which the Parliament of England and later Great Britain did not reach. Thus, William the Conqueror himself was also the feudal duke of Normandy and the feudal monarch of the Channel Islands while various of his successors were also at times feudal dukes of Aquitaine, of Gascony, of portions of Ireland, and of many other realms. It was settled early in British history that the king’s feudal Dominions were of greater scope than Parliament’s and that there were lands where the king was

8 Howell, supra note 1. 9 David Rogers, By Royal Appointment: Tales from the Privy Council—​The Unknown Arm of Government (2015). 10 Smith, supra note 7.

The Privy Council  43 king but as to which Parliament had no power to legislate.11 Professor Goebel explains that: We are disposed to regard the handling of the Welsh problem to have been in execution of Edward [1]‌’s professions that he was obligated to extirpate bad legal customs. Taken in connection with the Channel Islands precedent and the practice shortly thereafter introduced with respect to the Island of Man, it would appear that far from seeking to impose a common law upon his dominions, Edward I was within limits willing to make liberal concessions to the principle that men might live by the law into which they had been born. The limits were fixed as to what may be described as his jurisdiction-​mindedness. It was enough that his commission would run in a dominion and that his ultimate supervisory authority was thus put beyond dispute.

The Privy Council itself was thus already, by 1607, an ancient body that had emerged in the 1100s A.D. out of the Norman Curia Regis, the King-​in-​Council, an entity that in turn dates back to the Norman Conquest of 1066, as is explained in Albert Venn Dicey, The Privy Council: The Arnold Prize Essay, 1860.12 Dicey adds that: Long after the erection of the Law Courts [from the Curia Regis] the [Privy] Council exercised considerable though peculiar, judicial authority. This anomaly is easy to explain. The exercise of judicial power is a Royal prerogative.13

Originally, English kings sat with their councilors on the Privy Council and decided cases, and James I and Charles I both sat on the Privy Council and on the Court of Star Chamber when those courts heard judicial cases. The Privy Council dates back at least to the “minority of Henry III” in the 1200s, if not earlier.14 There is no question that in the 1100s, King Henry III and his immediate successors still had the judicial power to decide cases because that power was conferred upon them by the Royal Prerogative, which in those days Parliament had done almost nothing to curtail. This is relevant to the struggles in the 1600s, which I am about to discuss. In the preceding section, I established that while the Kingdom of England and Wales substantially overlapped with the feudal rights of the kings of England, 11 See Goebel’s introduction in Smith, Appeals to the Privy Council, at xlvi, id. 12 Albert Veen Dicey, The Privy Council:  The Arnold Prize Essay, 1860 (reprinted by BiblioLife, LLC, 2009) (1887). 13 Id. at 12. 14 Lord Eustace Percy, The Privy Council Under the Tudors 2 (1907).

44  The History and Growth of Judicial Review, Volume 1 those monarchs retained total prerogative power to govern certain feudal Dominions that belonged to them, but which were not part of the countries of England and Wales by exercising a prerogative power to decide judicial cases or controversies. Thus, the king had judicial power over the Channel Islands because they were all that was left of the Duchy of Normandy, and England had never been allowed to annex them. For complex reasons, the Isle of Man, in the Irish Sea, was not a part of England, Scotland, or Ireland, and so it, too, was treated as being an area to which the king’s royal power to decide cases extended. And, after the settlements at Jamestown, Virginia, in 1607, with the blessing of James I; and at Boston on September 7, 1630, with the blessing of Charles I, those colonies, as well as others in the Caribbean fell under the personal royal judicial prerogative of the English monarch and were thus subject to Privy Council judicial review.

C. The Monarchy and the Privy Council Unfortunately, one cannot tell the story of the Privy Council’s contributions to vertical federalism judicial review in reining in the North American colonies without delving into some of the historical events in the 1600s that concern at least some of the men and women who served as kings and queens of England and Wales from King Henry VII, in 1485, to King George I, in 1714. Here is an abbreviated history that will help you make sense of the events that transpired in the 1660s insofar as they affected vertical federalism umpiring judicial review of errant colonies by the Privy Council. I should note that I am about to give you the Whig theory of English history in the seventeenth century not because I necessarily believe it is true, but because the English colonists in New England thought it was true. The relevant history starts in 1487 when King Henry VII, the first Tudor monarch, created a committee of the Privy Council, which came eventually to be called the Court of Star Chamber. Henry VII made the Court of Star Chamber a very powerful agent of the centralization of power in England under the Tudor kings to prevent a repeat of chaos caused by the regionalism that had facilitated the disastrous Wars of the Roses. This, too, was to have consequences in the 1600s. King Henry VII’s establishment, in 1487, of the Court of Star Chamber, which would use Roman law, sit only in London, and which would not allow for jury trial showed clearly that he would rule with an iron fist. Anytime a feudal lord misbehaved, King Henry VII hauled him to London for trial by the Court of Star Chamber where a local jury could not let the local lord go. It was a very effective court for suppressing regional and baronial discontent of the kind that had led

The Privy Council  45 to the War of the Roses, but it made the Tudor monarchs and the first two Stuart monarchs immensely powerful—​too powerful as things worked out. Subsequent Tudor monarchs including King Henry VIII and Queen Elizabeth I governed very powerfully, but they were always very careful to keep Parliament aware of what they were doing and to get its approval for their major acts. Their Stuart successors were not so wise. When King James I assumed the throne of England as the first Stuart king of England, in 1603, he brought with him a very un-​English belief in the Divine Right of Kings, a belief that since he was the font of the law, he was not under the law, and a desire to sit, as king, on the bench with his judges, deciding cases. James I was opposed by the most formidable lawyer in all of English history, Sir Edward Coke. Coke informed James I that: (1) England had an “ancient constitution” passed down from king to king since the reign of King Edward the Confessor had ended in 1066; (2) Coke informed James I that England was, and always had been a Mixed Regime with monarchical, aristocratic, and democratic inputs, and that he, James I, was NOT an absolute monarch; (3) Coke informed James I that he was under the law and not above it; and, finally, (4) Coke informed James I that it would violate evolved custom for the king to sit in person handing out justice to litigants with his judges even if Henry III had done this 500 years earlier in the 1100s. This again is all part of the Whig theory of history, which the New England colonists accepted as scripture. King James I eventually fired Sir Edward Coke as the chief justice of England whereupon Coke got himself elected a member of the House of Commons. James and his son Charles I went ahead, and they sat on the Court of Star Chamber and handed out justice, and they claimed they were absolute monarchs who ruled because of the Divine Right of kings. The people of England were furious as a result at James I and his son and heir Charles I. Charles I tried early in his reign to raise money by arresting and imprisoning in the Tower of London wealthy merchants and bankers, and he then indicated that he would release the people he had arrested if they paid him loans, which he, Charles I, had neither the means nor the intention of repaying. Charles I also quartered his troops in people’s private houses, as a cost-​saving measure. None of these measures to raise money produced enough revenue, so, finally, King Charles I called Parliament into session in 1628. He discovered to his great surprise that a lot of people were really, really angry at him. King Charles I  found himself opposed at every turn by his nemesis, Sir Edward Coke, now a member of the Parliament of 1628 to 1629. Coke drew up a document called the Petition of Right of 1628, which asserted that: (1) no taxes may be levied without the people’s consent in Parliament (no taxation without representation); (2) no subject may be imprisoned without cause shown; (3) no soldiers may be quartered among the citizenry; and (4) that martial law may not

46  The History and Growth of Judicial Review, Volume 1 be invoked in time of peace. King Charles I was forced to sign the Petition of Right of 1628 into law, but he did so with every intention of breaking that law as soon as Parliament was out of session. Feeling discouraged, Charles I decided to govern without Parliament after 1629, and he did so for eleven years. During these eleven years, Charles I broke every promise that he had made in the Petition of Right of 1628. He used the Court of Star Chamber to harass Puritans and support his High Church Archbishop of Canterbury, William Laude. He used the Court of Star Chamber to torture and imprison in the Tower of London his political opponents. He used the Court of Star Chamber to impose exotic punishments like the cropping off of people ears and the branding their faces. Charles even had a juror prosecuted in the Court of Star Chamber for voting in good faith to acquit in a criminal case, which Charles I thought should have resulted in a conviction. In short, Charles I broke promises right and left and proved himself to be totally untrustworthy. After eleven years of governing without Parliament, in the fall of 1640, Charles I’s financial situation was so dire that he bit the bullet and called what came to be known as the Long Parliament, into session. Charles I was desperate for money, and he asked Parliament to raise taxes. Parliament responded by denouncing Charles I for continuing to arrest wealthy merchants to obtain forced loans, in violation of the Petition of Right of 1628, and Parliament objected fiercely to the gross misuse of the Court of Star Chamber, on which Charles I was regularly, and improperly, sitting as a judge. Parliament complained that the Court of Star Chamber was: (1) torturing people into confessing crimes they had not committed; and (2) persecuting Puritans who were fleeing in huge numbers to New England to escape from the grasp of the very High Church Archbishop of Canterbury, William Laud. Soon after convening, in 1641, right before the beginning of the English Civil War, the Long Parliament, led by John Pym, voted to abolish the Court of Star Chamber and the Ecclesiastical Court of High Commission. Parliament also voted to end the king’s power to sit as a judge or exercise any judicial power anywhere in England or in Wales. Sir Edward Coke’s advice to James I and Charles I that they not sit on English or Welsh courts was now the supreme law of the land.

D. The Effect on the Colonies of the Abolition of the Court of Star Chamber This dramatic ending to the English and Welsh judicial careers of James I and Charles I applied, however, only within England and Wales. It did not apply to the Channel Islands, which were the remains of the Duchy of Normandy,

The Privy Council  47 which islands were never reconquered by the French nor acquired by England; it did not apply to the Island of Man in the Irish Sea, which was never considered to be a part of England but over which the king was the feudal lord; it did not apply to parts of Ireland, which were militarily occupied; it did not apply to the North American colonies in New England and Virginia; and it did not apply to the West Indian colonies, including most prominently Jamaica. In the eighteenth century, Hanover was added to the king’s possessions, since King George I was also the elector of Hanover, thus creating yet another area that was under the king’s rule, but which was beyond Parliament’s reach. There thus grew up what eventually became during the First and Second British Empires territories that were both extremely large and very heavily populated, as to which parliament had not stripped the monarch of his judicial prerogative power to decide cases and controversies. This body of territories started with the Channel Islands and the Isle of Man, and it ended with: (1) the thirteen original North American colonies; (2) Canada, which had been conquered from the French; (3) Britain’s Caribbean islands; and (4) all of British India, which included (1)  the current country of India, (2)  Pakistan, (3)  Bangladesh, and (4) Myanmar. And, throughout this vast realm, the king of England had total judicial power to decide judicial cases and controversies pursuant to the royal prerogative. The British Patriots of 1641 who abolished the royal prerogative as to judging in England and Wales quite simply forgot to abolish it in all these other domains, or they may have thought Parliament did not have jurisdiction over these non-​English domains. The office of royal governorships for the king’s colonies emerged early in the matrix of the British Empire, and royal governors were empowered to act by the commissions granted to them by the king acting under his prerogative powers. The king also chartered colonies and issued proclamations under his prerogative powers. The forms of empire thus had existed in England since 1066 with the Channel Islands when the first North American settlement was made at Jamestown, Virginia, in 1607. Englishmen knew what a royal governor was and what the King-​in-​C ouncil was. They also knew that it was possible for them to be subjects of the English king but free of English parliamentary control. As Professor Goebel says, paraphrasing Chaucer and Sir Edward Coke: Out of old fields must come the new corn And out of olde bokes, in good feith, Cometh al this newe science that men lere.15



15

Smith, supra note 7, at lxi.

48  The History and Growth of Judicial Review, Volume 1 A. Berriedale Keith observes in his Constitutional History of the First British Empire16 that during the reigns of Queen Elizabeth I and King James I, “The right of the Crown to make proprietary grants, and to establish companies for overseas exploration and settlement, rested on the [royal] prerogative, and the prerogative could hardly be challenged.”17 Keith adds, however, that although the power to conduct foreign relations and establish overseas governments belonged to the monarch due to the royal prerogative, “the position of Parliament could not be one of indifference.”18 Keith observes that “If Englishmen with royal authority settled abroad, the King by the [royal] prerogative might govern them [through his Privy Council], but how far did this prerogative extend? *** It required little acumen to deduce from these accepted doctrines the principle that in a settled colony the subjects enjoyed English law as of right, and could not be legislated for save by the King-​ in-​Parliament, or by a local legislature in which they were represented in parliament with the King [or his Governor], and that in a conquered colony the King’s power was absolute, but only if he refrained from granting his subjects the boon of English law.”19 In actual practice, however, England’s North American colonies were governed by the Stuart and Hanoverian kings from 1607 until 1776 exclusively by the king using the royal prerogative on legislation, on law execution, and in adjudicating judicial cases and controversies. There was quite simply no imperial separation of powers or mixed regime government at all as to colonial governance. The Privy Council exercised all legislative, all executive, and all judicial power over the thirteen North American colonies, and it was inevitable that it would end up abusing such vast power. The fact of the matter was that the thirteen colonial charters or proprietary grants were issued by the king with no input from Parliament, and they were interpreted and applied to cases by the King-​in-​Council, that is, by the Privy Council. Parliament exercised essentially no power over the North American colonies during the period from 1607 to 1776 except for passing the Navigation Acts, which the colonies followed with great reluctance and with some disobedience. It is for this reason that Parliament’s attempt to legislate for the thirteen colonies from 1760 to 1776 was seen by the colonists as being unconstitutional, thus leading to the American Revolution. The colonists had their own legislatures, which were omnipotent in the field of colonial legislation save only for review by the King-​in-​Council. The American



16

A. Berriedale Keith, Constitutional History of the First British Empire (1930). Id. at 3. 18 Id. at 4. 19 Id. at 9–​10. 17

The Privy Council  49 colonists thought that the only entity that could tax them under the Petition of Right of 1628 was the royal Governor-​in-​Parliament with his council, and with the popularly elected lower houses of the colonial legislatures. The thirteen North American colonial governments thought they were small Mixed Regimes of the One, the Few, and the Many, and while there was a legitimate role in their governance by the king and his appointed royal governor, there was no legitimate role in their governance by the English Parliament in which the American colonists were not represented. The colonists thought they shared a king with Great Britain, but not a parliament. It is for this reason that the indictment of grievances in the 1776 Declaration of Independence was directed entirely at King George III and not at all at Parliament.

E. A History of Privy Council Governance of the Thirteen North American Colonies The Privy Council went through many, many changes over the course of eight centuries of English legal history from 1215 to 2020. But, it played a key role in habituating the thirteen North American colonies to vertical judicial review whereby an imperial central power reins in errant subunits. The Privy Council never behaved, between 1641 and 1776, nearly as atrociously as had the Court of Star Chamber under Charles I. But, that was a fortuitous outcome. No legal impediments stood in the way to prevent the king and the Privy Council from engaging in Star Chamber tyranny prior to Lord Brougham’s reform of the Privy Council in 1833. The 1641 abolition of the King-​in-​Council’s jurisdiction to hear English and Welsh judicial cases killed the Court of Star Chamber’s judicial power domestically, but the King-​in-​Council (which was akin to the court of Star Chamber as a Royal Prerogative Court) continued to hear and decide hundreds of cases pursuant to the Royal Prerogative from the Chanel Islands, the Island of Man, and all other foreign, imperial jurisdictions, from 1641, until American independence, in 1776. These areas were treated as being part of the “the King’s personal demense. [A]‌s the King is supreme over all persons and in all causes in his Dominions, the Crown has always exercised the prerogative right of receiving petitions, except where that right has been expressly delegated or surrendered.”20



20

Id. at 5.

50  The History and Growth of Judicial Review, Volume 1

1.  Governance Prior to the Restoration of the Monarchy in 1660 Under Queen Elizabeth I and King James I, the Privy Council advised the sovereign regarding the many colonial projects, which were submitted to their Royal Majesty’s, including the issuance of the royal charter associated with the founding of the Jamestown Colony in Virginia in 1607. Soon after the founding of the Virginia Colony in 1607, the Massachusetts Bay Colony was given its royal charter in 1629.21 King Charles I authorized, in his royal charter for the Massachusetts Bay Colony the power for all settlers to elect a bicameral legislature, and their own governor. The Massachusetts Bay Colony in Boston was very successful and contained twenty thousand Puritans by the end of the 1630s living either in Boston or in the neighboring town of Salem. In the decade of the 1630s, many thousands of dissenting Puritans left England, in what was called the Great Migration, to move to Massachusetts seeking freedom from the High Church Anglicanism of William Laud, the archbishop of Canterbury under King Charles I. Additional Puritan colonies had been founded in New Haven, Connecticut, and in Hartford, Connecticut (1635); and in Newark, New Jersey (1663), as well as a colony founded in Rhode Island by the radical Protestant dissident Roger Williams, who believed in complete religious freedom and the total separation of church and state. By the 1640s, the English Civil War broke out and both Archbishop Laud and King Charles I were executed by Oliver Cromwell’s parliamentarians. The New England colonists quietly supported Cromwell in his fight against Charles I, a fact that was not forgotten when the monarchy was restored under Charles I’s son in 1660, Charles II. During the English Civil War and under the government of Oliver Cromwell, the government of the New England colonies and of Virginia was for a time under the supervision of a commission of six Lords and twelve commoners supervised by the earl of Warwick, and then, in the 1650s, it was effectively controlled by a Privy Council that advised Oliver Cromwell.22 The English revolutionaries had many more important matters to deal with other than managing the North American colonies, and so those colonies were allowed to grow pretty much without supervision until the Restoration of the English monarchy in 1660 under King Charles II. 2.  Governance from 1660 to 1684 The Restoration of the Monarchy in 1660 saw a restoration of both the king and of the House of Lords, but no one sought to restore the Court of Star Chamber. It



21 22

Keith, supra note 16, at 18. Id. at 6.

The Privy Council  51 went down in English history as a tyrannical, secret, inquisitorial court that came to be permanently hated and despised. As A.V. Dicey explains: No more loyal assembly ever met than the Parliament of 1660. It was eager to undo the work of the last twenty years. At one point, however, it held its hand. A proposition was made to restore the Star Chamber. Loyalty forbad[e]‌that the proposal be rejected, but it was allowed to come to nothing. The Parliament itself could hardly have told what was the reason which made it hesitate at this particular measure. It paused in the work of reaction, not so much from any dictate of respect for liberty as from that species of instinct which will at times make patent to a whole people that a particular law or institution is become a thing of the past.23

Joseph Henry Smith claims that “[t[he act [of 1641 abolishing the King’s power to hear domestic cases in England and Wales] is a landmark in English law, and [that] the American colonists later never quite abandoned the notion that it should serve equally to mark the limits of intrusion upon their own jurisdiction.”24 Nonetheless, the colonists wishes were not to be, and the Privy Council served throughout the period of time from 1660 to 1776 as a federalism umpire between what Professor Jack P. Greene has called the centers and the periphery of the British Empire.25 Federalism umpiring in the form of reining in errant colonies was the raison d’être of the Privy Council or of the King-​in-​Council or the Lords of Trade from the 1660s on. The power of these entities came from the royal prerogative over foreign affairs, which included the power to decide judicial cases, so long as they arose outside of England and Wales. The Jamestown Colony of 1607 and the Massachusetts Bay Colony of 1629 were periodically subject to review by the King-​in-​Council prior to 1632, even though the charters that set up these colonies provided for internal judicial review. Nothing of great moment was decided, although some of the colonies resisted the effort to subject themselves to review by the King-​in-​Council. The Massachusetts Bay Colony resisted judicial review, and the charters issued to the Connecticut Colony in 1662 and the Rhode Island Colony in 1663 did not specifically provide for conciliar review in England.26 In 1662, however, the King-​in-​Council declared that it had inherent jurisdiction to review boundary disputes among the New England colonies, thus 23 Dicey, supra note 12, at 133. 24 Smith, supra note 7, at 3. 25 Jack P. Greene, Peripheries and Center:  Constitutional Development in the Extended Polities of the British Empire and the United States 1607–​1788 (1986). 26 Id. at 51–​52.

52  The History and Growth of Judicial Review, Volume 1 superseding the colonial charters, and later colonial charters like the Carolina Charter and the New  York Charter expressly reserved the right to appeal to the King-​in-​Council over all cases.27 Massachusetts escaped conciliar review for another decade, but it too was eventually brought under the rule of the King-​in-​Council. The thirteen North American colonies that were to become the United States were subject to, and complained a lot, about various ad hoc orders from the King-​ in-​Council via the Lords of Trade and the Board of Trade.28 The King-​in-​Council maintained a regime of vertical federalism by which it judicially enforced legal limits on colonial power. This policing occurred through Privy Council review of colonial legislation, executive branch actions, and judicial decisions to determine whether they were ultra vires of the colonial charters. Since after 1663, colonial charters almost always forbade the colonies from taking actions that were repugnant to “the laws of this our realm of England,” the King-​in-​Council thus had a potent weapon with which it could veto colonial actions. David Swinfen observes that “The Privy Council’s jurisdiction in colonial appeals stems from the theory that the King was the source of justice throughout his dominions, and from the practice in the Norman period, by which subjects aggrieved at the administration of justice in the baronial courts could petition the Crown for redress.”29 Keith observes that “Charles II inherited from the Commonwealth a rather trying burden of complex issues. The New England colonies were all but independent ***. Petitions poured in and were referred to Committees of the Privy Council ***.”30 Reviving the Privy Council was thus “a necessary part of the plan of securing the economic interdependence of the various parts of the Empire.”31 There was great colonial opposition to the Navigation and Trade Acts and refusal to recognize the legality of English efforts to enforce them in English courts. The king’s power was greater, in general, in the Royal colonies where he appointed the governor, which colonies included New Hampshire, New Jersey, Virginia, North Carolina, South Carolina, and Georgia. The king’s power was almost as strong in the Proprietary colonies, which included New York (which belonged to the Duke of York, the King’s brother, who served as King James II from 1685 to 1688), Maryland (where Lord Baltimore was the proprietor), Pennsylvania (in which William Penn was the proprietor), and Delaware (also

27 Id. at 52–​53. 28 Keith, supra note 16; G.A. Washburne, Imperial Control of the Administration of Justice in the Thirteen American Colonies (1923). 29 David B. Swinfen, Imperial Appeal: The Debate on the Appeal to the Privy Council, 1833–​1986 3 (1987). 30 Keith, supra note 16, at 57. 31 Id. at 61.

The Privy Council  53 under William Penn’s control). The king’s power was most restricted in the Charter colonies, where he or his predecessor had granted the colonists a colonial charter allowing more generous self-​government. These Charter colonies originally included Massachusetts, Rhode Island, and Connecticut—​all of them packed full of dissenting Protestants who hated the Church of England and the Stuart kings. The strained relationship between King Charles II and the New England Puritan colonies is best illustrated with a story. After the Restoration of the Stuart Monarchy under King Charles II in 1660, Puritans in New Haven, Connecticut, helped to hide three so-​called regicides from British troops who were sent looking for them high and low. The regicides, who called themselves judges, were members of the House of Commons who had voted to execute King Charles I in 1649. The hiding of the three regicides from King Charles II’s troops, and the naming of a neighboring town to New Haven as Cromwell, Connecticut, left King Charles II so angry at the New Haven Colony that he merged it with the Hartford Colony to create what became the state of Connecticut. The power to revoke colonial charters, as happened with Massachusetts, or to merge colonies, which had originally been separate as happened with New Haven and Hartford and with Plymouth, Massachusetts and Boston, was a key effort by the king and his Privy Council to exert their authority over the North American colonies. These efforts were bitterly resented by the colonists and planted the seeds of what would eventually become the American Revolution. Elmer Beecher Russell’s book The Review of American Colonial Legislation by the King in Council makes it clear that, at least after the Restoration: The English government in its royal colonies exercised what was virtually a double check upon the activities and enactments of the colonial legislatures. By its instructions to the governor it insured the veto of anticipated legislation of objectionable character, and more or less curbed his conduct as a constituent part of the law-​making body. And furthermore it required that all enactments be transmitted to England, where they were subject to examination by the Privy Council and its subordinate bodies, and if deemed objectionable to a summary disallowance. *** It is therefore, significant that when the Continental Congress came to cast about for grievances which would justify the impending separation from the mother country, they made the alleged abuse of this control over the colonial assemblies the basis of eight counts in the indictment summoning their tyrannical sovereign to the bar of a candid world.32 32 Elmer Beecher Russell, The Review of American Colonial Legislation by the King in Council 15–​16 (Copyright 1915; Published in 1976 by Octagon Books; reprinted in 2018 and in the public domain).

54  The History and Growth of Judicial Review, Volume 1 Russell writes that “No regular or systematic review of colonial legislation was undertaken by the Privy Council or Parliament, or by their committees, prior to the Restoration [of the English Monarchy in] 1660.”33 But the royal charters empowering some of the colonies to form did contain clauses that required that colonial laws not be contrary to or repugnant to the laws and statutes of England. These clauses invited the Privy Council to engage in vertical federalism umpiring judicial review of the British Empire and its North American colonies. Despite its inaction, therefore, the British government assumed from the first that colonial laws should be as nearly as possible in conformity with those of England, and that the enactments of a royal colony were subject to review and confirmation, and even to revision, at home.34

Russell adds that: “[D]‌uring the thirty years subsequent to the Restoration there was a considerable economic development in the colonies, and a corresponding increase in the number and prestige of their assemblies. At the same time there occurred in England a revival of royal power, and the consequent development of a fairly comprehensive colonial policy. Under such circumstances it was inevitable that the home government sooner or later should come to realize the necessity of reviewing colonial enactments. *** It was all but inevitable that the task of review should be assumed by the Privy Council. Except during the Commonwealth, the crown had always been the branch of the English government most actively concerned with the settlement and control of plantations; and England was now in the midst of a reaction from parliamentary to royal government.”35

King Charles II appointed on July 4, 1660, by an order in council, a committee of the Privy Council that would meet twice a week to review matters relating to the colonies.36 From this time on, the Royal colonies sent their laws and acts for review as to their legality under the colonial charters to the Privy Council “with fair promptitude and regularity.”37 As I mentioned earlier, not all of the North American colonies were from the beginning Royal colonies. Virginia was always a Royal colony, but other colonies

33

Id. at 16. Id. at 17–​18. Id. at 18–​19. 36 Id. at 19. 37 Id. at 20. 34 35

The Privy Council  55 like Pennsylvania and Maryland were initially Proprietary colonies whose acts were less scrutinized than were the acts of the Royal colonies. Between 1680 and 1692, New Hampshire, New  York, Massachusetts, and Maryland were all converted into being Royal colonies so as to augment Privy Council control.38 “Colonial charters granted after 1663 generally made specific provision reserving the right of the Crown to hear and determine all appeals from such territories. Up until 1679 colonial appeals were heard by a succession of short lived committees of the [Privy] Council, and [thereafter[by the Board of Trade], which was a committee of the Privy Council].”39 During this period of time, the Privy Council wrestled for control successfully of the West Indian British colonies. The Privy Council resolved a Maryland appeal successfully in Gookin v. Calvert.40 As part of his plan to even further rein in the North American colonies, King Charles II created in 1675 an entity within the Privy Council called the Lords of Trade, a permanent committee of the Privy Council responsible for overseeing the colonies. *** [Smith refers to this entity as the Lords Committee of Trade and Plantations, and says it fixed all the super-​structure of the eighteenth century colonial appeal to the Privy Council]. *** [T]‌he Lords sought to bring the royal governors themselves under close supervision. Not only did they insist upon more frequent and fuller reports from all the governors, but they also placed the governors under much more detailed and rigid regulations than ever before by greatly expanding both in scope and specificity the royal instructions given to governors to direct them in the conduct of their administrations. Equally important in trying to establish effective control over the royal colonies were the Lords’ efforts to curtail the extensive powers of the elected legislative assemblies, the bastions of colonial opposition to imperial policy.41

These various attempts at asserting royal control were sometimes a success and sometimes a failure. The first document that specifically mentions appeals to the King-​in-​Council is found in the 1679 commission to John Cutt as president of the Council of New Hampshire. In 1681, William Penn was granted a charter, which contained broad reservations of the power to appeal to the king.



38

Russell, supra note 32. Swinfen, supra note 29. 40 Smith, supra note 7, at 67–​68. 41 Greene, supra note 25, at xv–​xvi. 39

56  The History and Growth of Judicial Review, Volume 1

3.  Governance from 1684 to 1776 A central figure in the 1680s in setting British colonial policy was King Charles II’s brother and heir, James, the duke of York, an heir to the British throne, the proprietor of the New York Colony, which was so named after him, and an ardent and deeply unpopular Roman Catholic. As the duke of York, James took over the New York Colony in 1664 after it was conquered from the Dutch, and the colony was named New York after James, the duke of York. Eventually, as King James II from 1685 until 1688, James II briefly tried to consolidate all the colonies in New England and New York into a short-​lived royally controlled Dominion of New England. The Dominion of New England existed from 1686 to 1688. It included all of the New England colonies, and New York and New Jersey, but not Delaware or Pennsylvania. King James II created the Dominion to strengthen royal control over the colonies, and he appointed as governor, Sir Edmund Andros, who was his close personal friend. The Church of England was forcibly introduced into Massachusetts, which had previously banned it for Puritan reasons. The colonists hated Sir Edmund Andros, and they wanted their colonial charters back. After the Glorious Revolution of 1688 overthrew King James II, and Parliament replaced him with King William III, and his wife Queen Mary II, ruling as joint sovereigns, the American colonists organized their own Glorious Revolution, in 1689, in Boston. They arrested Andros and threw him in prison. A similar rebellion led to the assassination of the Royal Governor of New York. The colonists hated James II for attempting to consolidate the New England and New  York colonies. The Americans threw off their new English masters as is explained in David S. Lovejoy’s book, The Glorious Revolution in America.42 In general, the new English monarchs William III and Mary II gave back to the New England colonies most of the rights that James II had tried to take away from them. In 1691, a second charter was issued to Massachusetts Bay to replace that vacated by a writ of scire facis, in 1684, issued by Charles II himself who resented Massachusetts’s independent Puritan streak. The new charter was issued by William III and Mary II. The new monarchs unfortunately did not understand both why and how mad the settlers of Massachusetts were over the revocation of their original colonial charter. This revocation of Massachusetts’s initial colonial charter, issued by Charles I, was bitterly hated and represents the most striking effort by the king and the Privy Council to govern the thirteen North American colonies with an iron fist between 1607 and 1776. The initial Massachusetts Charter had allowed the colonists the inemistable privilege of electing their own governor.



42

David S. Lovejoy, The Glorious Revolution in America (1987).

The Privy Council  57 The citizens of Massachusetts valued this privilege enormously, and they hoped that after the overthrowing of the Stuart dynasty by the English Glorious Revolution of 1688, the new monarchs William III and Mary II would regrant them the right to elect their own governor. The people of Massachusetts felt that had been promised such a right by Charles I, and they thought they had endured many dangers in crossing the Atlantic Ocean, in fighting with Native Americans, and in farming their new land. They believed the English had promised them the right to elect their own governor, and they were furious about being deprived of that right. They were very unhappy about the 1691 second Massachusetts Charter.43 Massachusetts’s new charter of 1691 annexed to it the Plymouth Colony, the territory of Maine, Nantucket, Martha’s Vineyard, and the Elizabeth Islands as a condolence prize. But, the new charter was still hated because whereas Massachusetts had had the power to elect its own governor under its original Charter of 1628, the king retained the power to appoint a royal governor of Massachusetts under the Charter of 1691. Massachusetts retaliated by refusing to vote the royal governor a permanent salary and by paying him only at the end of each year depending on how he had behaved during the prior year. The British fumed over this but felt powerless to do anything about it. It is not an accident that the American Revolution began in Massachusetts. The colony was a hotbed of Puritan anti-​English sentiment throughout the seventeenth century. Although the New England colonies regained their independent and separate status under William and Mary, all of the colonies lost their right to insulate their judicial cases and other matters from review by the King-​in-​Council. The pillar of that review, as Mary Sarah Bilder’s scholarships show, rested on determining whether the colonial judgment or law under review was repugnant to the law of England or legitimately divergent from English law because of differing colonial conditions and traditions. William III allowed colonial assemblies, which had the power to tax, but he appointed and removed the governors and the councils that advised them through the Privy Council in London. The Privy Council insisted that “Massachusetts Acts now be subject to disallowance by the Privy Council.”44 “[R]‌oyal commissions and instructions were utilized both to establish and to delimit the appellate powers of the governors and councils and to prohibit the exercise of the same powers by colonial assemblies.”45 It was against English policy to allow lower legislative chambers to hear cases in the colonial court system.

43

Smith, supra note 7, at 76. Russell, supra note 32, at 34. 45 Smith, supra note 7, at 78. 44

58  The History and Growth of Judicial Review, Volume 1 “Fifty acts of 1692, the first passed under the new [Massachusetts] charter, were duly submitted to the Privy Council *** [which] confirmed thirty-​five acts and disallowed fifteen ***.”46 Shortly thereafter, the Privy Council asserted the power to review the laws of Pennsylvania even though it was a proprietary colony because of special language in the colony’s charter. The governor of Pennsylvania referred thirty of the colony’s acts to the Privy Council, which confirmed twenty of them, repealed two, and returned six to the Pennsylvania assembly for further review. This was done by an order in council on August 9, 1694.47 In May 1696, King William III created a new Board of Trade within the Privy Council “to take over the functions formerly handled by the then defunct Lords of Trade.”48 This was but yet another Privy Council committee denominated to decide colonial matters. Elmer Beecher Russell, author of The Review of American Colonial Legislation by the King in Council, says that this entity: examined all acts received from the colonies. It heard complaints regarding them from persons who felt their interests were adversely affected. It obtained from the law officers of the crown an opinion as to their legality and, if necessary, referred them to the departments of the government for a special report as to their probable effect and expediency. In the light of the information thus obtained, the Board of Trade formally advised the Privy Council regarding the confirmation or disallowance of the acts considered. And in the great majority of cases its recommendations were accepted and made effective by orders in council.49

Thus, for example, the Privy Council decided a case from the colonies, Jones v. Fullerton (N.J. Arch. ii. 189), in 1697, which concerned the boundaries of the New Jersey Colony. This royal assertion of control over colonial boundaries called to mind Charles II’s merging of the New Haven and Hartford Connecticut colonies, and William III and Mary II’s redrawing of Massachusetts boundaries. The Board of Trade was in general very active until King George I came to the throne in 1714 bringing the Whigs with him back into power in England. The weak Hanoverian kings, and the Whigs who ran the British government for them, were much less interested in micromanaging the North American colonies than had been Charles II and James II. Notwithstanding their high-​handed behavior with the 1691 Massachusetts Charter, William III and Mary II and Queen Anne all mostly left the North



46

Id. at 35. Id. at 38. 48 Greene, supra note 25, at xvii. 49 Russell, supra note 32, at 44–​45. 47

The Privy Council  59 American colonies alone. “Either from neglect or design, fully one-​half of the [colonial] laws passed between 1690 and 1699 [during William III’s reign] were allowed to remain in force without formal confirmation or disallowance. Of those enacted between 1700 and 1710 [during the reigns of William III and Queen Anne], about three fourths, and of those passed during the decade following [during the reigns of Queen Anne and of George I], about ninety per cent were unaffected by orders in council.”50 When colonial laws were reviewed, however, either by the Board of Trade or by an officer called the King’s Counsel, Elmer Beecher Russell, in The Review of American Colonial Legislation by the King in Council, says that: The point most frequently raised in this manner was the legality, or what might now be termed the constitutionality of legislation. Had the colonial legislature exceeded its power and authority in passing the law? Were its provisions unwarranted under the terms of the colonial charter, or in conflict with an Act of Parliament? The Board inquired, for example, whether two acts of North Carolina were “proper consistently with the just rights of the inhabitants and Constitution of said Province.” And three private acts granting decrees of divorce [were] referred to the attorney and solicitor upon “a matter of doubt whether the legislature of the Province of Massachusetts Bay or any other Colony has a power of passing Laws of this nature, and consequently whether these acts are not of themselves null and void?”51 *** The influence of the Board’s legal advisors upon its policy in legislative review can scarcely be over-​emphasized. The king’s counsels, holding office as they did for comparatively long periods, and reviewing practically the entire volume of colonial legislation, were veritable watch-​dogs of legality. Their practiced eyes were quick alike to note undue encroachments upon the domain of individual liberty, unwarranted violations of the security of private property and unseemly infringements upon the prerogatives of the crown. They strove, not only always successfully, but certainly not without effect, to keep the enactments of the assemblies within a fair degree of conformity to the acts of Parliament and the common law.52

P. A. Howell, supra, notes at page 7 that By December 1696 there had been a total of eighty-​seven appeals from the American plantations, chiefly from the West Indies. In that month, the

50

Id. at 57. Id. at 63–​64. 52 Id. at 69. 51

60  The History and Growth of Judicial Review, Volume 1 appellate jurisdiction of the Board of Trade was abolished, and it was ordered that all appeals to the King in Council be heard and reported on by a committee consisting of all the members of the Council [the old Council], three to be a quorum. This standing committee [of more than twenty Lords] remained the body to which appeals were referred until the more professional Judicial Committee was established in 1833.

In all of these jurisdictions, the Privy Council or the JCPC provided vertical federalism judicial review to rein in the colonies. The Privy Council adjudicated cases, as a Supreme British Imperial Court and administrative body over the power of the thirteen original American colonies under their colonial charters. Howell observes at pages 7 to 8 that: The number of appeals rose with the growing wealth and sophistication of the colonists, the enforcement of the Navigation Acts, and the expansion of the Empire. In the 1720s the average annual number of appeals was nine. In 1755 there were eighteen appeals; in 1770, twenty-​three. The loss of thirteen of the American colonies in the years 1776–​83 *** was offset by the growing importance of the East India Company’s territories, which extended both into the sub-​continent and across the Bay of Bengal to Penang, Malacca and Singapore, and by the acquisition of jurisdiction over the Ionian Islands (1815) and twenty [other new colonies]. By the period 1815–​26, appeals were being lodged at the Council Office at the rate of forty-​three a year.

Howell explains at pages 8 to 13 that there were numerous problems with the old Appeals Committee of the Privy Council as it stood from 1696 to the adoption of the Judicial Committee of the Privy Council Act in 1833. I shall discuss these problems later in the chapter. These inadequacies of the old Appeals Committee of the Privy Council were corrected completely by the Judicial Committee Act, 1833. The reputation of the Privy Council from the abolition of its power, in 1641, to hear judicial cases arising in England and Wales by the Long Parliament, prior to its reform, in 1833, was a mixed bag. There were privy councilors who were not barristers and who owed their appointment to their friendship with the monarch. In general, the Privy Council made an effort to judicially review the colonial cases that were appealed to it and to approve or disapprove of the colonial laws that were sent to the Privy Council for their review, but many proposed laws and judicial decisions languished because they were not acted upon. In American history, the reputation of the Privy Council is badly tainted by the actions taken by King George III, and his cronies on the Privy Council, who, like King Charles I, greatly abused the royal prerogative thus setting off the American Revolution.

The Privy Council  61 American colonial courts were allowed, which were controlled and which conformed with English legal doctrine.53 The governor served as chancellor in the colony and was in charge of persons who were insane.54 Appeal from the colonial courts to the King-​in-​Council was always available, in theory, but in practice cost and delay discouraged such appeals.55 It must be added that along with the ordinary local courts for matters occurring in colonial limits, there were also the Admiralty Courts whose jurisdiction was both civil and criminal and in which there was no right to trial by jury. As time went on, the King-​in-​Council relied more and more heavily on the Admiralty Courts as vehicles with which to rein in the thirteen North American colonies. It was, however, established that decisions of the Admiralty Court, which sat with no jury, could be appealed to King-​in-​Council.56 This was, as Smith explains, because the power to set up the colonial Admiralty Courts was an exercise of the king’s prerogative and all such exercises were naturally reviewable by the King-​in-​Council. The King-​in-​Council also policed the boundaries between the admiralty jurisdiction and the jurisdiction of the common law courts. The colonists came to greatly resent the Admiralty Courts because they were presided over by a British judge and no jury and played a vital role in enforcing the Navigation Acts. They are mentioned specifically as a source of complaint in the Declaration of Independence. The power of the King-​in-​Council to review American appeals was raised most forcefully in the chartered colonies of Massachusetts Bay; Connecticut; and Rhode Island; and surprisingly, in the Royal Carolina colonies. In none of these colonies did the royal charter establishing them explicitly provide for judicial review by the King-​in-​Council. The King-​in-​Council successfully asserted such a power over time on the principle that any of the king’s subjects have an inherent right to petition him for justice whenever the need arose. The King-​in-​ Council was the natural body to which such appeals should be made.57 Royal colonies such as New York began objecting to appeals to the King-​in-​Council. Smith mentions that Rhode Island diverged greatly from that of Connecticut in allowing frequent appeals to the King-​in-​Council.58 Appeals were ultimately heard, however, from New York, New Jersey, and Maryland as well. As I explained already, the power overseas of the King-​in-​Council was part of the power of the royal prerogative, to decide judicial cases that had been stamped



53

Keith, supra note 16, at 255–​56. Id. at 256. 55 Id. at 257. 56 Smith, supra note 7, at 88–​95. 57 Id. at 138–​51. 58 Id. at 161. 54

62  The History and Growth of Judicial Review, Volume 1 out in England and Wales in 1641, but which could still be used and abused in the North American colonies. Keith explains that: For the formal transaction of colonial business of magnitude the Privy Council continued throughout this period to exercise the authority which in domestic affairs was rapidly passing away from it. But it suffered from an evolution which can fully enough be traced in the records. William III and Anne still could and did sit in Council, not merely to record decisions taken elsewhere, but to consider and discuss; with the Hanoverians the position changed, for the King, by reason of his ignorance of his subjects’ speech, abandoned the attempt to discuss matters in Council, and meeting of the King-​in-​Council became more and more *** formal matters, intended simply to register with solemnity and authority the decisions of the King’s government.59

One obvious area where review by the King-​in-​Council was needed was with respect to colonial boundary disputes. Smith reports that the King-​in-​Council frequently resolved boundary rights conflicts among the colonies during this period.60 In addition, the King-​in-​Council retained the formidable power to disallow provincial legislation to prevent an appeal.61 This was, of course, quite a formidable power indeed. The Privy Council did, however, decide a lot of important vertical umpiring cases from the North American colonies between 1660 and 1776, as Smith’s 664-​ page book and Bilder’s 281-​page book prove beyond a shadow of a doubt. Russell agrees observing that “A Rhode Island law which established a court of admiralty was annulled upon the opinion of the attorney general that [Rhode Island’s] charter conferred power to erect courts only for trying matters arising within the colony. Upon complaint of the Quakers, a Connecticut law against ‘Heriticks’ was adjudged ‘contrary to the Liberty of Conscience’ indulged to Dissenters by the law of England, as likewise to the Charter of that colony. And, finally, a Connecticut act of 1699 for the settlement of intestate estates was declared void in connection with an appellate decision in the famous case of Winthrop v. Lechmere.”62 The Privy Council later, in a Rhode Island case, departed from this precedent according to Mary Sarah Bilder in her book The Transatlantic Constitution: Colonial Legal Culture and the Empire.63 The Board of Trade also took action in “an appeal of Col. Bayard from a conviction of treason under a New York Act for ‘Quieting and Settling disorders.’ ”

59

Keith, supra note 16, at 268. Smith, supra note 7, at 121–​22. Id. at 175. 62 Russell, supra note 32, at 103–​104 63 Bilder, supra note 6, at 111, 124, 137–​38. 60 61

The Privy Council  63 The governor was instructed in this case that the sentence was reversed and that the clause under which the accused had been tried was repealed.64 “The great number of ‘private’ acts, affecting the legal rights or the property of some particular person or group of persons therein named, which were passed by the colonial assemblies, led to the imposition of various restrictions upon their enactment, transmission and review.”65 In another case before the Board of Trade: Attorney General Trevor objected to a Maryland law which included the Magna Carta upon the ground that it might conflict with the constitution and other laws of the province, or with the royal prerogative. Against a provision in the bill of rights passed by the first assembly of New York, that the province should be ‘Governed by and according to the Laws of England,’ the committee cited the fact that this privilege had not been granted to any of His Majesty’s Plantations where the act of habeas corpus and all such other Bills do not take place. The attorney general even took exception to an obscure clause empowering justices to “do justice according to the Laws of England and Virginia,” lest all the laws of England be enacted there. A law of New York which declared the extension to the colony of several acts of Parliament was disallowed, although it introduced in itself nothing objectionable, because it did not seem fitting that laws should ‘be adopted in Cumulo, and that, too, without stating more of the acts that the titles and sections adopted. [This] deprives both the Crown and the Governor of that distinct approbation or disapprobation that is essential to the constitution of the Province, . . . and would occasion great difficulties in Construction, . . . such as ought to be left to Courts of Justice.’ ”66

The Board of Trade in its early period of vertical federalism umpiring raised other objections to colonial laws as well: The most common complaint  .  .  .  was that laws were vaguely and loosely worded.  .  .  . This fault was, if possible, even more objectionable in criminal legislation, where exception was taken to such phrases as ‘Devilish Practice,’ and ‘playing at cards, dice, lotteries or such like.’ . . . the Board complained that definitions of crimes were too general, that they often contained no clause making premeditation or intent essential to conviction, and that they afforded judges an undue discretion, which was liable to arbitrary extension and abuse.67



64

Russell, supra note 32, at 104. Id. 66 Id. at 140. 67 Id. at 142. 65

64  The History and Growth of Judicial Review, Volume 1 Penalties imposed by criminal legislation were in many cases excessively severe. This was particularly true of early legislation in the Puritan colonies and in Pennsylvania, where offenses were made capital in accordance with the word of God [as expressed by Moses in the Bible]. [The Board of Trade disallowed a Massachusetts law that imposed the death penalty for gathering] sticks upon the Sabath and many others. In a report upon acts of Pennsylvania, Attorney General Northey objected to castration as a penalty never inflicted by any law in His Majesty’s dominions, and to making fraudulent taking a felony, when it was not regarded as such in England. . . . Acts whose provisions were in any way retroactive were condemned as bad law.68 [Finally], Quakers and members of the Church of England contended with success that their taxation for the support of Puritan ministers was a violation of . . . charter provisions allowing liberty of conscience to all Christians except Catholics.69

During the eighteenth century, the same committee of the King-​in-​Council dealt with appeals from Ireland, the Channel Islands, and Rhode Island. There was no specialization in the hearing of judicial appeals.70 The council also played a vertical federalism umpiring role in resolving a boundary dispute case between Massachusetts and Rhode Island.71 A secretary of state for the Southern Department was eventually appointed in London to oversee the executive work of the Board of Trade.72 The King-​in-​Council ruled both on which colonial laws were admissible and on complaints about the maladministration of those laws.73 In an ecclesiastical case, the Bishop of London who served on the King-​ in-​Council played a special role.74 The King-​in-​Council performed an important role in preventing the thirteen colonies from imposing tariffs on inter-​colonial trade.75 Throughout the eighteenth century, the Board of Trade repeatedly sought unsuccessfully to rein in the North American colonies threatening to go to Parliament, if necessary, to get its way. The U.K. Parliament, however, repeatedly declined to act on requests from the Board of Trade, and the leading first minister of the period, Sir Robert Walpole (1721 to 1742) quite wisely thought it would be very imprudent for the United Kingdom to try to exert any more power over the colonies than it already had. Lord Monson, who headed the Board of

68

Id. at 144. Id. at 148. 70 Keith, supra note 16, at 270. 71 Id. at 270–​71. 72 Id. 73 Id. at 274. 74 Id. at 274. 75 Id. at 294. 69

The Privy Council  65 Trade until his death in 1748, was opposed to the board taking an active role in colonial governance.76 The King-​in-​Council clearly had the power to hear judicial appeals from any of the thirteen British North American colonies.77 Appeals were thus decided in Torrey v. Mumford in 1734 from Rhode Island and in McSparran v. Hassard.78 In 1724, the council ruled that it would not hear appeals, unless the appellant had first exhausted his remedies in the colony he was from.79 All in all, the appeals committees of the Board of Trade heard a large number of judicial appeals of cases from the colonies in the eighteenth and nineteenth centuries. Modern scholars of the seventeenth-​and eighteenth-​ centuries’ colonial practice have reached the same conclusion as was reached by the most famous scholar of this period: Joseph Henry Smith whose history on Appeals to the Privy Council from the American Plantations (1950) is, as I  mentioned before, the standard work in this area. Thus, in Mary Sarah Bilder’s book already discussed, The Transatlantic Constitution,80 Professor Bilder powerfully describes the system of transatlantic judicial review created by the Privy Council’s practice of judging both the legality of colonial laws and cases as being guided by two principles: repugnancy and divergence. Colonial laws and cases contrary to British law and not justified by some differing circumstances in the various colonies were struck down by the Privy Council on the ground they were repugnant to the laws of England. Divergent colonial laws or cases that could be explained by different circumstances in the American colonies or by different customs in those colonies were, however, upheld. Smith’s findings concur with Bilder’s. He notes that English precedents and laws applied so long as they were not repugnant to the laws of England but were permissibly divergent from them because of locally different circumstances and conditions. 81 Royal governors were also instructed to disallow colonial acts that were repugnant to the laws of England, unless local circumstances made them justified in the colonies. These instructions were only loosely obeyed. In practice, the colonies diverged from the laws of England by eliminating primogeniture, by establishing the Congregational Church in place of the Church of England in Massachusetts and Connecticut, and by permitting the establishment of no church at all in Rhode Island! Massachusetts and Connecticut typically had many more morals and religious laws than did England, and the English Privy Council mostly looked the other way, although it struck down a few of the most

76

Greene, supra note 25, at xlii. Keith, supra note 16, at 305. 78 Id. at 309. 79 Id. at 310. 80 Bilder, supra note 6. 81 Smith, supra note 7, at 525. 77

66  The History and Growth of Judicial Review, Volume 1 excessive of such laws. The great debate of the transatlantic constitution was over which laws were repugnant from the laws of England and which permissibly diverged from them. The net result, as Bilder’s work makes especially clear, is that there was a complex transatlantic conversation between the Privy Council and the thirteen North American colonies as to how much divergence amounted to repugnancy. Obviously, the colonies were always pushing for more divergence, while the Privy Council struggled to maintain legal uniformity between the colonies and England without needlessly alienating the colonies. These two principles of repugnancy and divergence are well captured in the 1663 Rhode Island colonial charter, which provided that: [T]‌he laws, ordinances and constitutions [of Rhode Island], so made, be not contrary and repugnant unto, but as near as may be, agreeable to the laws of this our realm of England, considering the nature and the constitution of the place and people there.82

Professor Bilder’s book carefully traces these twin principles of repugnancy and divergence in Privy Council review of statutes and cases from the colony of Rhode Island. A weakness of her book, as compared to Smith’s, is that Bilder only reviews appeals from Rhode Island, which was one of the empire’s most compliant colonies with respect to appeals. Bilder’s book, however, discusses many more cases than Smith’s, and I do not, unfortunately in this chapter, have space to discuss all the cases Smith and Bilder cite. It is also unnecessary that I do so. I seek only to prove in this chapter that the Privy Council was from 1607 until 1776 actively engaged in vertical federalism umpiring judicial review of errant colonial laws, of the kind Professor Martin Shapiro writes about, as I said in the introduction to this book. I believe I have submitted ample facts from which to draw that conclusion. As Bilder explains: First, the colony was an extension of the realm of England. Colonial laws, therefore, could not be contrary or repugnant to the laws of England. *** Repugnancy carried a broad set of cultural meanings including being contrary, contradictory, inconsistent, incompatible, and oppositional, as well as eventually also connoting strong dislike or aversion. Second, however, law and government should relate to the people and the place. Colonial laws thus only needed to be “agreeable” or “as near to English laws as ‘may be’ ‘considering the nature and constitution of the place and people there.’ ”83

82 83

Bilder, supra note 6. Id. at 2–​3.

The Privy Council  67 Professor Bilder notes that “[Sir Edward] Coke’s lengthy examples of areas of the empire governed by local laws reinforced the idea that the extension of the laws of England and English authority did not end local diversity.”84 William Blackstone argued in his Commentaries that English colonists brought with them English law, except to the extent that it was inapplicable due to local conditions.85 The other colonial charters were written with the ideas of repugnance and divergence in mind.86 Professor Bilder describes the legal practitioners and legal literates of the colonial era, the laws of England in the colonial era, the laws of Rhode Island in the colonial era, and the transatlantic appeal in the colonial era. She then addresses (1) family law and property law, (2) religious establishment and orthodoxy, and (3) commercial law and currency. A frequent source of tension between England and the colonies was the provision of English property law, which provided that the eldest son of the deceased must inherit all real estate. After some give and take and much litigation, the Privy Council eventually became persuaded that the enormous abundance of uncultivated land in the Americas allowed the colonial legislatures to permit equal division of the deceased’s land among his or her sons and daughters. In America, there was more than enough land to go around. The council reasoned that primogeniture in English law was designed to prevent over-​division of real estate in a population-​dense country, and the council noted that some parts of England did not even practice primogeniture, which meant that colonial laws and cases that were inconsistent with primogeniture could not be “repugnant” to all of English law.87 The principles of repugnance and divergence allowed legal arguments to be made about when the colonists had to, or were free from, following English law.88 Professor Bilder shows with respect to religious establishment and orthodoxy how Rhode Island used its revolutionary Charter of 1663, which specifically authorized freedom of all religions that behaved peacefully and did not disturb the public peace to coexist. This astonishing charter from King Charles II was ultimately followed in the English Royal Court and by the Privy Council as Rhode Island’s community of Baptists, Quakers, Presbyterians, and Jews resisted efforts to establish either the Church of England or the Congregational Church of nearby Massachusetts and Connecticut. Rhode Island tolerated Episcopalian Anglicans and it tolerated Congregationalists just as it continued to tolerate Baptists, Quakers, Presbyterians, and Jews. The Privy Council recognized that Rhode Island was

84

Id. at 38. Id. at 39. Id. at 31. 87 Id. at 91–​115. 88 Id. at 115. 85 86

68  The History and Growth of Judicial Review, Volume 1 unique in its circumstances among the thirteen original colonies in that it had never had an established church, thanks to its founding by Roger Williams. King Charles II’s revolutionary Charter of 1663, giving Rhode Islanders religious freedom, was ultimately followed by the Privy Council even though England itself and all the other North American colonies had established churches.89 Finally, Bilder notes that of twenty-​four Rhode Island appeals heard between 1745 and 1755, ten raised commercial issues. She notes that the same themes of repugnance and divergence appear in commercial transactions, which the Privy Council wanted handled in a predictable and uniform way all across the British Empire. The Privy Council implemented the navigation acts but did not play a major role in the colonies’ commercial appeals.

III.  The Coming of the American Revolution Professor Smith notes that while the colonists in the thirteen North American colonies accepted the legality of Privy Council review over their laws and colonial courts, as time went by the colonists came more and more to resent it.90 Colonists questioned why a body three thousand miles away with its origins as a court for the Channel Islands and the Isle of Man in the Irish Sea was suitable for their own governance, especially because of the lack of training and professionalism among the Privy councilors, the overwhelming majority of whom were not even lawyers and had never so much as set foot in North America! The Act of Union between England and Scotland, which was adopted in 1707, by Queen Anne-​in-​Parliament set up one parliament for both countries, but it guaranteed Scotland its own independent civil law court system headed up by the Scottish Court of Session. That independent Scottish court system has persisted down to the present day, and Scotland now has a devolved parliament and seems as if it may eventually go down the road toward independence from the United Kingdom. In addition, several of the Channel Islands were outside the jurisdiction of the highest English courts because they were royally governed remnants of the former Duchy of Normandy, which had been constitutionally independent jurisdictions from England since the Middle Ages. Moreover, England from 1714 to 1776 and on, until the reign of Queen Victoria began in 1837, shared a king with the electorate of Hanover, in what is today part of Germany, but the highest English courts had no jurisdiction over cases that arose in the

89

Id. at 145–​67.

90 Smith, supra note 7, at 208.

The Privy Council  69 electorate of Hanover. The only High Court that had jurisdiction over all of King George III’s possessions in 1776 was the King-​in-​Council, also known as the Privy Council. It was this very British executive and judicial entity, descended from the Curia Regis of the early Norman Kings of twelfth-​century England, which was the highest executive, court, and policy-​making body for the thirteen original American colonies from the founding of Jamestown in 1607 until American independence in 1776. It is thus not surprising that as the thirteen North American colonies thrived, they would come to resent having to send their laws and judicial cases to the Privy Council three thousand miles away in London for its review. As Edmund Burke wrote, in 1757, “The settlement of our [North American] colonies was never pursued upon any regular plan; but they were formed, grew, and flourished, as accidents, [as] the nature of the climate, or the dispositions of private men happened to operate. *** Nothing of an enlarged and legislative spirit appears in the planning of our colonies.”91 The famous colonial historian, Jack P. Greene adds that between the monarchy and the sponsors on one hand and between the sponsors and individual colonists on the other—English colonization depended initially upon a series of reciprocal agreements, or in the formal language of the day, contracts that permitted the sponsors and the individual colonists a generous amount of political freedom and wide latitude to pursue their own personal objectives in return for extending the dominion of the sponsors and the monarchy over vast new areas in America.92

One such contract, as I have mentioned, was the Massachusetts Bay Charter of 1629 drawn up by King Charles I and delegating to the colonists the power to elect all of their legislative, executive, and judicial officers. As I said above, William and Mary insisted that henceforth Massachusetts would have a royally appointed governor, albeit an indirectly elected popular upper house for its legislature unlike other royal colonies. They also demanded that Massachusetts be subject to appeals to the Privy Council, an obligation written into the new Charter of 1691. The kings of England thus broke their word and unilaterally breached their contract with the settlers of Massachusetts Bay even though those

91 Great Britain and the American Colonies, 1606–​1763:  Documentary History of the United State xi (Jack P. Greene ed., 1970) quoting Edmund Burke, An Account of the European Settlements in America II 288 (2 vols. 1757). 92 Greene, supra note 25, at 10.

70  The History and Growth of Judicial Review, Volume 1 settlers had suffered through grim hardships. This made colonial Americans very, very mad. In 1760, King George III acceded to the throne on the death of his grandfather, King George II. George III was the first Hanoverian king of England to have been born in England and to speak English as his first language. He came to the throne at the very young and impetuous age of twenty-​two determined to restore the monarchy to the position it had held under William III and under Queen Anne. He was the polar opposite of Prime Minister Sir Robert Walpole (1721 to 1742) who advised Parliament to leave North America alone and not to provoke it. King George III immediately asserted himself by vigorously using the royal prerogative in the thirteen American colonies where it technically still applied, notwithstanding the abolition of the Court of Star Chamber in 1641, which had eliminated the royal prerogative as to domestic English affairs. The many complaints in the Declaration of Independence about the unconstitutionality of King George III’s use of the royal prerogative in the thirteen colonies are more easily understood when one acknowledges that the English had outlawed the use of the royal prerogative at home when they abolished the Court of Star Chamber in 1641. As Jack P.  Greene observes in Peripheries and Center:  Constitutional Development in the Extended Polities of the British Empire and the United States 1607–​1788, in England, as a result of the Glorious Revolution of 1688, the English had tamed the monarchy by greatly narrowing its prerogative powers. The North American colonists did not, however, benefit from these reforms, which did not apply to them. Thus, while English monarchs had stopped vetoing Acts of Parliament, and proroguing Parliament, the King-​in-​Council continued exercising these powers over the thirteen North American colonies. It dismissed and prorogued colonial legislatures, which were in session, and colonial judges were fired at the pleasure of the Governor-​in-​Council, even though English judges had had tenure during good behavior since the Act of Settlement of 1701.93 The Board of Trade repeatedly fought with the North American colonies over the failure of their lower houses to vote a permanent salary for the royal governors and his staff, but the colonists refused to vote a permanent salary, and the colonists won this fight. Gubernatorial salaries were only appropriated by colonial legislatures at the end of a year and depended on how well the royal governor had behaved during that year. The Board of Trade tried to get the British Parliament to rectify this situation but that august body refused to act. The Board of Trade did send increasingly detailed instructions to the royal governors, and



93

Greene, supra note 25, at 20.

The Privy Council  71 it demanded to see all laws the colonies were enacting, but the colonists treated it to some degree as being only a paper tiger that was three thousand miles away and that could not, in practice, control what the colonies were doing. By the 1760s, most Americans were of the view that they were as independent of the U.K. Parliament as was the electorate of Hanover. Like Hanover, they shared a king with England but little else. The King-​in-​Parliament might be sovereign in the British Isles, but, in the colonies, the colonists came to think that sovereignty lay in the king’s Governor-​in-​Parliament with the lower and upper houses of the colonial legislatures. When the British Parliament passed the Stamp Act Tax, in 1765, or tried to Tax Tea in 1773, the colonists refused to obey claiming that only the King-​in-​Council with the colonial legislatures had the power to tax or legislate in the colonies and not the King-​in-​Parliament. Any other enacted tax violated the Petition of Right, 1628, which clearly had said, as I established above, that there could be no taxation without representation. It is for this reason that the American Declaration of Independence addresses only abuses of power by King George III and not by Parliament. The American colonists, on the one hand, were firmly of the view that they were outside the jurisdiction of a parliament in which they were not represented. Parliament, on the other hand, thought that the American colonial charters issued by English monarchs were just like corporate charters issued in England, which could be revoked or changed at will by Parliament. It is in part out of this disagreement that the American Revolution was born. The English history already discussed reveals that from 1607 until 1776, the thirteen original American colonies had been governed through an essentially vertical federal judicial umpiring system with the King-​in-​Council at the top of the pyramid as the umpire. The King-​in-​Council vetoed colonial laws on occasion; it appointed and removed all colonial governors after 1684; and, critically for this article, the Privy Council was on some occasions the highest court of appeal from which cases could be heard and decided even if they originated in the thirteen colonies. The First British Empire thus maintained what Professors Friedman and Delaney call a system of vertical judicial federalism in which an imperial court, sitting in London, could in theory finally decide any case brought to it from the colonies to rein those colonies in. It was the eventual violation of the contractual arrangements between the thirteen North American colonies and the United Kingdom that triggered the American Revolution. The United Kingdom was squarely to blame for this state of affairs, as the Massachusetts example cited earlier shows. As early as between 1650 and 1673, Parliament had enacted the navigation acts establishing an English monopoly over colonial trade. The acts were very difficult to enforce in the thirteen North American colonies where the colonists thought they were an illegitimate assertion of parliamentary power over the colonies. The British

72  The History and Growth of Judicial Review, Volume 1 increasingly turned to Admiralty Courts where a British judge without a jury could find guilt. The colonists thought this deprived them of their rights as Englishmen.94 The American Revolution was foreshadowed by the burning of the Royal Navy’s ship, The Gaspee, by Rhode Islanders on June 9, 1772, and in particular by John Brown, the founder, in his later years, of Brown University. This event is well described by Charles Rappleye, Sons of Providence: The Brown Brothers, the Slave Trade, and the American Revolution.95 The Gaspee was a revenue-​collecting ship that chased several of John Brown’s ships up through Narragansett Bay. John Brown’s ships had centerboards and not keels, and so they deliberately sailed over a three-​foot shallow sandbar, and The Gaspee, which had a keel, went aground. After night fell, John Brown led ninety men in three long boats down to The Gaspee from Providence, John Brown himself shot the captain of The Gaspee in the stomach (he survived), and John Brown’s men then burned The Gaspee to the ground. John Brown thus was the first American to fire a shot in the Revolutionary War on June 9, 1772, well before the battles of Lexington and Concord on April 19, 1775. King George III was hopping mad about the burning of his revenue cutter The Gaspee by Rhode Island colonists, and he named an inter-​colonial investigative tribunal to sit in Newport, Rhode Island to apprehend the traitors, and to bring them to London to be tried before a London jury for treason and drawn and quartered. Amazingly, after sitting for months hearing testimony, the king’s commission could find no one at all anywhere in Rhode Island who knew anything about the matter in hand! Colonial Whigs were opposed to any American being tried in London before a British rather than an American jury, and so a committee of correspondence was set up among the thirteen colonies to oppose that move. On December 16, 1773, a year and one-​half after The Gaspee affair, Bostonians conducted the Boston Tea Party, throwing all of the tea on British ships in Boston Harbor into Boston Harbor to protest a 1773 British tax imposed on the American colonists for the buying of tea. The Americans believed quite rightly that they could only be taxed by their royal Governor-​in-​Council with their colonial legislature, but the British Parliament stubbornly clung to its position that it had a power to tax directly the American colonies—​a power it might be added that the British Parliament had never exercised since the founding of Jamestown in 1607 except by adopting the Navigation Acts, which the American colonists thought were illegitimate.

94 Greene, supra note 25, at xiv. 95 Charles Rappleye, Sons of Providence: The Brown Brothers, the Slave Trade, and the American Revolution (2007).

The Privy Council  73 As it happened, in 1773 and 1774, Benjamin Franklin was in London, England, “as commissioner for the Colonies of Massachusetts and Pennsylvania, and also New Jersey and Georgia.”96 Franklin learned of several letters written by Massachusetts Governor Hutchinson and Lieutenant Governor Oliver “calling for suppressive measures, and advising actions detrimental to the interests of the Massachusetts Colony”. Franklin asked to appear before the Privy Council to denounce these letters and to ask the Privy Council to remove Hutchinson and Oliver, saying these two officials were offering very bad advice and were poisoning British colonial relations. Franklin was accompanied at his side in appearing before the Privy Council by his friends “Edmund Burke, Dr. Priestly; and Jeremy Bentham”97 as well as by other friends also. Franklin still hoped to reconcile Britain and the colonies, and indeed his oldest son was at the time the royal governor of New Jersey who supported the British throughout the American Revolution and with whom Benjamin Franklin severed all ties. Franklin was seventy years old when he appeared before the Privy Council to ask it to remove the royal governor and lieutenant governor of Massachusetts because their policies were needlessly leading to war. To Franklin’s great misfortune, the news of the Boston Tea Party reached London on December 29, 1773, poisoning British sentiment toward the Americans. “Franklin was first greeted by a speech by a Lord who made repeated ad hominem attacks on Franklin’s reputation. During Franklin’s own speech, the Lords of the Privy Council openly laughed at him on repeated, occasions.”98 “The Lords the next day removed Franklin from his office as the head of the British American post office—​an entity that yielded no revenue until Franklin had set it up and that yielded no revenue once he was fired.”99 “The King was obstinate, had no one near him to explain the true state of things in America, and admitted no misgivings for not having sooner enforced the claims of authority.”100 Franklin left London in a rage against the humiliations he had received in his appearance before the Privy Council, and he was set on a course that independence for the colonies was indispensable. The umpire of the First British Empire had made a fatal mistake. The British exploded with anger at the Boston Tea Party of December 16, 1773, and they closed the Port of Boston to commerce, while stationing a large body of British troops in Boston from 1774 onward. The thirteen colonies denounced the 96 Franklin Before the Privy Council, Whitehall Chappel—​London, 1774 iii (Reprinted by Applewood’s American Revolutionary War Series) (1860). 97 Id. at iv. 98 Id. at 9. 99 Id. at 11. 100 Id. at 12.

74  The History and Growth of Judicial Review, Volume 1 new British statutes, and called them the Intolerable Acts. The thirteen colonies held their first session of the First Continental Congress, in September 1774, to give voice to their opposition to British action closing the Port of Boston and taxing tea. In late 1774, Massachusetts organized a new revolutionary government and began stockpiling weapons and coordinating their actions militarily. On April 19, 1775, the British dispatched an armed force from Boston to seize the Massachusetts armaments collection, which was rumored to be in Concord, Massachusetts. The Red Coats, as the British army was called for wearing their red uniforms in the Revolutionary War, were slaughtered in the Massachusetts countryside outside of Concord and Lexington as Massachusetts farmers, dressed in drab clothes, fired upon them from behind every tree and stone wall all the way back from Concord to their retreat back into Boston. The British suffered a number of casualties including 73 British soldiers killed; 174 wounded; and 26 who were missing. By the very next morning, Boston was surrounded by an army of fifteen thousand American soldiers, which kept on growing in size. The Continental Congress sent General George Washington to Boston to take charge of the American soldiers there, and by March 17, 1776, the British were forced to evacuate Boston. On July 4, 1776, the Declaration of Independence was ratified and announced, and the King-​in-​Council would never again sit on an American case.

IV.  Gordon Wood: The Emergence of Horizontal and Enumerated Powers Judicial Review between 1776 and 1787 The revolutionary year of 1776 represents a great triumph of local over imperial power and of legislative over executive and judicial power. The Dystopia of 1776 was an all-​powerful imperial government run by a tyrannical King George III, his governors, and judges who were lackeys of the executive branch and lacked tenure during good behavior. The American people everywhere associated their state legislatures with liberty and their royal governors and toothless courts with tyranny. The American people in 1776 wanted to have the weakest chief executive officers possible and the least powerful national government possible, and they got their wish. Governors were almost always limited to one-​year terms, elected by the state legislature, and shorn of their appointment and pardon powers. And new state constitutions were drawn up between 1776 and 1787, in eleven of the thirteen states, accomplishing all of these goals. A majority of those states adopted written declarations of rights, committing to writing, the natural law and common law principles that had never before been written down in human history.

The Privy Council  75 The thirteen United States had a low opinion of judges in 1776 because colonial judges had been removable at pleasure by the Governor-​in-​Council, while British Admiralty Courts denied the right to jury trial, and the judges on these courts were Englishmen. The colonists thought that what they needed was a court system like Britain’s own court system where judges had life tenure during good behavior. Between 1776 and 1787, most of the thirteen states developed independent judiciaries for the first time in their history. This story is well told by Scott Douglas Gerber in A Distinct Judicial Power: The Origins of the Independent Judiciary, 1606–​1787.101. Gerber establishes with great care the emergence of independent courts in each of the thirteen original states. As the 1770s turned into the 1780s, things begin to look very different to most Americans. It became clear to people everywhere that state legislatures had become too powerful and that executive and the newly-​created judicial officials needed to be strengthened to check and counterbalance the all-​powerful legislatures, which they had created in 1776. In addition, the government under the Articles of Confederation became widely recognized as being what I would call today “a failed nation state.” Congress was bankrupt. The Union Army consisted of six hundred men in Pennsylvania. No armed forces existed, which could have protected us from reconquest by the British. The Dystopia of 1787 was the Village Tyrant and the “Failed Nation State.” Public opinion had shifted sharply from where it had been in 1776, as is pointed out in Charles C. Thach Jr., The Creation of the Presidency, 1775–​1789.102 Thach’s magisterial book, which is well known to presidential power scholars, describes how the revulsion against state legislative mismanagement between 1776 and 1787 led to a 180 degree change in the public mood with respect to the allocation of legislative and executive power. To be sure, the Philadelphia Constitutional Convention had its Old Turks, like Benjamin Franklin, who still liked legislative and local power, but they were drowned out by the Young Turks, like James Madison and Alexander Hamilton, and James Wilson who wanted a much stronger executive branch and national government in 1787 than they had had before, and they got what they wanted. Professor Gordon Wood in his article “The Origins of Judicial Review Revisited, or How the Supreme Court Made More Out of Less”; and in his book chapter “Judicial Review in the Era of the Founding” describes precisely the same factors as working to enhance judicial power, and to create horizontal judicial review, as were at work in creating the national government and the presidency.103 101 Scott Douglas Gerber, A Distinct Judicial Power: The Origins of the Independent Judiciary, 1606–​1787 (2011). 102 Charles C. Thach Jr., The Creation of the Presidency, 1775–​1789 (2010). 103 Gordon Wood, The Origins of Judicial Review Revisited, or How the Supreme Court Made More Out of Less, Wash. & Lee L. R. 56 (1999); and Judicial Review in the Era of the Founding, in Is the Supreme Court the Guardian of the Constitution? (Robert A Licht, ed., 1993).

76  The History and Growth of Judicial Review, Volume 1 The people could see with their own eyes that their legislatures were passing unconstitutional laws. They felt better represented in the courts than they did in their state legislatures. They wanted their Fundamental Declarations of Rights to be followed even if doing so meant striking down an act of a state legislature using the power of judicial review. In short, for the first time in human history, the people wanted not just the federalism vertical judicial review of the Privy Council, which was like the national veto on errant state laws that James Madison had quixotically campaigned for at the Philadelphia Constitutional Convention. They wanted actual horizontal and enumerated power judicial enforcement of state and federal constitutions against their state legislatures and governors. Professor Gordon Wood summed this up quite perfectly in a discussion over lunch on January 17, 2020 after which he directed me to an unpublished manuscript of his in which he explains that: The written constitutions of 1776–​77, however, gave revolutionary Americans a handle with which to grasp this otherwise insubstantial fundamental law. Suddenly the fundamental law and the first principles that Englishmen had referred to for generations had a degree of explicitness and reality that they never before quite had. The constitution in America, said James Iredell of North Carolina, was not therefore “a mere imaginary thing, about which ten thousand different opinions may be formed, but a written document to which all may have recourse, and to which, therefore, the judges cannot witfully blind themselves. But were the judges to have an exclusive authority to determine what was constitutional and what was not? All Americans agreed that the written constitution, as Edmund Pendleton of Virginia conceded in 1782, ‘must be considered as a rule obligatory upon every department, not to be departed from on any occasion.’ It was not immediately evident to Pendleton or to others, however, that the judiciary had any special or unique power to invoke this obligatory rule in order to limit the other departments of the government, particularly the legislatures. In other words, it was clear by the 1780s that legislatures in America were bound by explicitly written constitutions in ways that the English Parliament was not.”104

Prior to 1776, horizontal enumerated powers judicial review was unthinkable because sovereignty lay in the King-​in-​Parliament, as Blackstone had said. An 104 Gordon Wood, unpublished manuscript entitled “Chapter 5 on the Origins of Judicial Review in the U.S.,” which Professor Wood e-​mailed to Professor Calabresi in January 2020. All rights to the language quoted above belong to Professor Gordon S. Wood.

The Privy Council  77 English or colonial judge could no more review an Act of the King-​in-​Parliament for constitutionality than could a modern American judge review a constitutional amendment for constitutionality. But, once “We the People of the United States *** ordained and enacted this Constitution,” a judge could perfectly well hold that a presidential order or an Act of Congress was unconstitutional for the reasons Alexander Hamilton so eloquently described in The Federalist No. 78. In fact, the U.S. Supreme Court did both of these things in the 1790s. In the Correspondence of the Justices, the Supreme Court refused to issue an advisory opinion sought by President George Washington and Secretary of State Thomas Jefferson saying the request was unconstitutional. And, in Hayburn’s Case, 2 U.S. 409 (1792), the justices of the Supreme Court said that Congress could not force them to decide cases where the outcomes could be altered by actions taken by cabinet secretaries. This, too, was a constitutional ruling, which predated Chief Justice John Marshall’s opinion in Marbury v. Madison by eleven years. As Professor Wood described it to me in conversation, the achievement of Alexander Hamilton in The Federalist No. 78 or of Chief Justice John Marshall in Marbury v. Madison, 5 U.S. 137 (1803), was that they took constitutional language down off its pedestal, and set it next to statutory language to see if they were consistent or not consistent. They persuaded Americans between 1776 and 1803 that not all constitutional clauses present political questions that courts are not fit to decide. They persuaded the people that in some important ways they were better represented by judges than by state legislators or executives. As a result, Marshall happily goes on in page after page of dicta in Marbury v.  Madison explaining that:  (1) Marbury has a legal right to his commission; (2) that he has standing to sue to get it in court; (3) that such a case would not involve the courts in deciding political questions; (4) that Marbury’s lawsuit is not barred by the political question doctrine; but that (5) sadly Marbury is out of luck because the particular court he foolishly chose to sue in did not have jurisdiction over Marbury’s case. Professor Wood is, I  think, completely right that horizontal separation of powers judicial review and enumerated powers of the federal government judicial review first became imaginable during the period between 1776 and 1787 in the United States of America when the fear of the Imperial, Executive Dystopia is replaced with a fear of the Village Tyrant and the Failed Nation-​State Dystopia. The fact that the Anti-​Federalists did not disagree with Hamilton’s The Federalist No. 78, and that they indeed feared a tyrannical federal judiciary, as is indicated by Brutus’s Essay 11, shows that by 1787 all Americans thought that popular sovereignty, as opposed to sovereignty by the King-​in-​Parliament, would naturally lead to judicial review of the constitutionality of congressional, presidential, and state actions and laws.

78  The History and Growth of Judicial Review, Volume 1 I thus disagree with Professor Bilder’s claim that she has discovered the origins of U.S. judicial review as we know it today in the decisions of the King-​ in-​Council from 1607 to 1776. I do think Professor Bilder is right that the conditioning of judges from 1607 to 1776 to vertical federalism judicial umpiring that reined in errant colonies facilitated the leap over into horizontal judicial review in enumerated powers and separation of powers cases. Judges are creatures of habit, and if they get in the habit of engaging in vertical federalism judicial umpiring to rein in federal subunits, I think that increases the chance they will engage in the highly desirable practice of engaging in horizontal federalism umpiring in separation of powers and enumerated congressional powers cases. Nonetheless, it is Professor Wood and not Professor Bilder who most accurately describes the origin of what I think of today as being the U.S. system of judicial review, which includes judicial enforcement of the separation of powers and of the limited and enumerated powers of the federal government. Professor Bilder correctly notes that once the American Revolution overthrew the Transatlantic Constitution, in 1776, state legislation, which had once been judged for repugnancy by the Privy Council, came to be judged by state supreme courts for repugnancy to state constitutions. Hence both Professor Bilder and Professor Wood can help explain the smattering of state-​level Marbury v. Madison cases from 1776 to 1803 to which Professors William Trainer, Maeva Marcus, Philip Hamburger, and Scott Douglas Gerber have all quite rightly paid so much attention to. The reason judicial review began in the state supreme courts in the 1770s, 1780s, and 1790s, prior to Marbury v. Madison, is because: (1) the post-​1776 state constitutions made the state judiciaries independent of the legislature and gave them long tenures of service; (2) because most states after 1776 adopted constitutional Declarations of Rights as well as state constitutions; (3) because the state supreme courts were thoroughly used to judging state statutes for repugnancy with the laws of England, (4) because Americans’ opinions of judges changed radically between 1776 and 1787, as is argued by Professor Gordon Wood; and (5) because, during the colonial period, sovereignty had rested with the King-​in-​ Parliament with the colonial assemblies whereas after 1776, the people of each of the thirteen states were sovereign. No judge could invalidate an act of such a sovereign entity as the King-​in-​ Parliament on constitutional grounds anymore than a judge today could hold a constitutional amendment unconstitutional. But, after American independence, in 1776, the people of the thirteen states each became sovereign in their own right, and it was the people of those states who adopted State Declarations of Rights. If the legislature of a state violated the sovereign people’s constitution, or the sovereign people’s Declaration of Rights, a state court could rule for the Constitution and the people, and against the state legislature. It was this change

The Privy Council  79 in the locus of sovereignty from the King-​in-​Parliament to We the People of each of the thirteen states that allowed for judicial review. Of course, it must be stressed, as Professor Bilder does, that Privy Council vertical judicial umpiring review of the legality of state laws, and colonial Supreme Court review of the repugnancy of colonial state laws, preconditioned those courts to engage in constitutional judicial review of legislation. Bilder adds powerfully that the federal government, post-​1787, began to judge state laws for repugnance or divergence, thus reviving the Transatlantic Constitution among the thirteen colonies, which had by now become states. James Madison, at the Philadelphia Constitutional Convention, had fought for a federal veto by Congress of state laws, and he lost. Madison’s federal veto would have formally restored the status quo before 1776 under which the King-​ in-​Council had a veto of state laws. Nonetheless, the Constitution contained a Supremacy Clause making federal law supreme over state law just as imperial English law had been supreme over colonial law. The U.S. Supreme Court thus picked up where the Privy Council left off, and from 1790 to 2020, most of the judicial review the U.S. Supreme Court has engaged in has involved correcting errant state laws.105 Again, it was the tradition of British and colonial review of the repugnancy of state legislation and cases to the laws of “this our realm of England,” which had preconditioned the Supreme Court to pick up where the Privy Council itself had left off. That being said the pre–​Civil War Supreme Court was much more than a vertical federalism judicial umpire reining in the states. The court also decided important separation of powers and enumerated powers case during the first century of its existence, as I will show in the next Chapter. It should be noted that both Alexander Hamilton and Chief Justice John Marshall mention the shift in the locus of sovereignty from the King-​in-​ Parliament to “We the People of the United States” as being the key reason why horizontal as well as vertical federal judicial review came into being. In Marbury v.  Madison, Chief Justice John Marshall himself concluded that the question of whether the law in question was or was not constitutional depended on whether it was “repugnant” to the Constitution echoing the language of the King-​in-​Council: The question, whether an act repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but happily, not of an intricacy proportioned to its interest.



105

Bilder, supra note 6, at 191–​94.

80  The History and Growth of Judicial Review, Volume 1 Bilder then added that this “question was not hard if one followed the pattern of keeping the idea of repugnancy and substituting the written U.S. Constitution for the laws of England.”106

Professor Bilder thus shows a link between the language of Marbury v. Madison and the federalism judicial review for repugnancy and divergence conducted by the Privy Council in the First British Empire. But as Gordon Wood argues, the Marbury v. Madison-​style of judicial review is greater by many orders of magnitude than was judicial review of the thirteen North American colonies by the King-​in-​Council. Professor Philip Hamburger, writing four years after Bilder, confirms her account while discussing many additional English and American cases. Professor Hamburger notes that while there was no judicial review of Acts of Parliament in England itself, colonial judges and the Privy Council were not similarly constrained with respect to acts of the American colonies.107 When one examines decisions about other legislative acts, however, including corporate by-​laws and, here, colonial statutes it becomes evident that American legislation has always been subject to judicial decisions holding it unlawful. In practice colonial judges or members of the Privy Council were willing to hold colonial statutes unlawful, but at least in the ideals of the common law this was often their duty. Indeed, the reluctance of some judges to do in practice what was required of them by their ideals actually confirms the importance of the ideals for it suggests how much it was their common ideals rather than the colonial practice that would matter for American judges after 1776.108

Professor Hamburger complains that although the Privy councilors had the power and duty to hold colonial laws unconstitutional, unlike Acts of Parliament, both Privy councilors and colonial judges “were sensitive to imperial responsibilities on one side of the Atlantic and to colonial resentments on the other, and under the weight of these considerations, they often hesitated to do their duty when it required them to condemn American statutes.”109 Professor Hamburger describes the Privy Council prior to 1776: as a judicial court to hear appeals from colonial courts, but it also oversaw the Empire, and the pressures of this administrative task distorted its performance



106

Id. at 194–​95 (emphasis added). Philip Hamburger, Law and Judicial Duty (2008). 108 Id. at 235–​36. 109 Id. at 255. 107

The Privy Council  81 of its judicial role. The Council needed to avoid antagonizing the colonies, and therefore rather than hold unlawful colonial legislation void, it more typically went out of its way to prevent such cases from arising.110

Toward the end of the period of British rule over the United States and later Canada, Australia, and India, the British maintenance of Privy Council vertical federalism umpiring did have an element to it of what Professor Ran Hirschl rightly calls the entrenchment of a fading hegemonic elite. At the beginning of the settling of North America, Privy Council review had an element to it of entrenching the views of a conquering and settling hegemonic elite. The British stalled the Canadians and the Australians on abolishing appeals from their highest courts to the JCPC in part to retain some control over an empire that was rapidly becoming independent. Privy Council judicial review was initially created for vertical federalism umpiring reasons to rein in colonies, but it did persist into the twentieth century in Canada, Australia, and India in part for fading hegemonic elite preservation reasons, as Ran Hirschl argues. This just shows how complex and multifaceted the origins and growth of judicial review really are. The English legacy for the United States (and for the rest of the British Empire in Canada, Australia, and India) was thus one in which there was an imperial veto over colonial laws and in which there was vertical, federalism imperial judicial review in theory, although not very often in practice, of cases that originated in the thirteen American colonies. This was done for federalism umpiring reasons. The Privy Council exercised this role, and, at different times, the Lords of Trade and the Board of Trade, both of which were subordinate entities within the Privy Council as a whole performed this role. The Kingdom of Great Britain and Ireland ruled the thirteen North American colonies, as well as their other American colonies, through the Lords of the Privy Council.

V.  The Privy Council from 1783 to 1833 As I will show later when I discuss the constitutional history of Canada, Australia, India, South Africa, and Israel in the Second British Empire, after 1833, judicial review originated in these countries as a British practice that was enforced by the JCPC, which was a centrally chosen federalism umpire between the imperial, the national, and the provincial or state governments wherever the British Empire prevailed. The JCPC from 1833 on replaced the role played for the thirteen North



110

Id. at 261–​62 (emphasis added).

82  The History and Growth of Judicial Review, Volume 1 American colonies by the institution of the King-​in-​Council and by the Board of Trade as a committee of the Privy Council. Britain did not have judicial review by judges in Britain of the constitutionality of Acts of the Imperial Parliament, but it nonetheless had an extensive system of vertical federalism judicial review for its empire for umpiring and elite hegemonic control reasons. The British legacy therefore in the United States, in India, in Canada, in Australia, in South Africa, and in Israel is one of Privy Council federalism, judicial umpiring by eliminating laws repugnant to the law of England and not justified by local conditions. The Privy Council functioned in essence as a federalism judicial umpire. It is not an accident that such former British colonies as the United States, Canada, Australia, and India all have judicial review themselves, especially in vertical federalism cases. These countries inherited that idea from the British, themselves, even though it was not until the 1990s that Britain itself obtained a measure of horizontal judicial review by the courts of the constitutionality of Acts of Parliament. After American independence was achieved in 1783, the institution of the King-​in-​Council, aka the Privy Council, continued to play a role in English foreign policy. For example, in 1807, the Orders in Council of that year were in essence royal executive orders unsupported by Acts of Parliament that forbade commerce with Napoleonic France. The Orders in Council strained relations between the United States and Britain during this period and helped to lead to the War of 1812.

VI.  Reform of the Privy Council Between the fall of Napoleon and 1833, the King’s Privy Council continued to issue arbitrary and somewhat random orders to British colonies due to the ad hoc nature of the Privy Council, which was staffed in a desultory fashion by non-​ lawyers and royal favorites of limited ability. Professor Langbein says that the Privy Council “retained jurisdiction over certain legal disputes arising in the colonies of the Second British Empire, providing—​at least in principle—​a means by which colonial law might be checked or harmonized. Although the Privy Council ‘accepted appeals from the colonies, it imposed significant restrictions on what it was willing to hear.’ . . . [Its] decisions had an ad hoc quality that undermined their cumulative effect and limited their ability to reshape colonial law by providing an accessible account of metropolitan expectations.”111 111 John H. Langbein et al., History of the Common Law: The Development of Anglo-​ American Legal Institutions (2ND ed. 2009), at 878–​79.

The Privy Council  83 The Privy Council prior to 1833 was something of a mess of a situation, which however, changed completely as the result of the work of the Scottish-​born barrister Henry Brougham (1778–​1868) who became a tireless advocate of Privy Council reform. Henry Brougham told the House of Commons as early as 1828 that the Privy Council badly needed to be reformed due to the variety of legal systems in the colonies. Only one member of the Privy Council prior to 1833 knew anything about even the civil law, from 1801 to 1817, much less than about Mohammedan law or Hindu law. The quality and level of knowledge of the other Privy councilors was appallingly low. A majority of the Privy Council members were not even lawyers. Nonetheless, the Old Appeals Committee of the Privy Council had a huge jurisdiction. It was thus quite problematic for the old Privy Council to be such a mess of a court. The Judicial Committee of the Privy Council Act of Parliament of 1833 accomplished all of Lord Brougham’s goals. The entire accumulated judicial jurisdiction of the King-​in-​Council was transferred to the new JCPC and only first-​rate barrister Law Lords were allowed to sit on the Judicial Committee as judges. The monarch was allowed to request advisory opinions from the Judicial Committee, but the monarch was rendered a cipher who was always bound to follow the Judicial Committee’s advice as to the disposition of any case. Only majority opinions, with no concurrences and dissents were allowed, but the monarch’s signature of a JCPC decision was constitutionally justified because it was an exercise of the royal power of the Curia Regis to decide judicial cases, which power Parliament had banned only domestically in England and Wales by the Act of 1641 abolishing the Court of Star Chamber. The monarch was obligated to sign without making any changes all opinions of the JCPC under The Privy Council Reform Act, 1833. The monarch was thus reduced to having only a ceremonial role. The constitutional authority of the JCPC was the royal prerogative, which ran to its fullest extent in the Channel Islands, the Island of Man, and in all of Britain’s other overseas holdings. The number of highly talented judges was greatly increased by Lord Brougham’s legislation in 1833, and the backlog in the disposition of cases was greatly reduced.112 Expert judges were added to the Judicial Committee to decide cases from civil law, Hindu, and Islamic colonies as well as from common law colonies. Retired colonial judges of great distinction often sat as members of the Judicial Committee. “Brougham was primarily motivated by a desire to reform the judiciary, and he paid scant regard to the effect the new arrangements might have upon imperial relationships.”113



112 Swinfen, supra note 29, at 6–8. 113

Id. at 8.

84  The History and Growth of Judicial Review, Volume 1 It should be noted that Lord Brougham was not only a prime mover of the Judicial Committee of the Privy Council Act, 1833; but he was also a prime mover behind the Electoral Reform Act, 1832, which expanded the franchise and eliminated parliamentary rotten boroughs, and he was a prime mover behind the Slavery Abolition Act, 1833, which eliminated slavery throughout the British Empire. Lord Brougham was a giant and a man who was light years ahead of his time. Unfortunately, the United Kingdom has rarely had Lords Chancellors with Brougham’s principles and talent for politics. From 1833 on, the JCPC functioned as an occasional federalism umpire throughout the Second British Empire deciding thousands of cases and instilling in each colony a history of vertical federalism umpiring judicial review. Canada and India did not eliminate JCPC judicial review until after World War II, and Privy Council review of Australian state court opinions continued until 1986. All of the four countries that Professor Hirschl identifies in his book Towards Juristocracy as having adopted fading elite hegemonic-​promoting judicial review were at one time or another British colonies or mandates under the thumb of the Privy Council to wit: Canada, South Africa, New Zealand, and Israel. Even the thirteen colonies of the United States may have stumbled their way into vertical federal judicial umpiring review because of a memory of the role once played in a few cases reviewing actions of the then-​U.S. colonies by the unreformed Privy Council. P.A. Howell claims that for the years between 1833 and 1876, “the Judicial Committee was a far better court than the House of Lords [which was the highest court in the land for cases arising within the United Kingdom itself].”114 He also explains that “the [Monarch’s or Sovereign’s] role in promulgating the Judicial Committee’s findings on appeals is simply a matter of form, and that it must always be exercised perfunctorily.”115 Just as the Old Appeals Committee of the Privy Council conducted judicial review of cases coming from the thirteen North American colonies, thus giving rise to a form of vertical federalism umpiring judicial review, so too did the JCPC adjudicate cases settling the scope of national and provincial power in Canada under the British North America Act of 1867 as well as resolving separation of powers disputes. It also adjudicated Australian federalism and separation of judicial powers boundaries under the Australia Constitution Act of 1901; and it performed a similar federalism umpiring review of the vertical constitutionality of colonial legislation in British India, which included what are now the independent countries of India, Pakistan, Bangladesh, and Myanmar, and in South Africa, in East and West Africa,116 and in Palestine.117

114

Howell, supra note 1, at 220. Id. at 222. 116 Bonny Ibhawoh, Imperial Justice: Africans in Empire’s Court (2013). 117 Assaf Likhovski, Law and Identity in Mandate Palestine (2006). 115

The Privy Council  85 Lord Brougham recognized “that no matter how thoroughly the Privy Council’s appellate tribunal was reformed, it would always be far from perfect, because of the communications difficulties, because of the great variety of the Empire’s legal systems, and because many problems arising overseas were foreign to the Englishman’s experience.”118 By the 1870s, however, even some individuals in Canada began to challenge judicial review by the Privy Council, and Canada was joined in this much more forcefully by Australia, in 1901; by South Africa, in 1909; by the Irish Free State, in the 1920s; and by India, after the country obtained its independence in 1947. It should be noted that in any given year, India produced the lion’s share of the Judicial Committee’s caseload. It retained retired Indian colonial judges and barristers to decide tens of thousands of questions of Islamic or Hindu law. See A. Berriedale Keith, A Constitutional History of India: 1600–1935 (1936). Some complained, however, that only the rich could afford an appeal to the JCPC.119 But, the most foundational colonial objection to JCPC judicial review of rulings by, for example, the Supreme Court of Canada, or the High Court of Australia was that no matter how high the quality of JCPC judges was, they could not possibly know as much about, for example, Canada and Australia, as the Canadian and Australian courts did.120 For example, Canadian appeals were handled for a period of almost fifty years by Lord Watson and then by Lord Haldane. Neither had ever set foot in Canada, and they read the British North America Act 1867 in an implausibly pro-​provincial power way. This infuriated Canadian nationalists, especially in the late 1930s when the JCPC struck down the Canadian New Deal on federalism grounds. It is no wonder that in 1949, after World War II was safely over, Canada ended all appeals to the Privy Council. Ultimately, difficulties of this sort led the overwhelming majority of colonial jurisdictions over which the JCPC had jurisdiction over in the nineteenth century to seek independence and the end of Judicial Committee review in the twentieth century. In the Balfour Declaration of 1926, the British Imperial government announced a new policy that allowed the Dominions to end appeals to the Privy Council if they wanted to do so. This policy was codified in the Statute of Westminster 1931. But, from 1833 until the Statute of Westminster 1931 made the Dominions independent by repealing the Colonial Laws Validity Act, which had asserted the supremacy of British imperial law in the Dominions, the JCPC provided first-​rate legal appellate review of the legality of actions arising throughout the Second British Empire.

118

Howell, supra note 1, at 232. Swinfen, supra note 29, at 9. 120 Swinfen, supra note 29, at 11. 119

86  The History and Growth of Judicial Review, Volume 1 Colonial reformers were able eventually to free themselves of Privy Council review, although that process took quite a long time after Britain authorized it in 1926 and in 1931. Privy Council jurisdiction to hear appeals from the Irish Free State did not end until 1933; Privy Council jurisdiction to hear appeals from the Supreme Court of Canada did not end until 1949; Privy Council Jurisdiction to hear appeals from the highest court in India did not end until January 1950; Privy Council appeals in South Africa did not end until 1950 when the white, racist Afrikaner Party came to power; Privy Council jurisdiction to hear appeals from the highest courts of the States of Australia did not end until 1986; and Privy Council jurisdiction to hear appeals from New Zealand did not end until 2004! In each of these nations, there emerged a growing popular movement to end appeals from their courts to the JCPC, which demands eventually resulted in the ending of such appeals.121 Throughout this process, the British position was that JCPC judicial review of Dominion laws was in the United Kingdom’s view desirable, but that ultimately it was up to the Dominions themselves to decide whether to keep or get rid of JCPC judicial review.122 Even today, the JCPC has jurisdiction to hear appeals from thirty-​two jurisdictions including thirteen independent nations, as I mentioned above. The Privy Council was quite simply the British Empire’s Supreme Court for eight centuries, and it was very, very active both in the thirteen North American colonies from 1607 to 1776 and, after 1833, throughout the Second British Empire from 1783 until 1950. The English constitutional root of its power came from the royal prerogative to decide judicial cases, which has never been abolished outside of England and Wales.

VII.  The Decline of the Privy Council: 1875–​1986 This section provides more information on the ending of Privy Council Review in various nations. I draw here on the superb scholarship of David B. Swinfen, Imperial Appeal: The Debate on the Appeal to the Privy Council, 1833–​1986.123. Notwithstanding the very talented British judges who served on the JCPC after 1833, there were huge, irreparable problems with the Privy Council as an institution. Although an effort was made to include British experts on the Judicial Committee with some knowledge of the civil law tradition, of Hindu law, and of Islamic law, the JCPC sometimes had only the most limited knowledge of the

121

Swinfen, supra note 29. Id. at 2. 123 Id. 122

The Privy Council  87 jurisdictions over which they presided. There were never enough colonial judges to make all the Dominions feel fully represented. As Swinfen explains, Australians took no comfort, for example, from the idea than an Indian judge might hear an Australian appeal. Moreover, Privy councilors almost never traveled even once to the nations whose cases they heard, and they knew about some of those nations mostly from books and articles as well as briefs and oral arguments. This obviously caused them to make even embarrassing mistakes in their opinions. The colonists were also outraged that England and Wales had the Law Lords as their Supreme Court, while the Dominions’ appeals were fobbed off on the JCPC. If the JCPC was as good as British imperial officials asserted it was, why was it not also the highest court in England and Wales? Today, in 2020, the membership of the Supreme Court of the United Kingddom and of the JCPC are identical, although the two courts sit in different chambers. The concern of the colonists was finally addressed. Swinfen also points out that the Privy Council interpreted the Dominion Constitutions, which it oversaw only in a very literal formalistic way, and often in a way that advanced British interests rather than the true interests of the colonies. In Canada, the Privy Council read the British North America Act 1867 in a way that greatly amplified provincial power and that weakened Canadian national power. This may have appeased Quebec, but it also rendered Canada less of a power relative to the British Imperial government. As a result, Privy Council rule ultimately became unacceptable to all of Britain’s Dominions, and it was therefore ultimately abolished in all but a handful of small island countries. It came to be seen not as a necessary vertical federalism umpire but as an effort by the British at fading elite hegemonic domination over their now independent Second Empire. Swinfen explains that ultimately, appeals from the Dominions to the Privy Council, came to be resented “as a symbol of an outdated imperialism and dominion inferiority.”124 This process happened over a very long period of time as I shall show in later chapters and as Swinfen’s book shows. In Canada, the oldest of the Dominions, there was debate about dropping appeals to the Privy Council when the Supreme Court of Canada was created in 1875. The idea was dropped and did not resurface until the decision in Nadan v. The King, in 1926, a case in which the Privy Council held unconstitutional an effort by Canada’s Parliament to end appeals to the Privy Council in criminal cases, only, prior to 1926. Swinfen notes that in Australia, the second oldest of the Dominions, the Australians resisted the idea of Privy Council judicial review when their Dominion Constitution was enacted by the Imperial Parliament, in 1901, and



124

Id. at 17.

88  The History and Growth of Judicial Review, Volume 1 Australians won a partial victory in curtailing JCPC judicial review significantly more than Canada had been able to do. Swinfen also observes that when South Africa became a Dominion in 1909, the Privy Council assured it that the JCPC would almost never hear South African cases because the country was a unitary nation-​state and not a federation like Canada and Australia, which nations required a federalism umpire. By the 1920s and 1930s, however, Privy Council review of the decisions of the highest courts of the Dominion States came under a truly strained attack. Swinfen argues that the strongest pressure came, initially, from the Irish Free State.125 The first article of the peace treaty between the United Kingdom and Ireland had made Ireland a Dominion like Canada, Australia, South Africa, and India, while the second article made clear that Ireland’s highest court would be subject to JCPC judicial review in the same searching fashion as was the case with the Supreme Court of Canada. No sooner was the ink dry on this treaty than the Irish began having regrets and second thoughts. They bitterly resented Privy Council review and demanded the same lax treatment as South Africa got from the council, claiming that Ireland was a nation-​state and not a federation just like South Africa.126 Lord Haldane observed that: In the case of South Africa, which is a unitary state, the practice has become very strict. I are not disposed to advise the Sovereign unless there is some very exceptional question, such as the magnitude of the question of law involved, or it is a question of public interest in the Dominion to give leave to appeal.127

In the later years of the 1920s, the Irish Free State actually argued it should have its own special Commonwealth court in place of the JCPC. The JCPC, in turn, worsened the relationship by the way in which it handled Irish appeals. In part because of the agitation by the Irish Free State and in part because of growing nationalism post–​World War I in Canada and Australia, an Imperial Conference of 1926 was held in London, England, and was presided over by King George V, Emperor of India. The most noteworthy developments to come out of this seventh Imperial Conference was the Balfour Declaration of 1926, which provided that the Dominions were: autonomous Communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs,



125

Id. at 88. Id. at 94. 127 Id. at 95. 126

The Privy Council  89 though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.

This declaration took a long step toward the disintegration of the British Empire, as each of the various Dominions went on to claim status as independent nations—​some with Queen Elizabeth II as head of state and some without. Suffice it to say that all the Dominions of the British Empire that were Dominions in 1926, both monarchies and republics, remain as members of the British Commonwealth of Nations today, in 2020, except for the Irish Free State.128 Wrangling between the Irish Free State and the United Kingdom consumed all of the discussion at the Imperial Conference of 1930, while the Canadians remained mad at the JCPC for its 1926 holding in Nadan v. The King that the Canadian Parliament could not legally end appeals to the Privy Council from Canada in criminal cases. Finally, the much-​weakened British government simply surrendered. In the Statute of Westminster, 1931, the Imperial Parliament affirmed that the Dominions could end appeals to the JCPC whenever they wanted to do so, and even more importantly it repealed the Colonial Laws Validity Act 1865, which had held that Dominion law could not be repugnant to British Imperial law. The Statute of Westminster provided that: No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof.

It also provided in section 2(1) that: No law and no provision of any law made after the commencement of this Act by the Parliament of a Dominion shall be void or inoperative on the ground that it is repugnant to the Law of England, or to the provisions of any existing or future Act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act, and the powers of the Parliament of a Dominion shall include the power to repeal or amend any such Act, order, rule or regulation in so far as the same is part of the law of the Dominion.

The Statute of Westminster Act, 1931 applied to Canada, the Irish Free State, and the Union of South Africa without the need for any acts of ratification; the governments of those countries gave their consent to the application of the law 128 For a thorough review of the role that the Irish Free State played in ending Privy Council review, see SWINFEN supra note 29, at pages 88–139.

90  The History and Growth of Judicial Review, Volume 1 to their respective jurisdictions. Section 10 of the statute provided that sections 2 to 6 would apply in the other three Dominions—​Australia, New Zealand, and Newfoundland—​only after the parliament of that Dominion had legislated to adopt them. And, the various Dominions ended appeals to the Privy Council as Swinfen shows over a lengthy period of time, which stretched from 1933 to 1987. The Irish Free State ended appeals to the Privy Council in 1933–​1935. For all the talk about British imperialism, there was hardly a rush to end appeals to the Privy Council, in 1926, when Britain first acknowledged that this could be done at any time by the Dominion governments, even though the Privy Council delivered some ham-​handed foolish decisions in the years between 1926 and 1947, which strengthened the case in the colonies for ending the Privy Council appeal.129

VIII.  The Ending of the Privy Council’s Jurisdiction As David Swinfen writes, the Irish Free State acted immediately in 1933 and in 1935 to end all appeals to the JCPC. Anglo-​Irish tensions were explosive, and nothing was going to stop the Irish Free State from immediate abolition of appeals. Canada, which was the oldest Dominion to have judicial review by the Privy Council, became the first of the old Dominions to use the Statute of Westminster to end it. Canadians were mad about the Privy Council’s assertion of jurisdiction in the criminal case of Nadan v. The King, and many were still angry about the governor-​general’s dismissal of Parliament and call for new Canadian elections in 1926. The Canadians had had their fill of British colonial status. Canada immediately ended Privy Council appeals, in criminal cases, by an act of the Canadian Parliament in the 1930s, and this action was upheld as being constitutional. The JCPC followed this action up in the late 1930s by holding unconstitutional or ultra vires the Canadian New Deal, which upset public opinion in Canada even though the judicial decisions were probably rightly arrived at as a matter of Canadian law. Canadian Tories waxed poetic about “the immemorial right of British subjects everywhere to present their claims at the foot of the Throne,”130 but the overwhelming opinion in Canada from 1941 on was that judicial appeals to the Privy Council needed to be brought to an end. Once the Second World War was over, Canada ended all appeals to the JCPC in 1949.131 Canada passed its Privy Council repeal bill, and on December 10, 1949, both



129 Swinfen, supra note 29, at 117–​39. 130 131

Id. at 154. Id. at 155.

The Privy Council  91 Houses of the British Parliament passed a bill ending Privy Council review of all cases from Canada, and the bill received the royal assent.132 Meanwhile, Swinfen asserts that South Africa further restricted Privy Council review, which was never very extensive, since the Judicial Committee had heard only ten cases since 1909 on account of South Africa not being a federal state, unlike Canada, Australia, and India.133 The absence of a federalism text and of a bill of rights gave the Privy Council almost no South African cases to review. Abolition of Privy Council judicial review in South Africa was divided on partisan lines. The Dominion Party, supported by South Africans of English background defeated a motion to end Privy Council review in 1935 by the comfortable margin of eighty-​two votes to fourteen, according to Swinfen. In 1947, a similar unsuccessful effort was made to end Privy Council review. Unfortunately, the White Supremacist Afrikaners won the South African elections of 1948. It was the white supremacist Afrikaners who repealed judicial review from South Africa to the Privy Council in 1950. The Afrikaners hated the British and black South Africans, and they did not want their apartheid policies to be subject to JCPC judicial review. David Swinfen tells the following story about the ending of appeals from India to the JCPC. When India and Pakistan became independent of British rule and ended JCPC judicial review of the decisions of their respective Supreme Courts, in both countries, the new Supreme Courts began their first sessions with “speeches paying glowing tribute to the work of its predecessor as the final court of appeal for Indian cases.”134 Indian support for Privy Council review was so strong that Nehru himself opposed a 1925 resolution in the Indian Legislative Assembly, which would have abolished appeals to the JCPC from India saying that the JCPC’s rulings were superb.135 Although Imperial Appeal:  The Debate on the Appeal to the Privy Council, 1833–​1986 is a superb book,136 its near total silence on Indian appeals is unfortunate given that: (1) Indian appeals outnumbered all others, (2) Indian judges sat with British judges in hearing these appeals, and (3) the people of India admired and liked the JCPC. An important future book remains to be written on the thousands of Indian cases that the JCPC decided prior to 1950. As the Imperial Domains of Africa, Asia, and the Caribbean all obtained independence of the British Empire, they almost all also ended appeals to the Privy

132

Id. at 156. Id. at 157. Id. at 168–​69. 135 Id. at 169. 136 Id. at 64. 133 134

92  The History and Growth of Judicial Review, Volume 1 Council. For a while there was talk of setting up a Commonwealth Court of Appeal, but the discussions failed.137 One puzzle about the abolition of appeals to the JCPC comes from Australia, which was fiercely opposed to them when its 1901 Constitution Act was written by the English Parliament, but which did not do away with appeals from the national High Court, until 1968 and 1975, and from its states’ highest courts until 1986. The answer for this apathy is that, by 1931, Australians had already so limited the right of appeal to the Privy Council that the institution was simply not causing much trouble.138 Two reversals by the Privy Council of Australian appellate rulings, in the 1960s, led to the prompt abolition of the federal Australian appeal to the JCPC. Eliminating the appeals from the states’ highest courts to the Privy Council was constitutionally complex because they predated the Australian Constitution Act of 1901. In 1986, the British Parliament and the Australian Commonwealth Parliament passed identical legislation eliminating the appeals from the Australian States’ highest courts. The states hesitated in agreeing to this because their appeals to the British Privy Council had given them leverage over their own federal Australian government.139 Nonetheless, in 1986, appeals from the Australian High Courts directly to the JCPC were ended. One great puzzle about the British experience with federalism judicial review and umpiring by the JCPC is why didn’t the British demand judicial review of Acts of Parliament at home as well as providing for federalism judicial review in the Empire? The first answer to that question is that formally the JCPC exercised the power of the royal prerogative, and that power had been eliminated in the domestic realm of England and Wales in 1641 with the abolition of the Court of Star Chamber. After the Glorious Revolution of 1688, English constitutionalism celebrated the sovereignty of the King-​in-​Parliament, that is, the king acting together with the House of Lords and the House of Commons. It was inconceivable in such a mixed regime that the king’s judges who were his subordinates, in theory, could have had the power acting alone to invalidate an act of the King-​in-​Parliament. U.S. judges can invalidate acts of the President-​in-​Congress because of the sovereignty of “We the People” under the U.S. Constitution. In Britain, sovereignty lay in the King-​in-​Parliament and when the king and the House of Lords eventually became ciphers, sovereignty came to rest with a transient majority of the House of Commons. Federalism umpiring by the JCPC, after 1833 bears, as Professor Bilder’s analysis notes, more than a passing resemblance to U.S. Supreme Court judicial

137

Id. at 169–​218. Id. at 161. 139 Id. at 163–​66. 138

The Privy Council  93 review of state laws rather than of acts of Congress. Scholars have long noted that the U.S. Supreme Court is much more activist in striking down state laws than it is in striking down federal ones. Indeed, Justice Oliver Wendell Holmes once famously said, “I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States.”140 In light of this phenomenon in U.S. constitutional law, perhaps one ought not to be surprised that the JCPC engaged in one-​sided vertical federalism umpiring rather than in true separation of powers judicial review. Professor Ginsburg argues pursuant to his “Insurance and Commitment” Model of judicial review that judicial review originates in nations with two fairly evenly matched political parties, which are somewhat risk averse and which want judicial review to protect their vital interests when they are out of power. Britain was from the Reform Act of 1867 until the 1990s a nation with a two and one-​half party system, which ought under Professor Ginsburg’s thesis to have favored horizontal judicial review of the constitutionality of Acts of Parliament. Nonetheless, such horizontal judicial review never appeared in Britain thanks to the termination of the royal prerogative in domestic English affairs following the abolition of the Court of Star Chamber in 1641. The British experience is thus not explained by Professor Ginsburg’s model, but it is explained by the federalism umpiring theory advanced in this book and by Professor Martin Shapiro. That being said, I believe that although Professor Ginsburg’s explanation of the origins of British judicial review fails, the decision to retain and grow judicial review may very well be explained by the “insurance and commitment” theory. Britain has a very strange multiparty system now, and all the actors in that system may have an interest in maintaining judicial review when they are out of power. Professor Ginsburg does have an important contribution that he makes to the growth of judicial review in Britain. Professor Ran Hirschl’s theory that judicial review emerges when a fading hegemonic elite seeks to entrench itself in the judiciary does not explain the creation of judicial review domestically in the United States, Canada, Australia, India, or South Africa, but it does explain, in part, the British colonial insistence on maintaining judicial review by the Privy Council domestically even as those colonies were slipping from imperial Britain’s grasp after 1901. The Hirschl theory definitely does explain British reluctance to end Privy Council review in the early decades of the twentieth century. The need for a federalism and separation of judicial powers umpires definitely explains the growth of judicial review in almost all the countries supervised by



140

Oliver Wendell Holmes, Collected Legal Papers 295–​96 (1921).

94  The History and Growth of Judicial Review, Volume 1 the Privy Council. The United States, Canada, Australia, and India all had federal colonial structures that were policed by the Privy Council as the British Empire’s Umpire. This helped mightily in giving rise to judicial review in federalism and separation of powers cases once those countries became independent. The federalism umpire theory of judicial review is strongly supported by the way in which the Privy Council gave rise to U.S., Canadian, Australian, and Indian judicial review. Finally, I should note that when former British Prime Minister Tony Blair put forward his huge changes to the U.K. Constitution in the 1990s, Blair simultaneously devolved power to Scotland, Wales, and Northern Ireland, making the United Kingdom a partly federal state, and he introduced umpiring judicial review under the Human Rights Act of 1998 of the legality of Acts of Parliament, including as to cases bearing on devolution. The introduction of federalism and of judicial review of Acts of Parliament at the national level in the United Kingdom occurred at the same time. Moreover, the Supreme Court of the United Kingdom not only has the power of judicial review in individual rights cases under the Human Rights Act, 1998, it also has the umpiring power of judicial review in cases concerning the powers of the devolved governments of Scotland, Wales, and Northern Ireland. If those governments act ultra vires of their devolved power, the Supreme Court of the United Kingdom can rein them in as a judicial umpiring body. The United Kingdom therefore has even today a system of vertical federalism umpiring judicial review, as will be explained in a later chapter in this book. The U.K. Supreme Court umpired an extremely important question about the Queen’s power to prorogue Parliament, as to which the highest courts of England and Wales, on the one hand, and of Scotland, on the other hand had reached different outcomes. The federalism judicial umpiring legacy of the JCPC lives on in todays U.K. Supreme Court. Readers could at this point question my wisdom–​or even my sanity–​in devoting the first lengthy chapter of my book on the history, origins, and growth of judicial review in the G-​20 constitutional democracies to the story of a High Court of a regime, which was a constitutional oligarchy from 1607 until it became a constitutional democracy upon the passage of the reform acts of 1832, 1867, and 1911. My answer to such criticisms should by now be quite clear. Privy Council federalism umpiring in judicial review cases, from 1660 on, were a crucial part of the backdrop against which the U.S.; the Canadian; the Australian; and the Indian Constitutions all chose to opt for the creation of Supreme or High Courts with the power to engage in federalism and separation of judicial power umpiring judicial review cases. Constitutional oligarchies can have working systems of judicial review where court opinions are followed as law just as much as democracies can have such systems. I think this was the case with respect to the oligarchically ruled British

The Privy Council  95 Empire from 1607 until 1867. Moreover, the practice continued from 1832, 1867, and 1911, when Britain became a democracy, down to the present day. One cannot understand the constitutions and judicial review systems of the United States, Canada, Australia, and India without first understanding the role in colonial life that was played in all four of these federal constitutional democracies by the JCPC. * * * So, which of the various theories of the origins and growth of judicial review are most supported by the history I have just recounted? Professor Martin Shapiro’s theory that judicial review usually arises in federations, which need an umpire between their national and state governments here is strongly supported by the history in this chapter. Professor Dershowitz’s rights from wrongs idea does not really apply here because even the nations, which eventually withdrew from Privy Council review did so more for reasons of national identity than because they thought the Privy Council was doing a botched-​up job. This was true even of India, as I will explain in Chapter Five. Neither borrowing nor the rights from wrongs thesis nor the seeking of “insurance and commitment,” as Tom Ginsburg describes it, are supported by the story told in this chapter, although they are all factors in almost every other chapter of my book series. Canadian and Australian federalism in 1867 and in 1901 were borrowed in part from U.S. federalism where there was a Supreme Court acting as a federalism umpire. From 1607 until 1901, the British Empire did use the Privy Council as a way of constitutionally controlling their newly conquered and settled territories. From Australian resistance to Privy Council judicial review, in 1901, down to the present day, such judicial review could accurately be characterized as being an effort by a fading hegemonic elite to entrench itself in the constitutions of its Dominions. The story of the Privy Council in the twentieth century thus does provide support for Professor Ran Hirschl’s thesis on what gets judicial review started, as well as for the umpiring thesis as to the origins of judicial review.

Chapter Four

The United States: Creation, Reconstruction, the Progressives, and the Modern Era When the Constitution of the United States went into effect in the spring of 1789, it was the only document of its kind to be found in any other nation in the world. The British Empire, the French Empire, the Holy Roman Empire, the Austro-​Hungarian Empire, the Spanish Empire, the Portuguese Empire, the Dutch Empire, the Russian Empire, and the Chinese Empire all lacked written constitutions, meaningful systems of judicial review of either national, legislative, or executive action; and they all lacked republican and democratic systems of government. Constitutional government “of the people, by the people, and for the people” existed only in the United States of America, a small nation of three million people living on the Atlantic Coast of North America, at the extreme periphery of the whole civilized world. No other regime in 1789 rested on the consent of the governed, expressed in a written social contract of the kind John Locke and Thomas Hobbes had theorized about. And, no other regime in 1789 matched the United States in making its written social contract enforceable, in courts, by life-​tenured judges, to whom had been granted the power of judicial review. The United States was alone in the world in having a written national constitution, alone in having even a partial democracy—​albeit not yet one in which all adults could vote—​and alone in having a system of checks and balances, backed up by judicial review conducted by life-​tenured judges whose job it was to enforce the written Constitution even against the peoples’ president and their Congress. The United States, in 1789, was a radical experiment, a novus ordo seclorum—​a new order of the ages—​without parallel either in human history, prior to 1789, or in any of the then-​existing governmental systems of the world.1 Seventy-​four years later, on November 19, 1863, President Abraham Lincoln in the Gettysburg Address said that what was at issue in the American Civil War

1

See generally Gordon S. Wood, The Creation of the American Republic, 1776–​1787 (1969).

The History and Growth of Judicial Review, Volume 1. Steven Gow Calabresi, Oxford University Press (2021). © Steven Gow Calabresi. DOI: 10.1093/oso/9780190075774.003.0005

98  The History and Growth of Judicial Review, Volume 1 was nothing less than the question of whether “government of the people, by the people, for the people, shall *** perish from the earth.” Lincoln was dead right in saying this. There were no other democracies anywhere in the world, other than in the United States, when Lincoln gave the Gettysburg Address. There were also no other countries anywhere in the world, which had a system of judicial review of acts of the national legislature or executive. On November 19, 1863, the United Kingdom had a hereditary monarch, a hereditary House of Lords, and only one in seven male Englishmen had the right to vote in House of Commons elections. There was no right to judicial review of Acts of Parliament, and there was nothing resembling the North American state and federal Bills of Rights. On November 19, 1863, France was a dictatorship groaning under the rule of the Emperor Napoleon III, and it was not a democracy in any way nor did it have judicial review. On November 19, 1863, the states of Germany and Italy were not democratic, because the Revolutions of 1848 had all failed everywhere in Europe, and they also did not have judicial review. And, on November 19, 1863, the Russian Empire was still governed by an autocratic Tsar, while China was still governed by an emperor. They, too, did not provide their citizens with access to life-​tenured judges with the power of judicial review much less offering a written bill of rights. Eighty-​two years after the Gettysburg Address, on August 14, 1945, the Japanese Empire surrendered, unconditionally, to U.S. General Douglas MacArthur, thus bringing to an end to World War II. On August 14, 1945, only three nations in the world had judicial review of the constitutionality of all national legislative and executive acts: the United States, Canada, and Australia. And, of these three nations, only the United States had a judicially enforceable Bill of Rights. Canada and Australia trusted their freedom to an unwritten tradition of responsible, parliamentary government and the protections of the English common law. Canada and Australia had judicial review umpiring of national legislatures and executives, but only in federalism and separation of powers cases and not in bill of rights cases. Today, fifteen of the G-​20 nations are democracies with written constitutions enforced against national legislatures, presidents, and prime ministers by Supreme Courts or Constitutional Courts using the power of judicial review. Of these fifteen G-​20 nations only one, Australia, still lacks a judicially enforceable bill of rights. The U.S. institution of independent judicial enforcement of a written constitution and bill of rights, which was a novelty in 1789, in 1863, and even in 1945 has swept the world in the last seventy-​five years. And, not only do all of the major nations of the world have a strong form of judicial review, but most of the other non-​G-​20 constitutional democracies now also have judicial review of the constitutionality of acts by their national legislatures and

The United States  99 executives. Since 1980, almost every emerging democracy has chosen to create some form or other of judicial review of the constitutionality of national legislative and executive acts, as well as a system of checks and balances. George Athan Billius in his important book, The Constitution Heard Round the World, 1776–​1989: A Global Perspective,2 has quite rightly said that: We are left to ponder the prophecy of America’s founders, who claimed that their work would exert an influence beyond America’s shores for years to come and that they had created ‘A New Order for the Ages.’ Within the framework of Western constitutionalism, American constitutionalism was *** heard round the world for more than two centuries. *** For those two hundred [and thirty] years, no matter what the future might hold, the United States merited Abraham Lincoln’s praise as ‘the last, best hope on earth.’

The fact of the matter is that the United States was the first country in the world to come up with the idea of judicial review of the constitutionality of congressional and presidential acts; acting long before any other G-​20 nation did so. All of the other G-​20 judicial review systems have “borrowed” judicial review from the U.S. system, at least indirectly, and have tweaked it so it will work well in the distinctive conditions of their own legal cultures and traditions. New offshoots of the American stock like the German Basic Law of 1949 and the Canadian Charter of Rights and Freedoms are now also getting borrowed today by emerging democracies, but we must not forget that the German and Canadian texts were first inspired by the U.S. example. Germany and Canada are our children with respect to judicial review. South Africa, which borrowed from the German and Canadian constitutional documents might best be described as our grandchild. From 1789 to 1945, many nations in Western Europe, Latin America, and Asia borrowed written constitutionalism from the U.S. example, but they did not borrow either judicial review, or the need for a working system of checks and balances. Germany, Italy, and Japan all had elections and written constitutions, in the 1920s, but they did not have judicial review or checks and balances. The end result was that men like Adolf Hitler, Benito Mussolini, and Hideki Tojo came to power. After 1945, the world got a lot smarter about why democracy has worked in the United States since 1789, and so almost every emerging democracy has opted for judicial review of the constitutionality of national legislative and executive 2 George Athan Billius, The Constitution Heard Round the World, 1776–​1989:  A Global Perspective (2009).

100  The History and Growth of Judicial Review, Volume 1 acts, and they have opted for a system of checks and balances—​often one that is uniquely their own. This is true of the brilliant German Basic Law of 1949, and of the inspiring Canadian Charter of Rights and Freedoms of 1982. Democrats all over the world have learned the lesson that you cannot trust incumbent national legislatures or executives to police themselves. One must have very, independent, Supreme, or Constitutional Courts. I have labored mightily in the chapter you are now reading to describe with the greatest possible precision the exact reasons why I believe that judicial review of national legislation and presidential actions originated in the United States, and the somewhat different reasons why subsequent generations of Americans for 230 years have built the judicial review edifice higher and better than it has ever been built before. I begin, in Part I of this chapter, by discussing again, briefly, Professor Mary Sarah Bilder’s theory that U.S. judicial review originated as the result of the vertical judicial umpiring and policing done by the British Privy Council. Professor Bilder shows conclusively that the Privy Council originated a form of judicial review by determining: (1) whether the thirteen North American colonies were following their corporate colonial charters, and (2) by evaluating whether colonial laws were repugnant to the laws of England, or whether they diverged from English law for some special reason unique to North America. I then turn in Part II of this chapter to discussing Professor Gordon S. Wood’s extremely powerful theory about the origins of American judicial review between 1776 and 1803. Professor Wood shows that there was a massive shift in popular confidence in state legislatures and in state governments, in 1776, to a longing for greater executive, judicial, and national power by 1787. I have learned enormously from Professor Wood both by reading his scholarship and from many pleasant lunch conversations, and I agree with what I understand to be his theory of the origins of U.S. judicial review. In Part III of this chapter, I discuss the federalism and separation of powers umpiring origins of American judicial review, especially in the years between 1789 and 1861. My analysis here supports Professor Shapiro’s instinct that the need for an umpire in either a federation or in a separation of powers regime helps to get judicial review started. In Part IV of this chapter, I discuss the rights from wrongs origins of both the three Reconstruction Amendments and of the many civil rights statutes and jurisdictional bills, which were passed either during Reconstruction from 1865 to 1877 or during the Civil Rights Movement from 1954 on. I show that while American judicial review originated for federalism and separation of powers umpiring reasons, it tripled in strength for rights from wrongs reasons. There is a sense in which U.S. judicial review has been founded three times in American history: first, during the Founding; second, during and as a long-​term result of

The United States  101 Reconstruction; and third, between 1952 and 2020 when the Supreme Court rejected the Thayerian judicial restraint of the New Deal court, which had led six New Deal Supreme Court justices to uphold the constitutionality of the internment of 100,000 Japanese Americans in concentration camps during World War II. In the remainder of the chapter, I discuss: (1) the insurance and commitment reasons whereby Americans allowed the federal courts to grow enormously in power over the last 230 years to reduce the risks to parties that lose an election; and (2) the case for and against hegemonic elite founding reasons both, in 1787, and, in 1868. I will examine all of theories of the origins of judicial review discussed in the Introduction in the sections below in this chapter. My conclusion is that U.S. judicial review was born and grew in power for: (1) judicial umpiring reasons; (2)  rights from wrongs reasons; and (3)  because bicameralism, the separation of powers, federalism, and checks and balances give the Supreme Court political space within which it can operate.

I.  The Privy Council Umpiring Origins of Vertical Judicial Review to Rein in Errant Colonies Professor Mary Sarah Bilder has set forth a powerful case that U.S. judicial review originated because of Privy Council umpiring to ensure both that the colonies were following their corporate charters and to ensure that colonial laws were not repugnant to the laws of England and diverged from English law only where local North American conditions required divergence. Her scholarly views are set out in a pathbreaking law review article, “The Corporate Origins of Judicial Review” and in a pathbreaking book, The Transatlantic Constitution:  Colonial Legal Culture and the Empire.3 Professor Bilder’s views are discussed at length in the prior chapter, so I will only briefly refer to them here. I think that Professor Bilder is right that the existence of the written corporate charters of the thirteen North American colonies, and the power that the Privy Council and the colonial courts had to construe them, played an important role in the founding of U.S. judicial review in vertical judicial review cases where errant colonies were being brought back into line. This type of judicial review is the same type that the U.S. Supreme Court practices when it reins errant states back into line, which is what most U.S. Supreme Court constitutional cases actually do. But, the kind of judicial review, which Professor Bilder identifies is very different and is much more limited than what most American lawyers think about 3 Mary Sarah Bilder, The Corporate Origins of Judicial Review, 116 Yale L.J. 502 (2006); and The Transatlantic Constitution: Colonial Legal Culture and the Empire (2004).

102  The History and Growth of Judicial Review, Volume 1 when they hear or read about judicial review. The dominant paradigm for law professors writing about the U.S. Supreme Court and judicial review has been to ask when the Supreme Court can strike down Acts of Congress, either on enumerated powers or Bill of Rights grounds or when the Supreme Court reins in the president, his cabinet secretaries, or other federal executive officers for acting illegally. As I started to explain in the last chapter, this dominant law professor paradigm of what judicial review “is” originates NOT because of the Privy Council or the colonial charters, but instead because of events here in the United States between 1776 and 1803. I will call this the Gordon S. Wood theory of the origins of judicial review, which I have tried to faithfully set forth with the caveat that any errors in my understanding of Professor Wood’s theory are strictly my own fault.

II.  The Origins of U.S. Judicial Review from 1776 to 1803 I agree with Professor Gordon S.  Wood that American judicial review grew out of a sequence of highly unusual events that occurred in the thirteen North American colonies after 1776.4 In 1776, the American colonists declared independence from Great Britain and put all their faith in state legislative power. This is not surprising given that during the 169-​year-​long colonial period, state executives had been royally appointed governors in every colony except for Rhode Island and Connecticut. The colonists were used to fighting with their royal governors and with the judges appointed by their royal governors. State judges were removable at will by the Governor-​in-​Council, and thus lacked any independence whatsoever. State legislatures had been the bulwark of liberty during the colonial period, and, in 1776, the colonists saw no reason as to why that would change. They favored state government over their very weak national government because they were emerging from the Dystopia of 1776 in which excessive imperial and executive power had ruined their lives. As a result, when eleven of the thirteen newly independent states wrote new constitutions between 1776 and 1787, they concentrated all power in the state legislature. The eleven new state constitutions provided for a one-​year term for the governor with the sole exception of New York. They stripped the governor of his appointment and pardon powers and made him completely dependent on the state legislature. They made state judges independent of the governor by

4 Gordon Wood, The Origins of Judicial Review Revisited, or How the Supreme Court Made More Out of Less, Wash. & Lee L. Rev. 56 (1999); and Judicial Review in the Era of the Founding, in Is the Supreme Court the Guardian of the Constitution? (Robert A Licht, ed.,1993). Conversation between me and Gordon Wood, January 17, 2020 in Providence, RI.

The United States  103 increasingly giving them tenure during good behavior as the Act of Settlement had done in 1701 for English judges. And, they created a very weak confederation government at the national level—​a government much weaker than the one the European Union enjoys today. Starting in 1776, however, many states also adopted written Declarations of Rights for the first time in human history and written state constitutions. They took natural law rights and common law rights and actually wrote them into law. The whole experience was an exhilarating one for the North American colonists. They thought they were the first human beings in history who could write their own governing fundamental laws. They also were the first human beings to take Lockean natural law rights and English common law rights and put them in a written State Declaration of Rights, which would bind the state legislature and the governor. Eleven years later, in 1787, the Founding generation of Americans were deeply disenchanted with what they had wrought in 1776. State legislatures were seen as being way too powerful, and state executives as being too weak. State legislatures were openly violating the Declarations of Rights that had been adopted shortly after July 4, 1776. People in the states were clamoring for their newly independent life-​tenured state judges to strike down as unconstitutional some of the blatantly unconstitutional laws that state legislatures had enacted. The Dystopia of 1787 was one in which Village Tyrants flourished, as was evident with Shays’ Rebellion, and the national government was what I would today call “a failed nation state.” Congress had fewer than seven hundred men in the U.S. Army, and the United States was ripe for reconquest by Great Britain. General George Washington was so concerned about the situation that he came out of retirement to chair a constitutional convention of more than fifty delegates that met in secret during the summer of 1787 to draw up amendments to the Articles of Confederation or perhaps a new Constitution. The switch in public opinion as to the executive power between 1776 and 1787 has been famously written about by Charles C. Thach in The Creation of the Presidency, 1775–​1789.5 Thach thoroughly documents the huge shift in American public opinion from fear of executive power in 1776 to a desire for a lot more executive power in 1787. The Constitution of 1787 proposed a powerful new national president at the helm of a powerful new national government to solve the problems Americans were suffering from. The fact that that Constitution was ratified by eleven out of thirteen states and that it went into effect in the spring of 1789 speaks volumes about the shift in national opinion.



5

Charles C. Thach, The Creation of the Presidency, 1775–​1789 (1923).

104  The History and Growth of Judicial Review, Volume 1 What is often overlooked, however, is that between 1776 and 1787, there had also been a sea change in public opinion with respect to the judicial power. I learned about this sea change from Professor Gordon S. Wood who should not be blamed if I have misrepresented his ideas! Professor Wood, as I understood him to say, pointed out that the colonists, in 1776, thought of the colonial state courts as being under the royal governor’s thumb and the admiralty courts as being under the king’s thumb. The problem with the colonial state courts was that the judges on them were removable at will, and they did not have tenure during good behavior unlike English judges in 1776. The problem with the admiralty courts was that the judges on those courts were Englishmen who were biased against the colonists, and there was no right to jury trial in an admiralty court. The patriots of 1776 thus were not at all enthusiastic about judicial power. Nothing in their background would have predisposed them to like English or colonial judges. Consider the following two complaints in the Declaration of Independence: 1. He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers. 2. He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries. The patriots of 1776 clearly wanted life-​tenured judges exactly as independent as the ones in Britain who had tenure during good behavior as a result of Acts of Parliament in 1701 and in 1761. And, as is shown conclusively by Scott Douglas Gerber in A Distinct Judicial Power:  The Origins of an Independent Judiciary, 1606-​1787,6 the newly created state courts became independent and the judges on them got life tenure in the nine years between 1776 and 1787. By 1787, however, things had changed greatly. As I just mentioned, the new state judges had tenure during good behavior, and they seemed willing to enforce written state Declarations of Rights against lawless state legislatures. Americans were all in favor of this kind of judicial review. Alexander Hamilton wrote openly in praise of it in The Federalist No. 78 wherein he endorsed horizontal and enumerated powers enforcing exercises of judicial review. No Anti-​Federalist doubted that the new U.S. Constitution created the strong Gordon Wood form of judicial review. Instead, in Brutus’s Essay Eleven, the Anti-​Federalists feared the new federal judges would be too powerful. Hamilton would not have argued for judicial review in The Federalist No. 78 if he thought that he was making an unpopular argument. Indeed, Hamilton’s whole goal in 6 Scott Douglas Gerber, A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606–​1787 (2011).

The United States  105 collaborating with James Madison and John Jay in writing the Federalist Papers was to sway public opinion in the crucial swing state of New York. His open championing of judicial review thus tells us a lot about American public opinion in 1787–​1789. Moreover, as Hamilton pointed out in The Federalist No. 78, the U.S. Constitution’s vesting of sovereignty in “We the People of the United States *** [who both] ordain and establish this Constitution” invited the new federal courts to enforce the Constitution against Congress and against the president. Under the pre-​1776 British regime, sovereignty lay in the King-​in-​Parliament, and no mere judge could overturn an act of the king made together with the House of Lords and the House of Commons, any more than an American judge today could strike down a federal constitutional amendment as being unconstitutional. The new Constitution thus opened up a new possibility for life-​tenured judges to protect the interest of the people. Moving sovereignty away from the King-​in-​Parliament and to “We the People of the United States *** [who] ordain and establish this Constitution” is a momentous change that makes real judicial review of the Gordon Wood kind feasible. This becomes apparent as I argued in the previous chapter when the Supreme Court in 1793 in The Correspondence of the Justices refused to answer twenty-​ seven questions, which President Washington had asked Secretary of State Thomas Jefferson to refer to the Supreme Court. Chief Justice John Jay politely wrote back that it was unconstitutional for the president to ask the Supreme Court for legal advice absent a case or controversy. And, the justices were equally firm with Congress in Hayburns Case, 2 U.S. 409 (1792), in 1792, when all of the justices while riding circuit refused to follow an unconstitutional Act of Congress that purported to make them intermediate officers in the awarding of pensions to Revolutionary War veterans. These two holdings of unconstitutionality emerged a full decade before Chief Justice John Marshall’s legendary opinion in Marbury v. Madison. This shows how right Professor Wood is in stressing the change in public opinion about judicial power between 1776 and 1789. In 1803, in Marbury v. Madison, 5 U.S. 137 (1803), Chief Justice Marshall acted on The Federalist No. 78, and he announced that the federal courts did indeed have the power to review for constitutionality Acts of Congress and the president both on separation of powers and on federalism grounds. This was heady stuff. Chief Justice Marshall took the words of the Constitution, and he made them all judicially enforceable and open to interpretation by courts. Constitutional matters were no longer all political questions; they were justiciable questions instead that could be decided by judges in court. This account of how American-​style judicial review got going is set forth by Professor Gordon S. Wood, and I agree with it entirely. Americans invented judicial review between 1776 and 1803 out of the same distinctive chain of events,

106  The History and Growth of Judicial Review, Volume 1 which gave Americans the presidency and a new strong Constitution to boot. Judicial review is very much an invention of the U.S.  constitutional system, which has by now been spread all over the globe. The long history of Privy Council review of American cases and controversies may have helped judges a bit in assuming their new American judicial review powers, but American judicial review is very different from Privy Council judicial review. American judicial review is about popular sovereignty and the triumph of “We the People” over “The President-​in-​Congress.” Privy Council judicial review was, in contrast, all about the ill-​fated congressional veto over state laws, which James Madison pined for throughout the Philadelphia Constitutional Convention but never got. American judicial review is the form of judicial review that is the most controversial, and which is the most talked about, by judges and by law professors. It is a form of judicial review that started entirely in a tiny country of three million Americans living on the Atlantic Coast of North America, on the periphery of the Civilized World, which has now spread all over the Western World taking it by storm. Privy Council judicial umpiring, as described by Professor Bilder, is interesting, valuable, and important, but it is not what we fundamentally mean in the United States when we talk about Marbury v. Madison-​style judicial review.

III.  U.S. Judicial Review from 1789 to 1894 I will now turn here in Section IIIA to the work of William Michael Treanor, Philip Hamburger, and Scott Gerber, who have shown that judicial independence and judicial review emerged in the American colonies and in the states prior to the writing of the U.S. Constitution in 1787. I consider here what explains the origins of judicial review in Marbury v. Madison and in the thirteen American states prior to Marbury. I then turn in Section IIIB to the original Constitution and the Bill of Rights and ask whether those documents represented an effort by what Professor Ran Hirschl would call a fading hegemonic elite to entrench itself in power. I continue my discussion of federal judicial review in several additional subsections to bring my analysis up to 1894. My effort throughout is to best explain not only the origins of judicial review but also its growth in the United States after the Civil War and down to the present day. I conclude that U.S. judicial review is the result of: (1) vertical federalism umpiring and horizontal separation of powers umpiring and elite hegemonic entrenchment between 1789 and 1868 for reasons expressed by Professors Bilder and Wood; 2) a rights from wrongs response to slavery and elite hegemonic entrenchment in 1868; (3) elite hegemonic entrenchment during the Progressive Era from 1869 to 1937; and (4) the period of the rise of Ackermanian charismatic

The United States  107 mass popular movements, which affect how the Supreme Court applies old texts to new social realities beginning with the Progressive Era in the 1890s, continuing with the New Deal and Great Society movements in the 1930s and 1960s, and ending with the Nixon–​Reagan–​Trump-​Tea-​Party mass populist movement in the period between 1969 and 2020.

A.  Judicial Review in the Colonial and State Courts at the Founding Dean William Michael Treanor notes that “For over one hundred years, scholars have closely studied the handful of cases in which state courts, in the years before the Federal Constitutional Convention, confronted the question whether they had the power to declare laws invalid.”7 This body of knowledge is important because it sheds light on Chief Justice John Marshall’s opinion in Marbury v. Madison and on the impregnable edifice that that case would eventually come to represent. I briefly discuss the colonial and state antecedents to Marbury here with the caveat that I do not think any one case, not even Marbury, explains the origins and growth in the United States over the 230 year history of a highly complex phenomenon like judicial review of the constitutionality of legislation. Such a phenomenon in my opinion originated between 1789 and 1861 for the reasons identified by Professor Wood, and to a lesser extent by Professor Bilder in the immediately prior two sections of this chapter. But, I also think that judicial review grew and became more powerful during the first century of our constitutional history because of: (1) the need for an institution to pick up the vertical federalism enforcement that the Privy Council had provided before 1776; and (2) because a constitution that embraced federalism, separation of powers, and bicameralism left the Supreme Court free to act boldly without fear that the political branches would be able to get together to respond. It is these structural factors in my view that led to Marbury v. Madison-​style judicial review growing immensely in power in the United States prior to the Civil War, and while it is important to note the existence of the pre-​Marbury v. Madison state cases that endorse judicial review of the constitutionality of legislation, I think it is a mistake to attach much importance to them.

7 William Michael Treanor, The Case of the Prisoners and the Origins of Judicial Review, 143 U. Penn. L. Rev. 491 (1994). See also William Michael Treanor, Judicial Review before Marbury, 58 Stan. L.  Rev. 455 (2005). Dean Treanor notes that Professor William Winslow Crosskey identified the nine most important early precedents for judicial review and Marbury in 2 William W. Crosskey, Politics and the Constitution in the History of the United States 944 (1953). These cases are referred to below.

108  The History and Growth of Judicial Review, Volume 1 I agree with Professor Gordon Wood that prior to 1776, the Framers had a low opinion of judges and a high opinion of legislatures.8 The Framers also originally saw the colonial charters and their state constitutions as agreements between the governed and those who governed them and not as a social contract.9 The process, however, of writing and ratifying the eleven state constitutions, produced between 1776 and 1787; and the U.S. Constitution of 1787, which was ratified in 1788, changed American attitudes and caused Americans to think of constitutions as being in a real sense social contracts, and it is also the case that by the 1780s, judges were held in very high esteem and legislatures in very low esteem.10 This is evident in the fact that Alexander Hamilton argued in The Federalist No. 78 that the new Constitution created judicial review of the constitutionality of legislation. Hamilton would never have mentioned that the Constitution created judicial review had he not thought that this was a popular argument to make. The result was that, beginning, in the 1780s, and with gathering force after Marbury v. Madison was decided, in 1803, Americans became convinced that the Constitution was “law” in the same sense as statutes and treaties and that judges could therefore enforce it against legislatures in court.11 Cases arising under the Constitution could no longer be dismissed by judges across the board on the ground that they all raised a political question, as they did in England where the King-​in-​Parliament was sovereign and no mere judge could second guess the will of the sovereign. Popular sovereignty in a three-​quarters majority of the sovereign states had the effect of burying the bad Hobbesian idea of sovereignty needing to be in one absolute ruler, like Hobbes’s patron King Louis XIV of France. Hobbes’ concern was that the English mixed regime in the 1640s had led to the English Civil War. The Constitution re-​validated the idea of mixed regimes and separation of powers and checks and balances systems, and buried Hobbes’ advice that power be concentrated in one absolute ruler like his patron King Louis XIV of France. Chief Justice Marshall’s accomplishment in Marbury v. Madison was thus to tame the Constitution and to render it judicially enforceable law.12 Professor Wood thus notes, and I agree, that “simply adding up, as some historians and jurists are apt to do, the several examples during the 1780s and 1790s in which courts set aside legislative acts as unconstitutional never can fully explain the origins of judicial review.”13 Marshall persuaded Americans that “an ordinary 8 Wood, The Origins of Judicial Review Revisited, or How the Marshall Court Made More Out of Less. 9 Id. 10 Id. at 789–​93. 11 Id. 12 Id. at 799. 13 Id. at 793.

The United States  109 court system could expound and construe” the Constitution following “the lead of eighteenth century British judges, especially Blackstone and Lord Mansfield, in emphasizing the power of the courts to interpret the common law in accord with equity, reason, and good sense.”14 I cannot stress enough here the importance of the burying of the pernicious, Hobbesian idea of sovereignty, modeled on Louis XIV’s absolute French monarchy played in the emergence of judicial review in the United States. William Blackstone was the first to start burying the concept of sovereignty when he declared that sovereignty was indivisible and was vested in the King-​in Parliament, with the House of Lords and the House of Commons. As a practical matter, Blackstone’s dictum came to stand for parliamentary sovereignty and for the king’s judges not being able to judicially review the acts of the sovereign King-​in-​Parliament. It is humorous to think of Blackstone burying Hobbes in an eighteenth-​century mixed regime English Constitution of the One, the Few, and the Many when Hobbes had railed against such regimes for his entire life. The Framers of the U.S. Constitution rejected state sovereignty and legislative sovereignty, both of which had very badly failed the nation from 1776 to 1787. They opted instead for a formula of vesting sovereignty in “We the People” in a three-​quarters majority of the states. The Philadelphia Convention was attended by twelve states, only, because Rhode Island boycotted the convention, and the Constitution declared in Article VII that it would go into effect upon the ratification of nine states among those states ratifying. Nine is three-​quarters of the twelve states who sent delegates to the Philadelphia Convention. Article V of the Constitution requires ratification of three-​quarters of the states for constitutional amendments to take effect. Meanwhile, when the justices of the Supreme Court, or indeed the justices of any federal or state court, are confronted with an Act of the President-​in-​ Congress, such acts are not binding on the federal courts because We the People in three-​quarters of the States are sovereign and the President-​in-​Congress is not. The courts, in such cases, must follow the will of the people expressed in the text of the Constitution and not the will of the President-​in-​Congress, or, for that matter, the will of a state Governor-​in-​congress-​with-​his-​state-​legislature. The structural and textual legal argument for U.S. style judicial review is breathtakingly simple. It results from the shift of sovereignty from the King-​in-​Parliament to We the People of Three-​Quarters of the States. My own view is as well that Chief Justice Marshall succeeded in part in Marbury v. Madison because of the tradition during colonial times of judicial review by the Privy Council; because American judicial review of the constitutionality of 14 Id. at 799. David Lieberman, The Province of Legislation Determined: Legal Theories in Eighteenth Century Britain (1989).

110  The History and Growth of Judicial Review, Volume 1 legislation began mostly as U.S. Supreme Court review of the constitutionality of state laws; and the Congress and the president did not feel threatened by this; and because bicameralism, the separation of powers, and federalism meant that no matter how the Supreme Court ruled, the odds were that some elected part of the government would agree with it. The system of checks and balances so thoroughly divided and checked power that it would have been hard, if not impossible, to completely check assertions of power by the Supreme Court. This was especially the case in Marbury v.  Madison where the Supreme Court issued no order that President Jefferson could refuse to obey; and in McCulloch v. Maryland and Gibbons v. Ogden, where the Supreme Court’s judicial activism was to broadly construe federal power by upholding the constitutionality of federal statutes. Strikingly, the Marshall Court is famous for having struck down as unconstitutional state laws in Fletcher v. Peck and in Dartmouth College v.  Woodward, but the national Congress and president were not troubled at all by such invalidations of state legislation, which were foreshadowed more by the history of Privy Council judicial review and less by the spirit of Marbury v. Madison. Professor Wood is right to stress that a shift in thinking about judges, in the 1780s, and about the justiciability of the Constitution, after Marbury in 1803, were critically important to the initial appearance of judicial review. It was still possible that in 1803, the Supreme Court could have declared all of constitutional law a political question. But such a declaration would not necessarily have thrived and flourished in the institutional environment of separately elected presidents, senates, houses of representatives, and state Governors, senates, and lower houses. The U.S. constitution of checks and balances is a key part of what makes vigorous judicial review possible in the first place. For example, consider in contrast the complete passivity and restraint of the Supreme Court of Japan, which has a constitution and Bill of Rights that is quite liberal and where the power of judicial review is clearly spelled out. The Supreme Court of Japan has only struck down eight laws as being unconstitutional in the seventy-​five years since the end of World War II. The German Constitutional Court, however, has struck down more than six hundred laws during this time period, and the U.S. Supreme Court has probably struck down at least four hundred. What is the difference between Japan, on the one hand, and the United States and Germany on the other? Japan is a unitary nation-​state with a parliamentary system of government, so there is no need for either a federalism or a separation of powers umpire, unlike the situation in both the United States and Germany where a lot of federalism and separation of powers umpiring goes on. Moreover, the Japanese Supreme Court is confronted by a prime minister who has the cabinet and the legislature behind him. It would be very tough politically for an unelected court to exert

The United States  111 much power in these circumstances. The Supreme Court would be all alone with no allies. In contrast, the U.S. Supreme Court can navigate between the president and Congress or between the national government and the states or between the Senate and the House of Representatives. There is a lot of institutional space in which the U.S. Supreme Court can act. The same thing is true of the German Constitutional Court. Power is divided between the two houses of the national legislature, and it is divided again between the federal government and the sixteen German states. Power is further divided between the chancellor and the ceremonial president of Germany. And, finally, Germany’s use of proportional representation means there are five parties in the lower house of Parliament, no one of which is likely to have an absolute majority of the seats. The German Constitutional Court thus has as much room to navigate among power centers as does the U.S. Supreme Court. Japan lacks all of these checks and balances divided power centers. The Supreme Court of Japan must confront a prime minister who has the national legislature behind him in a country without federalism. It is obvious given these institutional structures why the Supreme Court of Japan is so restrained. That Court does not have the political space that the U.S. Supreme Court or the German Constitutional Court have in which to navigate a path toward claiming power. The comparative constitutional case studies in my two books strongly suggest that judicial review is likely to thrive and flourish in regimes where a court can play umpire or where some of the other causes of the origins and growth of judicial review are present. Federalism umpiring is one of several explanations for why judicial review of the constitutionality of legislation emerged in Canada after 1867; in Australia after 1901; in India after 1947; and in the Federal Republic of Germany after 1949. One cannot explain the origins and growth of an extremely complex institution like judicial review based on a one-​country study when multiple country studies are in fact needed. The other case studies in my two volume series will definitively confirm my analysis here. Professor Wood notes that even though the “twentieth century *** has witnessed an extraordinary expansion of the [Supreme] Court’s power *** somehow or other Marshall’s place in history remains undiminished. Even critics concede that Marshall was there at the beginning, in the formative period of the country’s history, and that he had a powerful influence on the creation of the Supreme Court’s authority.”15 I completely agree, and I will mildly disagree with Professors Friedman, Delaney, and Whittington for not giving Marshall the



15

Id. at 789.

112  The History and Growth of Judicial Review, Volume 1 credit to which he is due for creating judicial review of the constitutionality of legislation. All I claim for now is that part of the reason why Marshall succeeded in 1803 was because of the very favorable historical and institutional context in which he wrote and decided Marbury v. Madison and because of the shift of the locus of sovereignty from the King-​in-​Parliament to “We the People”. The favorable historical context is illustrated by the fact that a number of states after 1780 began tentatively to experiment with judicial review while Alexander Hamilton laid out the legal case for judicial review in The Federalist No. 78 in 1788 stressing the sovereignty of “We the People” over the “President-​in-​Congress.” Even the opponents of the Constitution had agreed that the new Constitution had created judicial review of the constitutionality of legislation. Professor Scott Gerber has recently written a helpful book, which I cited earlier, and, which chronicles the origins and growth of an independent state judiciary in each of the thirteen American states prior to the writing of the Constitution.16 Professor Gerber painstakingly discusses the growth and evolution of judicial independence one colony at a time starting with Jamestown in 1607. He shows that the English idea that judges should hold their offices during good behavior, which was adopted in England in 1701 and in 1761, became the norm in most of the thirteen American states by the end of the eighteenth century. Since state judicial review of the constitutionality of legislation is more likely once state courts became truly independent, Gerber’s work is a helpful addition to the literature on the origins of American judicial review. Gerber’s book is also helpful because he collects in one place a discussion of the origins of judicial review of legislation in each of the original thirteen states. I will summarize his findings as to the thirteen original states here even though I agree with Professor Wood that “simply adding up” cases is not all that helpful.17 What I mean to show is that, even if Marbury v. Madison had never been decided, the odds are substantial that the long history of Privy Council vertical federalism umpiring, together with federalism, separation of powers, a bicameral legislature, and a written constitution would almost certainly have led to judicial review of the constitutionality of legislation as it did in Canada, Australia, and India, as well as in the United States. John Marshall just happened to be in the right place at the right time when he wrote Marbury v. Madison. The cases that Gerber discusses in the thirteen original states, along with The Federalist No. 78 and Brutus, Essay XI, all suggest judicial review would have developed without John Marshall had he never lived in circumstances that were so favorable to it because of history and institutional design and incentives.



16 17

See Gerber, supra note 6. Wood, supra note 4, at 793.

The United States  113 Gerber discusses several instances of judicial review by state courts in the critical founding state of Virginia including discussions of: (1) the 1782 case of Commonwealth v. Caton,18 (2) a 1785 decision holding an act of the governor and his council with respect to judges unconstitutional,19 (3) the 1788 Case of the Judges,20 and (4) Kamper v. Hawkins.21 Dean Treanor refers to Commonwealth v. Caton as the “Case of the Prisoners,” and Dean Treanor shows persuasively that it was widely noticed and commented upon favorably at the time of decision in the case, which was orally rendered with John Marshall in the audience.22 The Case of the Prisoners raised the issue of whether or not courts had the power to judicially review laws for constitutionality, and the court answered that question with a yes. Dean Treanor also notes that Judge Spencer Roane, who Thomas Jefferson would have named chief justice had John Marshall not already locked the job up, was ardently in favor of judicial review of the constitutionality of legislation in Kamper v. Hawkins.23 As Gerber concludes, “Virginia had far more precedents for judicial review than any other state before Marbury v. Madison.”24 Judicial review of the constitutionality of legislation had clearly originated in Virginia well before 1803. Massachusetts’s sole experience with judicial review before Marbury came in the 1761 case of Paxton v. Gray, where the royal customs office was issuing general search warrants called writs of assistance. James Otis gave a speech in which he said that Acts of Parliament that violated the unwritten English constitution were null and void.25 As Gerber notes, “Otis lost the case. However, [John] Adams, who was in the audience to chronicle Otis’s argument” and Adams’s Thoughts on Government endorsed the idea that each of the three branches of government ought to be independent of the others and that the legislature should be bicameral and that the president should be independent of the legislature.26 The idea that Acts of Parliament and the king might be challenged as being unconstitutional was clearly and visibly raised by James Otis in 1761, and Adams’s Thoughts on Government constructively helped to lead nine states out of eleven in which new constitutions were written to adopt bicameral, separation of powers constitutions.

18 4 Call (8Va.) 5 (1782). 19 Gerber, supra note 6, at 64; Philip Hamburger, Law and Judicial Duty at 367 (2009). 20 Gerber, supra note 6, at 64; Hamburger, supra note 14, at 559–​74. 21 3 Va. (1 Va. Cas.) 20 (1793). 22 Treanor, The Case of the Prisoners, supra note 7, at 497. 23 Id. at 555. 24 Gerber, supra note 6, at 67. 25 Id. at 91; James Otis, Speech on the Writs of Assistance (Feb. 24, 1761), in 2 The Works of John Adams 521–​24 (Charles F. Adams, ed., 1856). 26 Gerber, supra note 6, at 91.

114  The History and Growth of Judicial Review, Volume 1 New Hampshire endorsed judicial review in the Ten Pound Act cases of Tarlton v. Wallace (1786) and Robinson Treferrin v. Samuel Cate (1796)27 and then in an opinion by future U.S. Supreme Court Justice Levi Woodbury in the 1818 case of Merrill v. Sherburne.28 Meanwhile, the Maryland courts first heard a constitutional challenge to an 1801 Maryland statute, which removed a judge, Whittington, to make way for the governor to appoint a new judge, Polk. In 1802, in Whittington v. Polk,29 the Maryland courts upheld the removal, but the court said it would have struck it down if the judgeship had been one that was protected by the Maryland Constitution’s Good Behavior Clause.30 This is striking because the judicial removal case of Whittington v. Polk occurred a year before Marbury v. Madison.31 Again, the idea of judicial review of the constitutionality of legislation predates the decision in Marbury in 1803. Three states lacked judicial review prior to Marbury, as was the case in South Carolina, Delaware, and Georgia, but the others all proved to have endorsed judicial review of the constitutionality of legislation before 1803. Rhode Island had an all-​powerful legislature and very weak courts, but, in 1786, Rhode Island decided Trevett v. Weeden.32 In that case, a Rhode Island court found that a Rhode Island law allowing the repayment of debts using the paper currency law was unconstitutional (“not cognizable”) under Rhode Island’s royal charter, which was its effective constitution because the law in question limited the right to a jury trial for violators.33 In the Symsbury Case in 1785, a Connecticut court engaged in judicial review of the constitutionality of legislation even though in Connecticut the legislature had the power to overturn court judgments.34 This is striking because Connecticut, like Rhode Island, continued to be governed by its royal colonial charter. North Carolina’s “1787 Bayard v.  Singleton decision of the *** Court of Conference—​the predecessor to the North Carolina Supreme Court and a court on which judges did serve for life during good behavior [was] one of the most 27 Id. at 115–​22; citing Richard M. Lambert, The “Ten Pound Act” Cases and the Origins of Judicial Review in New Hampshire, 43 N.H. B.J. 37 (2002); Eugene M. Van Loan III, Ten Pound Acts: An Introduction to Original Research on the Origins of Judicial Review, 43 N.H. B.J. 34 (2002). This research is part of an unpublished MA thesis by Lambert. 2 William Winslow Crosskey, Politics and the Constitution in the History of the United States 968–​71 (1953). 28 1 N.H. 199 (1818). 29 Michael Carlton Tolley, State Constitutionalism in Maryland 133 (1992). 30 Gerber, supra note 6, at 140–​41. 31 Id. at 140. 32 R.I. 1786, described in James M. Varnum, The Case, Trevett v. Weeden: On Information and Complaint, for Refusing Paper Bills in Payment for Butcher’s Meat, in Market, at Par with Specie (1787). Gerber, supra note 6, at 340–​41. 33 Varnum, The Case, Trevett v. Weeden, supra note 32. 34 Calder v. Bull, 3 U.S. 386 (1798) (holding that under the Connecticut Constitution, judicial decisions can be reversed by the legislature). See also Symsbury Case, 1 Kirby 444 (Conn. S. Ct. 1785). Gerber, supra note 6, at 340.

The United States  115 significant of the early state court precedents for judicial review.”35 Judicial review thus clearly originated in North Carolina prior to 1803. Professor Gerber notes five early cases from South Carolina that might foreshadow judicial review of the constitutionality of legislation in that state: Dymes v. Ness (1724); Rex v. Mellichamp (1736); Ham v. M’Laws (1789); Bowman v. Middleton (1792); and Zylstra v. The Corporation of Charleston (1794).36 To the state cases I have discussed thus far, I must add “the 1780 New Jersey supreme court decision in Holmes & Ketchum v. Walton,” which “[l]‌egal historian Philip Hamburger suggests *** was ‘probably’ the first case holding state legislation unconstitutional.”37 This case is especially striking because New Jersey had an unusually powerful legislature. New  York State appears on the list of states with pre-​1803 judicial review cases as a result of “the 1784 decision by the mayor’s court in Rutgers v. Waddington, which embraced the concept of judicial review yet stopped short of exercising it.”38 Professor Gerber also identifies three pre-​Marbury v. Madison exercises of the power of judicial review of legislation in Pennsylvania: Isaac Austin v. The Trustees of the University of Pennsylvania (1793),39 Respublica v. Phillip Urbin Duquet (1799),40 and Commonwealth v. John Franklin (1802).41 The bottom line on the origins of judicial review in the thirteen North American colonies and states prior to the decision in Marbury v.  Madison in 1803 is that most of the cases just discussed were umpiring cases in which the state courts were asked whether state legislatures had the power as a matter of the separation of powers or of state power over towns to enact the laws they had enacted. Some cases concerned whether the state legislature had unconstitutionally deprived a litigant of their right to trial by jury. Umpiring is the overwhelming cause of the origination of judicial review in these various state and early federal decisions. Familiarity with Privy Council judicial review of the legality under English law of colonial legislation may also have familiarized late eighteenth-​century Americans’ acceptance of courts engaging in the power of judicial review. There were in Ackerman’s terms two appeals by elites to the people made prior to the Civil War: Thomas Jefferson’s successful appeal in 1801, which led directly to the death of the Sedition Act; and Andrew Jackson’s successful appeal to the 35 Gerber, supra note 6, at 205. 36 Id. at 222–​24. 37 Gerber, id., at 243–​45; also citing the New Jersey decisions in State v. Parkhurst (1804) and Taylor v. Reading as early recognition of the power of judicial review. Hamburger, supra note 19, at 407. Austin Scott, Holmes v. Walton: The New Jersey Precedent, 4 Am. Hist. Rev. 456 (1899). 38 Gerber, supra note 6, at 265. 39 1 Yeats 260 (Pa. 1793). 40 2 Yeats 493 (Pa. 1799). 41 4 Dallas 255 (Pa. 1802); Gerber, supra note 6, at 286–​87.

116  The History and Growth of Judicial Review, Volume 1 people in 1828 and then in 1832 against the Bank of the United States. These appeals did ultimately lead to major changes in Supreme Court doctrine when the Democratic Party’s Taney Court replaced the Federalist Party’s Marshall Court. The net result was: (1) a trimming back of Gibbons v. Ogden in Mayor of the City of New York v. Miln, (2) a trimming back of the Contract Clause case law in the Charles River Bridge Case, and (3) the ending of the Bank of the United States on the ground that it was both unconstitutional and was bad as a matter of policy. None of this trimming back of the Marshall Court’s doctrine by the Taney Court in any way endangered judicial review.

B.  The Constitution and the Bill of Rights: Fading Elite Hegemonic Preservation? Professors Lee Epstein, John McGinnis, and Jide Nzelibe have all suggested to me in conversation that the U.S. Constitution and Marbury v. Madison-​style judicial review were all efforts by conservative, hegemonic elites in the Federalist Party to entrench their property and liberty rights in the fashion described by Professor Ran Hirschl in Towards Juristocracy. Advocates of this viewpoint correctly mention the following: (1) the lame-​duck appointment of John Marshall to be chief justice in February 1801 after President Adams was defeated for re-​election; (2) the reduction in size of the Supreme Court from six to five justices to reduce the odds of Jefferson making an appointment; (3) the approval in February 1801 of a judgeship bill creating a new tier of federal circuit courts of appeals; (4) the nomination and confirmation of numerous midnight judges in February and March 1801 to fill the newly created appeals court judgeships; and (5) the passage of a federal law giving the lower federal courts federal question jurisdiction. There is no question that the Federalists in 1801 were a fading hegemonic elite, and there is no question that they sought to entrench themselves in power in federal courts with the power of judicial review. It should be noted that the effort at elite hegemonic entrenchment arguably started long before 1801 in the Philadelphia Constitutional Convention. This convention of slightly more than fifty white men, many of them slaveholders or wealthy for other reasons, wrote a constitution of checks and balances, which was designed to stomp out events like Shays’ Rebellion and to in other ways make efforts to redistribute property exceedingly difficult. It is not unimportant that many of the Anti-​Federalists saw the new U.S. Constitution as a Thermidorian reaction to the wave of liberty unleashed in 1776 by the American Revolution. It could thus be argued that the Constitution was written and ratified in part to buttress the economic and social positions of hegemonic elites who sought to

The United States  117 entrench their values in the Constitution. Judicial review of the constitutionality of legislation thus would have originated not only for umpiring Privy Council reasons, but also as a result of elite hegemonic entrenchment. Ran Hirschl’s thesis in Towards Juristocracy is thus relevant to the origins of judicial review at the time of the American Founding, even if it was in it was not an important cause of the origins of American judicial review of the constitutionality of legislation. One point that invocation of Hirschl’s theory of the fading hegemonic elite entrenchment in courts thesis misses as to President John Adams’s and the Federalist Party’s efforts at lame-​duck elite hegemonic entrenchment is that the Jeffersonians immediately undid four of the five things the Federalists had tried to accomplish that were just described as elite hegemonic entrenchment. The Jeffersonians thus: (1) raised the size of the Supreme Court from five back up to six justices and eventually to seven and under the Jacksonians to nine; (2)  they abolished the intermediate federal courts of appeals the Federalists had created; (3) they terminated the judgeships of the “midnight judges” who had been appointed to the intermediate federal courts of appeals; and (4) they repealed the jurisdictional statute the Federalists had passed giving the lower federal courts federal question jurisdiction. For good measure, the Jeffersonians then impeached Federalist Supreme Court Justice Samuel Chase and had they been successful in their efforts to remove him, they would have turned next to impeaching John Marshall. The events of 1801 are an example of a very unsuccessful effort by a fading hegemonic elite to entrench itself through constitutionalism and judicial review in power. While John Marshall went on to have an illustrious career as chief justice, he was hemmed in for most of his tenure by a majority of judges appointed by his political opponents: Thomas Jefferson, James Madison, James Monroe, and Andrew Jackson. His closest ally was Justice Joseph Story, an appointee of President James Madison. The events of 1801 simply do not support the Hirschl thesis as a plausible explanation of the origins of judicial review of legislation in the United States. Presidents George Washington and John Adams appointed strong and even brilliant Federalist Party members to the Supreme Court, one of whom, Chief Justice John Marshall served brilliantly until his death in 1835. These justices, given Washington’s immense popularity, were arguably part of a rising hegemonic elite that cemented the Constitution into existence for 230  years. Although Marshall was appointed chief justice after Adams had been defeated for re-​election by Thomas Jefferson, there are three good reasons to regard him as part of a rising rather than a fading hegemonic elite. First, none of his opinions have to my knowledge ever been overruled, and a large number are them are the classic starting points for analysis of almost any constitutional clause in question. Marshall was seen as a hero by the New Dealers and the Progressives who

118  The History and Growth of Judicial Review, Volume 1 relied on Marshall’s strong view of federal power to revolutionize American government. Second, John Marshall was extremely close to George Washington, having served under Washington’s command during the brutal winter at Valley Forge. John Marshall gave the official eulogy at President Washington’s state funeral, and he wrote a five-​volume biography of George Washington while serving as chief justice of the United States. John Marshall as chief justice spoke for George Washington at least as much as he did for John Adams. Indeed, Marshall’s broad view of federal power stemmed from his memories of Congress being unable to pay federal troops during the winter at Valley Forge. Third, while John Adams, who actually appointed John Adams to be chief justice of the United States lost the election of 1800 to Thomas Jefferson, he lost it only in the Electoral College! John Adams actually won a majority of the popular vote of free people cast nationwide.42 Jefferson only beat Adams in the election of 1800 because of the South’s three-​fifths bonus in counting their slaves. The South won the election of 1800 under very dubious circumstances that we would all agree today were morally repugnant. This, too, repudiates the idea that the John Marshall appointment was an act of fading, rather than of rising, elite hegemonic preservation. But, there is another and more subtle version of the Hirschl fading elite, hegemonic entrenchment story that might be told about the U.S. Constitution, and that is the account of Charles Beard, in his book An Economic Interpretation of the Constitution of the United States.43 Charles Beard’s book is thoroughly and ably rebutted by Forrest McDonald’s book, We the People: The Economic Origins of the Constitution.44 Beard argued that the U.S. Constitution of 1787 was an effort by a fading hegemonic elite that was deeply concerned about the outbreak of democracy and egalitarianism that the Declaration of Independence had given rise to. Beard claimed the Constitution itself was a Thermidorian document designed to benefit and entrench in power wealthy Americans at the expense of people of ordinary means. If Beard were right, then the Constitution’s system of checks and balances of which Marbury v. Madison-​style judicial review is merely a part is a vast system of hegemonic entrenchment in power by a fading elite in the 1780s. I think Charles Beard’s thesis as to the origins of the U.S. Constitution and implicitly of judicial review is just plain wrong in describing the constitutional developments that occurred in the United States between 1787 and 1791. The Constitution of the United States grew out of very widespread dissatisfaction with 42 Gary Wills, Negro President: Jefferson and the Slave Power (2003). 43 Charles Beard, An Economic Interpretation of the Constitution of the United States (1913). 44 Forrest McDonald, We the People:  The Economic Origins of the Constitution (1958).

The United States  119 the weakness of the national government under the Articles of Confederation vis-​à-​vis Britain, France, and Spain as the colonial European powers, as well as because of concern over Shays’ Rebellion and other similar threats to life, liberty, and property prior to 1787. In my view, the Constitution was written to create a federal government, which would avoid the two dystopias, which I discussed earlier in this chapter:  (1) the Imperial and Executive Tyranny of 1776, and (2) the Village Tyranny of Shays’ Rebellion and the Failed State Problem of 1787. I think the Constitution was written to try to create a regime of ordered liberty in response to all of the many events that transpired between 1776 and 1787. I think the Constitution succeeded because it gestated over a fifteen-​year period of time that began with:  (1) the libertarianism of the Declaration of Independence in 1776; (2) matured into a system of ordered liberty and conservatism with the writing and ratification of the Constitution in 1787 and 1788; and (3) that ended in 1791 when the modestly libertarian Bill of Rights was ratified to mollify the Anti-​Federalists. Every choice the Framers made at Philadelphia was an effort to find a Golden Mean between two extremes. The Framers created a national government that was much stronger than the Articles of Confederation, but which was weaker than the British Empire. The Framers created a president who was much more powerful than any state governor, but weaker than King George III. The Framers created a federal Supreme Court with life-​tenured justices in a nation where today only one state supreme court has life tenure. The U.S. Supreme Court is much more powerful than are any of the State Supreme Courts, but it is much less powerful than was the Privy Council, which combined judicial, executive, and legislative power in itself. This effort over a fifteen-​year period of time to find a Golden Mean may help explain why the U.S. Constitution has proven to be so durable and has lasted 231 years. It is important to note that the arch-​economic conservatives Alexander Hamilton and James Madison did not get the one thing they cared about the most from the Philadelphia Constitutional Convention of 1787. Hamilton wanted, more than anything else, a president who would serve for life or at least for ten years. He did not get this. The president serves a short term of four years and is now subject to a two-​term limit. James Madison wanted the federal Congress to have the power to veto state laws, which he feared would threaten the interests of the wealthy. Madison did not get his wish. Congress has no enumerated or implied power to veto state laws. The one person at Philadelphia who probably got what he wanted the most was George Washington—​a fact that has been pointed out to me by Professor Akhil Reed Amar. Washington was a centrist on national power and on executive power, and he got both those things in Philadelphia in 1787. It is amusing to think that the presiding officer of the convention who never spoke got the things he wanted the most, and they were not Charles Beardian privileges for the high

120  The History and Growth of Judicial Review, Volume 1 born and wealthy, but a functional national government that could defend itself from all enemies foreign and domestic. It also helped that George Washington, as president, was a Nelson Mandela, and not a Simon Bolivar or Vladimir Putin. It is thus a mistake to focus on the economic elites at the Philadelphia Convention because they did not prevail. The American people insisted upon and got a federal Bill of Rights. Congressman James Madison, himself, ironically drafted the federal Bill of Rights as the first ten constitutional amendments, and he shepherded them through Congress. Three-​quarters of the states ratified the federal Bill of Rights by 1791, and it has played and continues to play an enormous role in American history. The Charles Beard thesis overlooks the Bill of Rights as a populist triumph. It should be noted that it took Americans a fifteen-​year period of trial and error between 1776 and 1791 to come up with a workable constitutional government, and even that government had to endure a bitter Civil War from 1861 to 1865 and Reconstruction from 1865 to 1877 to get democracy right. This suggests that when we Americans give advice to newly emerged democracies on constitution writing, as we have often done, we should be modest about our expectations and demands. Creating a constitutional, democratic rule of law regime is hard work, and it takes time to get it right. Returning to my story, I can thus say that on the key issues that mattered the most to the Young Turks like Hamilton (a president who served for ten years or for life) and Madison (a national veto of state laws), they lost to the Old Turks like Benjamin Franklin. By 1801, the founding Federalist Party of John Adams and Alexander Hamilton had been permanently destroyed and driven into exile, and it was not hegemonically entrenched. Thomas Jefferson’s liberal Democratic Party came to power in 1801, and, but for two four-​year terms, it controlled the presidency for every year from 1801 to 1861, when the Civil War broke out. The founding generation clearly expected that the Constitution would be enforced by the federal courts through the judicial review of federal laws that allegedly violated the Constitution. The next question a Charles Beardian might then ask, is this: Did the founding generation give the federal courts the power of judicial review to entrench the views of a fading hegemonic elite as Professor Hirschl might argue, or for reasons of insurance and commitment as Professor Ginsburg might argue? There is no question but that the Federalists who wrote and ratified the Constitution were an elite. But, the members of the state ratifying conventions were not so clearly an elite, and they exacted a pound of flesh from the Framers in the adoption of the Bill of Rights, which was a populist demand. Moreover, the Framers of the Constitution were, in my opinion, motivated by a genuine concern, expressed in the first nine Federalist Papers, that the Articles of Confederation government was so weak that the United States might be

The United States  121 conquered by a European Empire or that the states might fight a civil war among themselves unless national power was strengthened. The Federalist Papers Nos. 1 through 9 are clearly concerned by this prospect. The founding generation also knew that as an historical matter, prior to 1776, there had been some central governance of the thirteen American colonies by the Privy Council and that this had not necessarily been entirely a bad thing. The Privy Council had, and had exercised, a national veto on state laws, a veto that James Madison sought unsuccessfully to imitate in the federal Constitution. In practice, the federal courts have historically provided the federal veto that Madison unsuccessfully sought and which the Privy Council had once exercised. Federal judicial review simply restored to the thirteen American states the British imperial status quo from 1660 to 1776 in which there was a periodic national veto of state laws. Judicial review of legislation under the Constitution emerged for historical reasons relating to the role once played by the Privy Council, because of the changes in the way judicial power came to be viewed between 1776 and 1803, as is explained by Professor Gordon S. Wood; and because bicameralism, the separation of powers, and federalism created a political space in which judges could act without facing retribution from a fused, executive-​legislative hybrid in an all-​powerful nation-​state. Judicial review simply did not emerge as an historical matter as a result of a fading hegemonic elite trying to entrench itself in power. The founding generation was not a fading hegemonic elite at all. Finally, judicial review emerged in state constitutional decisions prior to the 1803 decision in Marbury v. Madison, and was defended in The Federalist No. 78 for the critical reason that sovereignty, first in the American states from 1776 to 1789, and later in the Constitution from 1789 to 2020, was recognized as resting in “We the People of a State” or in “We the People of the United States *** who ordain and establish this Constitution.” British judges could not judicially review Acts of Parliament because under the British Constitution in the eighteenth century, the King-​in-​Parliament was sovereign. Every act of Parliament thus had the status American judges would accord to constitutional amendments. But, under the theory of the first state constitutions enacted after 1776, and under the theory of federal constitution, which went into effect in 1789, “We the People” were sovereign, and the President-​in-​Congress was not. American judges could thus, as Alexander Hamilton explained in The Federalist No. 78 compare the people’s constitution with laws enacted by the President-​in-​Congress and give legal effect to the former and not to the latter. The shift in sovereignty from the King-​in-​Parliament to We the People of the United States is what made judicial review of the constitutionality of legislation possible in the United States and in the various state court opinions, which I discussed earlier.

122  The History and Growth of Judicial Review, Volume 1 Bruce Ackerman argues in We the People, Volume I:  Foundations; in We the People, Volume II:  Transformations; and in The Failure of the Founding Fathers that there was a mass popular movement of Americans in 1787–​1789, which extralegally ditched the Articles of Confederation and the prior state constitutions to adopt the U.S. Constitution.45 Ackerman also identifies a mass popular movement with the Jeffersonians’ takeover of the federal government in 1801 followed by the adoption of the Twelfth Amendment. Ackerman’s mass popular movement thesis contradicts Ran Hirschl’s elite hegemonic preservation thesis as to the framing of the Constitution. I think Ackerman is right that in its day, in 1787–​1789, the mobilization of Federalists to secure popular ratification of the Constitution seemed like a mass popular movement—​at least compared to anything that had preceded it. I think the same thing is true of the Jeffersonian mobilization in 1800. It must be noted, however, that the mass mobilizations at the founding were of free male property owners and not of all the people. Thus, there is a real limit to the explanatory descriptive power of Ackerman’s positive and not normative account of the American Founding. There emerged, of course, in the 1790s, a profound disagreement between Alexander Hamilton and Jefferson and Madison over the scope of national and presidential power, but Hamilton’s views on the Constitution were at all times way outside the mainstream of the founding. John Adams, who was along with George Washington one of our two Federalist presidents, thought Hamilton was a radical nut. Hamilton’s proposal of a life-​tenured president at the Philadelphia Constitutional Convention was met with stunned silence and sank like a stone. Madison played a bigger role than Hamilton in the drafting of the Constitution, and he went on after 1787 to serve as a congressman, as secretary of state, and as president from 1809 to 1817 so he certainly counts as a member of the elite.46 But, the founding generation in the United States was a rising hegemonic elite. It was not a fading hegemonic elite like white South Africans in 1992, as described by Ran Hirschl. Nor did the founders seek to entrench their rights in the original Constitution, which as I have seen had lacked a Bill of Rights altogether. There was a Contracts Clause in the original Constitution that applied to the states but not to the national government, but there was originally no Takings Clause. The most likely explanation of what the founding generation accomplished is that it created a 45 Bruce Ackerman argues this in three of his books: We the People, Volume I: Foundations (1991); We the People, Volume II:  Transformations (1998); and in The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy (2007). 46  Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (2007); Gordon S.  Wood, Revolutionary Characters:  What Made the Founders Different 141–​172 (2006).

The United States  123 strong enough national government to protect us from being conquered by a European empire. The Founding generation also restored, some, but not all, of the umpiring powers exercised by the Privy Council between 1660 and 1776, and it wrote a document that thanks to bicameralism, the separation of powers, and federalism gave the federal courts some political space in which the judges could safely act at a time when Professor Gordon Wood shows that the people had come to favor judicial action. The original Constitution is famous for its lack of a Bill of Rights and its reliance on structure to preserve liberty. A fading hegemonic elite or an elite interested in insurance and commitment would have been much more focused on a Bill of Rights and less interested in structural constitutionalism. The founding did not end with the adoption of the Constitution, of course, because as we have seen, a number of key states ratified the Constitution with reservations, asking among other things for a national Bill of Rights. But, to be totally accurate, I must observe that the federal Bill of Rights that Congressman James Madison drafted was a sop given by the Federalists to the Anti-​Federalists. The federal Bill of Rights did not limit the commerce power of Congress at all, as the Anti-​Federalists had wished, but it instead merely copied some, but not all, of “the mere parchment” barriers to legislation, which had existed, in 1789, in many of the state declarations of rights. The rights protected in the federal Bill of Rights were all what Professor Alan Dershowitz would call rights from wrongs, which were adopted because of historical abuses of power. The same thing is true of the rights protected by Article I, Sections 9 and 10. Article I, Sections 9 and 10 forbade both Congress and the states from passing Bills of Attainder or Ex Post Facto laws. These clauses clearly were incorporated in the Constitution because of abuses of power by the English Parliament in the seventeenth century. The Bill of Attainder and Ex Post Facto laws clauses did not entrench the interests of a fading hegemonic elite. These clauses are classic rights from wrongs constitutional clauses. The same thing is true of the Contracts Clause, which forbade the states but not the federal government from passing laws impairing the prohibition of contracts. This clause was a response to state debtor relief laws passed in the 1780s, which the Framers thought were abuses of power. The Contracts Clause does not apply at all against the federal government, and it limits only retroactive and not prospective impairments of contracts as the Supreme Court eventually held in Ogden v. Saunders, 25 U.S. 213 (1827). The clause is thus nothing more than a limitation of some but not all retroactive civil laws enacted by the states and not Congress, which is needed because the Ex Post Facto laws clauses applied only to retroactive criminal laws, as the Supreme Court eventually held in Calder v. Bull, 3 U.S. 386 (1798). The Contract Clause is a right from a wrong

124  The History and Growth of Judicial Review, Volume 1 being driven by the Framers’ concern over retrospective debtor relief laws in the state legislatures during the 1780s. The Establishment and Free Exercise Clauses of the First Amendment reflect the sorry history of religious warfare in seventeenth-​century England and in Continental Europe in the sixteenth and seventeenth centuries. They were drafted by James Madison who believed in constitutionalizing protection of religious liberty for rights from wrongs reasons. The Establishment Clause, originally, was a federalism provision, as Professor Akhil Reed Amar points out,47 which prevented the national government from establishing a church given that a number of the states had different established churches of their own. It is impossible to read the Religion Clauses as the action of a fading hegemonic elite losing power. The Framers did not want the United States to repeat the sorry history of religious warfare and persecution, which had occurred in England and Europe. The Religion Clauses of the First Amendment also also have a rights from wrongs aspect to them for this reason. The protection of freedom of the press in the First Amendment reflects England’s bad historical experience with the licensing of printers in the seventeenth century. John Milton famously complained about such licensing in Areopagitica: A Speech of Mr. John Milton for the Liberty of Unlicensed Printing, to the Parliament of England.48 The Roundheads under Oliver Cromwell did not follow Milton’s advice, however, nor did Kings Charles II and James II from 1660 to the Glorious Revolution of 1688. Printing was licensed in England until the 1690s by which time the Whigs who had won in the Glorious Revolution of 1688 established a convention that freedom of the press in the sense of no prior restraints was an English constitutional convention. Blackstone codifies this convention against prior restraints in his Commentaries. In the American colonies, John Peter Zenger was arrested and imprisoned for seditious libel in 1734 in New York, but the jury that tried him in 1735 refused to convict, thinking there was an American constitutional convention against limiting freedom of the press in this way. The understanding of freedom of the press was thus broader in the American colonies, in 1776, than it was in England. The Sedition Act of 1798 did violate the First Amendment, as it was originally understood, because of the widespread acceptance of the John Peter Zenger verdict’s justness. Constitutional protection for freedom of the press was thus a rights from wrongs phenomenon. The same arguments of rights from wrongs apply to the right to petition for the redress of grievances, which King James II had denied

47 Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1998). 48 Areopagitica: A Speech of Mr. John Milton for the Liberty of Unlicensed Printing, to the Parliament of England (1644).

The United States  125 and which the English revolutionaries of 1688 constitutionalized in the English Bill of Rights of 1689. James Madison expanded freedom of expression rights beyond freedom of the press by including as well freedom of speech, which was protected by only one state constitution in 1789. Constitutional protection of freedom of speech does serve insurance and commitment goals, and an additional likely reason as to why Madison historically included constitutional protection for freedom of speech in the First Amendment is because of the important historical role it had played from 1776 up 1789 in effectuating first the American Revolution and then the adoption of the Constitution. The Second Amendment’s protection of gun rights is another rights from wrongs provision, which copies a similar provision in the English Bill of Rights of 1689 that gave gun ownership rights to all Protestants in England. It also reflects the importance of the state militias in winning the Battles of Lexington and Concord and eventually the American Revolution. The Third Amendment ban on quartering troops in private houses is very much a rights from wrongs provision as well, reflecting actual historical and colonial grievances against the British that go back to the 1620’s. The criminal procedure protections of the Bill of Rights, which appear in Amendments IV through VIII, all also reflect actual historical rights from wrongs as is explained in Professor Amar’s book on The Constitution and Criminal Procedure.49 The warrant requirement of the Fourth Amendment, for example, grew out of the colonial experience with general warrants and writs of assistance. The Due Process Clause of the Fifth Amendment clearly grows out of similar clauses in state constitutions, which in turn grew out of the “by the law of the land” guarantee in Magna Carta dating back to 1215. It too is a historical right from a wrong committed by English kings who would lock people up without giving them a trial by their peers. The Ninth Amendment grew out of Madison’s desire to appease those who feared that a written Bill of Rights might be under-​inclusive, while the Tenth Amendment states merely a truism that was meant to appease the Anti-​Federalist by emphasizing that Article I, Section 8 created only a national government of limited and enumerated powers. Both amendments were a direct response to Anti-​Federalist concerns. That leaves one clause in the Bill of Rights, the Takings Clause of the Fifth Amendment, which is clearly motivated by hegemonic preservation or insurance and commitment concerns rather than rights from wrongs concerns. This clause had no prior history in 1789, and it appears to have been slipped into the 49 Akhil Reed Amar, The Constitution and Criminal Procedure:  First Principles (1997).

126  The History and Growth of Judicial Review, Volume 1 Bill of Rights by James Madison for reasons known only to himself. Madison was a wealthy landowner with many slaves, and he was very alarmed by Shays’ Rebellion. The Takings Clause might thus be explained by Ran Hirchl’s theory of elite hegemonic preservation or by Tom Ginsburg’s insurance and commitment theory. I think the Takings Clause is of indispensable importance to economic growth because it so effectually forbids the uncompensated seizure of assets. I conclude my discussion of the fifteen-​year founding period from American independence in 1776 to the ratification of the Bill of Rights in 1791 by mentioning again the insightful essay by Douglass North and Barry Weingast on the emergence of constitutional government in seventeenth-​century England. The thirteen American colonies in many ways followed a very similar path to the one followed by England in the seventeenth century. England and the thirteen colonies both experienced high-​handed dictatorial misrule by kings: James I and Charles I in England’s case, and George III in the case of the thirteen colonies. Both countries reacted to high-​handed executive power by giving total power to their legislatures, Parliament in 1641, and the colonial legislatures and the Continental Congress, between 1776 and 1787. In both countries, this was eventually recognized as having been a mistake. England, at the end of the seventeenth century, adopted a checked and balanced constitution of the King-​in-​ Parliament rather than the divine right of kings, and England in 1701 and then again in 1761 added an independent judiciary. The United States between 1787 and 1791 followed the same path. A constitution of checks and balances was set up with four veto points: the House of Representatives, the Senate, the president, and the life-​tenured federal courts. America then experienced the same explosive financial success that propelled Britain to overtake France as the leading power in Europe in the early eighteenth century. The United States eventually overtook Britain and many countries as well to become the leading economic and military power in the world. Constitutional government thus served the purposes of insurance and commitment and may have been retained for that reason, but constitutional government and judicial review did not emerge for that reason. Historically, the Constitution, the Bill of Rights, and judicial review of legislation was born for umpiring and rights from wrongs reasons.

IV.  Judicial Review in the U.S. Supreme Court: 1789 to the Civil War to 1894 As I mentioned in the introduction to this two-​volume book series, I substantially agree with the account given as to the origins of judicial review in the

The United States  127 United States in Professors Barry Friedman and Erin Delaney’s article “Becoming Supreme: The Federal Foundation of Judicial Supremacy.”50 Professors Friedman and Delaney downplay greatly the significance traditionally attached to Chief Justice John Marshall’s opinion in Marbury v. Madison, 5 U.S. 137 (1803), and they argue that judicial review in the United States meant as a practical matter the vertical enforcement of American federalism by the central government upon the states. Judicial review between 1789 and the 1890s, in their opinion, was an important element of the central government’s control over the states, and it was therefore supported by the executive and legislative branches of the national government as a tool of central control over the states. This is, of course, entirely consistent with the theory of the Privy Council origins of U.S. judicial review as a form of vertical federalism umpiring enforcement, which I sketched out earlier.

A.  Response to Professors Friedman and Delaney Professors Friedman and Delaney make a realist argument that federal judicial power was not used horizontally against the executive and legislative branches of the federal government in a sustained way until the decisions in United States v. E. C. Knight Co.51 and in Hammer v. Dagenhart.52 They claim to be merely describing and offering a positive and not normative account of what judicial review was like in the first one hundred years of U.S. history. In their account, the formal assertion of the power of the federal courts to horizontally enforce the Constitution against Congress and the president in Marbury did not become a reality until the 1890s after judicial review had come to be accepted and legitimized as a form of vertical federal umpiring control over the states. Judicial enforcement of the Bill of Rights did not begin until much later with the first major cases being decided after the New Deal Revolution of 1937. Judicial enforcement of the Bill of Rights against the states and the national government was not fully operational until the Warren Court era of the 1960s. I agree with Professors Friedman and Delaney that as a realist matter, federal judicial power between 1789 and the 1890s was mostly asserted in vertical federalism cases where the Supreme Court was acting as an agent of the central government in controlling the states. This is consistent with the Privy Council system of vertical federalism review umpiring being continued by the federal

50 Barry Friedman & Erin Delaney, Becoming Supreme:  The Federal Foundation of Judicial Supremacy, 111 Colum. L. Rev. 1137 (2011). 51 156 U.S. 1 (1895). 52 247 U.S. 251 (1918).

128  The History and Growth of Judicial Review, Volume 1 courts as described. Nonetheless, I think that there were some quite important federalism and separation of powers decisions made by the Supreme Court well before 1890, and so I think horizontal judicial review arose in the United States much earlier than Professors Friedman and Delaney acknowledge. Horizontal judicial review is thus quite legitimate and is quite well grounded in history, as is vertical judicial review. This comports with Professor Gordon S. Wood’s argument, described earlier, that full-​scale U.S. judicial review emerged between 1776 and 1803 as Americans came to have more and more confidence in judicial review, and in the courts exercising major governmental power. In the early 1790s, well before the decision in Marbury v.  Madison,53 the Supreme Court asserted the power of judicial review defensively to protect the federal courts as a matter of the horizontal separation of powers from being given nonjudicial work by Congress and the president. I have already discussed the Supreme Court’s exercise of the power of judicial review against President Washington in 1793 in the episode known as the Correspondence of the Justices.54 This episode was an important exercise of horizontal judicial power. I have also already discussed the rulings by the Supreme Court justices that Congress acted unconstitutionally in Hayburn’s Case.55 In this case, five of the six Supreme Court justices while riding circuit held that the Invalid Pensions Act of Congress of 1792 was unconstitutional insofar as it gave judges a power to set pensions for invalid Revolutionary War veterans, which decisions could then be completely revised by executive branch officials. The justices held in essence in Hayburn’s Case the idea that the judicial power could only be invoked when there was a substantial likelihood that the exercise of judicial power would make a difference in the real world. This holding, too, was an important exercise of horizontal judicial power well before the 1890s. It involved the rejection by the federal courts of a duty to perform an act mandated by an Act of Congress. The Correspondence of the Justices and Hayburn’s Case both involve a defensive exercise of horizontal judicial power in which the court refused to act, as in Marbury v. Madison, lest it be unconstitutionally burdened with extra chores. Nonetheless, there are some famous instances of horizontal, separation of powers judicial review in which the Supreme Court asserted itself against the president. For example, in Little v.  Barreme,56 the Supreme Court held that President Thomas Jefferson did not have the inherent executive power to go beyond congressional legislation and order the seizure of American ships sailing



53

5 U.S. 137 (1803). The Correspondence of the Justices, 1793. 55 2 U.S. 409 (1792). 56 6 U.S. 170 (1804). 54

The United States  129 from as well as sailing to French ports. This case set an important limit on presidential power and foreshadows Youngstown Sheet & Tube Co. v. Sawyer,57 the Steel Seizure Case, in rejecting claims of inherent presidential power to seize property. In 1807, former Vice President Aaron Burr was indicted for treason on account of some shady dealings he had had in which he seemed to be trying to set up a regime he could govern in Mexican and Spanish land. President Thomas Jefferson took an obsessive personal interest in the Burr treason prosecution, which he micromanaged using his powers as law enforcement officer-​in-​chief. As luck would have it, Chief Justice John Marshall, while riding circuit, presided over Burr’s treason trial where he insisted on the Constitution’s requirement of two witnesses in open court for the proof of treason. The jury in Burr’s case ended up with Chief Justice Marshall’s guidance acquitting Burr, which infuriated Thomas Jefferson. This too seems to me to be an important early exercise of horizontal judicial power by the federal courts—​this time again without the courts being in a wholly defensive posture. The Burr trial was a really big deal at the time it occurred, and Jefferson lost while John Marshall won. It turned on the question of the constitutional definition of treason and was a major separation of powers case in which the federal courts successfully asserted judicial power against the executive branch in a highly charged political controversy. Friedman and Delaney’s account totally overlooks Chapter 6 of Volume I of Alexis de Tocqueville’s “Democracy in America” published in 1835. Here, de Toqueville identifies as one of the most striking features of American democracy being the great power exercised by American judges. This is a striking omission on Friedman and Delaney’s part. Jumping ahead by three years to 1838, we find the landmark Supreme Court opinion in Kendall v.  Stokes.58 In that case, Andrew Jackson’s close personal friend and political ally Amos Kendall, who was the postmaster of the United States and therefore a key figure in handing out patronage jobs, refused to pay to a plaintiff by the name of Stokes an amount of money awarded to Stokes by an auditor. Congress had expressly commanded Kendall to pay Stokes whatever some auditors in the Treasury Department determined that the federal government owed Stokes. Stokes sued under this Act of Congress seeking a writ of mandamus ordering Kendall to pay him all that he was owed, and the Supreme Court ruled for Stokes and issued a writ of mandamus against Kendall over the dissent of Chief Justice Roger B. Taney. Kendall v. Stokes is the cornerstone case



57 58

343 U.S. 579 (1952). 44 U.S. 87 (1838).

130  The History and Growth of Judicial Review, Volume 1 of U.S. administrative law, and it is an important exercise of horizontal judicial review power by the Supreme Court in the 1830s. During the 1860s, the Supreme Court decided three horizontal judicial review cases of great importance. In The Prize Cases,59 the court upheld the legality of President Lincoln’s blockade of Confederate ports prior to his receiving congressional approval for that blockade in the summer of 1861. This was an important exercise of the power of horizontal judicial review, and neither the majority nor the dissent in this 5 to 4 ruling questioned the U.S. Supreme Court’s power to decide the cases. In Ex parte Milligan,60 the Supreme Court sharply limited the government’s power to try civilians with military commissions, and it invalidated test oaths of future loyalty to the Union. The Milligan case is a very important case in its field, which constituted a major exercise of horizontal judicial power against the political branches of the federal government. And, in Ex parte Garland,61 the Supreme Court issued another important horizontal opinion invalidating test oaths of future loyalty to the Union even at the same time as Congress was impeaching President Andrew Johnson. The court retreated strategically as Professors Friedman and Delaney argue in Ex parte McCardle62 where the justices held that Congress could strip the court of its jurisdiction under an 1867 federal Habeas Corpus Act, but the very next year the court held in Ex parte Yerger63 that it retained jurisdiction to issue writs of habeas corpus in cases like Yerger’s and McCardle’s under the Judiciary Act of 1789. Ex parte Yerger makes it crystal clear that where there are two avenues of habeas appeal to the Supreme Court, Congress can shut off one of them but not necessarily the other. This is hardly a foreswearing of the power of horizontal separation of powers judicial review. I am thus not persuaded by Professors Friedman and Delaney’s claim that horizontal judicial review did not really get going in the United States until the Supreme Court’s decision in the E.C. Knight case in 1895.64 There were a large number of important separation of powers umpiring cases decided by the U.S. Supreme Court between 1792 and 1894, and no one questioned the authority of the federal courts to engage in separation of powers umpiring. Even in Ex parte Merryman,65 when Chief Justice Taney issued a writ of habeas corpus directing the release of John Merryman, which President

59 60 61 62 63 64 65

67 U.S. 635 (1863). 71 U.S. 2 (1866). 71 U.S. 333 (1868). 74 U.S. 506 (1869). 75 U.S. 85 (1869). 156 U.S. 1 (1895). 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487).

The United States  131 Abraham Lincoln ignored, President Lincoln did not question the legality of Taney’s order but said instead in his July 4, 1861, address to a special session of Congress that he had had to violate one small law because the vast bulk of the laws were being violated in the eleven states that were rebelling against federal authority. Congress sanctioned after the fact what Lincoln had done. No one thought that this meant the federal courts lacked the power of horizontal judicial review, which Professor Gordon S.  Wood shows originated in the years between 1776 and 1803. Instead, it was widely understood that Taney had exercised that power in an improper way, and that Lincoln’s response was appropriate given the dire circumstances the nation was in in the spring of 1861, when Congress could not yet safely be called into special session in Washington, DC. So far I have mentioned horizontal exercises of the power of judicial review between 1792 and 1895 in horizontal separation of powers cases but not in horizontal federalism cases. A horizontal federalism case of the enumerated power type is one in which the federal courts review the constitutionality of an Act of Congress because of a claim that it exceeds Congress’s enumerated power or because Congress had violated the federal Bill of Rights. On this point, Professors Friedman and Delaney fall back on a frequently made assertion that there were only two instances of the federal courts striking down Acts of Congress on enumerated powers federalism grounds prior to the Civil War: Marbury v. Madison, 5 U.S. 137 (1803) and Dred Scott v. Sandford, 60 U.S. 393 (1857). This statement is true so far as it goes, but it overlooks the fact that in all the controversy over those two cases, no one on either side ever disputed that the federal courts had the power, as Alexander Hamilton explicitly claimed in The Federalist No. 78 to engage in horizontal federalism judicial review. Thomas Jefferson’s complaint with Marbury v. Madison was not with that case’s assertion of the power of horizontal judicial review in federalism cases—​a power which Jefferson agreed the federal courts had. Jefferson was instead in disagreement with the dicta in Marbury to the effect that the executive actions of cabinet secretaries were judicially reviewable and were not protected from such review by sovereign immunity. Similarly, the dissenters in Dred Scott did not take issue with the majority’s assertion of a horizontal power of judicial review in federalism cases generally. Instead, they argued quite correctly that: (1) free African Americans could become citizens of the United States, and (2) that Congress’s power to make all needful rules and regulations respecting the territories of the United States allowed it to outlaw slavery in a federal territory as the Continental Congress had done in 1787 under the Articles of Confederation. No one disputed that a power of horizontal judicial enforcement of enumerated federal powers was constitutional between 1803 and 1895. Even in

132  The History and Growth of Judicial Review, Volume 1 McCulloch v. Maryland,66 Chief Justice John Marshall said quite explicitly in that famous case that: Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.

The reason there were only two horizontal enumerated powers cases decided by the Supreme Court prior to the Civil War striking down Acts of Congress was because Congress passed so few federal statutes during an era in which the Senate was evenly divided between slave states and free states. In fact, Professor Gerard Magliocca argues that the Supreme Court under Chief Justice Taney would have overruled McCulloch v. Maryland, in the 1840s, had not President Tyler twice vetoed Acts of Congress renewing the Bank of the United States in violation of the Whig Party platform on which William Henry Harrison and John Tyler were elected president and vice president in 1840. Jackson’s veto message of the renewal of the Bank of the United States in 1832 explicitly disagreed with the reasoning of Chief Justice John Marshall’s opinion in McCulloch v.  Maryland, on enumerated powers horizontal judicial review grounds, and it is a fact that Presidents Jackson and Tyler killed the Bank of the United States for eighty-one years notwithstanding Marshall’s brilliant opinion in McCulloch. No institution similar to the Bank of the United States was created or existed during the eighty-​one years between Jackson’s killing of the bank on horizontal judicial review grounds in 1832, and Woodrow Wilson’s creation of the Federal Reserve Board in 1913. The Supreme Court did, in Mayor of the City of New York v. Miln,67 hold that that the City of New York had the power to control immigration into New York and to impose a tax on any ship captain who brought a pauper to the city notwithstanding the Commerce Clause of the federal Constitution. This decision of the Taney Court was technically a dormant Commerce Clause case, but the court’s opinion suggests it would have struck down as unconstitutional a federal statute enacted under the Commerce Clause compelling the states to admit immigrants and paupers. A majority of the Supreme Court under Chief Justice Taney was well prepared to strike down federal laws on enumerated powers grounds even prior to

66 67

17 U.S. 316 (1819). 33 U.S. 120 (1837).

The United States  133 Dred Scott. The Taney Court sharply departed from the Marshall Court’s construction of the Commerce Clause in Gibbons v. Ogden,68 in the Taney Court decision in Mayor of the City of New York v. Miln, and it sharply departed from the Marshall Court’s construction of the Contract Clause in Dartmouth College v. Woodward,69 in the Taney Court decision in Charles River Bridge v. Warren Bridge, 36 U.S. 420 (1837). There is every reason to think that the Taney Court might well have done the same thing as to McCulloch v. Maryland had President Tyler not twice vetoed the renewal by Congress of the Bank of the United States in the 1840s. The Supreme Court did decide some very important federalism cases between 1803 and 1857 where it upheld the constitutionality of federal laws that were challenged as being unconstitutional on enumerated powers grounds. Famous examples include Martin v. Hunter’s Lessee,70 McCulloch v. Maryland,71 Cohens v. Virginia,72 and Osborn v. Bank of the United States.73 It has been widely recognized that the Supreme Court played a major role in legitimating the growth of federal power during this period of time. Alexander Bickel argues as much in The Least Dangerous Branch.74 Professors Friedman and Delaney overlook the fact that the Supreme Court could not have legitimated the use of federal power in these cases, as Bickel correctly argues it did, unless there was a very real possibility that the Supreme Court could have instead struck down claims of federal power rather than upholding them. Professors Friedman and Delaney also overlook the fact that during the Jeffersonian and Jacksonian eras, it was constitutional orthodoxy that the federal government lacked the enumerated power to do many things as is particularly illustrated by the repeated vetoes issued by Jeffersonian and Jacksonian presidents of laws that would have made internal improvements. The question of the constitutionality of such laws once again never reached the Supreme Court in part because the Jeffersonian and Jacksonian presidents vetoed those laws on constitutional grounds, preventing cases challenging such laws from ever reaching the Supreme Court. It is thus highly misleading to argue that since the Supreme Court only struck down two Acts of Congress prior to the Civil War as being unconstitutional, judicial power to decide horizontal, federalism, enumerated powers cases did not exist. In fact, the constitutional culture of the Jeffersonian and Jacksonian eras 68 22 U.S. 1 (1824). 69 17 U.S. 518 (1819). 70 14 U.S. 304 (1816). 71 17 U.S. 316 (1819). 72 19 U.S. 264 (1821). 73 22 U.S. 738 (1824). 74 Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962).

134  The History and Growth of Judicial Review, Volume 1 was so committed to enumerated powers federalism that the Jacksonian Taney Court did not have many opportunities to strike down Acts of Congress on enumerated powers grounds. This point is illustrated by the controversy in the antebellum period over the constitutionality of spending federal money on internal improvements. This was an issue that was very much on people’s minds when McCulloch v. Maryland discussed earlier was decided with an opinion where the court upheld the constitutionality of the Bank of the United States on grounds broad enough to support the Hamiltonian rather than the Madisonian reading of the federal government’s spending power. James Madison had argued for the ratification of the Constitution in the Federalist Papers and at the Virginia ratifying convention based upon a very narrow construction of the federal power to spend money. Madison thought that federal spending must be at least tangentially tied to one of the other specifically enumerated powers, such as regulating interstate or foreign commerce, or providing for the military. Madison claimed that the General Welfare Clause in Article I, Section 8, Clause 1 was not a specific grant of power, but a statement of purpose qualifying the power to tax. Pursuant to this understanding, President Madison had on March 3, 1817, vetoed an Act of Congress spending federal money on internal improvements and canals on enumerated powers grounds. Madison specifically said in issuing his veto that he thought this use of the spending power exceeded the grants of power to Congress made in Article I, Section 8. McCulloch v. Maryland was decided two years after the famous Madison veto, and the case is famous for its expansive Hamiltonian language about federal power under the Necessary and Proper Clause. McCulloch was controversial when it was decided, not so much because of its upholding of the constitutionality of the Bank of the United States, as because of its implicit repudiation of President Madison’s act of constitutional interpretation in vetoing the internal improvements and canals bill. It is striking in this regard that President Madison’s successor, President Monroe, vetoed only one Act of Congress during his eight years as president and that was his veto of the Cumberland Road bill on May 4, 1822. Monroe’s veto reiterated Madison’s constitutional construction of the limits on the federal spending power. The idea that Congress lacked the power under Article I, Section 8 to spend federal money to make internal improvements and to build canals led President Andrew Jackson to issue the famous Maysville Road veto on May 27, 1830. The bill in question would have built a road between two cities in Kentucky and was part of John Quincy Adams and Henry Clay’s program of an American System plan of Hamiltonian spending to build up a national infrastructure of roads, canals, and eventually railroads. Jackson vetoed at least six bills during his eight years as president on the ground that the federal government lacked the power to

The United States  135 make internal improvements. He pocket vetoed a bill to support the building of lighthouses and the placement of buoys. President Tyler vetoed two internal improvements bills on enumerated powers grounds; and Presidents Pierce and Buchanan also vetoed internal improvements bills on enumerated powers grounds. It was a staple of the orthodoxy of the Jacksonian presidents that Madison was right and John Marshall was wrong about the extent of the federal government’s enumerated powers. President Jackson said as much when he killed the Bank of the United States by vetoing a bill that would have renewed the bank’s charter on July 10, 1832, making the scope of federal power a key issue in the 1832 presidential election, which Jackson then won in a landslide. The Supreme Court did strike down two major federal statutes prior to 1895 when Professors Friedman and Delaney think that horizontal judicial review really got going in earnest on the ground that Congress had exceeded its limited and enumerated powers. In Hepburn v. Griswold,75 the Supreme Court struck down the Legal Tender Act authorizing paper money during the Civil War on a 4 to 3 decision on enumerated powers grounds. The critics of this case did not disagree that the court had the power to decide horizontal federalism cases; they argued instead that federal power was broad enough to allow for the printing of paper money. The decision in Hepburn v. Griswold did lead to the adoption of a court packing bill, which added two new pro-​paper money justices to the U.S. Supreme Court, which, in 1871, overturned its decision in Hepburn.76 But, no justice in the latter case denied that the federal courts had the power to strike down Acts of Congress that exceed the federal enumerated powers. In 1883, the Supreme Court also struck down, on enumerated powers grounds, the Civil Rights Act of 1875 in the Civil Rights Cases,77 by a vote of 8 to 1. Justice Harlan was the lone dissenter in those cases, and he did not claim in his dissent that the majority lacked the power to enforce enumerated powers limits on Congress. Justice Harlan argued correctly instead that the majority had misread both the Thirteenth Amendment and the State Action requirement of the Fourteenth Amendment when it struck down the Civil Rights Act of 1875 on enumerated powers grounds. This seminal case established long before E.C. Knight in 1895 that the court could and would strike down Acts of Congress on enumerated powers grounds. As it happens, a majority of the court erred in both the Civil Rights Cases and in the E.C. Knight and Hammer v. Daggenhart,78 cases in striking down the Acts of Congress in question in those three cases. My point



75

75 U.S. 603 (1870). Knox v. Lee, 79 U.S. 457 (1871). 77 109 U.S. 3 (1883). 78 247 U.S. 251 (1918). 76

136  The History and Growth of Judicial Review, Volume 1 is only that I think that Professors Friedman and Delaney engage in quite a bit of overstatement when they claim judicial power did not get exercised horizontally in the United States until 1895. It is time to step back from the case law and from my quibbles with Professors Friedman and Delaney and look at the big picture of American judicial review, especially in light of the British imperial history of the Privy Council, which I discussed in Chapter One. It seems clear to me at least that when James Madison sought a federal veto over state laws at the Philadelphia Constitutional Convention, as Professors Friedman and Delaney note, that he was asking for Congress to have the same power vis-​à-​vis the states as had been enjoyed by the King-​in-​C ouncil from 1607 until 1776. The King-​in-​ Council during the colonial period did veto colonial laws, and it heard judicial appeals from the thirteen North American colonies. Madison’s request for a federal veto over state laws was thus much less radical than many might otherwise have supposed given the fact that the King-​in-​C ouncil had had such a veto for 169 years. The emergence of vertical judicial review of an umpiring nature in federalism cases in the United States, as chronicled by Professors Friedman and Delaney, seems to me to be a continuation and a deepening of the colonial practice of imperial judicial review of errant colonies or states. For obvious reasons, it was a lot easier to appeal to the Supreme Court of the United States sitting in Washington, DC, or to the justices riding circuit, than it was to appeal to the King-​in-​Council sitting in London, England. As a result, there were many more appeals heard, and the federal courts did become, especially after 1875, a central tool by which the national government controlled the states. The Supreme Court undoubtedly acquired legitimacy as a result of its enforcement of judicial federalism in umpiring disputes, and this legitimacy undoubtedly emboldened the court when it began applying horizontal federalism umpiring to limit Congress’s enumerated powers. As Professors Friedman and Delaney explain, James Madison got his federal veto over state laws after all in the form of vertical federal judicial review. One additional point remains to be made about the origins of judicial review in the United States. As Professors Friedman and Delaney note, originally the power of constitutional review was understood as being departmental such that each department of the federal government—​Congress, the president, and the Supreme Court—​had the power of constitutional review when it was performing its own distinctive functions. Thus Congress reviewed laws for constitutionality before it passed them, the president reviewed laws, like the Defense of Marriage Act for constitutionality, before he executed them, and the courts reviewed Acts of Congress for constitutionality when they were presented with cases or controversies concerning those laws. This system of departmental judicial review has substantially changed to a system that Professors Friedman and Delaney call a

The United States  137 system of judicial supremacy in which the Supreme Court is, in their opinion, the last and the only arbiter of constitutional meaning. I agree descriptively that departmental constitutional review has been largely replaced in the United States today by a system of judicial supremacy in constitutional interpretation. Just as presidents have, by practice, laid claim to “the foreign affairs power,” so too have the federal courts, largely by practice, laid claim to “the constitutional review power.” Members of Congress and presidents no longer make as serious an effort as they once did to engage in constitutional review when they exercise their power, and they largely leave such matters to the federal courts. But, there are two very important respects not mentioned by Professors Friedman and Delaney in which the U.S. courts are not, at the end of the day, supreme in the exposition of the law of the Constitution, even today in 2020. First, U.S. Supreme Court justices do not themselves choose new members of the Supreme Court. This is striking because some Supreme Court justices in India, the United Kingdom, and Israel do choose their successors. The Supreme Court in the United States thus really does eventually follow the presidential and senatorial election returns. New presidents and Senates get to pick new Supreme Court justices and eventually a new political movement like the New Deal or the Nixon–​Reagan–​Trump popular social movement can challenge judicial supremacy and change constitutional law. Efforts to challenge judicial supremacy can be fought off for a while by strategic retirement, which the justices of the U.S. Supreme Court do engage in, but eventually the grim reaper takes his toll. Strategic retirement postpones efforts to make the Supreme Court follow the election returns but, ultimately, over fifty years, it is true that the court will follow the presidential and senatorial election returns to some degree. The Supreme Court is always oligarchic and is always an elite group as Professor Hirschl might say. But, it is sometimes an elite liberal group and at other times an elite conservative group depending on presidential and senatorial election returns. The second respect in which Professors Friedman and Delaney overstate things a bit is when they assert that the United States has a system of judicial supremacy is that there is no tradition in U.S. constitutional law of the Supreme Court striking down, as unconstitutional, federal, constitutional amendments. There is such a tradition in Germany, in India, in Brazil, and in Turkey. Constitutional amendments have thus been successfully used on four occasions to overturn Supreme Court opinions as with the Eleventh Amendment, the Fourteenth Amendment, the Sixteenth Amendment, and the Twenty-​Sixth Amendment. Aside from formal constitutional amendments, some U.S. constitutionalists have observed that there is often “dialogue” between the Supreme Court and

138  The History and Growth of Judicial Review, Volume 1 legislative bodies in the United States. In Furman v. Georgia,79 the U.S. Supreme Court advanced the suggestion that capital punishment might always be a violation of the Eighth Amendment, but, after some thirty states disagreed between 1972 and 1976, the Supreme Court backed down and allowed capital punishment with added procedural safeguards in Gregg v. Georgia.80 It is thus an overstatement to say that the United States has a constitutional regime of judicial supremacy. The statement is true as a descriptive matter up to a certain point but not absolutely. There is simply no such thing as an unconstitutional constitutional amendment in the United States today, except for the abolition of the equal suffrage of the states in the Senate. Finally, when the Supreme Court does something truly controversial as in Dred Scott v.  Sandford, Lochner v.  New  York, Roe v.  Wade, or Citizens United v.  FEC, the political branches tend to “rediscover” the virtues of departmentalism, and they push back very, very hard against the court. In a letter written in the 1830s, James Madison argues that the judicial bench, “when happily filled,” is usually the surest and best expositor of constitutional meaning. Madison’s letter implies that when the judicial bench is “unhappily filled,” both Congress and the president have the constitutional power and duty to check and balance the Supreme Court. What can I  say then about the origins of U.S.  judicial review, which so impressed Alexis de Tocqueville in 1835? First, it obviously owes a lot to the prior British colonial umpiring practice as Professor Bilder’s work shows. Second, it owes a lot to the change in American public opinion about judicial power between 1776 and 1803, as Professor Gordon S.  Wood’s work shows. Third, as Professors Friedman and Delaney show, there has been vigorous vertical, federalism umpiring judicial review of the kind once engaged in by the Privy Council, since the beginning of the republic. Fourth, there was between 1792 and 1895 some Supreme Court enforcement of horizontal, separation of powers boundary lines enumerating the powers of the president vis-à-vis Congress on federal constitutional grounds. And, fifth, the Supreme Court claimed the power to police horizontally federal enumerated powers in Marbury, McCulloch, and Dred Scott, and no one disputed this claim although all three opinions were widely criticized on other grounds. Between the Civil War and the E.C. Knight case in 1895, the Supreme Court struck down major Acts of Congress in Hepburn v. Griswold and in the Civil Rights Cases. No major Bill of Rights cases were decided until well into the twentieth century. I conclude that judicial review in the United States emerged as a result of both vertical and horizontal federalism umpiring and as a result of separation of

79 80

408 U.S. 238 (1972). 428 U.S. 153 (1976).

The United States  139 powers umpiring. Both Professors Bilder and Wood are right about the origins of U.S. judicial review. I agree with Professors Friedman and Delaney that vertical federalism umpiring was probably the main way in which the U.S. Supreme Court built up its institutional capital, but it was not the only kind of umpiring in which capital was built up. The Supreme Court drew admirably on its built-​up capital in our view in Schechter Poultry Corporation, et al. v. United States,81 and in Brown v. Board of Education.82 I should conclude by noting that there is some evidence from 1789 to 1894 that the federal courts were empowered as a result of a hegemonic elite trying to entrench itself in power, as Professor Ran Hirschl would argue. This arguably happened during Reconstruction when Republicans wrote the Fourteenth Amendment so as to entrench the Civil Rights Act of 1866 in case some future Democratic Congress sought to repeal that act. This is a classic instance of what Professor Ran Hirschl calls fading elite, hegemonic preservation. As things worked out, the Republicans controlled both the presidency and a majority in the U.S. Senate for almost the entire period between 1861 and 1913. But, the fear of losing power, did play a role in the constitutionalization of the Civil Rights Act of 1866 by the Fourteenth Amendment. I also think there is some evidence that an evenly matched two-​party system from 1796 to 1861 enhanced the power of judicial review between 1789 and the Civil War for insurance and commitment reasons, as Professor Tom Ginsburg would argue. The three-​fifths clause gave the Democrats an unfair advantage in presidential elections during the antebellum era, but the Federalist Party, followed by the Whig Party, followed by the Republican Party, kept control of Congress and of state governments in constant flux during a period when the states were, in some ways, more powerful than was the federal government. The picture one sees of Supreme Court decision-​making between 1789 and 1894 is overwhelmingly a picture of federalism and separation of powers umpiring with an emphasis on the kind of vertical federalism umpiring judicial review, which the Privy Council had once provided. The Hirschl and Ginsburg theses, however, do help in explaining the maintenance and growth in the power of judicial review between 1787 and the Civil War as does the rights from wrongs thesis, which also helps especially in explaining the content of the Bill of Rights and of Article I, Sections 9 and 10 of the original constitution. Finally, I agree with Professor Bruce Ackerman that there was a mass popular movement of Republicans to adopt the Transformative Fourteenth Amendment in 1868. While I  agree with John Harrison that the Fourteenth Amendment was validly ratified under Article V of the original constitution,

81 82

295 U.S. 495 (1935). 347 U.S. 483 (1954).

140  The History and Growth of Judicial Review, Volume 1 I do think the Republicans who pushed it through were a mass popular movement. Thus, Ackerman’s account helps to explain the adoption of the Fourteenth Amendment.

B.  Judicial Review in the Wake of the Civil War: Rights from Wrongs, Elite Hegemonic Entrenchment, and Insurance and Commitment The Civil War and Reconstruction led to a sweeping expansion in the federal court’s power of judicial review of the constitutionality of both state and federal laws and executive branch actions. The adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments was in reality a Second Founding of the Constitution in which slavery, the three-​fifths clause, the Black Codes and all caste laws like them, and discrimination on the basis of race in voting were all rendered unconstitutional. These three amendments were all obviously passed in the first place for what Professor Alan Dershowitz calls Rights from Wrongs reasons. But, these amendments were also, importantly, adopted as the program of a Republican Party hegemonic elite seeking to entrench itself as it is losing power and seeking insurance and commitment. Reconstruction Republicans between 1865 and 1877 were terrified that once the rebellious Southern states were readmitted to the Union, the Democratic Party might regain control of both the Congress and the presidency and undo vital civil rights reforms by, for example, repealing the Civil Rights Act of 1866. The desire to constitutionalize the Emancipation Proclamation’s ban on slavery, and extend it to the four Northern slave states of Maryland, Delaware, Kentucky, and Missouri led President Abraham Lincoln to make a major push in January 1865 to get Congress to adopt the Thirteenth Amendment by the necessary two-​thirds majority of both houses of Congress. Lincoln wanted to enshrine the abolition of slavery forever in the Constitution. The Thirteenth Amendment was ratified by three-​quarters of the states in 1865, although President Lincoln did not live to see it. The former Confederate states were allowed in 1865 by Lincoln’s racist successor, President Andrew Johnson, to immediately elect new state governments, which adopted racist laws called the Black Codes, under which it was a crime to be a vagrant; the only jobs available were signing a year-​long contract to work at minimal wages on a plantation; and the penalty for breaking such contracts was imprisonment and labor on a prison chain gang. Northerners were outraged by the Black Codes, and Congress outlawed them by passing, in February of 1866,

The United States  141 the Civil Rights Act of 1866, which it repassed by a two-​thirds majority over President Johnson’s veto in April 1866. Republicans were concerned both that the federal courts might hold the new Civil Rights Act of 1866 unconstitutional and that a future Democratic Congress and president might repeal it. To entrench the Civil Rights Act of 1866, and to insure and commit the nation to a course of racial equality, the Republican Congress by a two-​thirds vote of both houses passed the Fourteenth Amendment, which was ratified by three-​quarters of the states. That amendment not only codified the Civil Rights Act of 1866, but it also: (1) forbade all discriminatory systems of caste; and (2) protected all individual liberties, subject only to the qualification that they could be regulated by just and general laws enacted under the police power. In 1868, the Republican Party elected Ulysses S.  Grant as president, but it was still so fearful of Democratic voting strength in the former Confederate states that it enacted the Fifteenth Amendment forbidding race discrimination in voting so that the freed African American slaves, all of whom were solid Republican voters, could participate in future congressional, presidential, and state elections. This amendment was also, like the Thirteenth and Fourteenth Amendments, not only a rights from wrongs measure but also an effort to entrench Republican elite power supported by an Ackermanian mass popular movement for Reconstruction and to insure and commit that basic civil and political rights would always be protected. In summary, the Thirteenth, Fourteenth, and Fifteenth Amendments were all rights from wrongs measures, which reacted against the hideous moral wrong of African American slavery and of the Black Codes adopted by the Southern states. Alan Dershowitz’s book on Rights from Wrongs is the most important explanation of the huge expansion in federal judicial power, which occurred during Reconstruction. I shall say more about this later. But, the three Reconstruction constitutional amendments were also all efforts at Republican elite hegemonic control of the national government and an attempt to insure and commit as to basic civil and political rights by committing the national government to them in the U.S. Constitution. As things turned out, the Republican concern over losing power again to the Southern Democrats was probably an excessive worry on their part. From 1860 to 1910, Republicans almost always controlled both the presidency and the Senate. Nonetheless, the parties alternated almost equally in controlling the House of Representatives between 1874 when the Democrats won control and 1910. In addition, the Republican presidential victories of 1876, 1880, and 1888 were all incredibly close with the Republicans losing the popular vote in 1876 and in 1888 but winning the popular vote in 1880. And these close votes occurred

142  The History and Growth of Judicial Review, Volume 1 after the Republicans had enfranchised lots of African American voters without whom they might have lost a lot of elections. Elite hegemonic entrenchment and insurance and commitment are thus a partial explanation of the Second American Founding of Reconstruction. But, the main and driving explanation of the Second American Founding of Reconstruction was a rights from wrongs story, from beginning to end. The Thirteenth Amendment eliminated slavery in 1865, nullifying the three-​fifths clause and the fugitive slave clause and without there being any payment of just compensation for the slaveholder’s loss of their so-​called property interest in their slaves. The Thirteenth Amendment was supported even by President Andrew Johnson, who was a virulent racist, and by white Southerners who recognized that at least formal slavery had come to an end as a result of the Civil War. The Thirteenth Amendment is a classic, textbook example of a right derived from a wrong, in this case, the great moral wrong of African American slavery. The same thing is true of the Fourteenth Amendment, which was ratified in 1868. The Fourteenth Amendment was passed to accomplish several goals. First, it overruled Dred Scott v. Sandford by declaring that all persons born in the United States were citizens of the United States and of the state wherein they resided. This made it clear that free African Americans were citizens who were entitled to equal civil rights with all white citizens. Second, the Fourteenth Amendment constitutionalized and expanded on the Civil Rights Act of 1866, which Congress had passed over President Johnson’s veto. The second sentence of the Fourteenth Amendment barred all systems of caste, including paradigmatically, the Black Codes, as Professor Jed Rubenfeld has persuasively shown.83 Professor Rubenfeld’s emphasis on rights emerging from paradigm cases is a U.S. constitutional law mirror of Professor Dershowitz’s Rights from Wrongs book. The Fourteenth Amendment also protected individual liberty rights of citizens described as including both enumerated and unenumerated rights under federal and state law, as Professor Akhil Reed Amar’s work in two very important books so persuasively shows.84 Finally, the Fourteenth Amendment, Section 1, also protects the due process and equal protection rights of all persons, a category that was meant to include noncitizens as well as citizens. Section 5 of the Fourteenth Amendment, like Section 2 of the Thirteenth Amendment, hugely expanded congressional power by giving Congress the power to pass all laws that are appropriate, as that term was understood in McCulloch v. Maryland (i.e.,

83 Jed Rubenfeld, Revolution by Judiciary: The Structure of American Constitutional Law (2005). 84 Amar, supra note 47; Akhil Reed Amar, America’s Unwritten Constitution:  the Precedents and Principles We Live By (2012).

The United States  143 “convenient” or “useful” for making real the rights conferred by Sections 1 of both amendments). The first sentence of the Fourteenth Amendment tells us the most important thing we need to know about the origins and reasons for the enactment of the amendment to overrule Dred Scott v. Sandford and to render the Black Codes, and anything like them, unconstitutional. The Republican Party was quite literally propelled into the White House in part by Abraham Lincoln’s denunciation of the Dred Scott case in the Lincoln-​Douglas debates in 1858. The whole platform of the Republican Party in the 1860 presidential election called for eliminating slavery in all the federal territories, which required the overruling of Dred Scott. Similarly, the second sentence of the Fourteenth Amendment was meant, along with the first sentence, to constitutionalize and expand on the rights granted by the Civil Rights Act of 1866. That act in turn was adopted to overturn the Black Codes as Professors Rubenfeld and Amar’s work shows. The Black Codes were a great moral wrong, like slavery, itself, which sought to deny the newly freed African Americans in the South the same common law civil rights as were enjoyed by white citizens. The Fourteenth Amendment was first and foremost a rights from wrongs document for the reasons Alan Dershowitz discusses in his superb book Rights from Wrongs. The abolition of slavery and its badges and incidents was a great moral cause that had begun in the middle of the eighteenth century; that had produced a great victory in the British court system in Somerset’s Case, 98 ER 499 (1772), which in turn had led the Continental Congress to ban slavery in the Northwest Territories in 1878; and that had led in the period from 1835 on to more and more voices calling for the abolition of slavery; until, finally, Abraham Lincoln rode his party’s antislavery-​in-​the-​territories platform into the White House, in repudiation of Dred Scott. To denigrate the abolitionists by calling them only a fading hegemonic elite would be perverse, and I are sure Professor Hirschl would agree. The abolition of slavery and of its badges and instruments was a great moral cause motivated in reaction to a huge evil: slavery and then the Black Codes. The abolitionists were an elite only in the sense that they were well educated and published a lot, and they cared about rectifying a great moral evil. There is nothing wrong with such an elite writing, speaking, publishing, and mobilizing politically and democratically to correct a great evil. The fact is that the abolitionists won a number of critical elections and led an Ackermanian mass popular movement that culminated with the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments. Between 1869 and 1877, President Ulysses S.  Grant and the Republican Congress took many steps to protect the civil and voting rights of African Americans. President Grant and Congress created the U.S. Justice Department,

144  The History and Growth of Judicial Review, Volume 1 in 1870, with the original mission of protecting the civil rights of African Americans. (Prior to 1870, attorneys general served in the cabinet but did not head up a cabinet department.) The Civil Rights Act of 1870 (The Enforcement Act), 16 Stat. 140 (1870), protected both the voting rights and the civil rights of African Americans from discrimination. The Civil Rights Act of 1871, 17 Stat. 13 (1871), empowered President Grant to suspend habeas corpus, if necessary, to protect African Americans from the Ku Klux Klan. Congress, in 1875, passed yet another major civil rights law this time banning race discrimination in places of public amusement, conveyances, and inns. This law, the Civil Rights Act of 1875, was unfortunately and incorrectly struck down as being unconstitutional by the Supreme Court in the Civil Rights Cases in 1883. It is thanks to this boneheaded Supreme Court opinion that the United States went through the horrible period of Jim Crow legal apartheid in much of the nation. Throughout the period from 1865 to 1877, President Ulysses S. Grant kept federal troops in the South to protect the civil rights of African Americans. Grant was commander in chief of the Union Army from President Lincoln’s assassination in 1865 until he became president in 1869. According to Grant’s biographer, Jean Edward Smith, Grant refused to follow an order from President Andrew Johnson that he should force the South to seat southern congressional delegations when Congress refused to do so in December 1865. This action by Grant was nothing less than a quiet and limited coup d’état. For twelve years, from 1865 to the end of Grant’s presidency in 1877, Grant presided over Reconstruction and governed the nation in a racially just way. He ensured that President Abraham Lincoln’s vision of racial equality was implemented. Only three men have dominated American politics for as long as did Ulysses S. Grant. George Washington for fifteen years; Franklin D. Roosevelt for 12 years; and Ulysses S. Grant for 12 years. Ulysses S. Grant is thus one of the nation’s greatest and least appreciated presidents. In fact, it is hard to imagine or describe a twelve-​year period of time during which Ulysses S.  Grant was either the general in chief of the army (keeping President Johnson at bay)—​(1865–​1869) or president (1869–​1877) while doing everything in his power and in the power of the leaders of the Republican Congress to aid and help African Americans because of the great moral evils of slavery and of the Black Codes as being motivated by anything more than the desire to right a great wrong. In fact, from 1860 to 1912, only one Democrat was ever elected president and that Democrat was a New  York conservative named Grover Cleveland who served two terms during a period of time when the Republicans held the presidency for twelve terms. In the fifty-​two years between 1861 and 1913, the Republicans held the White House for forty-​four years. The Republican Party held a majority in the Senate from 1861 to 1879 and then from 1881 to 1893 and

The United States  145 then again from 1895 to 1913. In the fifty-​two years between 1861 and 1913, the Republicans held a majority in the Senate for forty-​eight years. Republicans held a majority in the U.S. House of Representatives from 1859 to 1875; from 1881 to 1883; from 1889 to 1891; and from 1895 to 1911. In the fifty-​two years between 1861 and 1912, the Republicans held a majority in the House of Representatives for thirty-​four years. While historians often note the close margins in presidential and national politics during the period from Reconstruction up to 1912, the fact is that the Grand Old Party (GOP) had a lock on the presidency and the Senate for almost this entire period of time, while the GOP won the House during the Civil War and Reconstruction from 1861 to 1875 and from 1895 to 1911, but the Democrats had a majority in the House for all but four years of the twenty-​year period between 1875 and 1895. Republicans were not, in 1868, when the Fourteenth Amendment was passed a hegemonic elite whose power was fading away. They were instead only eight years into a fifty-​two-​year period of time during which they would monopolize the presidency and the Senate, thus controlling federal judicial appointments with an iron fist. And, the one Democrat to win the presidency between 1860 and 1912, Grover Cleveland appointed even more conservative judges than had some of the Republicans. The Republicans who passed the Fourteenth Amendment and expanded enormously federal judicial power were thus a rising and not a fading hegemonic elite to borrow a phrase from Ran Hirschl’s book, Towards Juristocracy. The best the Democrats could muster between during the forty-​four years between1868 and 1912 was to control the House for eighteen years while the Republicans held it for twenty-​six years. This was enough to keep the Republicans from appropriating funds to keep the Union Army in the South, and the inability of the Republicans to keep federal troops in the South killed off the civil rights reforms that Reconstruction had put in place. Rutherford B.  Hayes, a former general in the Union Army, had to fight bitterly with House Democrats for his four years as president, but he won that fight, and his successor James Garfield, another former general in the Union Army, came to power in 1881 with a Republican House, which would have paid to put federal troops back in the South. During his brief presidency, Garfield appointed African Americans to several prominent positions, and he announced that he would ask Congress for new civil rights legislation and that he would seek to return federal troops to the South. Tragically, President Garfield was assassinated six months into his tenure before he was able to reintroduce federal troops into the South. Vice President Chester Arthur was corrupt, inept, and incapable of reintroducing federal troops into the South. He accomplished nothing during his presidency

146  The History and Growth of Judicial Review, Volume 1 other than some important civil service reforms that ended the Jacksonian spoils system, and President Arthur lost his House majority in his one midterm election. Had President Garfield lived, federal troops would almost certainly have been redeployed in the South, and the U.S.’ sad history with respect to the end of Reconstruction might have come out much more happily. Perhaps in that climate, the Supreme Court would have upheld the constitutionality of the Civil Rights Act of 1875 instead of wrongly striking it down as exceeding congressional power in The Civil Rights Cases in 1883. The assassination of President Garfield and the Civil Rights Cases in 1883 signaled the real end of any hope that Reconstruction might have been revived. It did not, however, signal a fading away of GOP elite hegemonic control of the government. In fact, in 1881 the GOP was not even halfway through its half-​ century-​long iron lock on the presidency and the Senate. In an important article in the American Political Science Review in 2002, Professor Howard Gillman argues persuasively that the Republican Party used various jurisdictional bills to greatly increase the power of the federal courts, thus making federal court judicial review much more pervasive and national in focus than it was before 1861.85 Any account of the origins of judicial review in the United States would be incomplete without addressing Professor Gillman’s article. Gillman notes that prior to 1861, the lower federal courts had jurisdiction to hear mainly diversity suits and admiralty cases, but not federal questions; and that the nine circuits, each of which had one justice on the Supreme Court, were drawn in a way that ensured Southern domination of the Supreme Court. Gillman notes that the Judiciary Act of 1789, which had created the federal courts, was written in large part by Anti-​Federalists and that it set up the federal courts in a way that made them very dependent on the states, including by imposing circuit-​riding duties on the justices of the Supreme Court. The Federalists tried to change this structure with the Judiciary Act of 1801, as I mentioned, but the Jeffersonians repealed that act as soon as they came to power. Between 1861 and 1875, the Republican Congress took a number of steps that transformed the federal courts augmenting their power of judicial review. First, the number and boundary of federal circuits were changed to reduce the South down to one circuit while increasing the number of circuits in the North, the Midwest, and the West. The number of circuits and justices on the Supreme Court was increased from nine to ten, allowing President Lincoln to fairly swiftly gain control of the Taney Court, which became the Chase Court on Lincoln’s watch. As a result, critical cases like the Prize Cases86 were won by President Lincoln, which validated, indirectly, Lincoln’s Emancipation Proclamation of 1863. After 85 Howard Gillman, How Political Parties Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875–​1891, 91 Am. Pol. Sci. Rev. 511 (2002). 86 67 U.S. 635 (1863).

The United States  147 Lincoln’s assassination, congressional Republicans reduced the number of seats on the Supreme Court from ten to seven in order to prevent President Andrew Johnson from making any appointments. Once Ulysses S. Grant became president in 1869, Republicans expanded the number of Supreme Court seats from seven back up to nine, allowing him to appoint two new justices who helped overrule a 4 to 3 Supreme Court opinion in Hepburn v.  Griswold declaring paper money issued during the Civil War to be unconstitutional. Republicans also passed statutes allowing those held in state custody to seek habeas corpus in federal courts as well as a number of removal statutes allowing federal officers and others to easily remove cases from state to federal court. Cumulatively, these actions cemented GOP control over the federal courts while augmenting their power. After the Republican Party lost its majority in the House of Representatives in the 1874 midterm election, a lame-​duck session of the old pre-​1874 Congress passed the Judiciary Act of 1875. This statute greatly expanded the role of the lower federal courts by giving them general federal question jurisdiction. This act transformed the lower federal courts from being beholden to the states, into engines of national elite hegemonic control of the states. Finally, Republicans used their control of both houses of Congress during the first two years of President Benjamin Harrison’s administration to pass the Evarts Act of 1891, which created nine new intermediate-​level federal courts of appeals, while eliminating the duty of circuit riding by Supreme Court justices. The 1875 and 1891 acts together accomplished what the lame-​duck Federalists had tried to accomplish with the Judiciary Act of 1801, which had been repealed by the Jeffersonians. By the end of the Grant administration, 64 percent of all federal judges were Republican appointees according to Gillman, and by the end of the Hayes administration, that number rose to 91 percent of the federal bench. The GOP thus used its control over the presidency and the Senate but not the House of Representatives to turn the federal courts into a bastion of Republican power. Unfortunately, and for reasons I do not fully understand, the Supreme Court Justices appointed by Presidents Lincoln, Grant, and Hayes did an abominably bad job in interpreting the Thirteenth, Fourteenth, and Fifteenth Amendments between 1870 and 1883. The only two justices during this period with good records were Chief Justice Salmon P. Chase, appointed by President Lincoln, and Justice John Marshall Harlan, appointed by President Hayes. And even these two justices, made some major mistakes. The net effect of the Lincoln, Grant, and Hayes justices was to almost nullify the civil rights content of the Reconstruction Amendments. Later justices appointed by Grover Cleveland, Benjamin Harrison, and William McKinley turned the Fourteenth Amendment, which had been meant to protect the civil

148  The History and Growth of Judicial Review, Volume 1 rights of African Americans, into a bastion of strength for big corporations and advocates of laissez-​faire economic policies instead. One possible explanation is that while Ulysses S. Grant had a heart of gold and put his life on the line to win freedom and equal civil and political rights for African Americans, he was not, unfortunately, a very good judge of people. As a result, his administration ended with a series of scandals, none of which implicated Grant personally, but which taken together do show he was a bad judge of people. I will simply list the scandals here and not describe them: First, there was the Whiskey Ring scandal of 1875; second, there was a scandal when Secretary of War William Belknap was revealed to be guilty of extortion; third, there was a scandal when it was discovered that the Secretary of the Navy George M. Robeson had stolen appropriated federal funds; fourth, another scandal developed around Orville E. Babcock; fifth, there was a scandal on Black Friday when speculators with ties to Grant attempted to corner the Gold Market; sixth, there was a scandal at the New York Custom House; seventh, there was the infamous Star Route postal scandal; and eighth, and I will stop here, U.S. Attorney General George H. Williams was alleged to have taken a bribe. The great historian C.  Vann Woodward attributed these scandals to three causes beyond President Grant’s control. The first was a general breakdown in common morals because of the violence and loss of life on an unprecedented scale during the Civil War and continuing into Reconstruction. The second was the opening of the West, from which Native Americans had been expelled, and the South (during Reconstruction) to exploitation by immoral people who had too much power. And, the third was the rapid rise of industrialism, which led to sweat shop working conditions and to Crony Capitalism.87 Nonetheless, it is an undisputable fact that the North would never have won the Civil War; passed the Thirteenth, Fourteenth, and Fifteenth Amendments; or had a period of Reconstruction from 1865 to 1877 without Ulysses S. Grant. President Grant was gullible and often a poor judge of people, but he had a heart of gold. Unfortunately, Grant’s tendency to be a bad judge of people was born out by Grant’s four appointees to the U.S. Supreme Court. Chief Justice Morrison Waite was, in my opinion, one of the worst chief justices in American history. Grant appointee Justice Ward Hunt was a nonentity who usually voted the wrong way. Grant appointee Justice Joseph Bradley rejected Myra Bradwell’s case arguing that she had a right as a citizen under the Fourteenth Amendment, to practice law, because in Justice Bradley’s opinion the place of a woman is in the home as a wife and a mother. Myra Bradwell clearly had a right to practice law under Section 1 of the Fourteenth Amendment. And, finally, Justice William



87

C. Vann Woodward, The Political Legacy of Reconstruction, 26 J. Negro Edu. 231–​40 (1957).

The United States  149 Strong who wrote an abominable civil rights opinion in Blyew v. United States, 80 U.S. 581 (1871), rejecting a federal murder prosecution in Kentucky of two white racists who had murdered most of the members of an African American family. Justice Strong held that the white racists could not be prosecuted in Tennessee because the African Americans who had been murdered were dead, and their African American granddaughter who had survived the massacre was not allowed to testify against the two white murderers under Kentucky state law, which banned the testimony in court of African Americans. This ban on African Americans being able to testify in Kentucky state courts was a flagrant violation of both the federal Civil Rights Act of 1866 and the Fourteenth Amendment. Nonethless, the Grant Supreme Court allowed a Kentucky law that forbade Black citizens from testifying in court to prevail in this case. Of these four bad Grant appointees to the Supreme Court, Justice Strong eventually wrote two good civil rights opinions in Strauder v. West Virginia, 100 U.S. 303; and Justice Bradley had the decency to dissent in Blyew v. United States, 80 U.S. 581 (1871). Overall, however, Grant’s Supreme Court appointees were spectacularly bad.

V.  The Progressive Era and the Federal Courts:  A Study in Elite Hegemonic Control By 1893, liberals were furious at the crony capitalism and laissez-​faire lock over the federal courts that Republican Senates and presidents had established, with it should be noted considerable help from the conservative, Democratic President, Grover Cleveland. Progressive animosity toward conservative elite judicial review as was shown by the publication in the 1893 Harvard Law Review of Professor James Bradley Thayer’s famous article on “The Origin and Scope of the American Doctrine of Constitutional Law.”88 Thayer argued famously in this article for a Rule of Clear Mistake and thus judicial restraint in evaluating the constitutionality of laws by the federal courts. I begin my discussion of U.S.  judicial review during the Progressive Era, from 1894 to 1945, with a continuation of my response to Professor Gillman’s seminal law review article, which discusses the Progressive Era as well as Reconstruction. I continue my discussion of Reconstruction, as described by Gillman here, because it leads into the capture by the federal courts by crony capitalists and advocates of laissez-​faire economics, which the Progressives sought to fight. 88 James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129 (1893).

150  The History and Growth of Judicial Review, Volume 1

A.  Response to Professor Gillman Professor Gillman points out that, contrary to the thesis of Professors Friedman and Delaney, the Chase Court voided eight federal laws between 1865 and 1874 while the Waite Court voided eight more between 1874 and 1888. Professor Gillman is thus clearly right that the Republican Party manipulated the laws governing federal courts jurisdiction and size to greatly augment federal judicial power between 1861 and 1891, and the federal courts power of judicial review became much more formidable. The GOP made the most of its lock on the presidency and the Senate, with considerable help from Democratic President Grover Cleveland to create a federal court system that even prior to the 1905 decision in Lochner v. New York was strongly in favor of laissez-​faire constitutional decision-​ making and of the Crony Capitalist interests of Big Business. Professor Gillman’s article could be read to suggest that Ran Hirschl’s hegemonic preservation thesis explains the empowering of the federal courts between 1861 and 1891, even though Gillman himself argues that he is explaining the growth in federal judicial power between 1875 and 1891. I  think that interpreting Professor Gillman’s article as validating Ran Hirschl’s hegemonic preservation these for the origin and growth in judicial power would be incorrect because: (1) the expansion of federal court power between 1861 and 1875 was primarily driven in Congress and by President Ulysses S.  Grant by civil rights concerns stemming from the wrongs of slavery and of the Black Codes; (2) the GOP was not in practice a fading hegemonic elite during this period of time but was a rising hegemonic elite as I have already explained; and (3) the Judiciary Acts of 1875 and 1891 together simply restored what the Federalist had tried to accomplish with the Judiciary Act of 1801, which created general federal question jurisdiction in the lower federal courts, abolished circuit riding, and created a new intermediate tier of federal circuit courts of appeals. The 1891 act in particular was motivated by crushing federal court caseloads while the 1875 act was motivated by the same civil rights concerns that led to the passage of the Civil Rights Act of 1875. Nonetheless, Professor Hirschl is clearly right that elite hegemonic business interest groups and advocates of laissez-​faire capitalism in practice used their capture of the federal courts from the defenders of African American civil rights during this period in an effort to promote elite economic interests. The expansion of federal judicial power was justified on a civil rights for African Americans rationale, but it was quickly seized from the administration of President Chester Arthur on to promote elite business interests. The federal courts were especially used to stop Progressive states from regulating business, as in Lochner v.  New  York, a case in which a 5 to 4 majority of the U.S. Supreme Court invalidated a sixty-​hour work week limit for bakers.

The United States  151

B.  The Transformation of the Republican Party The Republican Party was a nationalist party that was a successor to the Whig Party, which was a successor to the Federalist Party. It should come as no surprise that Republicans would eventually end up by restoring what the Federalists had tried to do with the Judiciary Act of 1801. As things worked out, however, the Republican lock on the federal courts did not translate into federal court support of national civil rights laws because the assassination of President Garfield and the accession to power of Presidents Arthur and Cleveland killed off GOP support for African American civil rights. Changing attitudes within the Republican elite, including the growth after 1872 of Social Darwinism, also probably explain the horrible decision in the Civil Rights Cases, which signaled to the South that it was safe to pass racial segregation laws. The shift in Republican views on civil rights was foreshadowed by the candidacy, in 1872, of Horace Greeley who was nominated both by the Democrats and by a short-​lived party called the Liberal Republican Party. Greeley thought the goals of ending slavery and of Reconstruction had been accomplished. And, he called for Northern troops to be withdrawn from the South because the so-​called carpetbagger regimes there were corrupt as was the Grant administration more generally. Greeley’s candidacy and platform were deeply harmful to the moral cause of protecting the civil rights of African Americans and to the future of the Republican Party. Neither Presidents Rutherford B. Hayes nor James Garfield, both of whom had served as generals in the Union Army, were influenced by Horace Greeley, but Presidents Chester A. Arthur and Benjamin Harrison were. Greely’s views turned the Republican Party from being a moral, abolitionist Progressive Party into being the party of Big Business. This transformation was completed in 1896 with the election as president of William McKinley. The Horace Greeley “Liberal Republican” candidacy arguing for the removal of Northern troops from the South and denouncing federal military rulers as “carpet-​ baggers” marked the first stirring in American public life of what was to become a powerful and deadly evil. The evil in question was Social Darwinism, which arose after Charles Darwin in 1871 published his famous book, The Descent of Man, and Selection in Relation to Sex. Darwin had previously published On the Origin of Species, in 1859, in which he set out his general theory of the evolution of species. During the 1860s, the British author Herbert Spencer elaborated on Darwin’s work by arguing that the answer to Thomas Malthus’s argument that all species will reproduce until they reach the point of starvation was that there would be, in Herbert Spencer’s words a “survival of the fittest,” which he explained in his book, Principles of Biology (1864). He came up with this term after reading Charles Darwin’s 1859 book On the Origin of the Species.

152  The History and Growth of Judicial Review, Volume 1 In 1874, when he had completed his work on The Descent of Man, Charles Darwin argued for the first time that human beings had descended from other animals, as have all other living animals, and in the case of human beings Darwin correctly identified apes and monkeys as sharing a common ancestor with men and women. Darwin argued more problematically that there were different races of human being, even in the world in 1871–​1874, and that some of them were more intellectually or morally advanced than are others. Darwin did not endorse genocide, or even eugenics, but he predicted that such things would occur as did indeed happen with compulsory sterilization laws in most of the United States and with the Holocaust in Nazi Germany. Sir Francis Galton, Charles Darwin’s half-​ cousin, launched an international Eugenics Movement in the years following his coining of the term “eugenics” in 1883. Suffice it to say, there was enough international talk in the air among intellectuals by the time Horace Greeley ran for president as a “Liberal Republican,” opposed to keeping Northern troops in the South, to provide a scientific, Darwinian patina to racism. In 1776, and when the Constitution went into effect in 1789, most intellectuals were “children of the Enlightenment.” They truly believed that all men were created equal and that slavery as an institution would whither away. This belief in the United States was shared by Abraham Lincoln who in his Gettysburg Address wrote: Fourscore and seven years ago our fathers brought forth on this continent a new nation conceived in Liberty and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure.

Abraham Lincoln was not a Social Darwinist nor was the Republican Congress, which wrote the Reconstruction Amendments, nor were Presidents Ulysses S. Grant, Rutherford B. Hayes, or James A. Garfield. But Horace Greeley was a harbinger of the Social Darwinist intellectual victory that was to come. By 1900, many fewer intellectuals either in the United States or in Europe agreed that “All men are created equal” in the way that the Framers of our Republic had believed or in the way that the Framers of the Reconstruction Amendments had believed. By 1900, a significant number of intellectuals favored “eugenics,” that is, the compulsory sterilization of the mentally feeble to breed a better class of human beings. Adolf Hitler’s first action upon coming to power in Germany in 1933 was to adopt a German eugenics law modeled on the U.S. state eugenics laws. It is not hard to see how this concern with eugenics eventually led Hitler to commit the Holocaust. The eugenicist mindset is captured in the dystopian novel Brave New World published in 1932.

The United States  153 The Horace Greeley change in attitudes within the Republican elite led the Republican-​dominated federal courts not to protect civil rights, which is what they were created to do, but instead to protect business interests and eventually to endorse laisse-​faire in Lochner v. New York, 198 U.S. 45 (1905); and ultimately, eugenics itself, in Buck v. Bell, 274 U.S. 200 (1927). This is not, however, an instance of a fading hegemonic elite trying to use judicial review to entrench its rights but reflects instead a successful hegemonic elite, which had a lock on the presidency and the Senate but not the House of Representatives, and which sought to “capture” the federal courts to accomplish ends that could not be accomplished by the passage of federal legislation and, in particular, to strike down Progressive state laws. Between 1881 and 1901, the Republican elites who staffed the federal courts thus turned away from the cause of protecting civil rights, increasingly for Social Darwinist reasons, and toward the cause of using the federal courts to protect, unconstitutionally, the interests of their Big Business allies and of laissez-​faire capitalism. Republicans turned to the federal courts to augment their power in a world where they had a lock on the presidency and the Senate but not the House. Since the Democrats were effectively shut out of the federal courts for a period of fifty-​two years, the Democrats had no interest in augmenting the power of judicial review because it could only be used against them. Insurance and commitment cannot work where only one of the two parties controls the federal bench. The expansion of federal judicial review between 1861 and 1891 was thus driven first by rights from wrongs considerations of civil rights and from 1881 on by Republican partisanship in favor of Big Business, which took the Hirschlian form of hegemonic elite entrenchment of power in the federal courts. I should note, in closing, that the Gilded Age was an era of crony capitalism, not free markets. Sky high tariffs helped U.S. manufacturers, and eminent domain was used to build crony capitalist railroads on which monopoly prices were charged. No one should yearn for a return to that era.

C.  The Rise of the Progressive Movement This produced a powerful reaction, which manifested itself with the advent of the Progressive Movement in the unsuccessful presidential candidacy in 1896 of William Jennings Bryan. Bryan argued against the Gold Standard and against the Big Monopolies, which he rightly said were practicing Crony Capitalism. While Bryan lost the presidential election of 1896 in a landslide, his Progressive Party platform was picked up by three key figures in American history: (1) Theodore Roosevelt, a Progressive Republican who became president in 1901, after the assassination of the conservative Republican, President William McKinley; (2) by President Woodrow Wilson, who was an ardent Progressive, a Southern racist, and a big believer in the

154  The History and Growth of Judicial Review, Volume 1 hateful Eugenics Movement; and (3) by President Franklin D. Roosevelt, who won four presidential elections in a row on a platform that could have been written by William Jennings Bryan. It was Franklin D. Roosevelt who, in 1937, finally ended the crony capitalists’ hold on a majority of Supreme Court justices. The constitutional law and judicial review agenda of the Progressive Movement was laid out, as I mentioned before, in 1893 by Harvard Law School Professor James Bradley Thayer’s famous article on “The Origin and Scope of the American Doctrine of Constitutional Law” in the Harvard Law Review.89 Thayer argued famously for a Rule of Clear Mistake in judicial constitutional construction, and he favored judicial deference in all but the clearest cases to the decisions made by federal or state legislatures. Thayer’s views had an important influence on such U.S. Supreme Court justices as Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardozo, Harlan Fiske Stone, Felix Frankfurter, and William Rehnquist. Francis Biddle, one of Justice Holmes’s first law clerks, went on to serve as attorney general to President Franklin D. Roosevelt during his first two terms as president. The first progressive politician to denounce the U.S. Supreme Court for engaging in what he called conservative judicial activism was President Theodore Roosevelt. Roosevelt denounced the Supreme Court’s 5 to 4 invalidation of a sixty-​hour work week for bakers in Lochner v. New York, as being a poster child for what was wrong with the federal courts. The Lochner era, which lasted on the Supreme Court from 1905 until 1937, was thus identified as being an object of liberal loathing by Theodore Roosevelt, a Progressive Republican who was like all the other Progressives a racist. A famous dissent in the Lochner case was handed down by Justice Oliver Wendell Holmes, an appointee of Theodore Roosevelt. Justice Holmes wrote majority opinions of the Supreme Court encompassing everything from: (1) upholding as constitutional the imprisonment for ten years of Socialist Party President Eugene V. Debs for making a speech critical of American involvement in World War I; (2) upholding as constitutional state legislation disenfranchising African American voters; and (3) upholding as constitutional, a Virginia eugenics law, which provided for the compulsory sterilization of people who government bureaucrats thought were feebleminded. Holmes’s legacy was in many ways horrendous, but he continues to be lionized today because he was against (rightly) Lochner v. New York and (rightly) Hammer v. Daggenhart. Even a stopped clock is right twice a day. One of the problems with the Progressive Movement’s advocacy of judicial restraint is illustrated by the 1896 case of Plessy v. Ferguson. In that case, the Louisiana legislature passed a law requiring that white citizens and African American citizens sit in separate railway cars. This law flagrantly violated

89

Id.

The United States  155 the Fourteenth Amendment’s ban on racial classifications, as Justice John Marshall Harlan the Elder, an appointee of President Rutherford B.  Hayes pointed out, in what is now a classic dissent. But, the other eight justices all voted to upheld the Jim Crow law in Plessy either because: (1) that was the judicially restrained thing to do; (2)  they did not understand what the Fourteenth Amendment meant, and so they thought separate but equal was really equal; or (3) because the other eight justices in question were themselves racists and possibly eugenicists. Theodore Roosevelt did not criticize Plessy v. Ferguson the way he criticized Lochner v.  New  York, but then Theodore Roosevelt was a big booster of the Spanish–​American War, in which he fought, and which was waged in part so that, as Rudyard Kipling put, superior white men could take up their burden of caring for non-​Anglo-​Saxon whites. Roosevelt’s racism extended to a hatred of the so-​called Teutonic race, which led him to call early on for the United States to intervene on the British side of World War I to make sure that the Anglo-​ Saxon race and not the Hun race, as he referred to Germans, would rule the world. Happily for the United States, Roosevelt chose not to run for president in 1908, and, instead promoted the presidential candidacy of William Howard Taft, a wonderful constitutional conservative, who turned out to be politically inept as president. The one thing that William Howard Taft did accomplish as president was that he appointed 6 justices to the Supreme Court between 1909 to 1913. He was able to do this because 6 of the old conservative Justices tried to strategically retire after Teddy Roosevelt’s scathing attacks on the judiciary. The retiring justices had been appointees of Presidents Rutherford B. Hayes, Grover Cleveland, Benjamin Harrison, and Theodore Roosevelt. In 1921, only three of Taft’s six Supreme Court appointees were still on the bench: Chief Justice Edward Douglas White, Justice Willis Van Devanter, and Justice Mahlon Pitney. That is a sad legacy for a former constitutional law professor President. It also suggests that it was President Harding and not President Taft whose actions triggered the court-packing fight of 1937. In two years and seven months, President Harding appointed Chief Justice William Howard Taft; and Justices George Sutherland, Pierce Butler, and Edward Terry Sanford. Justice Willis Van Devanter remained on the Court where he was the intellectual leader of the conservatives. Although Progressive Presidents Teddy Roosevelt and Woodrow Wilson had appointed 6 justices in 15 and one half years as president, only two of their Justices turned out to be Progressives: Oliver Wendell Holmes, Jr. and Louis Brandeis. This history suggests several things. First, it suggests that although Theodore Roosevelt denounced Lochner v. New York, he did nothing effective to oppose it most likely because the Supreme Court was not out of step with the White

156  The History and Growth of Judicial Review, Volume 1 House either during the first Roosevelt Administration or during the Wilson Administration. Many lawyers at the time thought that Lochner had been de facto overruled by Muller v. Oregon, 208 U.S. 412 in 1908. It was not until the Supreme Court said otherwise in Adkins v. Children’s Hospital, 261 U.S. 525 in 1923 that opposition began to appear! Second, Taft was not the conservative bugaboo he is sometimes made out to be. His judges were moderate, and he dissented in Adkins. Third, there was no mass populist movement behind Lochner. It reflected only elite Republican sentiment among lawyers and business leaders. Fourth, and finally, Franklin D. Roosevelt did build up a mass popular movement in the 1930’s that expert agencies needed to run our lives for us, and he was not willing to let the Supreme Court get in their way. FDR’s mass popular movement coup demolished the Supreme Court in 1937, at least as it had existed until that time. In my opinion, U.S. judicial review died in 1937, and it was born again between 1952 and 2020 starting with The Steel Seizure Case and then deepened with Brown v. Board of Education.

D.  Woodrow Wilson and the Indian Summer of the Old Order In 1912, Theodore Roosevelt, who was furious at Taft, his handpicked successor, ran as an independent candidate for president, while Taft ran for a second term, as a Republican, and Woodrow Wilson ran as a Democrat and won. Wilson’s progressivism was characterized by: (1) a vehement dislike of the U.S. constitutional systems of checks and balances, which are championed in this two-​volume book series; (2) an undemocratic belief that Americans should be governed by expert agencies in which legislative, executive, and judicial powers would all be blended together so that Expert Philosopher Kings could do what was right; (3) by a virulent racism that led him for the first time to segregate the U.S. cabinet departments by setting up screens so white and black federal employees could not see each other; and (4) by a utopian vision of national self-​determination in International Law driven by his belief that the South, in 1861, should have been allowed to secede from the Union. Wilson’s Southern segregationist belief in national self-​determination caused him at the end of World War I to favor the breaking up of the huge and successful multicultural Austro–Hungarian and Ottoman Empires. Americans are still, today, paying the price for that folly due to general chaos in the Middle East. It also should be noted that Woodrow Wilson as governor of New Jersey signed that state’s eugenics bill into law. Wilson’s racism absolutely extended to and was complemented by his belief in eugenics. Wilson was the first president to have the initial screening of a movie done at the White House, and the movie he chose was Birth of a Nation—​a racist recruiting tool used by the Ku Klux Klan to inspire more lynchings of African

The United States  157 Americans between 1916 and 1930 than in any other period of time. Modern Americans are surprised to hear of Wilson’s racism because they assume that all Democrats are in favor of African American civil rights, but this did not become the case until the 1960s when President Lyndon Johnson pushed through the Civil Rights Act of 1964 and the Voting Rights Act of 1965. (Some New Deal Demorats were progressive on race, but the New Deal coalition included southern segregationsts). Woodrow Wilson’s Democratic Party from 1913 to 1921 was an alliance of Southern segregationists and of Northern urban Catholic immigrants. Wilson, himself, was the son of a Confederate Army officer who grew up in segregated Staunton, Virginia, and whose love of national self-​determination at the end of World War I was motivated by a belief the South should have been allowed to secede peacefully from the North in 1861. Progressives scored two enormous victories in 1913 thanks both to Wilson and to a caving-​in by Taft. First, the Sixteenth Amendment giving the federal government the power to tax incomes was passed. This led to an enormously more powerful national government because the government no longer had to rely on tariffs to fund itself. Moreover, the very first federal income tax was a progressive tax with higher rates for the rich. Prior to the Sixteenth Amendment, the federal government had no power to redistribute wealth. With unlimited taxing power, the national government gained the power to tax huge sums of money and then remit them as block grants to the states on the condition that the states change their laws in a way that pleased the federal government. The Sixteenth Amendment greatly strengthened the national government both at the expense of the states and of individual liberty. Second, the Seventeenth Amendment, which was also ratified in 1913, changed the way in which senatorial elections were held. Prior to 1913, state legislatures elected U.S.  senators, whereas after the Seventeenth Amendment, senators were directly elected by the people of a state. This amendment changed the nature of the Senate by making it a much more national than federal institution. It had a huge effect, along with the Sixteenth Amendment, in making the federal government much more powerful than the states. The conservative Big Business Supreme Court during Wilson’s presidency did issue one truly wrong and foolish decision, which was its holding in Hammer v. Dagenhart that a federal law banning child labor nationwide was unconstitutional. This case was wrongly decided and was very badly reasoned, as Justice Oliver Wendell Holmes pointed out in a dissent, which was entirely correct. More generally, the court issued a series of shockingly narrow and deferential First Amendment decisions that are textbook examples of the evil of judicial restraint when a court is confronting an unconstitutional law or executive branch action. Justice Holmes thus in a unanimous opinion in Debs v. United States, 249 U.S. 211 (1919), upheld the constitutionality of a ten-​year sentence for Eugene

158  The History and Growth of Judicial Review, Volume 1 V. Debs, the head of the American Socialist Party, and a man who had won nearly one million votes in the presidential election of 1912. Debs’s crime was criticizing the draft in a speech in violation of the blatantly unconstitutional Sedition Act of 1918. The Wilson-​era Supreme Court also occasionally issued a Lochner-​type decision although more often than not, it upheld the constitutionality of both the federal and state laws, which it reviewed. The Wilson administration ended with most of the president’s energies being consumed by waging and winning World War I only to see his postwar hopes for a new international order policed by a powerful League of Nations dashed. This failure came about when President Wilson was unable to persuade the U.S. Senate to ratify the treaty by which the United States would join the League of Nations. Wilson’s presidency was followed in 1921 by the presidency of Warren G. Harding, a fool, who luckily for him allowed himself to be bludgeoned into picking a superb cabinet. Charles Evans Hughes was secretary of state, Andrew Mellon was secretary of the treasury; and William Howard Taft controlled judicial appointments from behind the scenes. President Harding on Christmas Day, 1921 pardoned Eugene V. Debs releasing him from prison. President Harding died in 1923 in mysterious circumstances just as the Teapot Dome scandal was breaking, and he was succeeded by his then-​very popular Vice President Calvin Coolidge. Coolidge once said that “The business of America was business”—​a phrase that summed up his low tax, low regulation approach to the economy. Harding and Coolidge cut taxes massively, and the economy boomed after eight years of austerity under Wilson. The whole era came to be described as the Roaring Twenties, and it was the best decade in American history in the twentieth century until the 1980s. In both cases, tax cuts led to a vibrant and growing economy. The decade began in 1920 with the ratification of the Nineteenth Amendment, which gave women the right to vote. In 1923, the Supreme Court construed the Fourteenth Amendment, in light of the Nineteenth, as giving women the same constitutional right to work for less than a minimum wage as was enjoyed by men in Adkins v. Children’s Hospital. Holmes dissented saying it would take more than the Nineteenth Amendment for him to find that there were no differences between men and women.

E.  President Franklin D. Roosevelt and the New Deal Ultimately, the Lochner era came to an end in 1937 when it ran into the political machine of President Franklin D. Roosevelt (FDR), the only man who has ever won four presidential elections in a row. FDR was a Progressive who called for a New Deal for American workers and farmers. He was first elected in 1932, in part as a result of the Great Depression, an event that: (1) began with a stock

The United States  159 market crash in 1929; that (2) was made much worse by incumbent Republican President Herbert Hoover’s decision to pursue a deflationary monetary policy; and that (3) was greatly aggravated by an international trade war set off by the United States, under Hoover, adopting the very highly restrictive Smoot-​Hawley Tariff Act which helped Hitler rise to power in Germany. FDR had no idea at all about what to do about the Great Recession or about what had caused it, or about what would end it, but he offered a welcome alternative to Herbert Hoover, who was rightly regarded as one of the worst presidents of all times. So FDR came to power, and, in his first one hundred days in office, he passed a statute called the National Industrial Recovery Act (NIRA), which was an attempt to foist Mussolini’s fascism on the American economy. Under the NIRA, all American industries were to form governing cartels of business and labor leaders who would propose codes of fair competition, which would become legally binding when promulgated by the president of the United States. In its finest hour, in Schechter Poultry v. United States, 295 U.S. 495 (1935), the Supreme Court unanimously declared the NIRA to be an unconstitutional delegation of government power to private, self-​interested individuals. Even the Progressive giants on the Supreme Court agreed that the law was unconstitutional, and as a result FDR went back to the drawing board. He came up with some other stupid laws like paying farmers not to grow crops so as to raise the prices of those crops, thus benefiting farmers while hurting consumers. The Supreme Court initially struck this down too, although after the Constitutional Revolution of 1937, it upheld an essentially identical act. FDR was passionately opposed to the Lochner-​era Supreme Court in no small part because the court struck down a large number of FDR’s laws in his first four years in office, and FDR got no appointments to the court at all between 1933 and 1937. FDR was elected to a second term as president by a huge landslide in 1936, and he immediately turned his attention to subduing the Supreme Court. He proposed a court packing bill that would have added six justices to the nine-​member court, thereby giving FDR total control over the Supreme Court. Congress, which had 80 percent Democratic majorities in both houses balked at passing such a blatantly open court packing law. In the spring of 1937, the court issued a series of pro-​FDR rulings in:  (1) Jones & Laughlin Steel Co. v. United States (which greatly broadened the court’s reading of the Commerce Clause); in (2)  West Coast Hotel v.  Parish (which upheld a minimum wage for women and overruled a Lochner-​era precedent in Atkins v. Children’s Hospital, thereby establishing a rational basis test for gender classifications); and in (3) Steward Machine Co. v. Davis (upholding the constitutionality of the Social Security Act). Then, in addition, one of the four most conservative justices on the Supreme Court announced he was retiring in June 1937. As a result, FDR’s court packing bill died in committee. The purpose it was meant

160  The History and Growth of Judicial Review, Volume 1 to serve had been accomplished in other ways. By the time FDR died in 1945, he had appointed eight of the nine justices then serving on the Supreme Court. FDR’s Supreme Court appointees were all picked for one reason and one reason only: they all opposed Lochner v. New York, which had long been the bête noir of the Progressive Movement. But, FDR’s justices disagreed quite sharply among themselves until the last of them—​William O. Douglas—​left the Supreme Court in 1975. Douglas and Hugo Black were ardent liberals on the Establishment Clause, the Free Speech Clause, and the Criminal Procedure Clauses of the Bill of Rights. But, they came to hate each other over Douglas’s revival of substantive due process or Lochnerian-​era judicial activism to strike down laws that forbade couples from using contraceptives when having sex. Justice Felix Frankfurter came to hate both Douglas and Black because he thought they were both judicial activists who struck too many laws down as unconstitutional instead of following a Thayerian Rule of Clear Mistake. Justice Robert Jackson was an ardent defender of civil liberty who dissented from an opinion by Justice Black, joined by Justices Frankfurter and Douglas, which horrifically upheld the constitutionality of the racist internment of all Japanese Americans in California during World War II. In sum, the New Dealers, like the Progressives before them, had no constitutional vision or theory other than advocacy of judicial restraint or inaction even in the facing of shocking behavior by the government like the World War II internment of Japanese Americans. This view was too much at war with the U.S. Constitution and with the Reconstruction Amendments and even with the very idea of law itself, to survive. History has not been kind to New Deal Constitutionalism. Almost everyone now agrees that a philosophy of upholding all government actions is at war with the very idea of the value of written constitutions and of judicial review itself. Professor Bruce Ackerman offers a positive account of the New Deal experience in his We the People series, which suggests that the Constitutional Revolution of 1937 was the result of an engaged mass popular movement as had been the case with the adoption of the original Constitution in the 1780s and of the Civil War Amendments in the 1860s. This is a descriptively accurate positive account of what took place in the United States in 1937. The critical difference between the mass popular movements of 1787 and the 1860s and the New Deal is that President George Washington took great care to constitutionalize his charisma into written constitutional texts, as did President Ulysses S. Grant. There was also a Progressive constitutional moment in which the much needed 16th, 17th, and 19th amendments were enacted, but there was no New Deal constitutional moment. The New Dealers were legal realists who did not believe in “law” so perhaps they thought wrongly that there was no point in constitutionalizing anything at all. As a result, it has been relatively easy

The United States  161 for subsequent Supreme Courts from the Warren Court to the Rehnquist and Roberts Courts to erode the New Deal legacy of mindless judicial restraint and passivity.

VI.  Judicial Review in the United States from 1937 to 2020 Judicial review from 1937 to 1952 was characterized by extreme Thayerian judicial restraint. The poster child for this period of time is the six justice majority opinion in Korematsu v. United States. From the Steel Seizure Case, decided in 1952 up to 2020, there has seen a steady erosion of the Progressive New Deal vision of the Thayerian judicial restraint, which prevailed in constitutional law from 1937 to 1952. The story of the death of judicial review between 1937 and 1952, and of its rebirth from 1952 to 2020 has not been told. The erosion of total New Deal judicial restraint is nothing less than a story of the rebirth of judicial review of the constitutionality of federal legislation. Judicial review died in 1937, but it was reborn and grew enormously in power for: (1) umpiring reasons; (2) rights from wrongs reasons; and (3) insurance and commitment reasons. The story of the rebirth of judicial review in the United States after 1937 is as important as the story of its origination in 1789 or its strengthening for rights from wrongs reasons during Reconstruction. After 1937, total judicial restraint prevailed in a series of landmark cases including West Coast Hotel v.  Parrish (1937); National Labor Relations Board v. Jones & Laughlin Steel (1937); Steward Machine Co. v. Davis (1937); United States v. Caroline Products (1938); United States v. Darby Lumber Co. (1941); and Wickard v. Filburn (1942). During this period of time, judicial review was essentially dead in the United States. The New Deal Supreme Court followed Thayer’s Rule of Clear Mistake, and it upheld the constitutionality of almost every state and federal law it reviewed. Judicial review had to be born again in the United States, and it was born again for rights from wrongs; umpiring; and insurance and commitment reasons. The first sign of the erosion of Thayerian total judicial abdication came with the Supreme Courts invalidation of state eugenics laws in Skinner v. Oklahoma (1942) and of compulsory flag salutes in West Virginia State Board of Education v.  Barnette (1943). These were both important rights from wrongs judicial decisions. Still, when Korematsu v. United States reached the U.S. Supreme Court in 1944, six out of eight New Deal justices upheld the confinement of one hundred thousand Japanese Americans resident in California in concentration camps in a triumph of New Deal Thayerian judicial restraintist reasoning. Justice Black’s majority opinion was joined by Chief Justice Stone and by Justices Reed, Frankfurter, Douglas, and Rutledge. And, in Goesaert v. Cleary (1948), a 6 to

162  The History and Growth of Judicial Review, Volume 1 3 majority of the New Deal Supreme Court upheld a Michigan law forbidding women from being bartenders unless their father or husband owned the bar. The court applied the highly deferential rational basis test to sex classifications contrary to the Taft Court’s holding of Adkins v. Children’s Hospital (1923), which had been overruled in 1937 by West Coast Hotel v. Parrish, a case in which the Court upheld minimum wage laws for women but not for men using the rational basis test. The story of the demise of the New Deal project of judicial restraint began with the Warren and Burger Courts in 1952 with The Steel Seizure Case and in 1954 with Brown v. Board of Education. It was completed by the Rehnquist and Roberts Court with NFIB v. Sebelius. I will discuss each of these courts in turn. Before I do, I need to say an additional word about the rise and fall of the Eugenics Movement, founded by Sir Francis Galton, Charles Darwin’s half-​ cousin, and discussed briefly earlier. I  mentioned that by 1900 almost no intellectuals in either the United States or Europe believed that all men are created equal as did the Framers of the original Constitution and of the Reconstruction Amendments. Intellectuals believed in a dizzyingly large number of races so that, for example, Theodore Roosevelt felt that the United States had to enter World War I to make sure that the Anglo-​Saxon race beat the Hun race. Italians and Irish and Slavic and Jewish immigrants to the United States were all viewed as separate races, and they were perceived as enemies of the Anglo-​ Saxon race. Ultimately, the Immigration Act of 1924, and the Asian Exclusion Act and Natural Origins Act of 1924 were passed to limit immigration into the United States of anyone from Southern or Eastern Europe or from Asia. Immigration from Africa was already illegal. Only Northern Europeans were guaranteed relatively free rights to immigrate to the United States. So one effect of Social Darwinism in the United States was immigration control. These racist immigration laws remained on the books until President Lyndon B. Johnson got them repealed in 1965. A second major effect of Social Darwinism was that treatment of African Americans got much worse between 1890 and 1933 then it had been from 1865 to 1890. Almost all African Americans in the South lost their voting rights due to grandfather clauses that allowed you to vote if your grandfather had been allowed to vote, or, alternatively, you could register to vote if you could pass a difficult literacy test or could afford to pay a poll tax. Whereas most African American men could vote even in the South during Ulysses S. Grant’s presidency, almost no African Americans could vote in the south during Woodrow Wilson’s presidency or during Calvin Coolidge’s presidency. African American civil rights were infringed upon as well as their political right to vote. From the 1860s until 1913, African Americans had worked as federal employees, side by side, with no difficulty. The Woodrow Wilson administration

The United States  163 brought an end to this by requiring that screens be set up in all federal offices so white and black employees could not see each others’ faces. Private businesses increasingly followed President Wilson’s example. It was during the Wilson administration that the public viewing galleries of the U.S. Senate and House of Representatives came to be racially segregated for the first time. Criminal violence against African Americans also became much more common. Such private violence was most frequent from 1890 to the 1920s. Lynchings occurred in the South, in the border states, and even in California. The third effect of the Rise of Social Darwinism was U.S.  imperialism, championed by that great racist, Theodore Roosevelt. Teddy Roosevelt was one of the most ardent advocates of the Spanish–​American War by which the United States acquired colonies in the Philippines and in Puerto Rico. He thus in Rudyard Kipling’s words took up “the white man’s burden” to govern imperialistically the Philippines. Teddy Roosevelt also carved Panama out of Columbia, as a separate country, so he could build the Panama Canal. European nations in the height of Social Darwinism, from 1880 to 1945, carved up almost all of Africa and Asia into European colonial empires. European and American imperialism were a direct consequence of the triumph of Social Darwinism, and the death of the idea that all men are created equal. The final effect of Social Darwinism on the United States was that more than thirty states passed eugenics laws, with the blessing of Oliver Wendell Holmes and the Supreme Court in Buck v. Bell, an opinion that Justice Holmes wrote. Ultimately, more than sixty thousand Americans were compulsorily sterilized for feeblemindedness or criminal tendencies. The best book on this subject is Victoria F.  Nourse, In Reckless Hands: Skinner v.  Oklahoma and the Near-​ Triumph of American Eugenics.90 As Nourse points out, one of Adolf Hitler’s first acts upon becoming chancellor of Germany was to pass an American-​style eugenics law.91 This ultimately ended with the Holocaust, and the killing of six million Jewish people. When Allied troops liberated the Nazi concentration camps and when the people of the world realized what had happened in the Holocaust, intellectuals all over the world were horrified. Led by Eleanor Roosevelt, the first U.S. ambassador to the United Nations, the U.N. adopted in December of 1948 the Universal Declaration of Human Rights. It begins with words that should by now sound hauntingly familiar:

90 Victoria F. Nourse, In Reckless Hands: Skinner v. Oklahoma and the Near-​Triumph of American Eugenics (2008). 91 See also James Q.  Whitman, Hitler’s American Model:  The United States and the Making of Nazi Race Law (2017).

164  The History and Growth of Judicial Review, Volume 1 Article 1: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article 2: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-​self-​governing or under any other limitation of sovereignty.

In other words, by December 1948, intellectuals believed again, as had the Framers of the U.S. Constitution, and of the Reconstruction Amendments, that “All human beings are born free and equal.” The Universal Declaration of Human Rights is a classic rights from wrongs document. The rights in the declaration grow out of the wrongs committed by the Nazis, the Fascists, and in the Holocaust. But, the United States in December of 1948 still had Jim Crow legal apartheid in place in one-​third of the nation and sex discrimination was still subject to only Thayerian rational basis review. The United States had a lot of catching up to do before it would be in compliance with the Universal Declaration of Human Rights.92

A.  The Warren and Burger Courts In retrospect, the Warren Court era of renewed judicial activism was inaugurated in 1952 with the Vinson Supreme Court’s 6 to 3 invalidation of an order by President Harry Truman ordering the seizure of the nation’s steel mills (Youngstown Sheet & Tube Co. v. Sawyer (1952)). This judicial umpiring separation of powers opinion suggested that the Supreme Court regretted its New Deal judicial restraint in the Korematsu case, and that the court would no longer give the president a blank check in separation of powers cases. The Warren Court engaged in the umpiring of the political process in its famous one person, one vote decisions reapportioning U.S. House of Representatives districts, as well as state senate and lower house legislative districts. Landmark cases included Baker v. Carr (1962) and Reynolds v. Sims (1964). Another key umpiring decision of the Warren Court was handed down in Powell v. McCormack (1969). In that case, the Supreme Court held that the 92 Mary Ann Glendon, A  World Made New:  Eleanor Roosevelt and the Universal Declaration of Human Rights (2001).

The United States  165 House of Representatives had acted unconstitutionally in refusing to seat an African American congressman who had been accused of ethical improprieties. The Burger Court continued the vigorous separation of powers umpiring of the Warren Court in such landmark cases as: Buckley v. Valeo (1976) (reviving the Appointments Clause); INS v. Chadha (1983) (holding all legislative vetoes unconstitutional); and Bowsher v.  Synar (1986) (striking down the Gramm-​ Rudman-​Hollings Deficit Reduction Act). All of these cases were landmark separation of powers rulings, and they were paradigmatic examples of judicial umpiring. They helped to legitimate the rebirth of judicial review and of judicial activism. The Warren Court itself had built up a huge legacy of political legitimacy with its umpiring decisions—​especially as a result of the one person, one vote cases, which were very popular (Baker v. Carr (1962); Reynolds v. Sims (1964)). The court then spent that political capital by correctly holding that the Bill of Rights was incorporated by the Fourteenth Amendment against the states for reasons that are best explained in Akhil Reed Amar’s book, The Bill of Rights: Creation and Reconstruction.93 By engaging in judicial umpiring, in the one person, one vote cases; and by engaging in individual rights protection in incorporating the Bill of Rights against the states, the Supreme Court shed the Thayerian judicial restraint legacy of 1937, the New Deal, and the Progressive Movement and became again an active player in the American constitutional regime, as it had been from 1868 to 1937. The Warren Court even revived substantive due process in Griswold v.  Connecticut (1965) striking down a Connecticut law that forbade married couples from buying and owning contraceptives. The Burger Court took this one step further in Roe v. Wade (1973), which displaced the abortion laws of all fifty states with a new judicially drawn abortion code. The inspiration for Roe v.  Wade, however, was to be found in the Warren Court’s first major collective opinion—​Brown v. Board of Education (1954). In that case, the Supreme Court unanimously held that formal de jure racial segregation in public schools was unconstitutional under the Fourteenth Amendment. Brown v. Board of Education was THE landmark Warren Court case. It displaced the racist ruling in Plessy v. Ferguson (1896), and it held that separate but equal was inherently unequal. Brown transformed the United States ushering in the Civil Rights Act of 1964 and the Voting Rights Act of 1965. It was a classic rights from wrongs opinion, and it led to a huge debate between New Deal academics, like Columbia Professor Herbert Wechsler who criticized Brown on judicial restraint grounds, and the defenders of Brown who admired the good



93

Amar, supra note 47.

166  The History and Growth of Judicial Review, Volume 1 outcome it had achieved. The civil rights revolution culminated with the Warren Court’s holding in Loving v. Virginia (1967) that laws against interracial marriage were unconstitutional. In the wake of the triumph of judicial review in Brown v. Board of Education and in the one person, one vote decisions of the Warren Court, scholars were left wondering what the proper theory of judicial review and of judicial activism ought to be. Professor Alexander Bickel in The Least Dangerous Branch:  The Supreme Court at the Bar of Politics and John Hart Ely in Democracy and Distrust: A Theory of Judicial Review94 sought to offer a theory of judicial review that made room for Brown and the one person, one vote cases, but not for any further forays into judicial activism. Ely was thus very critical of the highly activist Supreme Court abortion rights decisions in Roe v. Wade. Ely was joined in his criticism of Roe v. Wade by Professors Robert H. Bork of Yale Law School and Antonin Scalia of the University of Chicago Law School. The overwhelming majority of legal academics and scholars supported the Supreme Court’s decision in Roe v. Wade, and a cottage industry grew up of law professors writing books and articles explaining what the court should have said to justify its decision in Roe. The Burger Court saw another foray into the revival of judicial review when it announced heightened scrutiny for sex classifications in Reed v. Reed (1971); Frontiero v. Richardson (1973); and Craig v. Boren (1976). These decisions, which essentially treated sex discrimination the way the pre-​New Deal Court had done in Justice Sutherland’s majority opinion in Adkins v. Children’s Hospital (1923) repudiated such key New Deal landmarks as West Coast Hotel v. Parrish (1937) and Goesaert v. Cleary (1948) and a key Warren Court decision upholding all male juries in a murder trial of a wife who had killed her husband, Hoyt v. Florida (1961). The judicial activism of the Burger Court was so pronounced that in Furman v. Georgia (1972), the Supreme Court came close to invalidating all capital punishment laws. Although the court later stepped back from that conclusion in Gregg v. Georgia (1976) and upheld the constitutionality of some capital punishment laws, the Furman opinion was yet another indication that the days of total New Deal Thayerian judicial restraint were over. Between the Steel Seizure case in 1952 and the end of the Burger Court in 1986, the Supreme Court definitively repudiated the Thayerian judicial restraint theory of President Franklin Roosevelt’s New Deal. It did so in rights from wrongs cases as with Brown v. Board of Education, the incorporation of the Bill of Rights, and the heightened scrutiny of sex classifications, and it did so in umpiring decisions like Buckley v. Valeo, INS v. Chadha, and Bowsher v. Synar. Judicial review was born again in the United States between 1952 and 1986 for 94 Bickel, supra note 74; John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980).

The United States  167 the same umpiring and rights from wrongs reasons that caused it to originate in the United States in 1789 and in 1868. A desire for insurance and commitment was undoubtedly a contributing reason for the popularity of judicial review during this period of time. This supports Professor Tom Ginsburg’s theory of the growth of judicial power. Professor Bruce Ackerman argues that the Supreme Court in Brown v. Board of Education, and during the civil rights era more generally, was responding to a mass popular movement for civil rights first for African Americans and then for women.95 I agree with Professor Ackerman that these two social mass popular movements help to explain the Supreme Court’s revitalization of judicial review in Brown v. Board of Education and in the sex discrimination cases of the 1970s. These decisions, along with Roe v. Wade (recognizing sweeping abortion rights) gave rise to a counter mass popular movement of Christian Evangelical and Catholic voters, which has gone on to totally reshape the jurisprudence of the Rehnquist and Roberts Courts. This latter mass movement led to President Ronald Reagan’s constitutional moment, which was fulfilled by President Trump in 2020.

B.  The Rehnquist and Roberts Courts William Rehnquist became chief justice of the United States in 1986, and he was a judicial restraint New Deal liberal with respect to individual rights cases, but he was an admirer of the federalism umpiring of the pre-​1937 Supreme Court. Rehnquist lacked the five votes he needed for judicial restraint in individual rights enforcement, but he had five votes for reviving pre-​1937 federalism umpiring. Rehnquist’s term as chief justice is most memorable for its revival of federalism umpiring in the modern era by the U.S. Supreme Court. The landmark decision in this vein is United States v. Lopez (1995), but other important opinions include New York v. United States (1992); Printz v. United States (1997); Gregory v.  Ashcroft (1991); Seminole Tribe of Florida v.  Florida (1996); Alden v. Maine (1999); City of Flores v. Boerne (1997); and United States v. Morrison (2000). Rehnquist lost only one federalism umpiring case during his entire tenure as chief justice, which was Gonzales v. Raich (2005), in which he dissented. Meanwhile, Rehnquist won yet another key umpiring of the political process case in Bush v. Gore (2000), a case that resolved the presidential election of 2000 in favor of the Republican candidate George W. Bush.



95

Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (2014).

168  The History and Growth of Judicial Review, Volume 1 Rehnquist lost in individual rights cases, as to which he was a Thayerian, but his Supreme Court became emblematic for several key individual rights cases, which were rights from wrongs cases. In Texas v. Johnson (1989), the court struck down a state law banning flag burning by a 5 to 4 vote, in an opinion from which Rehnquist passionately dissented. In Romer v.  Evans (1996) and in Lawrence v. Texas (2003), the Supreme Court in effect applied heightened scrutiny to laws that discriminated on the basis of sexual orientation, and it found a constitutional right of same-​sex couples to have sexual relations. The Lawrence opinion by Justice Anthony Kennedy was driven by rights from wrongs concerns and was reminiscent of the 1905 opinion in Lochner v. New York in that it implied that only reasonable exercises of police power would be upheld as being constitutional. When John Roberts replaced William Rehnquist as chief justice in 2005, the New Deal legacy of judicial restraint had been obliterated. It had died in individual rights cases such as Roe v. Wade (1973) and Lawrence v. Texas (2003), it had died in federalism umpiring cases like United States v. Lopez (1995) and City of Boerne v. Flores (1997), and it had died in separation of powers cases like Buckley v. Valeo (1976), INS v. Chadha (1983), and in Clinton v. City of New York (1988). The new Supreme Court, on which John Roberts replaced William Rehnquist and Samuel Alito replaced Sandra Day O’Connor was set to become the most activist Supreme Court in American history and certainly since 1935. The legacy of the Rehnquist Court was that because, thanks to Ronald Reagan’s constitutional moment, the judicial restraint, Thayerian judicial review of the New Deal finally died and was buried. New originalist Supreme Court justices like Antonin Scalia, Clarence Thomas, Samuel Alito, Neal Gorsuch, Brett Kavanaugh, and Amy Coney Barrett picked to please the Ackermanian mass popular movement of evangelical and Catholic voters, drove the court in a whole new direction. The Roberts Court from 2005 to 2020 has strengthened and deepened the trends, which were already evident in the Rehnquist Court. The Roberts Court by a 5 to 4 majority upheld the constitutionality of President Barack Obama’s Affordable Care Act, but it did so only after endorsing the most conservative reading of the Commerce Clause and Necessary and Proper Clause since 1935. The court also struck down on federalism umpiring grounds certain provisions of the Voting Rights Act of 1966 in Shelby County v. Holder (2013). Finally, the Roberts Court as umpire of the political process, struck down key campaign finance laws in Citizens United v. FEC (2010). The Roberts Court’s judicial activism and growth of judicial power was definitely in part a result of umpiring. The Roberts Court between 2005 and 2018 issued two monumental individual rights decisions for rights from wrongs reasons. First, in District of Columbia v. Heller (2008), the court held that the Second Amendment contained an individual private right to keep and bear arms even of individuals who were not in state national guard units. This originalist decision was then extended to apply

The United States  169 against the states in McDonald v. City of Chicago (2010). These were massive new assertions of judicial power to strike down federal and state laws on individual rights grounds. They are also originalist opinions that the New Dealers would have denounced as being judicially activist. The Roberts Court also issued activist opinions in United States v. Windsor and in Obergefell v.  Hodges (2015) in which Justice Anthony M.  Kennedy, joined by the four liberal members of the Roberts Court, correctly held that the Constitution guarantees a right to same-​sex marriage. These decisions, motivated by rights from wrongs concerns, struck down one federal and more than thirty state laws against same-​sex marriage. This was a display of judicial activism as sweeping, if not more so, than Lochner v. New York (1905). By 2020, it is fair to say that the New Deal doctrine of Thayerian judicial restraint is dead, dead, dead in the Supreme Court. Judicial review was reborn between 1952 and 2020 for the same reasons it arose originally: (1) the need for a federalism, separation of powers, and political process umpire; (2) the need to correct historical wrongs with rights; and (3) insurance and commitment. The United States has therefore seen, over the course of its 230-​year constitutional history, the birth, growth, death, rebirth, and regrowth of activist judicial review. There is one final topic to be discussed in this long chapter on the origins and growth of judicial review in the United States. This concerns the claim by Princeton Professor Keith Whittington that the U.S. experience is one of judicial supremacy. I thus conclude my chapter on the origins and growth of U.S. judicial review with a discussion of Professor Whittington’s thought-​provoking work.

VII.  Departmentalism, Judicial Supremacy, and Professor Whittington In an important book published in 2007, Professor Keith E. Whittington takes issue with what he calls the Marbury v. Madison myth of the growth of judicial supremacy and power in the United States.96 Professor Whittington’s thesis is that while U.S. judicial review got its start in Marbury, judicial power has evolved and grown enormously over time. Whittington contrasts judicial supremacy with departmentalism as competing notions of American constitutional review. Whittington argues that judicial power grew gradually in the United States after the Civil War and especially at the turn of the twentieth century. Whittington contrasts judicial supremacy with departmentalism as competing notions of American constitutional review. Under departmentalism, all 96 Keith E. Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (2007).

170  The History and Growth of Judicial Review, Volume 1 three of the national departments of the government, Congress, the president, and the federal courts play a coequal role in interpreting and enforcing the Constitution. In contrast, under the judicial supremacy model, “it is emphatically the province and duty of the judiciary to say what the law is.” Whittington explains the origins of the Supreme Court’s power by saying that it started out slowly prior to the Civil War, gained strength greatly after the Civil War, and attained its present state of supremacy in constitutional interpretation in the Lochner era—​a state of supremacy, which according to Whittington, survived President Franklin D. Roosevelt’s court packing plan intact. For Whittington, the dispositive truth of the fact that Americans have a system of judicial supremacy in reality and not one of departmentalism is that the U.S. Supreme Court had the raw power in Bush v. Gore to get away with the deciding of a presidential election, something the Supreme Court could never have done in the pre–​Civil War era. Whittington thus offers a story of the origins and growth of U.S. judicial review in which that power of review began very modestly and grew by leaps and bounds steadily over the last 230 years, including during the New Deal. He denounces the traditional story that U.S. judicial review originated in Marbury v. Madison as being nothing more than a myth. Whittington’s account is compelling, and there can be no doubt but that federal judicial power has grown enormously over time, although during the years between 1937 and 1952, it almost disappeared as a result of Thayerian judicial restraint. Any theory of the origins of U.S.  judicial review must acknowledge these facts. Still, there are some glaring weaknesses with Whittington’s account as should be obvious by now given our response earlier to Professors Freidman and Delaney, as well as our discussion of the period from 1937 to 2020. To begin with, Whittington never once acknowledges that the power of the presidency and of Congress itself has grown enormously over the last 230 years. Modern-​day presidents wage war without congressional approval; they grant amnesty to millions of people contrary to federal law; and they issue a blizzard of regulations, which citizens must absolutely comply with. Congress’s power, too, has grown by leaps and bounds. Once the Sixteenth Amendment establishing the federal income tax was ratified, Congress has given the states huge federal grants of money that they politically cannot turn down with detailed and intrusive strings attached that erode the core of state power. Congress has established a national drinking age (see South Dakota v. Dole),97 it has forbidden farmers from growing wheat on their own land or marijuana in their kitchens (see Wickard v. Filburn98 and Gonzales v. Raich),99 and it has taxed those who refuse to enter

97

483 U.S. 203 (1987). 317 U.S. 111 (1942). 99 545 U.S. 1 (2005). 98

The United States  171 the market by buying health insurance (see NFIB v. Sebelius).100 The Framers would have been just as shocked by the growth in presidential and congressional power as they would have been shocked by the growth of federal judicial power. Whittington thus shows that federal judicial power has grown enormously since Marbury v. Madison was decided, but he has failed to even try to show that federal judicial power has grown more or faster than has presidential or congressional power. There are many reasons to think it has not. The president today commands a vast administrative state of over four million civil and military employees, which intrudes into every facet of American life. The Supreme Court, however, under Chevron v. N.R.D.C.,101 is highly deferential to executive and administrative constructions of law even though in doing this, the justices weaken greatly the power of the Supreme Court vis-​à-​vis the presidency. The growth in the Supreme Court’s power has not even come close in my opinion to the growth in presidential power. This is especially so if one considers the limitless discretion presidents have acquired to wage war without congressional approval, a subject the Supreme Court treats as raising a political question. Similarly, Congress has passed laws of dubious constitutionality forbidding farmers from growing wheat on their own farms and cancer patients from growing marijuana in their kitchens. These regulations of commerce are highly dubious as a constitutional matter, but the Supreme Court has just rubber stamped them. The Supreme Court launched a big federalism revolution in United States v. Lopez102 (1995) by holding unconstitutional on Commerce Clause grounds a federal statute that banned the bringing of guns within a thousand feet of a school. Congress swiftly undid the court’s federalism revolution by repassing the law in question with only four words added that required that the gun in question be proved to have moved in interstate commerce. In INS v. Chadha,103 the Supreme Court with much fanfare stuck down as unconstitutional all legislative vetoes. Congress has completely ignored the court’s decision, and it goes on passing legislative vetoes all the time, and the executive and independent agencies follow those legislative vetoes because Congress appropriates their funding. Thus, an initial and fatal flaw with Whittington’s account of what he calls judicial supremacy in the United States is that it does not show that the federal judicial power has actually grown relative to presidential and congressional power, which powers have also grown enormously. Whittington is right that federal judicial power has grown very substantially over time, but he is wrong



100

567 U.S. _​_​_​ (2012). 467 U.S. 837 (1984). 102 514 U.S. 549 (1995). 103 462 U.S. 919 (1983). 101

172  The History and Growth of Judicial Review, Volume 1 in asserting that the United States now has a system of judicial supremacy rather than of departmentalism. It is not at all clear that the federal courts are more powerful relative to the president and Congress than they were in the nineteenth century. A second problem with Whittington’s thesis on the origins of judicial supremacy in the United States is that he never defines what he means by judicial supremacy except to say that it is not departmentalism—​the system praised by Presidents Jefferson, Jackson, Abraham Lincoln, Franklin D. Roosevelt, and Ronald Reagan under which each of the branches of the federal government can arrive at their own constructions of constitutional meaning independent of the others. Whittington is right that reconstructive presidents, like Jefferson, Jackson, Lincoln, Roosevelt, and Reagan, are the exception rather than the rule and that most ordinary presidents do not attack the federal courts but appreciate being able to hand off political hot potatoes to them. But, he is wrong in saying that the norm in the United States is one of judicial supremacy in construing the Constitution. A look at the practice in other countries around the world clearly reveals Whittington’s claim of U.S. judicial supremacy to be just plain wrong. Comparative constitutional law reveals Whittington’s perspective to be embarrassingly parochial. One major constitutional democracy that does have a system of judicial supremacy is the Republic of India. The Supreme Court of India has: (1) the power to review for constitutionality constitutional amendments passed by the legislature, (2) the power of the justices of the Supreme Court to name their own successors, and (3) the power to assert jurisdiction over a matter, after a Supreme Court justice concludes what the court ought to do, having read an ordinary letter to the editor published in a newspaper. Now that is truly a system of judicial supremacy! Judicial review of the constitutionality of constitutional amendments coupled with a power to pick your own successors sets up the Supreme Court of India as an oligarchic body independent of Parliament, which is truly supreme in the exposition of the law of the Constitution especially since the justices can assume jurisdiction over whatever they read in the newspaper. In the United Kingdom and in Israel, Supreme Court judges play a key role in selecting new Supreme Court judges. In the Federal Republic of Germany and in Brazil, Constitutional Court or Supreme Federal Court judges have the power to declare constitutional amendments to be unconstitutional. The experience in India, the United Kingdom, Israel, and Brazil thus reveal the embarrassing shallowness of Whittington’s parochial claim that the United States has a system of judicial supremacy. The Indian Supreme Court and the German Constitutional Court are arguably more active and more independent than is the U.S. Supreme Court. If

The United States  173 so, Whittington’s claim that the United States has a system of judicial supremacy falls apart. The U.S. Supreme Court, in contrast to courts in India, the United Kingdom, Israel, Germany, and Brazil lacks the power to review the constitutionality of constitutional amendments; it lacks the power to pick successor justices; and it can only hear nine limited and enumerated categories of cases or controversies. Because Supreme Court justices cannot pick their own successors, the U.S. Supreme Court in practice follows presidential and senatorial election returns, at least over the long run. Not only is the U.S. Supreme Court not judicially supremacist, it is, as well, merely—​as Bruce Ackerman has called it—​the caboose on the train of government—​a lagging indicator of what our constitutional politics used to be ten or fifteen years ago as opposed to what they are right now. Whittington buys into an elaborate framework of reconstructionist presidents developed by Yale political science Professor Stephen Skowronek in his justly acclaimed book, The Politics Presidents Make: Leadership from John Adams to Bill Clinton,104 but Skowronek’s theories of reconstructive and ordinary presidents simply does not map on to U.S. Supreme Court appointments. There is a very simple reason for this: vacancies on the Supreme Court arise at unpredictable times and some reconstructive presidents get few appointments (Ronald Reagan got three in eight years) while other very ordinary presidents get a lot of Supreme Court appointments (William Howard Taft got six in four years). This fact can be illustrated by considering how the laissez-​faire Supreme Court during the Lochner era came into existence. Presidents Grover Cleveland and Benjamin Harrison each made four appointments to the Supreme Court for a total of eight, and, even though nobody would count them as having been reconstructive presidents, they totally transformed the Supreme Court into a conservative, laissez-​faire body. Teddy Roosevelt’s, William Howard Taft’s, and Woodrow Wilson’s appointees moderated the Supreme Court, even though Taft got 6 appointments in four years as president, while Teddy Roosevelt and Woodrow Wilson got only 6 appointments in 15 and ½ years as president. Roosevelt and Wilson’s six appointees included only two Progressives who stayed on the Supreme Court: Oliver Wendell Holmes, Jr. and Louis Brandeis. In contrast, Taft appointee Willis Van Devanter was the intellectual leader of the Court’s conservative wing until he retired in 1937 to kill Franklin Roosevelt’s court-packing bill. President Warren G. Harding, who was not a reconstructive president, appointed four transformative justices in his two years and seven months in office: Chief Justice Taft, and Justices Sutherland, Butler, and Sanford. Thus was born the Court that Franklin D. Roosevelt tried to pack. 104 Stephen Skowronek, The Politics Presidents Make: Leadership from John Adams to Bill Clinton (1997).

174  The History and Growth of Judicial Review, Volume 1 Presidents also make court appointments for non-ideological reasons, which proves wrong the idea that reconstructive presidents always prioritize reconstructing the Supreme Court. Woodrow Wilson appointed the irascible arch-conservative Justice James McReynolds, his first Attorney General, because he was irritating everyone in Washington, D.C., and so he was promoted upstairs. Ronald Reagan appointed the centrist justice Sandra Day O’Connor because of an election promise to appoint the first woman to the Supreme Court. President Eisenhower appointed Justice William Brennan in October of the 1956 presidential election because the only Catholic on the Court had just died. And, Donald Trump appointed Amy Coney Barrett to the Supreme Court in October 2020 to mobilize evangelical and Catholic voters. Historically, some reconstructionist presidents have made few Supreme Court appointments, while some non-reconstructionist presidents have made many. Non-reconstructionist president Warren G. Harding made four Supreme Court appointments in his 2 years and 7 months as president, whereas reconstructionist presidents Thomas Jefferson and Ronald Reagan served 8 years as president, while making only 3 appointments each. Reconstructionist presidents do not get to fill more Supreme Court vacancies than do ordinary presidents. Moreover, the filling of vacancies by non-​reconstructionist presidents often critically tips the balance of power on the Supreme Court. Richard Nixon’s four appointees put an end to the Warren Court’s liberalism on constitutional criminal procedure—​a major humbling of the supposedly supremacist Supreme Court by a non-​reconstructionist president. Harry Truman’s four Supreme Court appointees led to a Supreme Court that was harsh on communists and grudging on civil liberties even though Truman was not a reconstructionist president. Dwight D. Eisenhower’s five Supreme Court appointees helped to create the Warren Court with an assist from non-​reconstructionist President John F. Kennedy who replaced Justice Felix Frankfurter with Justice Arthur Goldberg. Once again, two non-​reconstructionist presidents tipped the balance sharply on the Supreme Court, creating a court that was the most protective of civil liberties of any Supreme Court in our history. The point of all of this is to show that the phenomenon of judicial supremacy in the interpretation and application of the U.S. Constitution that Keith Whittington writes about is quite simply an illusion, especially when we compare the U.S. experience with that of other constitutional democracies. Yale Political Scientist Robert Dahl105 and more recently Professor Gerald Rosenberg106 had it

105 Robert A. Dahl, Decision-​Making in a Democracy: The Supreme Court as a National Policy-​ Maker, 6 J. Pub. L. 279 (1957). 106 Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (1991).

The United States  175 right years ago when they said that the Supreme Court ultimately follows presidential and senatorial election returns, and it does this totally without regard to whether there is a reconstructionist president in the White House or an ordinary president. Judicial supremacy as described by Whittington is simply a mirage that covers over a very political and departmentalist process in which every president tips the balance on the Supreme Court to some degree with every single Supreme Court appointment that they get to make. Departmentalism is right and judicial supremacy is wrong contrary to Keith Whittington’s assertion because presidents and Senates are constantly fine-​ tuning the balance of power on the Supreme Court through the judicial appointment process. Presidents and Senates engage in this fine-​tuning based entirely on their own independent judgment of what the Constitution ought to mean with no deference at all given to the Supreme Court’s visible assertions as to what the Constitution does mean. If U.S. Supreme Court justices could elect their own successors and could judicially review the legality of constitutional amendments, as in India, then the United States would have a regime of judicial supremacy as Keith Whittington claims. Since that is not the case, the United States instead has a departmentalist system of judicial review in which the courts ordinarily, but not always, have the power to say finally what the law is. James Madison himself best describes the state of affairs in the following letter to an unknown addressee written in 1834 and published in 4 Letters and Other Writings of James Madison:107 DEAR SIR,—Having alluded to the Supreme Court of the United States as a constitutional resort in deciding questions of jurisdiction between the United States and the individual States, a few remarks may be proper, showing the sense and degree in which that character is more particularly ascribed to that department of the government. As the Legislative, Executive, and Judicial departments of the United States are coordinate, and each equally bound to support the Constitution, it follows that each must, in the exercise of its functions, be guided by the text of the Constitution according to its own interpretation of it; and consequently; that in the event of irreconcilable interpretations, the prevalence of the one or the other department must depend on the nature of the case, as receiving its final decision from the one or the other, and passing from that decision into effect, without involving the functions of any other. It is certainly due from the functionaries of the several departments to pay as much respect to the opinions of each other; and as far as official independence



107

4 Letters and Other Writings of James Madison 349–​50 (1884).

176  The History and Growth of Judicial Review, Volume 1 and obligation will permit, to consult the means of adjusting differences and avoiding practical embarrassments growing out of them, as must be done in like cases between the different co-​ordinate branches of the legislative department. But notwithstanding this abstract view of the co-​ordinate and independent rights of the three departments to expound the Constitution, the Judicial department most familiarizes itself to the public attention as the expositor; by the order of its functions in relation to the other departments; and attracts most the public confidence by the composition of the tribunal. It is the judicial department in which questions of constitutionality, as well as of legality, generally, find their ultimate discussion and operative decision; and the public deference to and confidence in the judgment of the body are peculiarly inspired by the qualities implied in its members; by the gravity and deliberation of their proceedings; and by the advantage their plurality gives them over the unity of the Executive department, and their fewness over the multitudinous composition of the Legislative department. Without losing sight, therefore, of the coordinate relations of the three departments to each other, it may always be expected that the judicial bench, when happily filled, will, for the reasons suggested, most engage the respect and reliance of the public as the surest expositor of the Constitution, as well in questions within its cognizance concerning the boundaries between the several departments of the Government as in those between the Union and its members.

Madison clearly realizes that ordinarily the federal courts will have the last word on questions of constitutional meaning, but he rejects Whittington’s facile assumption that this means the United States has a regime of judicial supremacy. Madison acknowledges that when push comes to shove in a major constitutional disagreement, all three departments of the national government have an equal right to interpret the Constitution, and he makes it clear that public deference to the Supreme Court depends on the bench of that court being “happily filled.” For Madison, the courts are the ordinary expositor of constitutional meaning but when there is a crisis, such as that created by the Dred Scott opinion or by the nine old men in 1937, or by Roe v. Wade,108 during the Reagan administration, departmentalism will again challenge judicial supremacy and will often win. Professor Whittington’s account of a slow but steady accumulation of more and more Supreme Court power at the expense of the power of the political branches is facile and wrong. His narrative that judicial power is a post Civil War phenomenon is also contradicted by the famous comparativist Alexis de Tocqueville



108

410 U.S. 113 (1973).

The United States  177 who was so impressed by the power of American judges that he devoted Chapter Six of Volume I of Democracy in America to that subject in 1835. This is proven today as Democratic presidential candidates in the 2020 primaries election talked openly about increasing the size of the current conservative Supreme Court from nine justices to some larger number, so as to reverse a forty-​year campaign that conservative presidents from Ronald Reagan to Donald Trump have waged to push the Supreme Court to the right. A Supreme Court that can be so easily “packed” by the political branches of government is a departmentalist Supreme Court, not a judicial supremacist Supreme Court. Professor Whittington’s account of ever-​ growing powers of judicial supremacy is also inconsistent with the Rehnquist and Roberts Court’s revival in recent years of the Political Question Doctrine in (Walter) Nixon v. United States and in Rucho v. Common Cause;109 its revival of standing law in Summers v. Earth Island Institute;110 its adoption of extensive judicial deference to executive branch interpretations of law in Chevron v. N.R.D.C.;111 and its continued use in many cases of the rational basis test of Williamson v. Lee Optical Co.112 A judicially supremacist Supreme Court of the kind Professor Whittington claims exists would never sanction these limits on judicial power. In fact the current Supreme Court, contrary to Professor Whittington, is quite concerned about the counter-​majoritarian difficulty of courts invalidating laws passed by the democratic process here and now based on something some now dead people said in 1787, 1791, or 1868. This concern about the counter-​majoritarian difficulty is not mentioned even ONCE in Professor Whittington’s book. I said earlier that the growth in the Supreme Court’s power over the last 225 years has been more than matched by the growth in presidential and congressional power over the same period of time. The Supreme Court’s power has grown, but nowhere does Professor Whittington come close to showing that the court’s power has grown faster or more than the president’s or Congress’s power. I would now like to submit that there is an obvious reason why the power of all three branches of the federal government has grown exponentially since 1789. State power has weakened and has become fragmented as we have moved from a federal union of only thirteen states, at the founding, to one of fifty states today. Fifty states face greater collective action costs in lobbying federal institutions as to money, policies, and other desired outcomes than do thirteen. Presidential power, congressional power, and the power of the Supreme Court have quite simply grown as the number of states has expanded. Consider the



109

Nixon v. United States, 506 U.S. 224 (1993): Rucho v. Common Cause, 588 U.S. ____ (2019). 555 U.S. 488 (2009). 111 467 U.S. 837 (1984). 112 348 U.S. 483 (1955). 110

178  The History and Growth of Judicial Review, Volume 1 following major and controversial Supreme Court opinions in which the court arrogated power to itself in light of the number of states in the Union at the time: Marbury v. Madison113 (17 states); McCulloch v. Maryland114 (21 states); Dred Scott v. Sandford115 (31 states); Lochner v. New York116 (45 states); Hammer v. Daggenhart117 (48 states); Brown v. Board of Education118 (48 states); Baker v. Carr119 (50 states); Roe v. Wade120 (50 states); and Bush v. Gore121 (50 states). The Supreme Court has gotten bolder as the number of states has shot up from thirteen to fifty. This is exactly what one would expect to happen. The growth in the modern Supreme Court’s power is not as Whittington says, a triumph of the judicial supremacy of Cooper v.  Aaron122 over such departmentalist presidents as John F. Kennedy, Lyndon Johnson, Richard Nixon, Ronald Reagan, Bill Clinton, George W.  Bush, Barack Obama, and Donald Trump—​ all of whom have tried to make transformative, departmentalist appointments to the Supreme Court. The growth in the Supreme Courts power, like the growth in the president’s and the Congress’s power is a result, in part, of the huge increase in the number of states in the American federation. This increase has left the states weak and powerless and has expanded all aspects and all branches of federal power including the legislative and executive branches. I am not going to respond to all the many interesting comments in Professor Whittington’s book, but I disagree with his main claim that departmentalism in constitutional enforcement has given way to a widespread and passive social acceptance of judicial supremacy. When I hear liberals vowing to do everything they can to overturn Citizens United,123 including packing the Supreme Court or conservatives who are furious with Chief Justice Roberts for upholding President Obama’s health care mandate in NFIB v. Sebelius,124 I do not feel like I am living in a country that has embraced judicial supremacy. Professor Whittington’s book fails to explain the origins, growth, and current reality of judicial power in the United States. Professor Whittington’s book also does not describe the growth of the federal courts power to judicially review the constitutionality of legislation between 1895 and 2015 as being the result of a fading hegemonic elite to entrench itself

113

5 U.S. 137 (1803). 17 U.S. 316 (1819). 115 60 U.S. 393 (1857). 116 198 U.S. 45 (1905). 117 247 U.S. 251 (1918). 118 347 U.S. 483 (1954). 119 369 U.S. 186 (1962). 120 410 U.S. 113 (1973). 121 531 U.S. 98 (2000). 122 358 U.S. 1 (1958). 123 558 U.S. 310 (2010). 124 567 U.S. _​_​_​ (2012). 114

The United States  179 hegemonically in the courts. Whittington’s account is thus contrary to Hirschl’s thesis. Whittington also does not describe the growth in federal judicial power since 1895 as being the result of an evenly balanced two-​party system seeking insurance and commitment as to constitutionalized rights. Whittington’s account is thus contrary to Ginsburg’s thesis as well. The growth in federal judicial power is a result of federalism and separation of powers umpiring and of the Rights from Wrongs Fourteenth Amendment and subsequent legislation. The incorporation of the Bill of Rights to apply against state legislation through the Fourteenth Amendment has led to vigorous, vertical federalism judicial monitoring where the states have violated the federal Bill of Rights in individual cases. The U.S. Supreme Court plays much the same role vis-​à-​vis the states when the states violate the Bill of Rights as the Privy Council once played against the thirteen American colonies when they violated the laws of “this our realm of England.” Like the King-​in-​Council, the Supreme Court reins in errant states and makes them conform to national individual rights norms. The Supreme Court is an elite institution whose members are picked by elites. I would put less emphasis than Professor Bruce Ackerman does on mass popular mobilizations as explaining, in a positive account, the Supreme Court’s behavior from 1790 to 2020. My normative view of what the federal courts ought to do in constitutional cases is that they ought to decide those cases in light of: (1) the original public meaning of the constitutional text; and (2) federal courts ought to follow Judge Bork’s advice in Ollman v. Evans & Novak that “The world changes in which unchanging [texts] find their application.” Some degree of living constitutionalism is thus inherent in our system of constitutional law for the reason Judge Bork mentions.

VIII. Conclusion It is time to offer a few summary thoughts about the origins and growth of judicial review of the constitutionality of federal and state legislation in the United States, especially as it compares with such judicial review in the other G-​14 constitutional democracies. First, judicial review arose between 1789 and 1861 as the U.S. Supreme Court took over the vertical federalism umpiring role played by the Privy Council from 1660 to 1776. The court also engaged in separation of powers umpiring from the 1790s on, and it engaged in federalism umpiring during the Marshall Court era by legitimating the growth of federal power. Professor Gordon S. Wood has the best theory that explains the origins and growth of judicial power between 1776 and 1803.

180  The History and Growth of Judicial Review, Volume 1 Second, judicial review originated in the United States in part because the founding elites and their Anti-​Federalist counterparts hegemonically entrenched a Constitution that created a very limited federal government and a federal Bill of Rights that consists mainly of rights from wrongs guarantees. By the time Alexis De Tocquevville wrote Democracy in America, VolumeI, Chapter 6 in 1835, unusual judicial power was one of the main things an educated European noted about the United States that made it radically different from Europe. Third, once a two-​party presidential system emerged in the election of 1800, American elites probably let the power of the Supreme Court grow for insurance and commitment reasons. Fourth, the Civil War led to the adoption of the three rights from wrongs Reconstruction Amendments and of several jurisdictional statutes and judgeship bills, which fortified them. These amendments and statutes were direct responses to the evils of slavery and of race discrimination, as well as the failure of the states to follow rules like those set out in the federal Bill of Rights. Fifth, hegemonic business elites captured the Fourteenth Amendment during the Lochner era and used it to impose their own vision of the social good on the federal and state governments. Sixth, the Supreme Court from 1868 to 1937 engaged in very active federalism umpiring as well as separation of powers umpiring. Seventh, from 1937 to 1952, the Supreme Court was enthralled with the idea of Thayerian judicial restraint, and meaningful judicial review died out, as was revealed by the horrendous decision in Korematsu v. United States (1944). Eighth, from 1952 to 1986, the Supreme Court resumed umpiring in separation of powers cases and in political process cases, and it engaged in formidable individual rights protection as well, finally incorporating the federal Bill of Rights to apply against the states and in promulgating a dubious and controversial national abortion code in Roe v. Wade. Ninth, and finally, the Supreme Court has from 1986 to 2020 returned seriously to the business of both federalism and separation of powers umpiring while articulating and defending new individual gun rights and a new right to same-​sex marriage and to same-​sex sexual relations. During this latter period, the Supreme Court also engaged in vigorous umpiring of the political process in Bush v. Gore, Citizens United v. FEC, and Shelby County v. Holder. Tenth, and finally, judicial review in the United States was born, has survived, died, and has been born again for: 1) umpiring reasons; 2) rights from wrongs reasons; and 3) because the Supreme Court faces off against the president, the senate, the house of representatives, state governors, and state legislators which institutions are unlikely to coalesce together to fight Supreme Court rulings successfully. Judicial review largely died out during the Korematsu period between

The United States  181 1937 and 1952, but it was born again between the Steel Seizure Case in 1952 and 2020 for the three reasons listed above. * * * In summary, American judicial review emerged from the vertical federalism umpiring of the King-​in-​Council and from the open political space created by bicameralism, the separation of powers, and federalism, which gave the federal courts the political leeway to engage in judicial review of the constitutionality of federal and state laws. It also emerged because sovereignty shifted from the King-​ in-​Parliament to We the People speaking in the text of the Constitution. The President-​in-​Congress is not sovereign in the United States. We the People are sovereign. American judicial review took its present form of allowing horizontal and vertical judicial review and separation of powers review from 1789 on, although the power of the federal courts has grown enormously as has the power of the president and Congress. Professor Gordon S. Wood has the best theory explaining how the thirteen newly independent states went from distrusting judges in 1776 to placing an enormous amount of faith in judicial review in the period between 1787 and 1803. The addition of the Reconstruction Amendments and the enormous statutory expansions of federal court jurisdiction after the Civil War occurred for rights from wrongs reasons. They led after to the incorporation of the Bill of Rights against the states to a situation where the Supreme Court now reins in errant state legislatures in much the same way the King-​in-​Council used to rein in errant colonial legislatures. Professor Ackerman’s mass popular movement account of the origins of constitutions also helps explain: (1) Washington’s and Adams’s appointments of only loyal Federalists to the Supreme Court; (2)  Lincoln’s and Grant’s much less successful appointments of only transformative Republicans to the Supreme Court; (3) Franklin D. Roosevelt’s appointment of eight transformative justices to the Supreme Court after 1937; and (4) the Reagan–​Bush–​ Trump transformative appointments that began in 1981 and continue on to the present day. Thus, Ackerman’s ideas about the origins and growth of judicial review are correct subject to the caveats that I mentioned earlier when I discussed Ackerman. Borrowing is not, and has not at any point in history, proven to be a cause of the existence in the United States of judicial review of the constitutionality of legislation for the simple reason that the United States was the first country in the world to use a system of judicial review.

Chapter Five

Canada: From Privy Council to Supreme Court The title of this chapter is drawn from the title to a book chapter written by Professor Peter W.  Hogg, the leading and most esteemed expert in the whole world on Canadian constitutional law.1 What the title illustrates so vividly is that Canadian judicial review emerged as a direct result of federalism and separation of powers umpiring by the Judicial Committee of the Privy Council (JCPC), which was also Canada’s highest court of appeal from the adoption of the Canadian Constitution Act in 1867, until Canada ended appeals to the JCPC in 1949. Canadian judicial review from 1867 to 1982 was exclusively concerned with federalism and separation of powers judicial umpiring because Canada had no constitutional Bill of Rights until 1982. There are thus two founding moments, as Bruce Ackerman might say, in the judicial review of legislation in Canadian history:  (1) the period from 1867 to 1982, when Canadian federalism and separation of powers law took shape; and (2) the period from 1982 to the present, when the Supreme Court of Canada began vigorously enforcing the Canadian Charter of Rights and Freedoms, as well as continuing to umpiring federalism and separation of powers disputes. The emergence of judicial review of legislation in Canada during the first period from 1867 to 1982 is entirely the result of JCPC federalism and separation of powers umpiring with the Supreme Court of Canada picking up where the JCPC left off after 1949 down to the present day. The insistence of British elites on maintaining JCPC review over Canadian cases after the creation of the Supreme Court of Canada in 1875, when a few Canadian elites tried unsuccessfully to end JCPC judicial review of cases from the Supreme Court of Canada, is also an example, for some Canadians, of what Professor Ran Hirschl has called fading elite hegemonic judicial review. The emergence of judicial review in Canada from 1982 down to the present day is partly a rights from wrongs phenomenon and partly the result of constitutional borrowing. I will

1 Peter W. Hogg, Canada:  From Privy Council to Supreme Court, in Interpreting Constitutions: A Comparative Study 55–​105 (Jeffrey Goldsmith, ed., 2006). The History and Growth of Judicial Review, Volume 1. Steven Gow Calabresi, Oxford University Press (2021). © Steven Gow Calabresi. DOI: 10.1093/oso/9780190075774.003.0006

184  The History and Growth of Judicial Review, Volume 1 tell both of these stories in this chapter, but I should first begin with some relevant background information. Canada is the second largest country in the world, and it is a federal state with a parliamentary system of government, a judicially enforced Charter of Rights and Freedoms, judicial review, and a constitutional monarchy. Canada’s population of 37,971,020 in 2020 is smaller than the population of the U.S. state of California but is bigger than the population of Texas. Canada’s GDP per capita is the 17th highest in the world according to the International Monetary Fund (IMF)) in 2019. This places Canada behind the United States, Australia, and Germany in GDP per capita among the G-​20 constitutional democracies, but ahead of France, the United Kingdom, Japan, and Italy. Canada is obviously an economically thriving society. Canada has ten provinces today, nine of which are English speaking and Protestant and one of which, Quebec, is French speaking and Catholic. It also has three federal territories, which are largely self-​governing.2 As I said in the introduction to this book, Professor Ran Hirschl has posited that judicial review of the constitutionality of legislation emerged in Canada in 1982 as part of an effort by English-​speaking elites who were losing power to the Quebecois to entrench themselves in the Canadian judiciary. I rely in this Chapter on many sources but am especially indebted to: Jeremy Webber, The Constitution of Canada:  A Contextual Analysis (2015); Stephen Gardbaum, The New Commonwealth Model of Constitutionalism: Theory and Practice (2013) and a book chapter by Peter W.  Hogg, “Canada:  From Privy Council to Supreme Court” in Interpreting Constitutions: A Comparative Study 55-​105 (Jeffrey Goldsmith ed., 2006). Canada has been constitutionally committed to bilingualism since the 1970s due to reforms initiated by the then-​Prime Minister Pierre Elliott Trudeau,, the father of Canada’s current Prime Minister, Justin Trudeau. Quebec has held two referenda on the question of whether it should secede from Canada. A vote for independence failed with 60  percent voting “no” in 1980, but a second referendum on independence in 1995 failed with only 50.58 percent of the population of Quebec voting “no” while 49.42 percent of the population voted in favor of seceding from Canada. The Canadian Supreme Court has held in an advisory opinion (which are allowed in Canada if requested by the government) that Quebec has a theoretical right to secede, but only if a clear majority of Quebec votes to secede; and, then, only after negotiations over redrawing provincial boundaries as well as many other questions.



2

Jeremy Webber, The Constitution of Canada: A Contextual Analysis 3 (2015).

Canada: From Privy Council to Supreme Court  185 Judicial review has existed in Canada ever since the federal Dominion of Canada was established by the British Parliament, at the request of the Canadian people in 1867. The Parliament of the United Kingdom of Great Britain and Northern Ireland enacted an imperial British statute called the British North America Act of 1867 on July 1st of that year. July 1st continues to be celebrated as Canada’s national holiday and is called Dominion Day. No one thought, in 1867, that the British North America Act made Canada an independent nation, but in 1982, at Canada’s request, the United Kingdom’s Parliament renamed the British North America Act, 1867, as it then was, to be the Canadian Constitution Act, 1867, as it now is. Canadians retained British passports until 1931; they were bound by the Colonial Laws Validity Act of 1865 from enacting any laws repugnant to British law until the enactment of the U.K. Statute of Westminster, 1931; appeals could be taken from thee Supreme Court of Canada to the British JCPC until 1949; and Canada’s British governors-​general were appointed by Queen Victoria who was queen of Canada, as well as of the United Kingdom, at the suggestion of the British Cabinet. Between 1867 and the adoption of the Statute of Westminster in 1931, Canada underwent a long process of evolution such that, by 1931, it had reached the point where the Canadians asked the British for their independence, and the United Kingdom complied. Even after 1931: (1) Canada did not abolish appeals to the JCPC until 1949; (2)  Canada had to ask the United Kingdom to give it a Charter of Rights and Freedoms and a constitutional amendment formula by which Canada, itself, could amend the Canadian Constitution Act, 1867; (3) Canada had to ask the United Kingdom Parliament in 1982 to rename the British North America Act 1867 to be the Constitution Act 1867; and, finally, (4)  Canada had to ask the British Parliament to foreswear ever again legislating for Canada in 1982. And, even down to the present day, Queen Elizabeth II of the United Kingdom is also the queen of Canada, although the governors-​general she now appoints are picked by the Canadian prime minister and his cabinet and are now always Canadian citizens. Canada’s Constitution and independence were never at any point an act of “We the People of Canada” but were instead an act of the Queen-​in-​Parliament with the Lords Spiritual and Temporal and the Commons of the United Kingdom of Great Britain and Northern Ireland in 1982. The idea of creating a Canadian federation did first emerge in Canada itself, and not in London, in the 1860s, and the British Empire deferred almost completely to the wishes of the Canadian people in passing the British North America Act 1867, the Statute of Westminster 1931, and the Canadian Constitution Act 1982, but with one very important omission. Quebec did not participate in the 1982 reforms and denounced them as illegitimate.

186  The History and Growth of Judicial Review, Volume 1 The constitutional changes of 1982 were brought about by Prime Minister Pierre Elliot Trudeau, who was from Quebec, and who initially faced resistance in making these changes from the nine English-​speaking provinces. In the end, Prime Minister Trudeau got approval for the 1982 constitutional changes from the nine English-​speaking provinces but not from the provincial legislature of his own native province—​Quebec. The question of how to bring Quebec into the Constitution has been discussed and debated ever since, but “We the People of Quebec” have not really accepted the 1982 constitutional changes, and as mentioned earlier, as recently as 1996, only 50.58 percent of the population of Quebec voted down a Quebec secession referendum. Canada thus has faced, and continues to face, legitimacy difficulties of a constitutional nature. It should be emphasized here that the prime mover behind the 1982 constitutional changes was a French Canadian prime minister, Pierre Elliot Trudeau, and not the nine English-​speaking provinces of Canada. Trudeau had been elected prime minister in part because of strong electoral support for him in Quebec, and he had to persuade the English-​speaking provinces, reluctantly, to support his 1982 constitutional changes. Thus, the voters of Quebec did have an indirect role in the 1982 constitutional moment to the extent that they were critical to Trudeau’s national election as prime minister of Canada, and it was he, Trudeau, who was from Quebec, and not the English-​speaking provinces who were the first mover in effectuating constitutional change in 1982. Professor Jeremy Webber says in his book on the Canadian Constitution and its history that: Canada was not constituted by a single act of will or by a set of founding fathers acting in a privileged constitutional moment. The Canadian constitution has always been a work in progress. It has never taken a thoroughly rationalized form.3 *** The Schedule to the Constitution Act 1982 lists 30 instruments adopted between 1867 and 1975 that are expressly stated to be part of ‘the Constitution of Canada and that are therefore subject to the [very onerous] constitutional amendment formula.”4 *** The languages, modes of life, and structures of governance of Canada’s Aboriginal peoples vary across the country, with those differences shaping local Aboriginal law and land use. The history of European settlement, too, is a complex of regional stories, each with its own dynamic.5



3

Id. at 1. Id. at 5. 5 Id. at 9. 4

Canada: From Privy Council to Supreme Court  187 Canada has thus been permanently shaped by its division into nine mostly English-​speaking provinces and one French-​speaking province, Quebec, which has enclaves within it like the city of Montreal, where English is largely spoken as well as French. In recent years, Canada’s Aboriginal peoples have challenged the idea that Canada has two founding peoples and have asserted quite justifiably that they are at least a third of the founding peoples of Canada.6 The dual federalism lines of the Canadian Constitution Act, 1867, are set out in Section 91 of that act (a list of the national powers of the Canadian government) and in Section 92 of that act (a list of the Provincial Powers of the Provinces in Canada). This two-​list system of both federal and provincial powers greatly protects provincial power because the provincial list of powers in Section 92 cannot be dismissed away as stating merely a truism, the way the U.S. Supreme Court dismissed the Tenth Amendment to the U.S. Constitution as stating merely a truism during the height of the New Deal in Darby v. United States, 312 U.S. 100 (1941). Canada’s provinces have real powers granted to them and, them alone, under the Canadian Constitution Act, 1867, and the Privy Council and the Canadian Supreme Court have both vigorously enforced federalism boundary lines down to the present day. Thus, vigorous judicial review originated in Canada, in fact, well before 1982, and it originated in the context of federalism and separation of powers umpiring. Indeed, there is a 255-​page book, published in 1968 by B.L. Strayer, Judicial Review of Legislation in Canada, the very title of which explicitly makes clear that judicial review in Canada began, in 1867, and, not in 1982.7 In fact, there was a struggle in the 1870s between British and Canadian elites over which group would have the last word on questions of Canadian law. Between July 1, 1867, and April 8, 1875, all appeals from the Provincial High Courts went directly to the JCPC in London, England, which engaged in federalism umpiring. In 1875, Canadian nationalists succeeded in creating a Supreme Court of Canada, which heard appeals from the Provincial High Courts, but the decisions of the Supreme Court of Canada could be appealed further to the JCPC, which exhibited no restraint in reversing the Supreme Court of Canada. Most, but not all Canadians, were initially happy with this arrangement. Privy Council control over Canada reflected, in part, a Hirschlian effort by fading British colonial elites to hegemonically entrench themselves in a position of control over the Canadian legal system. This effort supports Professor Ran Hirschl’s writings about the origins and causes of judicial review of the constitutionality of legislation. There is thus both a federalism and separation of powers



6 7

Id. at 7. B.L. Strayer, Judicial Review of Legislation in Canada (1968).

188  The History and Growth of Judicial Review, Volume 1 umpiring story and an elite hegemonic entrenchment story to be told about Canadian judicial review by the JCPC from 1867 to 1949. The adoption of the Constitution Act 1982 was not, however, as Professor Hirschl claims, an effort by fading Anglophone elites to entrench themselves against Quebec nationalism by enacting a Supreme Court-​enforced Canadian Charter of Rights and Freedoms. Professor Hirschl makes this argument in his book Towards Juristocracy. The prime mover for constitutional change in 1982 was the French Canadian Prime Minister Pierre Trudeau, who was elected prime minister only because he had the backing of Quebec voters. The desire for a Bill of Rights had appeared as early as 1960, when a toothless statutory Bill of Rights was adopted, and the desire for a vigorously effective constitutional Bill of Rights in 1982 was driven partly by rights from wrongs reasons; and partly by borrowing an institution, which was working very well in countries including the United States, Germany, India, and Italy as well as in smaller jurisdictions. The Constitution Act 1982’s adoption of a judicially enforced Canadian Charter of Rights and Freedoms was driven by Prime Minister Trudeau’s desire to override Quebec nationalists and by his unflinching admiration for the U.S. Warren Court, which he hoped to create a copy of in Canada. I will briefly summarize the following:  (1) the constitutional history of Canada and its original system of judicial review from 1867 to 1982; (2) the Second Look Model of Judicial Review, which has been in place in Canada as to the Charter of Rights and Freedoms since 1982, as well as continued Supreme Court umpiring of federalism and separation of powers boundaries; and (3)  a history of the exercise of the power of judicial review in Canada and its growth in recent decades just to prove how powerful Canadian judicial review is. I cover all of these topics so as to fully describe both the history and the sociology of the origins and growth of Canadian judicial review. As I demonstrate, my theory of the origins of judicial review as a federalism and separation of powers umpire, a fading elite hegemon, and as a process of rights from wrongs and of borrowing explains the totality of the Canadian experience. Professor Ackerman identifies Canada as having a form of evolutionary constitutionalism, like that in the United Kingdom, and I agree with Ackerman on that claim.

I.  Constitutional History of Canada I begin with an abbreviated constitutional history of Canada to set up my discussion of Canadian judicial review of the constitutionality of legislation in Sections B and C.

Canada: From Privy Council to Supreme Court  189

A.  Canadian Constitutional History from 1608 until 1867 The French were the first major European power to settle in Canada, and the settlement in Quebec City was first established in 1608, only one year after the settlement of Jamestown, Virginia, which was the first English settlement in North America. The English established colonies in Newfoundland in 1610, and in Mainland Nova Scotia in 1713. From 1756 to 1763, the British and the French fought the Seven Years War, which Americans call the French and Indian War. This was the first truly global World War with British and French troops fighting in Europe, North America, and India, and it ended with a crushing French defeat. The British acquired Quebec and all French land in Canada, as well as all of France’s holdings in India, by virtue of the Treaty of Paris of 1763. In 1763, King George III announced Britain’s first constitution for its new French-​speaking subjects in Quebec.8 The proclamation was generous in its recognition of the rights of Aboriginal peoples and is still cited and treated as part of the Canadian Constitution today. As for New France, the provinces outside Quebec were annexed to Britain’s existing and neighboring colonies while Quebec was made subject to the orders of a British governor and appointed legislature. Catholics were not allowed to hold office without swearing, as did Englishmen in 1763, that they accepted the religious beliefs of the Church of England. This meant that no Catholics could hold office in Quebec. The completely unrealistic goal of the Proclamation of 1763 was to turn the Quebecois into English speakers who would follow the British common law and eventually speak English as their first language.9 The governor of Quebec almost immediately realized that King George III’s Proclamation of 1763 would not work in populous French-​speaking Quebec, and so he quickly allowed French Canadians in Quebec to govern using the French Roman civil law legal system in their courts instead of English common law. In 1774, the British Parliament passed the very important Quebec Act, which established the Catholic Church, the civil law, and the French language in Quebec. This same 1774 act extended the boundaries of New France to the Ohio country below the Great Lakes,10 which infuriated the 13 United British colonies precipitating their Declaration of Independence. The 1774 also allowed Catholics to serve in the Quebec government without taking the Oath of Fealty to the Church of England, which had previously been required, and which was still required in the United Kingdom in 1774.11



8

Webber, supra note 2, at 11. Id. 10 Id. at 13. 11 Id. 9

190  The History and Growth of Judicial Review, Volume 1 The Quebec Act of 1774 was adopted mainly to secure the loyalty of the French people of Quebec so as to thwart their joining any rebellion against Britain by its thirteen North American colonies.12 This act greatly angered the original thirteen U.S. colonies and made people fear that King George III might take away the right to jury trial in English-​speaking colonies or even that he might impose Catholicism or an established church on them. The expansion of Quebec to the Ohio lands of the Great Lakes made American Protestants fear that they were being surrounded by Catholics, and it also infuriated the American English-​ speaking Protestant colonists who were themselves in the process of settling the lands south of the Great Lakes. The American colonists regained control of the Ohio lands south of the Great Lakes in the peace treaty that ended the American Revolutionary war, and they eventually became the American states of Ohio, Indiana, Illinois, Michigan, Wisconsin, and Minnesota. For Great Britain to try make this land French speaking and Catholic was anathema to the Protestant American Revolutionaries, and the Quebec Act 1774 was a major cause of the American Revolution. One of the grounds cited in the Declaration of Independence was American displeasure over the Quebec Act 1774, which was expressed as a complaint that King George III had: *** abolish[ed] the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies ***

During the American Revolution, five hundred thousand people, about 20 percent of the British population, in the original thirteen states were Loyalists who sided with the king and Imperial Britain. After the war, at least fifty thousand to seventy thousand British Loyalists migrated from the newly created United States to Ontario, Canada, to Florida, and to the British West Indies, so as to remain under British rule. British Loyalists essentially founded the province of Ontario in Canada, as an English-​speaking province west of Quebec; and New Brunswick, which was an English-​speaking, Maritime province. The Tories who settled in Ontario were called United Empire Loyalists by the British and were allowed to attach the letters “U.E.” to the end of their name as an honorific. The Loyalist origins of the province of Ontario are indicated by the provincial motto, which reads Ut Incept Fidelis Sic Permanet (Latin) (Loyal she began, loyal she remains). A  number of Canadian Whigs



12

Id.

Canada: From Privy Council to Supreme Court  191 in the Maritime provinces, who had supported the American Revolution on Lockean, anti-​feudal grounds, moved to the United States after the end of the Revolutionary War. Thus, as Seymour Martin Lipset points out, the British population of North America sorted itself out into two quite different peoples in the years between 1776 and 1787: a Tory, communitarian, Loyalist, monarchist, population in the North; and an individualistic, Lockean, Whig, republican, population in the United States.13 The American Loyalists who went to Canada were often people who feared the disorder and mob rule and tarring and feathering of dissidents of the American Revolution and who were sentimentally loyal to the king. They were cautious by temperament and accepting of traditional institutions. The founding motto of the Tories from the thirteen colonies that became the United States who founded what is now the province of Ontario was well and ably expressed in the first section of Article 91, of the Canadian Constitution Act 1867, which says that the Canadian federal government has the residuary power to enforce “Peace, Order, and Good Government” in Canada. This paternalistic, egalitarian, and communitarian culture remains evident in Canadian Supreme Court opinions on freedom of expression down to the present day, which a libertarian would not like. Canada is much more communitarian and is less Lockean and less protective of freedom of expression than is the United States. The founding motto of the United States is that “We hold these truths to be self-​evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” These dueling mottos of the United States and Canada (“Life, Liberty, and the Pursuit of Happiness” versus “Peace, Order, and Good Government”) express most of the fundamental differences as to freedom of expression between the two countries notwithstanding their common origins in the British Empire. The differences between Canada and the United States are complex. Originally, Canada was more Toryish and the United States more Lockean, but in recent years the Supreme Courts of the two countries have blurred those differences. Professor Ackerman correctly identifies Canada as being an evolutionary, Hayekian, constitutional regime, like the British regime, and I  agree with Ackerman on that. I would stress that when Britain’s thirteen North American colonies coalesced into the United States and when tens of thousands of American Loyalists moved north to Canada, an engaged mass movement of people made a deliberate choice on the part of the Loyalists to stay in the communitarian British Empire and to reject the Whig values that caused some



13

Seymour Martin Lipset, American Exceptionalism: A Double-​Edged Sword (1996).

192  The History and Growth of Judicial Review, Volume 1 Canadians during the American Revolution to move south to the United States. Mass movements of people and demos creation are not usually associated with evolutionary constitutionalism, but in Canada those two things did occur together in the 1779s, 1780s, and 1790s. In 1791, the British Imperial Parliament passed a constitutional act dividing French-​speaking Lower Canada, which is now Quebec, from English-​speaking Upper Canada, which is now Ontario. Quebec was explicitly allowed to use the civil law legal system of France instead of English common law. Both French and English were recognized as equally acceptable languages for Quebec. Each colony was given its own elected assembly and the right to make its own laws. In September 1864, representatives from several Canadian provinces met to discuss whether they should ask the United Kingdom for a federal government of all of Canada. Among the provinces represented were Ontario (or Upper Canada), Quebec (or lower Canada), New Brunswick, Nova Scotia, and Prince Edward Island.14 Eventually, seventy-​two resolutions were agreed upon “that would form the basis of the eventual British North America Act, 1867.”15 The process by which Canadians got together voluntarily to talk about constitutionalism and federalism, and the amount of mass participation in these conversations should not be overlooked. It was the Canadians themselves who asked the British to pass a statute like the British North America Act 1867. The act was not totally written in Britain, and then shoved down Canada’s throat. The British did make changes in what the Canadians proposed to them. The final document, the British North America Act 1867 was enacted, however, by the Imperial British Parliament as a U.K. statute. It was not submitted to, nor was it ratified by, “We the People of Canada.” Prince Edward Island and Newfoundland initially opted to stay out of the Canadian federation, and the British Imperial Parliament in London enacted the Canadian Constitution Act, 1867, by the sovereign power of Queen Victoria in Parliament with Her Lords Spiritual and Temporal and with the Commons of the Kingdom of Great Britain and Ireland. The Canadian Constitution Act 1867 did not confer independence on Canada, but it did make it a largely self-​ governing “Dominion,” that is, a self-​governing colony, domestically, whose citizens were still British and whose foreign policy was still British, and which was bound by the British Colonial Laws Validity Act to follow British law where it was applicable. The provinces of Manitoba (1870); the Northwest Territories (1870); British Columbia (1871); Prince Edward Island (1873); Yukon (1898); Saskatchewan (1905); Alberta (1905); and Newfoundland (1949) all eventually joined the Dominion of Canada.

14 15

Adam Dodek, The Canadian Constitution 18 (2013). Id. at 19.

Canada: From Privy Council to Supreme Court  193 Fights over revenues in the parliamentary assemblies, which the British had allowed the Canadians to form, became so rancorous that in 1837 and in 1838 that there were armed rebellions against British authority in both of the lands that today constitute the provinces of Quebec and Ontario. As English-​speaking migrants poured into Canada, the Quebecois saw that they had become a minority population in their own land, and they felt their own culture and language would all be lost. British troops easily defeated both the Ontario and the Quebec rebels militarily, and “In the wake of the rebellions, the British government appointed the supposedly great Whig politician, the Earl of Dedham to inquire into their causes.”16 Lord Dedham filed a horrible report, the troubles of which have haunted Canada down to the present day. “In [Lord Dedham’s] view [peace] could only be achieved if the French-​ speaking population was assimilated into the English” by wiping out the use of the French language, French laws, and presumably Catholicism as well.17 Lord Dedham’s foolish, bigoted report led English-​speaking Canada to discriminate against French-​speaking Canadians in a whole host of ways from 1839, until Pierre Elliot Trudeau, who served as Canada’s prime minister from April 20, 1968, until June 4, 1979, and from March 1980, until his retirement in 1984, imposed an inspiring and exemplary policy of total bilingualism on ALL of both English-​speaking and French speaking Canada. Trudeau required complete bilingualism in Canada whereby all laws and regulations must appear in both French and English, and either language may be spoken in any federal or provincial legislative assemblies. French-​speaking public schools were mandated even in English-​speaking provinces, if there were enough French Canadians to warrant setting them up. Trudeau committed Canada to total bilingualism. This move seems to have appeased most of the French-​Canadians in Quebec, at least as of the situation, today, in 2020. Canada continued to struggle in the 1840s and 1850s over English versus French issues, and Canadians in Quebec and Ontario began to wonder whether a federal structure might be well-​suited for Canada.18 Movements of large numbers of Canadians into the Western territories, as well as separatist sentiment by colonial settlements in the Maritime provinces, made Canadian federalism seem like a good idea. Finally, Canada’s neighbor, the United States, had had a successful federal system of government for some sixty years, and so Canadians were able to borrow at least the idea of a democratic federation, although not all the details, from their neighbor to the south. The borrowing of federalism and written constitutionalism was thus an important moment in Canadian history,

16

Webber, supra note 2, at 17. Id. 18 Id. at 20. 17

194  The History and Growth of Judicial Review, Volume 1 although true independence came only with the enactment of the Statute of Westminster, 1931. As Webber explains, in 1864, in Charlottetown and in Quebec City, a conference was held, which came up with a detailed plan for the creation of a Canadian federation. This plan was then further developed in the United Kingdom in 1866–​ 1867. The end result was the British North America Act (BNA) 1867, which was adopted by the British Parliament in March 1867. The BNA 1867, now renamed the Constitution Act 1867, is Canada’s founding constitutional document.19 British officials were eager in the 1860s to accommodate the desire of Canadians for a federal republic because they had just witnessed the U.S. Civil War, and they did not want anything like that to break out in Canada. This was a realistic concern given that Canada was partly English speaking and Protestant, and it was also partly French speaking and Catholic. Happily, the Canadians genuinely wanted a federal structure for their country, and the United Kingdom was happy to provide one.

B.  The Canadian Federation from 1867 to 1931 The initial Canadian Confederation included four provinces: New Brunswick, Nova Scotia, Ontario, and Quebec, but the British North America Act, 1867 was written with the expectation that Canada would eventually come to include all of British North America. Six other provinces subsequently joined the federation: Manitoba (1870); British Columbia (1871); Prince Edward Island (1873); Alberta; (1905); Saskatchewan (1905); and Newfoundland (1949). The country has additionally organized three territories with territorial governments:  the Northwest Territories (1870); the Yukon Territory (1898); and the Nunavut Territory (1999), which is dominated by the First Nation Inuit peoples. The history of Canada’s westward expansion included unjust treatment of both Aboriginal peoples and of the Métis people who were the quite numerous descendants of mixed unions of Frenchmen and Aboriginal women who were prevalent in Manitoba and in many other parts of the Canadian west. The Métis were promised French and Catholic schools in Manitoba as well as the use of both languages in legislative and court proceedings in a treaty. In 1890, that treaty promise was broken when the Manitoba legislature eliminated French as an official language and declined to continue funding Catholic schools. The French Quebecois, the Métis, and the Aboriginal peoples were all abused historically, and vigorous efforts have been made in recent times to



19

Id. at 20.

Canada: From Privy Council to Supreme Court  195 remedy these injustices. This was the first major legacy for Canada from the historical period between 1867 and 1931. Rights would need to be created eventually to undo these wrongs done to the Quebecois, the Métis, and the Aboriginal peoples. A second legacy of the Canadian founding was that when Canada was created, in 1867, the country had no federal Supreme Court, and all appeals from the highest provincial courts went directly to the JCPC in London, England. Some Canadian nationalists did not want any JCPC review at all and favored the creation of a Canadian Supreme Court from the outset that would have had the last word on all Canadian cases. The history of this debate is well told in the chapter on Canada in David B. Swinfen’s book Imperial Appeal: The Debate on the Appeal to the Privy Council, 1833–​1986.20 The compromise conclusion, which was arrived at in 1875, was to create a Canadian Supreme Court, which could hear appeals from the provincial appellate courts but whose decisions could be, and frequently were, appealed to the JCPC sitting in London, England. Thus, from 1875 until the abolition of Canadian appeals to the JCPC, in 1949, and, therefore, for most of its history, the Canadian Supreme Court was simply an intermediate appellate court, which was bound by the precedents and holdings of the JCPC. The JCPC read the Canadian Constitution Act, 1867, to give far more power to the Canadian provincial governments and far less power to the federal government of Canada than was plausible based on a fair reading of the constitutional texts governing federal-​provincial relations. This misreading of the Canadian Constitution Act, 1867, has had a major effect on Canadian constitutionalism. Vigorous judicial review originated in Canada, in fact, well before 1982, and it originated in the context of federalism and separation of powers umpiring and of fading elite British hegemonic preservation through the use of the JCPC. The desire for a Canadian Bill of Rights had been expressed as early as the 1960s, when a toothless statutory Bill of Rights was adopted, and the desire for a vigorously effective constitutional Bill of Rights, in 1982, was driven partly by rights from wrongs reasons and partly by borrowing an institution, which was working very well in other constitutional democracies including the United States, Germany, India, and Italy as well as in smaller jurisdictions. Ran Hirschl in Towards Juristocracy explains the growth of judicial review in Canada, after 1982, as being a result of the supposed desire of fading English Canadian elites to empower the Supreme Court of Canada, which they controlled, over the Quebec legislature, which was controlled by the Quebec Separatist Party.

20 David B. Swinfen, Imperial Appeal: The Debate on the Appeal to the Privy Council, 1833–​1986 (1987).

196  The History and Growth of Judicial Review, Volume 1 The British North America Act, 1867, as it then was, prior to being renamed the Constitution Act 1867 by the British Parliament, in 1982, divided the legislative power of the new Canadian government between the federal parliament and the provincial legislatures, delineating the scope and boundaries of each and creating a system of dual federalism, which bears some resemblance to the U.S. doctrine of dual federalism prior to 1937. The JCPC sitting in London, in the United Kingdom, had the last word on all federalism cases in Canada, and it strongly favored provincial power over national power. Parliament and the provincial legislatures could only enact legislation in the areas assigned to them by the division of powers articulated by the Constitution. Section 91 of the Canadian Constitution Act, 1867, listed and enumerated the powers of the Canadian federal government, while Section 92 listed and enumerated the powers of the Canadian provinces. Residuary power was placed in the federal government, and not in the states, as the U.S. Constitution had sought to do with the adoption of the Tenth Amendment. In reviewing whether a particular law falls under Section 91’s list of national powers or Section 92’s list of provincial powers, the Canadian Supreme Court continues to follow to this day precedents set by the JCPC as to whether a law is “in pith and substance” federal or provincial. This test calls to mind the pre-​1937 U.S. Supreme Court’s line between “direct effects” on commerce, which Congress could regulate; and, “indirect effects” on commerce, which only the states could regulate. It also calls to mind the difference between wholly intrastate activities that are “commercial” and those that are “criminal”—​a federalism boundary line used in United States v. Lopez, (1995) and United States v. Morrison (2000). Canada, in short, has a system today of partial dual federalism not unlike the one, which the U.S. Supreme Court abandoned in 1937. There are, today, a number of subjects on which both the Canadian federal government and the provincial governments can act, so dual federalism in Canada today is no longer airtight although it was airtight until the Canadian abandonment of JCPC appellate review of Canadian Supreme Court decisions in 1949. As I mentioned earlier, the Supreme Court of Canada was for most of its history only an intermediate court of appeal subject to overruling by the JCPC. Canadian judicial review clearly got its start as a federalism umpiring institution in which the courts played umpire between the federal government and the provinces. It is important to note that this umpiring involved judicial enforcement of the limited and enumerated powers of the Canadian federal government, and so it was much more potent than was Privy Council review of the thirteen North American colonies between 1607 and 1776. The JCPC did more than corral errant provinces into line: it actually enforced the federal distribution of power itself. Canadian judicial review then grew for rights from wrongs and borrowing reasons, as well as the umpiring reasons listed earlier. The rights from wrongs

Canada: From Privy Council to Supreme Court  197 reasons for the growth of judicial review stemmed from the mistreatment of Quebec and of the Métis people. The borrowing Canada engaged in was to try to meld U.S. judicial review as practiced by the Warren Court with U.K. suspicion of any kind of judicial review at all. What Canada came up with from its borrowing was a whole new system of Second Look judicial review. Obviously, the JCPC predated the creation of Canada by many centuries, and almost all of its rulings were not on rights issues but on issues of federal or provincial power. JCPC judicial review in Canada existed from 1867 to 1949, which is to say for most of Canada’s history as an independent Dominion and then nation, JCPC decisions are cited widely and are followed as precedents by the Canadian Supreme and inferior courts down to the present day. The JCPC played a pivotal role in shaping the Canadian Constitution as an umpiring institution. The Canadian Constitution did not contain any entrenched individual rights at all, until 1982, and so no court, at any level, played a constitutional Bill of Rights enforcement role against the federal and provincial parliaments in the first century of Canadian history. The Canadian regime was from 1867 until 1982 a regime in which the British tradition of parliamentary sovereignty held full sway except for the existence of umpiring federalism judicial review and review of umpiring separation of powers cases involving judicial power and independence. Canadians, in 1960, adopted in Parliament a statutory Bill of Rights, but it was widely considered to be a failure because traditions of parliamentary sovereignty were so strong that little weight was given to the new statutory Bill of Rights by the Canadian courts.21 It was not until Canada got the United Kingdom to legislate for it, in 1982, a Canadian Charter of Rights and Freedoms that full-​fledged judicial review was to emerge in Canada. Today, the Canadian Supreme Court is officially committed to the idea that the Constitution of Canada is a living tree that takes on new meaning over time.

C.  Canadian Independence 1931 to 1982 In 1926, Canada experienced its first major constitutional crisis, which foreshadowed its eventual move for independence from the United Kingdom. From 1867 until 1926, Canadians elected a federal parliament with a very weak Senate representing the provinces and an all-​powerful House of Commons. As in the United Kingdom, the Canadian House of Commons elected a prime minister who, in 1926, happened to be William Lyon Mackenzie King. The Dominion of 21 Stephen Gardbaum, The New Commonwealth Model of Constitutionalism: Theory and Practice 97–​100 (2013).

198  The History and Growth of Judicial Review, Volume 1 Canada thus had a parliamentary system of government much like the one in the United Kingdom except that there were no hereditary offices. The king’s or queen’s interests in Canada were represented in a governor-​general who was appointed by the British government in London. In 1926, the governor-​general was Viscount Julian Byng of Vimy, a World War I military hero of British citizenship, who was widely admired in Canada. Prime Minister King headed a Liberal Party minority government in 1926 with 101 seats in the House of Commons. The Conservative Party had 116 seats and the Progressive Party had 28 seats. After a scandal involving one of the king’s appointees, Prime Minister King went to Governor-​General Byng and asked him to dissolve the House of Commons and call for new elections. Byng refused to call for new elections, Prime Minister King resigned, and Byng asked the Conservative Party to form a government. This government proved to be a brief one since a Progressive Party and Liberal Party opposition voted that it had no confidence in the government. At this point, Governor-​General Byng did call for new elections, and the Liberal Party turned the election into a fight over the governor-​general’s role.22 King won and sought constitutional change even though most scholars have come to defend Byng’s decision as being legally correct as a matter of Canadian constitutional law in 1926. The King-​Byng-​Thing, as it was called, had major repercussions. The 1926 Imperial Conference of the Leaders of the British Empire held in London adopted what has come to be known as the Balfour Declaration of 1926. It describes the relationship between the United Kingdom and its Dominions as follows: They are autonomous Communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.

The Balfour Declaration was codified in 1931 when the British Parliament passed the Statute of Westminster, which repealed the Colonial Laws Validity Act 1865, under which the U.K. Parliament had claimed the power to make domestic law in the Dominions and to annul dominion laws that were repugnant to British law. The Statute of Westminster, 1931 also recognized the foreign policy and war-​making independence of the Dominions, and the right of the Dominions to end JCPC judicial review of their highest court opinions whenever a Dominion wanted to do so. Queen Elizabeth II of the United Kingdom remains, today, the queen of Canada, and she exercises all of her royal powers



22

Dodek, supra note 14, at 23.

Canada: From Privy Council to Supreme Court  199 through a governor-​general who today must be a Canadian citizen who the Canadian government asks the queen to appoint to be governor-​general, a request with which the queen always complies. The power and role of the queen and of the governor-​general today is well described in D. Michael Jackson’s book The Crown and Canadian Federalism.23 Whether the monarchy in Canada will survive after the death of Queen Elizabeth II is, of course, an open question, but there is no significant movement right now to turn Canada into a republic. The Statute of Westminster, 1931 was an important step toward Canadian independence, but appeals from the Supreme Court of Canada to the JCPC, the highest court in the British Empire, were not abolished until 1949 and “that body would not decide its final Canadian appeal until 1959.”24 The Canadian Constitution was not patriated until 1982 when the Charter of Rights and Freedoms was added to it, along with a new constitutional amending formula so that Canada could amend its constitution itself without having to ask the U.K. Parliament to pass an amendment for it. The Canadian constitutional changes of 1982 were not made by “We the People of Canada,” but by Queen Elizabeth II in Parliament with the Lords Spiritual and Temporal and the Commons of the United Kingdom of Great Britain and Northern Ireland. Ever since the Second World War, Canadians had wanted to “patriate” their Constitution so that they would not have to ask the British Parliament when constitutional changes were needed to amend the Canadian Constitution Act, 1867. The difficulty was in coming to an agreement as to what should be the domestic Canadian amending formula.25 Canadian politics were dominated from 1968 to 1984 by Pierre Elliot Trudeau, who was prime minister for most of that period of time. Under his leadership, in October 1980, the federal government created a Joint Committee of the Senate and the House of Commons to discuss and debate constitutional reform. Hearings were held, and constitutional issues were publicly debated.

D.  The Constitution Act 1982 to the Present Day Trudeau wanted to proceed with constitutional reform, but the provincial premiers did not. The Canadian Supreme Court issued an advisory opinion at the request of the federal government that said that the federal government had the legal power to request that the U.K. patriate the Canadian Constitution on its own, but that there was a constitutional convention “requiring the substantial

23

D. Michael Jackson, The Crown and Canadian Federalism (2013). Dodek, supra note 14. 25 Id. at 23. 24

200  The History and Growth of Judicial Review, Volume 1 consent of the provinces.”26 This forced Trudeau back into negotiations with the ten provinces, and by November 1981, the federal government and the premiers of every province, except Quebec, had agreed on the new constitutional reforms. These reforms were then enacted into law, in 1982, by the Imperial British Parliament sitting in London, England. At the request of Canada, the United Kingdom of Great Britain and Northern Ireland amended the British North America Act, 1867, to (1)  rename it the Constitution Act, 1867; and (2) to append to it the Canadian Charter of Rights and Freedoms; as well as (3) guaranteeing Aboriginal rights as well as adding; (4) an amending formula. This bill was called in total the Canadian Constitution Act, 1982. This final act of the Parliament of the United Kingdom of Great Britain and Northern Ireland thus severed all ties between Canada and the United Kingdom except for Queen Elizabeth II’s continuing role as queen of Canada as well as being queen of the United Kingdom. Prime Minister Brian Mulroney tried to bring Quebec into the Constitution through the Meech Lake Accord, which agreed: (1) to recognize Quebec as a distinct, coequal founding society; (2) to give every province a constitutional veto; (3) to increase provincial powers over immigration; (4) to give more financial aid to the provinces; and (5) to allow provincial input in appointing senators and Supreme Court justices.27 This effort unfortunately failed to secure the unanimous consent of all the provinces since some English-​speaking provinces resented what they saw as overly generous provisions for Quebec. Prime Minister Mulroney then put an even broader package of constitutional reforms before the voters in a national referendum, which was held on October 26, 1992. Canadians voted the referendum down with 54 percent of the voters opposed, thus ending all talk of additional constitutional amendments. Since 1982, the Supreme Court of Canada has functioned as “the referee” or “umpire” of the Canadian Constitution.28 This court is not mentioned in the Constitution Act, 1867, since the JCPC was available to hear appeals from the Canadian provincial courts in 1867.29 The Canadian Federal Parliament first created the Canadian Supreme Court in 1875, and, until 1949, the Canadian Supreme Court was only an intermediate court of appeals because all of its decisions could be appealed further to the JCPC.30 The Supreme Court of Canada developed a new identity after the enactment of the Charter of Rights and Freedoms in 1982. The Court decided controversial

26

Id. at 29. Id. at 30–​31. Id. at 119. 29 Id. 30 Id. at 120–​21. 27 28

Canada: From Privy Council to Supreme Court  201 social issues dealing with abortion, euthanasia, prostitution, and same-​sex couples’ rights, all of which drew media attention.31 The Supreme Court hears references from the federal government, as well as hearing cases and controversies, and it is composed of a chief justice and eight puisny judges. By convention, three justices must be from Quebec, three from Ontario, one from British Columbia, one from a prairie province, and one from the Maritime provinces.32 Justices are appointed in their late fifties or early sixties on average, and there is a mandatory retirement age of seventy-​five.33 The desire for a Canadian statutory Bill of Rights in 1960 and for a judicially enforced Charter of Rights and Freedoms in 1982 marked a major change in Canada away from the traditional British view that all one needs to do to protect liberty is to have a democratic system of responsible parliamentary government and the traditional common law rights of Englishmen. That view continues to prevail today in Australia, which has no federal Bill of Rights of any kind at the national level, but it was rejected in such common law countries as India, in its Constitution of 1950; in South Africa, in its Constitution of 1997; and in the United Kingdom itself, in 1998, when Tony Blair’s Labor government adopted the Human Rights Act, which made the European Convention on Rights and Freedoms a part of U.K. law. Canada opted for a judicially enforced Charter of Rights and Freedoms in 1982, and the Canadian Supreme Court has vigorously enforced that charter ever since. One motivation for both the statutory Bill of Rights of 1960, and the adoption of the Charter of Rights and Freedoms in 1982, was a growing recognition of the injustices that English-​speaking Canadians had inflicted on French-​speaking Canadians during the post-​1867 period of home rule. Another injustice that troubled Canadians quite rightly was the very unequal treatment that English and French colonists had imposed on the Aboriginal First Peoples of Canada. The 1982 Charter of Rights and Freedoms thus emerged in part for rights from wrongs reasons. The chief advocate of the 1982 charter, Pierre Elliot Trudeau, was a French Canadian law professor. Prime Minister Trudeau was also an ardent liberal, who was opposed to Quebec nationalism and parochialism. Trudeau was a great admirer of the Warren Court in the United States, and he was determined to create a similar institution in Canada. He appears as of 2020 to have succeeded in accomplishing that goal. Trudeau was thus well aware of the successes of the Bill of Rights idea in the United States, in Germany, and in India, and he wanted to borrow the idea

31 Id. at 121 32 Id. at 122. 33 Id. at 123. See generally Donald A. Songer, The Transformation of the Supreme Court of Canada: An Empirical Examination (2008).

202  The History and Growth of Judicial Review, Volume 1 and bring it into Canadian constitutional law. The origins of the 1982 Canadian Charter of Rights and Freedoms are thus partly explained by the rights from wrongs hypothesis and partly explained by borrowing and, according to Hirschl, partly by an Anglophone effort at elite hegemonic entrenchment. In any event, Trudeau succeeded spectacularly, and today’s Canadian constitutional law is very much about individual rights protection as well as continued federalism and separation of powers umpiring. Trudeau made two concessions to persuade his fellow Canadians to adopt the Charter. First, Section 1 says that: 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

As a result of the existence of this Section 1 override clause, the Canadian Supreme Court has upheld as constitutional many laws that it concedes violate rights under the Charter of Rights and Freedoms. Examples of unconstitutional laws that were upheld by the Supreme Court of Canada under the Section 1 power to set “reasonable limits” that are “demonstrably justified in a free and democratic society”, include hate speech laws, pornography laws, commercial speech regulations, and campaign finance regulations. In all four of these areas, the Canadian Supreme Court has found that there is a violation of the charter’s explicit protection for freedom of expression but that the violation “can be demonstrably justified in a free and democratic society.” Note that in all four of these areas, the U.S. Supreme Court has protected the freedom of expression in question, which the Canadian Supreme Court has allowed Parliament to impair. It should be noted that Canada’s much more restricted law of freedom of expression than is allowed under U.S. law is a result today of the constitutional division of British Tories and British Whigs in North America that took place between 1776 and 1787. Tory Canadians do not like a lot of free speech, including hate speech, pornography, commercial speech, and speech during political campaigns. It is thus not surprising that the Supreme Court of a nation founded by American Tories would restrict freedom of expression. Similarly, it is also not surprising that American Whigs seeking “Life, Liberty, and the Pursuit of Happiness” would not tolerate statutory limitations on speech in the areas of hate speech, pornography, commercial speech, and campaign spending. The differing constitutional outcomes are very much the result of the different histories, populations, and cultures of Canada and the United States. Section 1 of the Charter was supposed to inhibit Lochnerizing. Instead, it has made Lochnerizing easier as is shown by the Court’s invocation of Section 1 to trump freedom of expression but not to trump the judicially created Section 7

Canada: From Privy Council to Supreme Court  203 rights to run a brothel or to assisted suicide. Whether one thinks this is a good thing, or not, depends on how much power one wants an elite Supreme Court to have. Second, Prime Minister Trudeau was also forced by the provincial governments, whose support he needed to patriate the Canadian Constitution, to adopt a clause allowing five-​year legislative overrides by either the federal or the ten provincial parliaments of Canadian Supreme Court decisions they object to. Thus, Section 33 of the charter provides that: 33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration. (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration. (4) Parliament or the legislature of a province may re-​enact a declaration made under subsection (1). (5) Subsection (3)  applies in respect of a re-​ enactment made under subsection (4).

Section 33 thus allows for five-​year national or provincial overrides of Canadian Supreme Court opinions in constitutional cases. To date, only three provinces and one territory have used Section 33. It has only been used nineteen times, and almost all of those uses were by Quebec in the 1980s. A convention has evolved in English-​speaking Canada that using the Section 33 power is morally wrong, and even Quebec has not used the power in recent years. In theory, a Lochnerian Canadian Supreme Court or a Canadian Warren Court might trigger a use of the Section 33 power, and the knowledge that the power is there probably causes the Canadian Supreme Court to be a bit more cautious about what it does. To date, however, the Section 33 power has not significantly slowed down the actions of the Canadian Supreme Court under the charter. It should be apparent from this quick summary of Canadian constitutional history that judicial review of the constitutionality of legislation between 1867 and 1982 was exclusively a form of federalism and separation of judicial powers umpiring since Canada did not have a meaningful Bill of Rights until 1982, although there was also an element of fading British elite

204  The History and Growth of Judicial Review, Volume 1 hegemonic interpretation. From those umpiring origins, Canadian judicial review spread to the context of enforcing the Canadian Charter of Rights and Freedoms once that document was adopted by the U.K. Parliament in 1982. The spreading of Canadian judicial review of the constitutionality of legislation came about because the Canadian Charter of Rights and Freedoms was adopted for (1) rights from wrongs reasons; and (2) as a result of borrowing. There were, moreover, two leading political parties in 1982 that had alternated in power:  the Progressive Conservatives and the Liberals. They might have opted for judicial review in 1982 for reasons of insurance and precommitment per Professor Tom Ginsburg’s theory of the origins of judicial review. The Liberal Party Canadians that petitioned the U.K. Parliament to enact the Charter of Rights and Freedoms and the amending formula were motivated primarily by: (1) a desire to completely effectuate Canada’s complete independence from the United Kingdom; (2) by a desire to adopt a somewhat weakened form of judicial enforcement of a Bill of Rights from the form that then existed in the United States; (3) introduce an amending power into Canadian constitutional law; and (4) by a desire to, as much as possible, reconcile the people of Quebec to these constitutional changes as well as the English-​speaking people of the other nine provinces. After a rocky first few years, Quebec seems to have accepted the legitimacy of the charter, which has not been used to promote the interests of English-​ speaking Canadians over French speakers. Quebec had a chance to vote for independence in the 1990s, and it voted narrowly against independence and the issue has not arisen again since then. I thus do not think that Ran Hirschl’s theory is right in arguing that the Canadian Constitution Act, 1982 was an effort by fading, English-​speaking elites to exercise hegemonic control over French-​ speaking Quebec.

II.  The Canadian Second Look Model of Judicial Review in Comparative Perspective As I discussed in an earlier chapter, there are, broadly speaking, four quite different models of judicial review that exist in the world today: (1) the diffuse American model; (2)  the concentrated German constitutional court model; (3) the Second Look Model, which partially prevails in Canada, the United Kingdom, New Zealand, and the Australian Capital Territory and the Australian State of Victoria; and, finally, (4) the hybrid model of judicial

Canada: From Privy Council to Supreme Court  205 review, which prevails in Brazil, Mexico, and the other countries of Latin America. So where does Canada fit into these four systems of judicial review typology? The answer is that Canada began, in 1867, and continues, today, to have a diffuse system of judicial review like the one prevalent in the United States. Canadian federalism and separation of judicial powers umpiring cases under the Constitution Act 1867 are decided using the diffuse modal of judicial review, which Americans are familiar with. Litigants must have standing to bring their actions before the courts, but the legislature has the power, which it has frequently exercised to great effect, to ask the Canadian Supreme Court for advisory opinions. Many of the most famous and consequential Canadian Supreme Court opinions are advisory opinions issued in cases where the government asked for judicial review in what is called a Reference. Canadian Supreme Court decisions are followed as binding precedent, although as in the United States these precedents can be overruled. Thus far the Canadian system of judicial review resembles the U.S. system of judicial review. All courts in Canada, including the courts of appeals and trial courts, can hear Canadian constitutional law cases. The Supreme Court of Canada is not the only constitutional court in the Canadian legal system. However, as to most, but not all, of the Canadian Supreme Court cases decided under the 1982 Canadian Charter of Rights and Freedoms, Canada uses the Second Look Model of judicial review. Under Section 1 of the charter, Canadian laws that violate the charter may nonetheless be upheld as constitutional if those statutes are “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The Section 1 override has been held to trump Canada’s protection of freedom of expression constitutional rights with respect to: (1) hate crime laws, (2) laws that ban pornography, (3) laws that ban commercial speech cases, and (4) with respect to campaign finance laws. All four of these types of laws are saved from unconstitutionality by Section 1 of the charter. They are seen as being constitutional because they represent “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” In addition to Section 1 of the charter, Section 33 of the charter reinforces the Canadian system of Second Look judicial review by providing for five-​year national or provincial overrides, although this power seems to be falling into oblivion. Thus, while Section 1 of the charter has given a real Second Look aspect to Canadian judicial review with legislatures often passing legislative sequels to Canadian Supreme Court opinions, Section 33 has proved to be a Second Look bust. Canada, in its Bills of Rights cases, is indeed the first and leading country in the world employing a Second Look Model of judicial review. It has engaged in very aggressive interpretation of the Charter of Rights and Liberties secure in the

206  The History and Growth of Judicial Review, Volume 1 knowledge that Parliament can always pass revised legislation under its Section 1 power to, in effect, alter the Canadian Supreme Court’s initial opinion. It is important to note that the novel and innovative Canadian Second Look Model of judicial review in the Canadian Charter of Rights and Freedoms grew up in part as a result of the writing of U.S. scholars who argued that judicial review in the United States was not necessarily counter-​majoritarian because Congress and the states often repassed laws, which the courts had held unconstitutional and because the U.S. courts often deferred to the political branches once they had taken a second look at a legal problem. Professor Stephen Gardbaum in his superb book The New Commonwealth Constitutionalism: Theory and Practice argued that a constitutional court ought to have the power of judicial review subject, however, to some kind of legislative power of override. Professor Gardbaum argued that Second Look judicial review best harmonizes the advantages of a written constitution and a Bill of Rights enforced by courts with the imperatives of democratic self-​government. Second Look judicial review injects constitutional principles into the political process and makes them politically salient while avoiding the perils of a government des juges type of judicial activism. Often, a Second Look Supreme Court system forces Parliament to address in the modern day a constitutional issue like abortion or euthanasia where the politicians would prefer to ignore the issue and bury it under a rug. The underlying goal of Canadian Second Look judicial review is to obtain the advantages of both constitutional government and also of democratic government. As we have already seen, these two features of constitutional democracies can, at times, be in sharp tension with one another. Professor Gardbaum argued that Second Look judicial review is a compromise between the two polar extremes of parliamentary supremacy and judicial supremacy. He points out that in this respect, Second Look judicial review is a kind of a compromise in much the same way that the Mixed Economy is a compromise between Capitalism and Socialism. Professor Gardbaum calls it “a distinct and appealing third way between two purer extremes.”34 Professor Gardbaum also defends Second Look judicial review for encouraging the political process to more closely scrutinize the constitutionality of legislation even before such legislation is actually adopted. The archetypical Second Look Model of judicial review was created by the Canadian Charter of Rights and Freedoms, which as I  said was adopted in 1982. Canada was torn at that time between the U.S. model of diffuse judicial review and the traditional U.K. preference for no written Bill of Rights and parliamentary sovereignty combined with faithful adherence to the common law. 34 Stephen Gardbaum, The New Commonwealth Constitutionalism:  Theory and Practice 51 (2013).

Canada: From Privy Council to Supreme Court  207 In response, Canada gave birth to a new model of judicial review all of its own. Ironically, as we shall see in a later chapter, the United Kingdom has essentially borrowed the Canadian Second Look Model of judicial review in setting up its own system of judicial review. In my opinion, Professor Gardbaum’s realistic hopes for the Canadian Second Look Model have been dashed by the inconsistent way in which the Supreme Court of Canada applies the Section 1 override in freedom of expression cases as compared with what Americans would call “substantive due process cases.” As a result, Canada today, in 2020, as opposed to Canada, in 2012, when Professor Gardbaum wrote his book is no longer a middle way between Thayerian judicial restraint and Warren Court judicial activism. The current 2020 Canadian Supreme Court jurisprudence in fact embodies, whether one agrees with the cases or not, Warrren Court levels of judicial activism. By upholding a law criminalizing hate speech, Canada is criminalizing things President Trump says frequently. By upholding a feminist anti-​pornography law, Canada allowed its customs officials to seize LGBTQ literature imported from the United States. Little Sisters Book and Art Emporium v. Canada (Minister of Justice) 2 S.C.R.. 1120 (2002). By upholding a campaign finance law, Canada made it harder to challenge incumbent politicians like Justin Trudeau. And, by upholding a ban on commercial speech Canada made it harder for consumers to know what they can buy and at what price. Conversely, by finding that Section 7 rights the Court invented to assisted suicide and for pimps to run brothels, the Supreme Court of Canada in effect said that these morals laws were not “reasonable limits” that are “demonstrably justified in a free and democratic society.” Since almost all states in the United States ban both assisted suicide and the running of brothels, the Supreme Court of Canada, in effect said, that the United States, which has almost nine times the population of Canada is not a “free and democratic society.” This is astonishing given the extremely close historical, military, foreign policy, and trading policy ties that have always existed between the U.S. and Canada. The United Kingdom has a Second Look Model of judicial review, which functions extremely well. The problem thus is not inherent to Second Look systems of judicial review. The problem, if there is one, is with the way in which the Supreme Court of Canada has implemented its Second Look system of judicial review. And, whether it is a problem or not depends on how much you value freedom of expression, which I value a lot. It depends on whether one thinks, as I do, that the idea of committing assisted suicide will always go away if the person in question takes enough Prozac. And, it depends on whether one thinks that banning brothels and pimps promotes women’s rights be reducing the level of prostitution or whether it endangers women, as the Canadian Supreme Court held.

208  The History and Growth of Judicial Review, Volume 1 Whatever conclusion one comes to on these matters, I think it is as clear as day that as a descriptive, positive matter, Canadian judicial review is not, in 2020, a middle way between no judicial review and the Warren Court. The Supreme Court of Canada, today, IS the Warren Court of the G-​20 constitutional democracies. And, this outcome is precisely what former law professor Pierre Elliott Trudeau hoped he had produced in 1982. Professor Gardbaum observed in 2012 that three other common law jurisdictions—​New Zealand, the Australian Capital Territory, and the Australian State of Victoria—​have all also experimented with Second Look Models of judicial review since the 1990s. I will examine the U.K. and Australian experiences with Second Look judicial review in the chapters that deal with those countries.

III.  Judicial Review in Canada: 1867–​2020 Judicial review has existed in Canada, and was meant to exist in Canada, ever since the Canadian Constitution Act, 1867, established the federal Dominion of Canada. The JCPC had jurisdiction to judicially review acts of both the Canadian federal and provincial governments to determine if they were ultra vires of the Canadian Constitution Act, 1867, until Canada ended appeals to the JCPC in 1949. The Canadian Constitution, which was a statute passed by the Imperial U.K. Parliament, divided the legislative power between the federal parliament and the provincial legislatures, delineating the scope and boundaries of each. Parliament and the provincial legislatures could only enact legislation in the areas assigned to them by the statutory division of powers articulated by the BNA, Sections 91 and 92, which became in effect Canada’s Constitution. The decisions of the Supreme Court of Canada and of the provincial courts were appealable to the JCPC, the highest court of the British Empire, which sat and heard cases in London, England. The Supreme Court of Canada was thus for most of its history only an intermediate court of appeal subject to overruling by the JCPC. A serious attempt was made by some Canadians to disallow appeals to the JCPC once the Canadian Supreme Court was created in 1875.35 This effort failed, although JCPC judicial review periodically generated real resentment in Canada. The Statute of Westminster, in 1931, allowed all of the Dominions within the British Empire to terminate Privy Council judicial review if they wanted to do so, and Canada did opt to end Privy Council judicial review of Canadian cases in 1949. The Supreme Court of Canada, after 1949, did not overrule major JCPC



35

Swinfen, supra note 20, at 27–​49.

Canada: From Privy Council to Supreme Court  209 precedents or lines of case law. Judicial review by the Privy Council, from 1867 to 1949, thus had an indelible effect on Canadian constitutional law. It is important to emphasize that in constitutional cases, the Supreme Court of Canada always asks if the federal legislature or executive or the provincial legislature or executive have acted ultra vires of their powers under the Constitution of Canada Act, 1867, or the Charter of Rights and Freedoms, 1982. It may thus have been British administrative law, statutory and constitutional law and not British corporate law, which habituated the people of Canada to Privy Council federalism umpiring even though in the United States Professor Bilder shows conclusively that there was a corporate law origin to U.S. vertical judicial review of errant colonies. This could an important qualification to Bilder’s thesis, but I do not know enough about the corporate law claims that might be made to justify Canadian judicial review to answer that question. The Colonial Laws Validity Act, 1865 applied to Canada until its repeal by the Statute of Westminster, 1931. The Colonial Laws Validity Act, 1865 forbade Canada from enacting laws that were repugnant to British law, although it allowed colonial divergence from British law where circumstances in a colony made a different approach desirable. Canadian judicial review thus grows out of U.K.  statutory law, which was at most inspired by U.K.  corporate law on this point.

A.  Federalism and Canadian Judicial Review Professor Peter Hogg, who is as I  said at the start of this chapter, the most esteemed Canadian legal academic, has written a powerful history of judicial review in Canada entitled From Privy Council to Supreme Court.36 I summarize here his conclusions on how Canadian theories of judicial interpretation have evolved from 1867 to the present day. Professor Hogg notes that “Canada has no single document that is customarily described as ‘the constitution,’ ” and he emphasizes that the Canadian Constitution Act, 1867, “did not mark a break with the colonial past.”37 The preamble to this act stated that “the new nation was to have ‘a constitution similar in principle to that of the United Kingdom.’ ”38 Canada’s constitutional traditions of responsible parliamentary government and of following the common law derive from this language. As Professor Hogg explains, “What was adopted, in 1867, was a federal system based on two lists of legislative powers. The legislative powers of the Parliament

36

Hogg, supra note 1. Id. at 55. 38 Id. at 56. 37

210  The History and Growth of Judicial Review, Volume 1 of Canada were defined primarily by [Section] 91 of the [British North America Act, 1867], which contained a list of 29 heads of power. And, then, the legislative powers of the provinces were defined primarily by a second list of enumerated powers in [Section] 92 of the [British North America Act, 1867], which contained a list of 16 heads of power.”39 “In any federal system, the location of the residuary power is of utmost importance, since the residue will have to accommodate those topics of legislation that are not covered in the list (or in Canada’s case, the lists) of legislative powers.”40 The U.S. Constitution gives residuary power to the states in the Tenth Amendment, but the text of the Canadian Constitution Act, 1867, appears to give residuary powers to the Canadian federal government, which is given a general grant of power “to make laws for the peace, order, and good government of Canada.”41 This residuary clause was, however, as Professor Hogg explains, “given a very narrow interpretation by the Privy Council,”42 and as a result “Canada’s federation became much more decentralized than that of the United States or Australia. The main lines of Privy Council interpretation [of the Canadian balance of federal and provincial powers] were not disturbed by the Supreme Court of Canada after it became the final court of appeal in 1949.”43 The JCPC adopted what Professor Hogg calls a “narrow and technical approach [to the] interpretation of the [Canadian Constitution Act, 1867].”44 The JCPC, acting as a federalism umpire and interpreting an Imperial statute, the Canadian Constitution Act, 1867, thus “struck down the Parliament of Canada’s ‘Canadian New Deal’ legislation (unemployment insurance, competition laws, minimum wages, natural products marketing scheme) on the basis that the depression of the 1930’s was not an emergency.”45 Professor Hogg adds that a constitutional amendment finally allowed the Canadian Parliament to adopt unemployment insurance in 1940 “after the depression was over.”46 And, in 1989, the Supreme Court of Canada departed from Privy Council precedent and upheld a [federal] competition [antitrust] law under the federal trade and commerce power.47 Under Article 2 of Section 91 of the Canadian Constitution Act, 1867, the Parliament of Canada has the exclusive power to legislate for “The Regulation of Trade and Commerce.” American readers will be immediately struck by how

39

Id. at 61. Id. Id. 42 Id. at 62. 43 Id. 44 Id. at 64. 45 Id. 46 Id. at 65. 47 Id. 40 41

Canada: From Privy Council to Supreme Court  211 much broader is the wording of the Canadian Commerce clause than is the wording of the American Commerce clause. The U.S.  clause says:  “Congress shall have Power *** To regulate commerce with foreign nations, and among the several States, and with the Indian Tribes.” The Canadian Commerce clause, on its face, seems to give the federal government power to regulate wholly intra-​ provincial commerce and trade whereas the U.S. clause does not give Congress the power to regulate wholly intra-​state commerce. Moreover, the Canadian clause gives the federal government power to regulate “Trade and Commerce,” thus perhaps foreclosing the argument often made in the United States by conservatives and libertarians like Randy Barnett that commerce means only trade and not commercial intercourse or interstate travel or shipment of gifts. The reason the JCPC adopted a very narrow reading of the federal government’s Article 2, Section 91 power to regulate trade and commerce was because Section 13 of Section 92’s list of provincial powers provided that: In each Province the Legislature may exclusively make Laws in relation to *** Property and Civil Rights in the Province.

In the nineteenth century, the JCPC in a whole string of cases held that federal laws purporting to regulate Trade and Commerce could only be upheld if they did not interfere with exclusive provincial power to make laws concerning Property and Civil Rights in the Provinces[s]‌. Their Lordships of the Privy Council concluded that the proper test in Canadian federalism cases was to ask whether a particular law federal or provincial was in pith and substance a regulation of trade and commerce or a regulation of property and civil rights. The pith and substance test will no doubt remind American readers of the pre-​New Deal effort to distinguish between direct and indirect effects on commerce to determine what laws to uphold. It also calls to mind the difference between wholly intrastate activities that are “commercial” and those that are “criminal”—a federalism boundary line used in United States v. Lopez, (1995) and United States v. Morrison (2000). As Greg Taylor explains: Neither Canada nor Australia has adopted as sweeping an interpretation of the equivalent commerce clause constitutional provisions as had the United States before Lopez. In neither country has it ever been accepted doctrine that judicial review on federalism grounds should be attenuated. By restricting the scope of the commerce clause in Lopez and Morrison, the Supreme Court of the United States is, therefore, merely bringing American law closer to the law of compatible federations. [Professor Taylor notes that the Judicial Committee of the Privy Council had read the Canadian Constitution Act in a very pro-​provincial power way from the

212  The History and Growth of Judicial Review, Volume 1 beginning of Canadian history in the Nineteenth Century, and the Supreme Court of Canada continued in that tradition.] *** One result was that the Canadian New Deal fared rather worse in the courts than did the American New Deal after 1937. Thus, the Privy Council struck down—​in a series of three decisions handed down on January 28, 1937, just as President Roosevelt was preparing to reveal his ‘Court-​packing’ plan—​attempts by the federal Parliament to regulate conditions of labor, to provide unemployment insurance, and to control the marketing of products generally. However, the reaction was muted, and there was no ‘Court-​packing’ plan. This result is partly due to the fact that the composition of the Privy Council was beyond the influence of the Canadian government. Furthermore, the government of R.B. Bennett, which had promoted the legislation had been replaced by Mackenzie King’s Liberal government. Nor was there any immediate end to appeals in constitutional issues to the Privy Council, as had happened for criminal cases in the 1930’s. Rather the Canadian authorities played the game by its rules and secured an amendment to what was then the British North America Act 1867 (Imp.) to grant the federal government power to provide unemployment insurance, which the Privy Council had refused to recognize in 1937.48

Since Professor Taylor’s article was written, the U.S. Supreme Court has adopted a far narrower construction of the Commerce clause than had previously existed.49 Professor Taylor makes a powerful point about the severe limits, which the JCPC imposed on the federal “Trade and Commerce Power” during the New Deal period, but, in comparing the U.S., Canadian, and Australian Commerce clauses, he overlooks the fact that the great landmark New Deal cases were based not only on the U.S. Constitution’s Commerce clause but also on its Necessary and Proper clause. Jones & Laughlin Steel, United States v. Darby, and Wickard v.  Filburn all agreed that federal power to regulate wholly intra-​state commerce that in the aggregate affected commerce among the states came from the “Necessary and Proper Clause” as well as coming from the Commerce clause, which Congress was “carrying into execution.” The Canadian Constitution contains no exact equivalent to the U.S. Constitution’s Necessary and Proper clause, which means it is quite possible that President Franklin Delano Roosevelt’s victories in Jones & Laughlin Steel, Darby, and Wickard were accurate constructions of the U.S. Constitution, while 48 Greg Taylor, The Commerce Clause—​Commonwealth Comparisons, 24 B.C. Int’l & Comp. L. Rev. 235 (2001). 49 National Federation of Independent Business v. Sebelius, 567 U.S. _​_​, 132 S.Ct. 2566 (2012).

Canada: From Privy Council to Supreme Court  213 the JCPC’s three decisions striking down the Canadian New Deal were correct constructions of the Canadian Constitution Act, 1867. There is a Canadian clause that parallels the U.S. Necessary and Proper clause, but I think that before addressing it, I should discuss two major modern Canadian Supreme Court decisions that have read the federal government’s Trade and Commerce power as narrowly as the Privy Council did. First, the Canadian Supreme Court held, in 1980, two years prior to the patriation of the Canadian Constitution, in Labatt Breweries of Canada Ltd v.  Attorney General of Canada ([1980] 1 S.C.R.), that the federal government lacked the power under the Trade and Commerce clause or under its power to make criminal laws to regulate “the alcoholic content of ‘beer’ and permitted additives. The other malt liquors described by these regulations in question were ale, stout, porter, light beer, and malt liquor.” Under U.S. constitutional law, there would be no doubt that Congress could, under the Commerce clause, regulate the buying and selling of all alcoholic beverages, subject to the sole constraint that it cannot force a state that prohibits the sale of alcoholic beverages to sell them. The Canadian Supreme Court, however, struck down the federal law in Labatt Breweries saying that the federal parliament lacked the power to enact it under:  (1) the Criminal Law clause; (2)  the Trade and Commerce clause; and (3) the Peace, Order, and Good Government clause, all of which appear in Section 91 of the Constitution Act. The Canadian Supreme Court ruled that the attempted federal regulation of the alcoholic content of lite beer did not fall within the federal government’s power to enact criminal laws because detailed regulation of the brewing industry during the production and sale of its product is not a proper exercise of the government’s power to pass criminal laws or health laws. The court also held that the law in Labatt Breweries did not fall within the scope of the federal government power to regulate trade and commerce because the law in question was, “in pith and substance”, an exercise of power over property and civil rights as to which the provinces have exclusive jurisdiction. The same concern also led the Canadian Supreme Court to conclude that the federal attempt to regulate lite beer did not fall within the federal government’s residuary power to legislate under the Peace, Order, and Good Government clause of Section 91 of the Constitution Act. Professor Peter Hogg argues that since the abolition of appeals to the Privy Council, the Supreme Court had read the Trade and Commerce clause more broadly, but he acknowledges that Labatt Breweries is a major exception to that trend. Professor Hogg agrees with the Canadian Supreme Court’s ruling on the Trade and Commerce issue, but he would have upheld the federal law in Labatt Breweries based on the federal government’s power to enact criminal laws.

214  The History and Growth of Judicial Review, Volume 1 The Canadian Supreme Court’s adherence to a narrow understanding of the federal Trade and Commerce power seemed reassured after the court’s narrow reading of these powers in Reference re Securities Act ([2011] SCC 66, 3 S.C.R 837), but then seven years later the Court reversed course and upheld a federal Securities Exchange Act under a cooperative federalism approach. The Court follows a subsidiarity approach to the issues in holding that Parliament must establish a need for national regulation of securities markets in order to override the long-standing, entrenched institutions in Canada’s provincial governments, which have historically regulated securities. The Canadian Supreme Court does enforce federalism boundary lines at the expense of the national government. There is hope in Canadian Supreme Court case law for advocates of greater national power. In a 1988 opinion in R.  v.  Crown Zellerbach ([1988] 1 S.C.R. 401), the court upheld a federal environmental law that prohibited the dumping of log waste in wholly provincial waters other than fresh waters. The Canadian Supreme Court upheld this law under the national concern doctrine of the Peace, Order, and Good Government clause whereby the JCPC had once before upheld national regulation of aeronautics and of radio transmissions. The court concluded that marine pollution was a national matter, and indeed an international matter, in its scope, even if the waste dumping in question took place wholly within provincial saltwater. This conclusion suggests that Canadian constitutional law is suffused with subsidiarity concerns in federalism cases. Subsidiarity is the doctrine, espoused by both the European Union and the Catholic Church, that matters are always best managed at the lowest level of government that is competent to handle them. The conclusion comparative lawyers might draw from the Canadian experience is that the decision to create a Canadian Constitution with two lists of powers, the first federal and the second provincial, is more likely to lead to the outcome of dual federalism and subsidiarity than is likely to occur if a federation enumerates a list of national powers while leaving all residuary powers to the states. Both the United States and Australia adopted a one-​list, enumerated federal powers constitution, with residuary power reserved to the states as in the U.S. Constitution’s toothless Tenth Amendment. One list of powers leads to national dominance. Two lists of powers lead to Dual Federalism. What then about three lists of powers? As it happens, India and Germany list: (1) exclusive federal powers, (2) concurrent federal and provincial or länder powers, and (3) exclusive provincial or länder powers. In practice, this three-​list system has led to nearly total national power in India and to something close to that in Germany mitigated only by the länder’s control of the upper house of the legislature and their constitutional right to appoint half the members of the constitutional court.

Canada: From Privy Council to Supreme Court  215 A different kind of three-​list system has also been used in Brazil, Mexico, and other Latin American countries. In those countries, power is divided among: (1) the national government, (2)  the state governments, and (3)  the municipal governments. In practice, this three-​list system leads to total national power since the national government is able to play off against each other the states and the municipalities. There are two additional reasons that explain the narrow reading in federalism umpiring cases given to federal Canadian powers first by the JCPC and then by the Supreme Court of Canada. First, as Professor Hogg notes, the Peace, Order, and Good Government (POGG) residuary power was placed at the head of a list of federal powers and not at the end, which made it arguable that the later enumerated powers fully explicated the general POGG language that proceeded them.50 Second, the British, in 1867, were eager to avoid a conflict in Canada like the U.S. Civil War, and so they bent over backward to make sure, as Professor Hogg explains, that “the new federal system [protected] the French language and culture, including the civil code, of Quebec.”51 As Pierre Elliott Trudeau wrote when he was a law professor before entering politics: It has long been a custom in English Canada to denounce the Privy Council for its provincial bias; but it should perhaps be considered that if the law lords had not leaned in that direction, Quebec separatism might not be a threat today; it might be an accomplished fact.52

Professor Hogg explains “that the federal and provincial heads of power, although declared to be exclusive of each other, appeared to give rise to a good deal of duplication and overlapping.”53 “In order to determine into which exclusive head of power a contested law falls, the Canadian courts must make a finding as to the ‘pith and substance’ of the law. This is an attempt to isolate the dominant characteristic of the law, which will then govern its classification for division-​ of-​powers purposes.”54 The pith and substance test for the constitutionality of legislation on federalism grounds resembles as I said the line the U.S. Supreme Court once tried to draw unsuccessfully between direct and indirect regulations of interstate commerce prior to 1937. The final thing to be noted about Canadian federalism, which culminated in a critically important Canadian Supreme Court federalism case, are the 50 Hogg, supra note 1, at 66. 51 Id. 52 Webber, supra note 2, at 35, quoting Pierre Elliott Trudeau, Federalism, Nationalism, and Reason, in Federalism and the French Canadians 182, 198 (1968). 53 Hogg, supra note 1, at 67. 54 Id. at 67–​68.

216  The History and Growth of Judicial Review, Volume 1 negotiations and events that followed the adoption of the Constitution Act 1982. On May 20, 1980, Quebec held the first of two referenda on whether Quebec should declare itself independent of Canada. A major factor in the defeat of that referendum with 59.56 percent of the Quebecois voting no “had been Trudeau’s promise, at the height of the campaign, that if the ‘No’ were successful, he would treat it as a mandate to change the constitution, to renew federalism ***.”55 Instead of doing this, Trudeau steered the federal government of Canada, supported only by the nine English-​speaking provinces, into asking the U.K. Parliament to adopt the Constitution Act 1982 and the Canadian Charter of Rights and Freedoms. Trudeau was able to do this because the 1980 referendum had so decisively rejected Quebec separatism, but he deeply wounded Quebec’s pride by making the 1982 constitutional changes without Quebec’s consent. By 1994, a series of failed attempts to appease Quebec had left that province steaming mad, and the Parti Quebecois won the provincial elections in 1994 and arranged for a new referendum to be held on October 30, 1995. The result was unbelievably close: 49.42 percent voted for secession and independence and 50.58 percent voted to remain in Canada. This outcome made English Canadians wake up and realize that Quebec secession could really happen.56 The federal government then took a series of measures to try to reassure Quebec and to address its grievances. The first of these measures was to refer to the Supreme Court of Canada a whole series of questions related to Quebec secession. In Reference re Secession of Quebec ([1998] 2 S.C.R. 217), the federal government asked the Canadian Supreme Court for an advisory opinion on the constitutionality of a referendum held in Quebec only and in which only Quebec resident citizens can vote. The national government, in essence, asked the Court whether such a referendum would result in Quebec’s independence from the rest of Canada or whether, instead, such a referendum would be unconstitutional. The Canadian Supreme Court in a unanimous very scholarly and lengthy advisory opinion held that such a referendum would impose an obligation on Canada to enter into serious secession negotiations with Quebec, but that Quebec could not legitimately expect to be allowed to secede without the resolution of a whole host of questions including: (1) the rights of English speakers in an independent Quebec; (2) a redrawing of Quebec’s boundary lines to reflect the wishes of regional or municipal entities that might wish to remain as part of Canada; (3) Quebec’s agreement to take on its fair share of Canada’s national debt; and (4) Quebec’s agreement to take on its fair share of Canada’s obligation to Aboriginal peoples.

55 56

Webber, supra note 2, at 42. Id. at 52.

Canada: From Privy Council to Supreme Court  217 The Supreme Court’s opinion reached these conclusions after weighing the importance of four principles that it deemed to be important in Canadian history: (1) federalism, (2) democracy, (3) constitutionalism and the rule of law, and (4)  the protection of minorities. The Canadian Supreme Court’s opinion completely calmed the waters. It avoided specifying an amending formula, while still holding that the national government had to respect the democratic will of the people of Quebec.57 As a result of the Supreme Court’s decision and Quebec discontent, both the federal parliament and the legislatures of several provinces have passed resolutions recognizing Quebec as a distinct society and nation within a united Canada.58 In addition, the Supreme Court of Canada, in effect, already does treat Quebec as if it is a unique province within Canada. 59 The Supreme Court’s 1998 ruling, and the many subsequent steps taken to appease Quebec, seem to have had a moderating effect on the Quebec secession movement and demands for Quebec’s secession are now heard much less often. Whether this is the result of the Canadian Supreme Court’s decision to give each side in the Quebec dispute half a loaf or whether the change has occurred for other reasons is hard to say. It has now been twenty-​two years since the last Quebec independence referendum, and no one seems to be calling for another such referendum anytime soon. As I said at the start of this chapter, the Canadian Supreme Court today is a very powerful federalism umpire indeed!

B.  Separation of Powers and Canadian Judicial Review The Privy Council also set up the Canadian Supreme Court to become a very powerful separation of powers umpire in Canada. Some American separation of powers issues simply do not arise in the Canadian parliamentary system where the executive and legislative powers are constitutionally fused together. Separation of powers issues do arise, however, when the political branches impinge on the prerogatives of the judicial branch. They can also arise when governmental executive power is used to suppress individual rights, something that is quite hard to do under the Canadian Charter of Rights and Freedoms. The power to declare war in Canada is part of the royal prerogative, as it is in the United Kingdom, and thus war can only constitutionally be declared by the cabinet-​in-​council with the governor-​general who is a Canadian citizen and who is the queen’s representative in Canada. Declarations of War are an exercise of the royal prerogative and thus do not require Parliament’s assent, though

57

Id. at 53. Id. at 55. 59 Id. at 55. 58

218  The History and Growth of Judicial Review, Volume 1 such approval can be sought by the government. Canada has only declared war once, during World War II. Prior to the Statute of Westminster in 1931, the British Empire had the foreign policy power to declare war on behalf of Canada. Professor Peter W. Hogg in Constitutional Law of Canada reports that:60 The Charter makes no explicit provision for the enactment of emergency measures. On three occasions when the War Measures Act was proclaimed in force—​during the first world war, the second world war, and the ‘October crisis’ of 1970—​civil liberties were severely restricted by regulations made under the Act. The War Measures Act was repealed in 1988, and replaced by the Emergencies Act, which also authorizes restrictions on civil liberties. It will be for the courts to decide, in a situation of emergency, whether such restrictions are reasonable and demonstrably justified in a free and democratic society.

So far, happily, no such cases have arisen. The JCPC did rule in 1912 on a very important Canadian separation of powers case, Attorney-​General for Ontario v. Attorney General for Canada (the Appeals Reference Case) ([1912] A.C. 571). The case concerned the legality under the British North America Act, 1867, as it was then called, of the national Parliament asking the Canadian Supreme Court for advisory opinions in the absence of what Americans would call a concrete and particularized case or controversy. The judgment of their Lordships was delivered by Earl Loreburn L.C. The Privy Council noted that the attorney general of Ontario had raised a hard and delicate problem because there was something anomalous about the Canadian Supreme Court issuing advisory opinions in the absence of a case or controversy at the request of the national government. The court noted that Canadian statutes had conferred this power on the Supreme Court of Canada in 1875, 1891, and 1906. Numerous questions had been put to the Canadian Supreme Court for advisory opinions, and in six instances, the answers given by that court had been appealed to the JCPC, and in all six cases the appeal was entertained. Lord Loreburn noted that there was a practice in Canada of the government asking the courts for advisory opinions that could be traced back to the fourth section of the Act of William IV in the early nineteenth century. Moreover, the Privy Council said that “Great weight ought also to be attached to another significant circumstance. Nearly all the provinces have themselves passed provincial laws requiring their own courts to answer questions not in litigation, in terms somewhat similar to the Dominion Act [which the Attorney General of Ontario



60

Peter W. Hogg, Constitutional Law of Canada 38.16 (Student ed. 2011).

Canada: From Privy Council to Supreme Court  219 was now impugning].” As a result, “Their Lordships *** humbly advise[d]‌His Majesty that this appeal ought to be dismissed.” The Reference Appeal Case thus shows that the JCPC, on a very important constitutional matter, acted as a separation of powers umpire in a Canadian case. The Canadian Supreme Court in 1997 heard another important Canadian separation of powers case, this time concerning a matter of judicial independence. In Reference re Remuneration of Judges of the Provincial Court (P.E.I.), ([1997] 3 S.C.R. 3), the Supreme Court of Canada considered whether and how the guarantee of judicial independence in Section 11(d) of the Canadian Charter of Rights and Freedoms “restricts the manner by and the extent to which provincial governments and legislatures can reduce the salaries of provincial court judges.”61 The Supreme Court ruled that: (1) the provinces can reduce the salaries of provincial judges; (2) that under no circumstances could judges negotiate with the government over their salaries; and (3) that “any reductions to judicial remuneration, including de facto reductions through the erosion of judicial salaries by inflation, cannot take those salaries below a basic minimum level of remuneration which is required for the office of a judge.” The Supreme Court concluded that “Public confidence in the independence of the judiciary would be undermined if judges were paid at such a low rate that they could be perceived as susceptible to political pressure through economic manipulation, as is witnessed in many countries.”62 The Reference Appeal Case, decided by the JCPC, and the Reference re Remuneration of Judges of the Provincial Courts show that the Canadian Supreme Court does and has always acted as a separation of judicial powers umpire. While separation of powers umpiring did not play the central role that federalism umpiring played in the creation of Canadian judicial review, it is today and has always been an important feature of Canadian judicial review.

C.  More on Individual Rights and Canadian Judicial Review I explained earlier in this chapter that the Canadian Constitution Act, 1982 was the final step in Canada’s achievement of full nationhood because it renamed the British North America Act, 1867, to be the Constitution Act 1867, and it transformed that U.K. statute into Canada’s Constitution. The Constitution Act 1982 also added an amending formula by which Canadians could amend their constitution on their own, and it terminated forever all power of the Parliament of the United Kingdom to legislate with respect to the independent nation of

61 62

Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997]. Id.

220  The History and Growth of Judicial Review, Volume 1 Canada. The Constitution Act 1982 also adopted the Canadian Charter of Rights and Freedoms, which transformed the Supreme Court of Canada from being merely a federalism and separation of judicial powers umpire into also being a protector of individual rights. This additional role of the Supreme Court of Canada had a huge and transformational effect on the nature of Canadian judicial review. As I explained earlier, the Canadian charter was adopted for rights from wrongs as well as for borrowing reasons. Prior to 1982, Canada had a system of parliamentary sovereignty like Britain’s, and its judges were known for their positivist, formalistic approach to textual interpretation even in federalism umpiring cases where Canadian judicial review got its start. All of this changed in 1982 with the adoption of the Canadian Charter of Rights and Freedoms. This document eliminated parliamentary sovereignty and replaced it with a U.S.-​style judicially-​enforceable Bill of Rights. The protection of individual rights in Canada, however, after 1982, came only after there had been more than a century of federalism umpiring judicial review in Canada either by the Privy Council or by the Canadian Supreme Court. The “patriation” of the Canadian Constitution in 1982 brought broad change to Canadian constitutional adjudication, both in terms of the operation of government and the balance of Canadian federalism. Not only did the charter create a set of entrenched individual rights, it authorized the Canadian Supreme Court to strike down both federal and provincial laws that infringed these rights. Although the court still could not invalidate provincial laws that contradict the Constitution on non-​charter grounds, the adoption of the Canadian Charter of Rights and Freedoms, 1982, led to an enormous shift in the balance of state power toward the federal government and away from the provinces. This may explain why Ran Hirschl sees the 1982 reforms as an effort by a fading English hegemonic elite to hold on to power in the face of rising Quebec nationalism, although I, personally, am not persuaded. As I explained above, the Canadian Charter of Rights and Freedoms, 1982, contains two sections that are vital to understanding Canadian judicial review. Section 1, which was at issue in R v. Oakes [1986], allows the government to argue that while a law may infringe charter rights, the law is justified because it is a reasonable limit on the right that can be balanced against other societal interests and values. Depending on the scope given to the government’s Section 1 override power, the charter could be very meaningful or of trivial importance. In the foundational Canadian case of R.  v.  Oakes, the Canadian Supreme Court construed Section 1 to subject federal Canadian laws, which purport to limit charter rights to what Americans would call middle-​level equal protection scrutiny. In Canada, as in Germany, this middle-​level scrutiny is referred to as proportionality review. The Court in R. v. Oakes described the review mandated by Section 1 as follows:

Canada: From Privy Council to Supreme Court  221 First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair, or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense. Should impair ‘as little as possible’ the right or freedom in question: *** Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom and the objective which has been identified as of ‘sufficient importance.’

R.  v.  Oakes is the foundational Marbury v.  Madison case of Canadian judicial review for cases brought under the Charter of Rights and Freedoms. It contemplates a very active role indeed for the Canadian courts as scrutinizers of the reasonableness and means/​end fit of both provincial and federal legislation. Professor Hogg explains that since 1982, “the Supreme Court of Canada has appropriated to itself extraordinarily broad remedial powers, which do not stop short of the direct redrafting of statutes that have been found to be in breach of the Charter of Rights.”63 Canadian judicial review did change and indeed went on steroids after the 1982 charter was adopted, but its roots lay in the historic need for a federalism umpire. The JCPC and the Canadian Supreme Court had to decide which federal and provincial laws were ultra vires of the Constitution of Canada. “A similar pattern of activism is evident everywhere else in the Court’s practice.”64 “Figures compiled in 1996—​after only 14 years of Charter litigation—​showed that no less than 66 statutory provisions had been struck down on Charter grounds. Of those 66, a surprisingly large number—​43—​were federal laws. . . . The high rate of invalidation continues to this day.”65 According to Professor Hogg, the JCPC: took the view that the British North America Act should be interpreted as a statute. Since their Lordships of the Privy Council were interpreting a statute, they insisted on an absolute prohibition of any resort to legislative history in order to place the constitutional text in its context. That self-​denying ordinance was a cardinal rule of statutory interpretation in the United Kingdom at that time. . . . [T]‌heir Lordships of the Privy Council . . . were quite ignorant of the history, geography and society of Canada, as numerous faux pas in their opinions demonstrate. Even Lords Watson and Haldane, who dominated the Privy Council in its Canadian appeals from 1880 to 1899 (Lord Watson) and from 1911 to 1928 (Lord Haldane), never visited Canada. They shared a

63

Hogg, supra note 1, at 71. Id. 65 Id. at 72. 64

222  The History and Growth of Judicial Review, Volume 1 preconceived notion of what a federal system should look like, a notion that would have been contradicted by much of the legislative history. Their decisions established precedents that elevated the provinces to coordinate status with the federal government, gave narrow interpretations to the principal federal powers (over peace, order, and good government and over trade and commerce), and gave a wide interpretation to the principal provincial power (over property and civil rights).66

After the abolition of Canadian appeals to the JCPC in 1949, Professor Hogg explains that the Supreme Court of Canada largely affirmed the Privy Council’s federalism umpiring jurisprudence while cautiously expanding federal power at the margins.67 “Then in 1982, the Charter of Rights was adopted, and a whole new era of judicial review opened up. For this, the Court now led by a scholarly and brilliant Chief Justice, Brian Dixon, was ready to undertake the challenge of elaborating the vague guarantees of the charter by an interpretive approach that was suitable to a constitution rather than a statute.”68 In Hunter v. Southam ([1984] 2 SCR 145, 155), Justice Dixon said in an early charter case that: The task of expounding a constitution is crucially different from that of construing a statute. He added that ‘A constitution . . . is drafted with an eye to the future . . . [and it] must, therefore be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind.’69

Professor Hogg explains that the Canadian Supreme Court, starting in the 1970s, changed its approach to legislative history, and it started to consult the legislative history of the Canadian Constitution Act 1867, as well as the “abundant records of the legislative history of the Constitution Act, 1982 (which includes the Charter of Rights).”70 After the end of Privy Council appeals in 1949, the Canadian Supreme Court asserted its right to refuse on occasion to follow either Privy Council or Canadian Supreme Court precedents, thus liberating itself from a strict adherence to stare decisis.71 Whereas the Privy Council never cited academic writing, the Canadian Supreme Court began to do so with increasing frequency after the 1970s.72

66

Id. at 75–​76. Id. at 76. 68 Id. at 76–​77. 69 Id. at 77, quoting Hunter v. Southam. 70 Id. at 78. 71 Id. at 79–​80. 72 Id. at 80. 67

Canada: From Privy Council to Supreme Court  223 Canadian judicial review did thus begin to change even before the adoption in 1982 of the Charter of Rights and Freedoms. “[T]‌he Privy Council, true to its formalist approach to the interpretation of a statute, saw no relevance in the decisions of another constitutional system, and so . . . never made any reference to American cases.”73 Professor Hogg thus claims that a “sea change occurred with the adoption of the Charter of Rights in 1982.”74 The Canadian Supreme Court frequently cites and discusses U.S. constitutional cases, but it quite often chooses not to follow them. This is the case according to Professor Hogg both because Section 1 of the charter limits Canadian constitutional rights, while “the Charter rights [themselves] have been given a broader interpretation than their American counterparts.”75 Canadian courts are constrained in their ability to follow other common law constitutional systems because the United Kingdom and New Zealand do not have federal systems, while Australia protects federalism with judicial review but has no Bill of Rights.76 Decisions from other European, Latin American, Asian, and African countries “are almost never referred to in constitutional cases.”77 Canada occasionally refers to the decisions of the European Court of Human Rights because the European Convention on Human Rights was an “influence . . . on the drafting of the Charter.”78 The “patriation” of the Canadian Constitution in 1982 did bring change to Canadian constitutional adjudication, both in terms of the operation of government and the balance of Canadian federalism. Not only did the charter create a set of entrenched individual rights, it authorized the Canadian Supreme Court to strike down both federal and provincial laws that infringe on these rights. Although the court still could not invalidate provincial laws that contradict the Constitution on non-​charter grounds, the adoption of the Canadian Charter of Rights and Freedoms, 1982, led to an enormous shift in the balance of state power toward the federal government and away from the provinces. It should be noted, however, that in theory the allegedly, hegemonic 1982 charter allows for weaker judicial review in Canadian individual rights case than has historically been practiced in Canadian federalism cases either by the JCPC or by the Supreme Court of Canada when those bodies have played the role of federalism umpire. Federalism decisions of the Supreme Court of Canada are not subject to a Section 1 or a Section 33 override by Parliament, since such overrides

73

Id. at 81. Id. 75 Id. 76 Id. 77 Id. at 82. 78 Id. 74

224  The History and Growth of Judicial Review, Volume 1 are only authorized in cases arising under the Canadian Charter of Rights and Freedoms. A characteristic feature of Canadian constitutionalism since 1982 has been the presence in individual rights cases but not in federalism cases of a dialogue between the Supreme Court of Canada and the national and provincial legislatures. Peter Hogg and Allison Bushell studied “the legislative sequels to all of the cases in which laws had been struck down by the Supreme Court of Canada on Charter grounds” as of 1997.79 They concluded that: [T]‌here were 66 such cases, and all but 13 had elicited some response from the competent legislative body. In seven cases, the response was simply to repeal the offending law, but in the remaining 46 cases (more than two-​thirds of the total) a new law was substituted for the old one. The data illustrated that the decisions of the Court usually leave room for a legislative response, and the usually get a legislative response. . . . We concluded that judicial review did not typically impose a veto on a desired legislative policy, but rather began a dialogue with the competent legislative body as to how to accommodate the policy to the competing Charter right.80

Professor Stephen Gardbaum reached a less enthusiastic conclusion about Canadian judicial review in individual rights cases in his 2012 chapter on Canada in The New Commonwealth Constitutionalism: Theory and Practice.81 Professor Gardbaum concludes that, as of 2012, pre-enforcement constitutional review by the political branches is not functioning at all well. He then analyzed the use by the federal and provincial legislatures of their power under Section 33 to override court decisions, and he observed that as of 2012: The power has been used on seventeen occasions since 1982, the last in 2000, and all by provincial or territorial legislatures rather than the federal parliament. Indeed, fourteen of these uses have been by Quebec, with one each by the Yukon Territory, Saskatchewan and Alberta, and three federal prime ministers, Brian Mulroney, Paul Martin, and Jean Chretien, publicly pledged never to use section 33. Moreover, only one of these seventeen uses was in direct response to a judicial invalidation of a law, all the others being preemptive exercises of the power, shielding legislation from judicial rights review under the Charter.82

79 Id. at 101. 80 Id. at 101. 81 Stephen Gardbaum, The New Commonwealth Constitutionalism:  Theory and Practice 97–​128 (2013). 82 Id. at 109–​10.

Canada: From Privy Council to Supreme Court  225 Professor Gardbaum notes that in Canadian individual rights cases, “it is undisputed that, as a descriptive matter, section 33 has largely fallen into non-​use,”83 but he asserts that “section 33 is not yet the equivalent of the Royal Assent: a purely and exclusively formal power.”84 Professor Gardbaum agrees with Professor Hogg that if Canada ever experienced judicial activism of the kind the United States experienced in the Lochner or Warren Court eras, Section 33 would spring back to life and would be used to stop judicial activism in its tracks.85 Professor Gardbaum emphasizes the centrality in individual rights cases of “the Charter’s general limitation clause in section 1” as construed in the foundational case of R. v. Oakes.86 He studies the legislative sequels that Professor Hogg has studied, and he identifies several points of concern. One concern is that while legislatures may re-​enact laws in a legislative sequel pursuant to Section 1 of the charter in individual rights cases, the Canadian Supreme Court will, at the end of the day, have the last word as whether the curtailment of a right or freedom is warranted under Section 1 because the court agrees that it is “subject . . . to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Given the nonuse of Section 33 and the activism of the Canadian Supreme Court, Professor Gardbaum concludes that as of 2012 “the Charter system is currently operating in a way that is too close to judicial supremacy” for it to be fairly characterized as a model of a system of Second Look judicial review. This was a very prescient observation. Eight more years of caselaw has made it clear to me at least that the Supreme Court of Canada is as active as was the Warren Court. Whether one likes or dislikes that level of judicial activism is another question. Professor Gardbaum also feared in 2012 that rather than absorbing the political costs associated with invocation of Section 33 in individual rights cases, the Canadian legislatures may be simply repassing laws with minor tweaks pursuant to Section 1 and hoping the courts will leave them alone. In that case, there may not be any real dialogue occurring between the Canadian courts and legislatures contrary to Professor Hogg’s account. Professor Gardbaum concluded by calling for enhancing the level of constitutional review by the political branches before a law is passed and reducing the level of judicial supremacy exhibited by the Canadian Supreme Court. This seems to me to be an eminently reasonable assessment. The vigor of Canadian judicial review of legislation under the Charter of Rights and Freedoms is indicated by the following landmark cases, which I will



83

Id. at 110. Id. at 121. 85 Id. 86 Id. at 106–​8. 84

226  The History and Growth of Judicial Review, Volume 1 only briefly describe. In R.  v.  Morgentaler ([1988] 1 S.C.R. 30), the Canadian Supreme Court held unconstitutional the federal law that required that abortions can only be authorized in Canada by a three-​person committee of doctors at each hospital throughout the whole country. The Supreme Court concluded that Medical Abortion Therapeutic committees were using wildly different standards in authorizing abortion in some parts of Canada as compared to the standards that were being used in other parts of Canada. The court held the law was arbitrary and capricious in its application and struck it down. The court did not announce that women have a constitutional right to have an abortion, as the U.S. Supreme Court had ruled in Roe v. Wade, nor did the court preclude Parliament from passing a new law restricting abortions. Parliament tried to pass such a law, but it could not get a majority to do so. The Charter Provision, which the court held was violated was Section 7, which provides that: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The court also ruled that the Canadian abortion law was not saved by Section 1 as a “reasonable” law, which “can be demonstrably justified in a free and democratic society.” While the Canadian Supreme Court has upheld laws against hate speech, pornography, commercial speech, and campaign-​related speech under Section 1, while conceding that such laws all violated Section 2b’s protection of the freedom of expression, the Supreme Court of Canada almost never seems to hold that a law that violates Section 7 is nonetheless upheld under Section 1. This result seems inconsistent to me as an American. In Carter v.  Canada (Attorney General) ([2015] SCC 5), the Canadian Supreme Court held that the federal Canadian criminal law forbidding a person from assisting another person in committing suicide was unconstitutional. The Supreme Court found the law violated Section 7 of the charter because it interfered with individual autonomy and dignity in the view of the justices. It also concluded that the law was not saved by Section 1’s guarantee of Parliament’s power to pass “reasonable” laws, which “can be demonstrably justified in a free and democratic society.” The Supreme Court did, however, did suspend its ruling for twelve months so Parliament could legislate on the subject in a way that would be constitutional. A final major Section 7 ruling handed down in 2013 was Canada (AG) v. Bedford. In this case, the Supreme Court held that a federal criminal law against maintaining a bawdy house, living on the proceeds of prostitution, or communicating in public a solicitation to engage in prostitution was unconstitutional. The

Canada: From Privy Council to Supreme Court  227 court held that private prostitution is legal in Canada, but that it is much more dangerous for prostitutes to make private calls and not to be protected by the manager of a bawdy house. The Supreme Court suspended the operation of this law for one year so Parliament could legislate on the subject. It held that the federal criminal laws in question were not “reasonable” laws, which “can be demonstrably justified in a free and democratic society.” The Canadian Supreme Court in the modern era frequently cites a Privy Council decision in Edwards v. A-​G Canada ([1930] AC 124, 136) in which Lord Sankey said that “The British North America Act 1867 [, as it was then called,] planted in Canada a living tree capable of growth and expansion within its natural limits.” This living constitutionalism approach to the Canadian Constitution contrasts sharply with, for example, the originalism of former U.S. Supreme Court Justice Antonin Scalia. The Canadian Supreme Court is much more of a living constitution Supreme Court than is the U.S. Supreme Court today in 2020. This was particularly evident in a same-​sex marriage case decided in 2004, Reference re Same-​Sex Marriage ([2004] 3 S.C.R. 698) where the court went out of its way early on to facilitate same-​sex marriage. In this case, the governor asked the Canadian Supreme Court for an advisory opinion as to whether the federal government’s power under Section 91 of the Constitution Act 1867 to pass laws on the subject of “marriage” included a power to pass a federal law legalizing same-​sex marriage. The argument against the federal law was that the word “marriage” was undoubtedly understood in 1867 as meaning only the union of one man and one woman. The Canadian Supreme Court, invoking the living tree concept, held that the Canadian Parliament could constitutionally pass a law that extended the right to marry to same-​sex couples. Parliament promptly passed such a law, and as a result same-​sex marriage became available in Canada earlier than in almost any other G-​20 constitutional democracy. * * * In conclusion, Canada has a very active system of federalism, separation of powers, and individual rights judicial review of the constitutionality of legislation. Federalism and separation of powers umpiring judicial review of the constitutionality of legislation was conducted under the supervision of the JCPC, from 1867 to 1949; and, from 1949 to the present, under the supervision of the Supreme Court of Canada. There was an element of fading British elite hegemonic interpretation in the provision of JCPC judicial review of Canadian laws between 1875 and 1949, when there did exist a Supreme Court of Canada. Judicial review of the constitutionality of legislation that violates individual rights originated because of the adoption of the Canadian Charter of Rights and Freedoms in 1982. The charter was enacted for rights from wrongs reasons,

228  The History and Growth of Judicial Review, Volume 1 due to past discrimination against French-​speaking Canadians by English-​ speaking Canadians, and because of Prime Minister Pierre Elliott Trudeau’s desire to borrow the judicial review of the United States’ Warren Court. From the decisions discussed in this chapter, it would appear that Prime Minister Trudeau’s wish with respect to borrowing the judicial activism of the Warren Court has been fulfilled. In addition, Ran Hirschl has argued that judicial review of the constitutionality of legislation in Canada in 1982 emerged as the result of a fading English-​ speaking hegemonic elite trying to entrench itself in power by securing the adoption of the Constitution Act 1982, through which it might control Quebec. I respectfully disagree. Judicial review of the constitutionality of legislation in Canada may also have emerged, and grown over time, as a result of the existence of two coequal political parties, the Liberal Party and the Conservative Party, which were alternating in power, and which may have favored the 1982 constitutional reforms in Canada for “insurance and commitment” reasons as Professor Tom Ginsburg’s theory of the origins of judicial review would suggest. While there are a number of other Canadian political parties, usually the Liberal or the Conservative Party forms the government. Judicial review may be retained, and the power of courts may grow, for insurance and commitment reasons, even if those reasons do not, in Canada, explain the origins of judicial review of the constitutionality of legislation. Canadian judicial review thus originated and grew mostly because of the need for a federalism umpire and for a separation of powers umpire, and it was greatly expanded by the adoption of the Charter of Rights and Freedoms in 1982 for rights from wrongs reasons, and for borrowing reasons.

Chapter Six

The Commonwealth of Australia: Umpiring without a Bill of Rights Australia has a very rigid, entrenched written Constitution that is, and has always been, enforced by courts, using U.S.-​style judicial review. Australia is the sixth largest country in the world by territory, and it is in fact almost as large as the continental United States. Australia ranks second to only the United States in terms of GDP per capita in the world, putting it, for example, well ahead of France, the United Kingdom, India, and Italy. Australia is very sparsely settled, however, and its population of over twenty-​f ive million people puts it fifty-​second in the world in total population—​below the populations of the U.S. states of California and Texas. Australia is one of the least population-​dense nations in the world, coming in at 236 out of 244 countries, according to a United Nations (U.N.) study. The name Australia derives from a Latin word for “southern” and was given to it by British explorers. Australia has been a constitutional democracy since the nineteenth century and a federation and a Dominion since 1901, but it only achieved full independence from the British Empire in gradual stages over the course of the twentieth century, ending in 1986. I  discuss Australia after discussing such common law nations as the United States and Canada, both because of its much smaller population, and because it did not achieve full independence from the United Kingdom until the adoption of the Australia Acts of 1986. Even today Queen Elizabeth II of the United Kingdom is also the queen of Australia, although she is represented there by an Australian governor-​general who is an Australian citizen picked by the prime minister of Australia. I discuss Australia ahead of the Union of India because Australia’s Constitution was enacted in 1901 whereas India did not receive a constitution from the United Kingdom until 1935 when the U.K. Parliament adopted the Government of India Act, 1935. India declared independence from the British Empire in 1947, and it rejected constitutional monarchy to become a republic with its own constitution in 1950. The development of judicial review in Australia was modeled on the U.S.  system of judicial review, and it evolved out of a need for an umpiring

The History and Growth of Judicial Review, Volume 1. Steven Gow Calabresi, Oxford University Press (2021). © Steven Gow Calabresi. DOI: 10.1093/oso/9780190075774.003.0007

230  The History and Growth of Judicial Review, Volume 1 body in federalism and separation of powers cases. The original purpose of the Australian High Court under the Australian Constitution was to umpire federalism disputes between the Commonwealth and the six Australian states, which predated the federal government of Australia; and to ensure that the traditionally guaranteed rights and freedoms of British subjects under the common law and responsible parliamentary government were respected regarding Australia’s citizens. The High Court, which is Australia’s Supreme Court, was established with the role of federalism umpire in mind, the Australian Constitution was shaped with this role in mind, and the High Court has fulfilled that role. The Framers of the Australian Constitution consciously modeled that document in part on the U.S. Constitution, and they deliberately imported into the Australian Constitution U.S. ideas about federalism, the separation of powers, and the judicial enforcement and umpiring of federalism and the separation of powers. The Australian Constitution does not have a Bill of Rights or an enumerated Judicial Review clause, but it does limit and enumerate the broad powers of the Australian federal government. The Framers of the Australian Constitution, like the Framers of the U.S. Constitution, assumed that the courts would have the power of judicial review. As a result, there is, in Australia, judicial review in federalism and separation of powers umpiring cases but not in Bill of Rights cases since there is essentially no Australian Bill of Rights. The Australians, dismayed at the effects of Judicial Committee of the Privy Council (JCPC) judicial review on Canada’s Constitution, tried to avoid JCPC judicial review of decisions of Australia’s top court called the High Court when the Constitution of Australia Act, 1901, was adopted by the U.K. imperial Parliament as a U.K. statute. The Australians did not completely succeed in avoiding JCPC judicial review in 1901, although they tried. Fading, imperial, hegemonic elites insisted on Privy Council judicial review as a condition for granting Australia its constitution. Ran Hirschl’s theory of the origins of judicial review thus applies to Australia. Australia has generally had two major political parties: the Liberal Party on the Right; and the Labor Party on the Left. Australians also did not set up judicial review for insurance and commitment reasons since Australian judicial review protects solely federalism and separation of powers clauses, and there is no Bill of Rights in the Australian Constitution. If Australia had set up judicial review for insurance and commitment reasons, one would have expected its constitution to guarantee freedom of expression and of religion and to protect property rights. Since the Australian Constitution does not protect such rights as much as the U.S. Constitution does, one can infer that it was not set up for those reasons. Judicial review may, however, have persisted in Australia and gained political support for insurance and commitment reasons as Professor Tom Ginsburg’s

The Commonwealth of Australia  231 theory of the growth of judicial review suggests. Australia does have two relatively coequal political parties, and they may over time have come to support the Constitution of Australia for insurance and commitment reasons. My understanding of Australian history and constitutional law draws on the work of: (1) Cheryl Saunders, The Constitution of Australia: A Contextual Analysis;1 2) John Williams, “The Emergence of the Commonwealth Constitution”;2 and 3) Jeffrey Goldsworthy, “Australia: Devotion to Legalism.”3

I.  History of the Commonwealth of Australia Australia has been inhabited for sixty thousand years, and at the time of its “discovery” by the British explorer James Cook in 1770, it may have had an Aboriginal population of as many as five hundred thousand people.4 Australia continues to have an Aboriginal population of about a half-​million people, even today. James Cook claimed Eastern Australia for the British Empire upon “discovering” it in 1770, and the western half of Australia was claimed by Britain soon thereafter. The population is overwhelmingly of British and Irish origin, although there are groups of people of partially Italian, German, Chinese, Indian, and Greek ethnicity. Asian Australians make up 12 percent of the total population. The British Empire distinguished its territories as being either conquered lands, like India, which were allowed largely to keep their own domestic law; and settled lands, like Australia and Canada, which were governed from the outset domestically by British law.5 Unfortunately for the Aboriginal peoples, the British thought that Australia was so sparsely populated and the land so underused that it fell from the conquered category, under which the Aboriginal peoples would have been able to use their own land, into the settled category whereby British law governed. The six Australian colonies were in different places along the coast in welcoming locations that were a considerable distance from one another. The first and most powerful colony has always been New South Wales, centered on the 1778 settlement in Sydney. Over the next forty years, settlements were made in what became the colonies of Tasmania, Victoria, and Queensland. In 1829, the western coast of Australia was settled in Perth, creating a huge colony of Western

1 Cheryl Saunders, The Constitution of Australia: A Contextual Analysis (2011). 2 John Williams, The Emergence of the Commonwealth Constitution, in Australian Constitutional Landmarks 1–​33 (H.P. Lee & George Winterton, eds., 2003). 3 Jeffrey Goldsworthy, Australia:  Devotion to Legalism, in Interpreting Constitutions:  A Comparative Study (Jeffrey Goldsworthy, ed., 2006). 4 Saunders, supra note 1, at 1–​2. 5 Id. at 6.

232  The History and Growth of Judicial Review, Volume 1 Australia. Seven years later, the colony of South Australia was settled on the southern coast with the city of Adelaide. These six separate Australian colonies, all of which had separate British governors in the nineteenth century, form today the six states of the Australian Confederation, formed in 1901. There is also a Capital Territory of the City of Canberra, which was carved out of land in New South Wales. In addition, there is a Northern Territory, which is not currently a state. During the nineteenth century, each of the six Australian colonies brought their own constitutions from the United Kingdom and became self-​governing.6 For a good discussion of the history surrounding the writing of the Australian Constitution, see John Williams, “The Emergence of the Commonwealth Constitution.”7 British common law was used in all six colonies, and each colony had a bicameral legislature with a conservative, although not hereditary upper house; a lower house that elected a prime minister; a governor-​general appointed by the king or queen of the United Kingdom; and an independent colonial court system whose rulings could be appealed directly to the JCPC of the British Empire, which sat and heard cases from all over the empire in London. Although all six colonies were initially totally independent of one another, as the nineteenth century wore on, they had more and more interactions and trade with one another. By the second half of the nineteenth century, the examples of the federations in the United States, Canada, and Switzerland began to suggest to Australians the desirability of forming some kind of federation of the Australian states. Australians convened in the 1890s to discuss forming a federal Australian government.

A.  The Constitutional Convention and the Setting Up of the High Court Talks about forming a federal union began with a convention in 1891, which was followed with another convention several years later.8 Four colonies passed enabling acts authorizing their voters to elect delegates to a federal Constitutional Convention in 1897 and 1898, and a fifth colony’s Parliament itself sent delegates to this convention.9 The convention approved a draft and eventually the voters in all six of the Australian states ratified the draft in popular referenda. The Parliament of the British Empire largely accepted the draft Commonwealth



6

Id. at 8. See Williams, supra note 2. 8 Geoffrey Sawyer, The Australian Constitution (1988). 9 Saunders, supra note 1, at 10–​11. 7

The Commonwealth of Australia  233 Constitution, although it was amended to strengthen review in the JCPC, both in its right to hear appeals from the new Confederation High Court and to hear appeals directly from each of the six state’s highest courts bypassing the Confederation High Court. This action by British imperial officials suggests a partial effort at fading imperial elite hegemonic preservation, as Ran Hirschl’s theory of the origins of judicial review in Towards Juristocracy would suggest. “The Commonwealth of Australia came into existence with the British imperial parliament’s permission on 1 January 1901.”10 The Australian Constitution Act, 1901, was originally a British imperial statute. Britain liked playing umpire between the six Australian states and the central Commonwealth government, since this arrangement augmented imperial power. Neither the people of Australia nor the people in any of the six states of Australia enjoyed or claimed to enjoy sovereignty in 1900. They carried British passports and considered themselves to be British citizens. The Australian Constitution of 1901 was an imperial act of the British Empire’s Parliament sitting at Westminster in London, England. Thus, the six Australian states predated the Australian Federation and all had their own constitutions, which continued to operate after 1901. Appeals could be taken from the High Court of Australia to the JCPC until Parliament abolished them in 1968; and appeals could also be taken, and were taken directly, from the highest Australian state courts to the JCPC, bypassing the High Court of Australia, until this right was effectively abolished by the U.K.’s Australia Act, 1986. The Australian state High Courts continued to allow Privy Council review of their decisions from 1968 to 1986 because the states liked being able to play off the power of the imperial Privy Council, against the power of the Australian federal government. Australia’s road to judicial empowerment in federalism cases followed logically from the country’s history and transformation from six separate British colonies to a sovereign continental-​sized nation-​state. The framework for the Australian Constitution, its federal system of government, its administrative law, and its judiciary are all uniquely Australian.11 The Australians borrowed the U.S. constitutional model of a Supreme Court, called the High Court, which could umpire federalism and separation of powers disputes using the power of judicial review. But, they followed the United Kingdom’s Westminster Model in not including a Bill of Rights in their Constitution and in relying on a parliamentary majority of the lower house of Parliament to elect the prime minister and the government.12 They also set up a strong Senate in which the states are equally 10 Id. at 13. 11 Kathleen E. Foley, Australian Judicial Review, 6 Wash. U. Global Stud. L. Rev. 281, 283 (2007). 12 Bradley Selway, The High Court and Australian Federalism, 467 Oxford Publius (2005), http://​ publius.oxfordjournals.org/​content/​35/​3/​467.full.pdf

234  The History and Growth of Judicial Review, Volume 1 represented. The Australians thus borrowed a lot of their ideas for their constitution from the U.S. Constitution. Despite the complicated string of events and relationships that make up Australia’s constitutional history, it is clear that the Framers of the Australian Constitution recognized the need for a federalism and separation of powers umpiring body; expected the High Court to fulfill that role; and empowered the court appropriately, given their intentions. The Australian High Court was deliberately entrusted with an umpiring role to monitor conflicts between Australia’s federal government and its states and separation of powers disputes between the federal courts and the political legislative-​ executive bodies of the government. The existence of an independent umpiring judicial body is a central feature of Australian federalism and the separation of powers. The Australian Constitution does not have a Bill of Rights, however, an exclusion that triggered a big debate among the Framers of the Constitution. Although some delegates favored including a delineated list of individual rights, the majority trusted that the traditional rights and freedoms guaranteed to British citizens would be aptly protected by Australia’s parliamentary system of responsive government and its independent judiciary applying the common law. In this respect, Australia follows the now-​discredited Westminster Model, which is no longer even in use in the United Kingdom, as I will show in a future chapter. Australia thus borrowed from the United States the idea of a written Constitution allocating federal powers between the nation and the states enforced by judicial review, but it rejected the U.S. system of separation of legislative and executive powers, and it also rejected the U.S. idea of a judicially enforceable Bill of Rights and Fourteenth Amendment. The Australian High Court is thus a federalism umpire, but it is not a Bill of Rights umpire. Australian judicial review is a unique hybrid of the U.S. and British constitutional models. Important umpiring separation of powers cases are decided where the issue is the separation of the judicial power from the executive or legislative powers. The Australian Constitution is, in part, federal; and, in part, parliamentarian. It mixes federal characteristics, such as a nearly coequal upper house of the national legislature called the Senate in which the Australian states are equally represented, with parliamentarian features such as a prime minister whose tenure in office depends on his having at all times a majority in the lower house of the national legislature, the House of Representatives. Australia’s form of government often gives rise to disputes between the federal and state governments13 in part because the Australian Constitution is not as clear as it could be in 13 For example, a unique feature of Australia’s structure of government is the constitution’s retention of the parliamentary principle of responsible government. The principle of responsible government mandates that the executive maintains the confidence of the Parliament. Just as in England, the Parliament can, at any time, hold a vote of confidence concerning the executive. If the prime minister receives a vote of no confidence, he must dissolve the government and call a general election. As Professor James Thomson states, “[R]‌oughly speaking, the Australian Constitution is a redraft of

The Commonwealth of Australia  235 delineating the division of powers between the state and federal government.14 The Framers of the Australian Constitution, who created the High Court, expected such disputes to arise, assumed that there would be judicial review in federalism cases, and designated the new High Court of Australia to be a federalism umpiring body backed up by the JCPC, which was also a federalism umpiring body in Australia until 1986. Australia is thus a case study of a country that gave birth to judicial review mostly for federalism and separation of powers reasons. The Australian Constitution went into effect on January 1, 1901, after its enactment as a statute by the British imperial government. The constitution organized the six Australian colonies into a federation of states under a central federal government with the purpose of providing a unified federal framework for the six colonies all within the British Empire, which retained control of Australia’s foreign and defense policy as well as having the last word in Australian federalism cases.15 The Australian Constitution deliberately leaves the structure of the six state governments to the states, since they predated the Commonwealth federation.16 The Australian Constitution organizes the federal government of the Commonwealth into three separate branches uniquely blending the British and American constitutional traditions. Legislative power is vested by the Constitution in “a Federal Parliament . . . consist[ing] of the Queen, a Senate and a House of Representatives” known as the Commonwealth Parliament. Executive powers are vested in an “Executive Government” that consists of the queen; the governor-​general of Australia; and the ministers of the Crown, including the prime minister who is elected by the House of Representatives and serves at its pleasure. The judicial power is vested in a federal judiciary consisting of “the High Court of Australia, and . . . such courts as the [Commonwealth] Parliament creates, and . . . such other courts [as Parliament creates and chooses to] invest . . . with federal jurisdiction.”17 The future role of the Australian judiciary was heavily debated during the Constitutional Convention, although the High Court of Australia was not actually created until 1902. In debates leading up to the ratification of the Australian the American Constitution of 1787 with modifications found suitable for the more characteristic British institutions and for Australian conditions.” James A. Thomson, American and Australian Constitutions: Continuing Adventures in Comparative Constitutional Law, 30 J. Marshall L. Rev. 627, 641 (1997). The few modifications to the American system, including the retention of the British principle of responsible government, blur the lines of separation of powers and increase the likelihood of disputes. 14 Although this article uses the word “federal,” the Constitution itself employs the term “the Parliament of the Commonwealth.” Austl. Const. §1. Section 51 is the principal provision granting and outlining the federal legislature’s powers. Austl. Const. § 51. 15 Cheryl Saunders, Australian State Constitutions, 31 Rutgers L.J. 999 (2000). 16 See generally id. 17 Thomson, supra note 13, at 641.

236  The History and Growth of Judicial Review, Volume 1 Constitution, the Framers made it very clear that they wanted the Australian High Court to act as an umpire and arbiter for federalism disputes. They relied heavily on the U.S. model of judicial enforcement of federalism in this regard. As Australia wrestled with drafting its original Constitution during the Constitutional Convention debates, support for a federalism umpiring body was expressed on numerous occasions by a number of the founders. At the 1897 Convention in Adelaide, Edmund Barton, who would become Australia’s first Prime Minister and then Justice of the first High Court, argued the new Federation needed a court that could arbitrate disputes under the Constitution, including disputes among States and disputes between States and the federal government.18

Barton reasoned that “[d]‌isputes between the States and between the federal government and the States would invariably arise under a federal Constitution,” and he added that the federal High Court could provide “ ‘a continuous tribunal of arbitration’ where [the] States could bring their differences.”19 The Australian Constitution itself was ratified in 1901 as a statute enacted by the United Kingom’s Imperial Parliament and Queen Victoria, and the newly formed independent Australian federal government gave the new federal Parliament the power to design the jurisdictional rules that govern the federal judiciary by statute. Alfred Deakin, then the attorney-​general of Australia, introduced the Judiciary Bill of 1902, which created the Australian High Court. Deakin expressed the idea that the High Court was needed to act as a federalism umpire when he said, The Constitution is to be the supreme law, but it is the High Court which is to determine how far and between what boundaries it is supreme. The federation is constituted by distribution of powers, and it is this court which decided the orbit and boundary of every power. Consequently, when we say that there are three fundamental conditions involved in federation, we really mean that there is one which is more essential than the others—​the competent tribunal which is able to protect the Constitution, and to oversee its agencies. That body is the High Court. It is properly termed the “keystone of the federal arch.” . . . The High Court exists to protect the Constitution against assaults.20

18 Foley, supra note 11, at 287; see also Brian J. Galligan, Judicial Review in the Australian Federal System: Its Origin and Function, 10 Fed. L. Rev. 367, 381 (1979). 19 Galligan, supra note 18, at 367. 20 Id. at 397 (quoting Parl Deb, Vol. 8 10967).

The Commonwealth of Australia  237 The mere fact that in 1901 “the framers of the Australian Constitution . . . deliberately followed the American model”21 of judicial review in federalism makes it clear that they meant to empower the High Court of Australia to serve as an arbiter and umpire for the new federation.22 The U.S. Supreme Court in 1901 had famously upheld federal laws in McCulloch v. Maryland23 and in Gibbons v. Ogden24 while striking down federal laws in the Civil Rights Cases25 on state action grounds and in the E.C. Knight26 case saying the law in question was a regulation of the terms of manufacturing and not of commerce. U.S. Supreme Court case law, in 1901, when the Australian Constitution was adopted, certainly embodied a federal judicial role wherein the Supreme Court acted as a federalism umpire. By 1901, the U.S. Supreme Court had rendered decisions both upholding and striking down federal laws on enumerated powers grounds, and the U.S. Supreme Court had created and maintained a system of dual federalism. The Framers of the Australian Constitution anticipated that the High Court of Australia would play a similar umpiring role to that played by the U.S. Supreme Court prior to 1901 in, for example the U.S. v. E.C. Knight Co. case. The U.S. Supreme Court had not in 1901 played an active role in individual rights cases. The First Amendment to the U.S. Constitution was not judicially enforced until after the First World War, and the U.S. Bill of Rights was not incorporated against the states until the period between the late 1930s and the late 1960s—​well after the Australian Constitution was written. The Australian Constitution also predated by four years the U.S. Supreme Court’s decision in Lochner v. New York (198 U.S. 45 (1905))—​a case that was arguably an effort by an economic elite that was losing power to hegemonically preserve that power through judicial review, as Professor Ran Hirschl would argue. The High Court of Australia was officially created by the Judiciary Act of 1902, and it was then set up by the first Commonwealth Parliament in 1903.27 As I said before, there is no explicit Judicial Review clause in the Australian Constitution, just as there is no explicit Judicial Review clause in the U.S. Constitution.28 “Rather, the power of judicial review is said to arise through the implications

21 Id. at 372. 22 According to Galligan, “[t]‌he federation debates demonstrate that the Australian founders created a powerful, American-​style court whose prime function was to interpret the Constitution and apply it in settling federal disputes.” Id. at 396. 23 17 U.S. 316 (1819). 24 22 U.S. 1 (1824). 25 109 U.S. 3 (1883). 26 U.S. v. E.C. Knight Co. 156 U.S. 1 (1895). 27 Galligan, supra note 18, at 397. 28 See id.

238  The History and Growth of Judicial Review, Volume 1 of several different constitutional provisions [and n]o generally accepted view exists regarding which provisions support this implication.”29 Section 75 of the Australian Constitution prevents the Australian federal government from reducing the High Court’s jurisdiction without a referendum, thus protecting the practice of judicial review in Australia. In the 1970s, a series of proposals were passed (the Administrative Appeals Tribunal Act 1975; the Ombudsman Act 1976; the Administrative Decisions (Judicial Review) Act 1977; and the Freedom of Information Act 1982) that further refined judicial review in Australia. These acts offered slight tweaks to the Australian system of judicial review. Article 73 of the Australian Constitution gave the High Court jurisdiction to hear appeals from the state supreme courts, but it did not take away the right of litigants to appeal from the state supreme courts directly to the JCPC in London bypassing the High Court.30 Australian delegates to the Constitutional Convention wanted independent judicial review over all matters touching the Australian Constitution, but the British imperial Parliament wanted to retain appeals to the JCPC31 in 1900 on questions of Australian constitutional law, and it did so.32 The passage by the Imperial British Parliament sitting in London, England, of the Australia Acts, in 1986, extinguished appeals from the Australian state courts to the JCPC, and the 1986 British imperial acts made the federal High Court of Australia the final appellate body in Australia. “[T]‌he High Court [thus] did not truly become the apex of Australia’s judicial system until 1986, when the last of a number of legislative enactments aimed at abolishing appeals to the Privy Council was passed.”33 There is no question that the federal High Court of Australia’s power of judicial review in federalism umpiring cases is perceived as legitimate in Australia despite of the lack of an explicit Judicial Review clause, and despite scholarly 29 Id. at 286. Several clauses in the Constitution of Australia bear on the issue of the legitimacy of judicial review, especially Chapter III of the Constitution on “The Judicature.” Section 71, for example, provides that “[t]‌he judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction.” Section 75 outlines the areas of original jurisdiction for the High Court, which include such as matters as those “in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party” and “in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.” 30 Mary Elizabeth Crock & Ronald McCallum, Australia’s Federal Courts: Their Origins, Structures and Jurisdiction, 46 S. Carolina L. Rev. 719, 734 (1995); see also Australian Constitution Act (The Constitution) § 73. 31 The Privy Council is a body of advisors to the king or queen of England comprising senior politicians. 32 Crock & McCallum, supra note 30, at 734–​35. 33 Foley, supra note 11, at 284.

The Commonwealth of Australia  239 debates as to the specific nuances of the constitutional language that empowers the High Court to review legislation for constitutionality. The key role of federalism umpire with the power of judicial review that was stressed in the original conventions on the constitution and expressed by the founders remains and thrives today. From its inception in 1903, down to the present day, the Australian High Court has functioned as a federalism umpire just as the Framers of the Australian Constitution intended it to do. In Professor Mark Tushnet’s terms, “Australian judicial review is ‘strong-​form,’ as the High Court maintains ‘general authority to determine what the Constitution means,’ and its ‘constitutional interpretations are authoritative and binding’ on the legislatures and executives at the federal, State and Territory levels.”34 Constitutional questions come before the High Court in the form of cases instituted by parties that, as part of the litigation, request the court to review the validity of federal, state, and territorial legislation.35 Cases can start in a lower court and be removed to the High Court; or they can be decided by a lower court and then appealed to the High Court.36 Additionally, cases can be initiated in the High Court because it is vested with original jurisdiction to hear matters in diversity, and matters where the Commonwealth or one of its officers is a party. Australia thus, like other common law countries, has a diffuse, and not a concentrated, form of judicial review. Also, the High Court maintains the constitutionally enshrined right to review all decision of officers of the Commonwealth.37 For example, “[t]‌he Court can disallow executive and legislative initiatives that go beyond the limited powers of these two branches of government[,] . . . [T]he Court [thus] defines the limits of federal and State powers[,] and is the final arbiter in jurisdictional disputes.”38 The powers expressly given to the High Court of Australia, in part, demonstrate its intended role as an umpire in Australian federalism and separation of judicial powers cases. Although Australia has had a Commonwealth federal government and a Constitution since 1901, it was not yet independent of the British Empire. Under the Colonial Laws Validity Act of 1865, the Imperial Parliament could still legislate for Australia or any of its six states, and Acts of the Imperial Parliament in London were the supreme law of the land in Australia, and trumped even the Commonwealth Constitution. The Statute of Westminster of 1931 finally

34 Id. at 281 (quoting Mark Tushnet, Alternative Forms of Judicial Review, 101 Mich. L. Rev. 2781, 2784 (2003)). 35 Foley, supra note 11, at 290. 36 Id. 37 Crock & McCallum, supra note 30, at 732–​33 (citing Section 75(iv), 75(iii), and 75(v) of the Australian Constitution); Foley, supra note 11, at 290. 38 Galligan, supra note 18, at 367.

240  The History and Growth of Judicial Review, Volume 1 repealed the 1865 Colonial Laws Validity Act and made clear that the Australian Commonwealth could legislate independently of, and in contradiction to, the Imperial Parliament. The 1931 Statute of Westminster did not take effect in Australia, however, until 1942, when the Commonwealth Parliament passed a Statute of Westminster Adoption Act. Australia thus did not become an independent nation until 1942, and even then it retained JCPC appeals for decades. Appeals from the High Court of the Commonwealth of Australia and from each of the highest courts of the six Australian states to the Judicial Committee of the Privy Council in London continued, however, as I have mentioned above for quite a long time after 1942.39 Moreover, the first native Australian to be appointed governor-​general of the Commonwealth was not appointed until 1930, and it was not until 1965 that it became inconceivable that a non-​Australian would be appointed by the queen to be her governor-​general in Australia.40 Full Australian independence from the British Empire was thus not obtained until well after World War II, even though the Australian Constitution was enacted as a statute of the Imperial Parliament in 1901. Queen Elizabeth II remains, even today, the queen of Australia, although she is represented there by an Australian citizen picked by Australia’s prime minister to serve as governor-​general. Three entities had a formative effect on the Australian Commonwealth Constitution. First, the governments and parliaments of the six states insisted that the Commonwealth legislature be bicameral and equally represent the states in the upper house of the Parliament, which is called the Senate. Second, the imperial government and Parliament insisted on maintaining a bigger role for the JCPC in 1901 than Australians otherwise would have wanted. Finally, the approval of the Commonwealth Constitution by separate popular referenda in the several Australian states reinforced both federalism and direct democracy and legitimated the Australian Constitution. This legitimation process for the Australian Constitution resembles more the legitimation process used for the U.S. Constitution of 1787 than it does the process used for the Canadian Constitution Acts of 1867 and 1982. Americans elected delegates, using an unusually broad franchise, to special state constitutional conventions, which then ratified the U.S. Constitution. The Australians held popular referenda in all six states to ratify its Constitution. In contrast, Canada held neither provincial ratifying conventions nor referenda to ratify either the Constitution Act, 1867, or the Constitution Act, 1982. It is not clear that Quebec would have voted to ratify those acts. Thus, the Canadian Constitution is less legitimized than are the U.S. and Australian Constitutions.

39 40

Saunders, supra note 15, at 25. Id. at 22–​23.

The Commonwealth of Australia  241 Moreover, in drafting the federal features of their Constitution, Australians could not draw from the experience of the unitary British Imperial State, so they borrowed ideas from other federal regimes, including those in place in the United States, Canada, Switzerland, and Germany.41 Canada and Germany influenced the division of powers between the central government and the states, Switzerland inspired the idea of popular referenda for constitutional change, and the United States inspired Australia’s mix of national and confederal powers, as well as its Constitution’s mention of the separation of powers and the practice of U.S.-​style judicial review. Borrowing, thus played a major role in the development of the Constitution of Australia. The British Imperial Model led Australians not to include an American-​style Bill of Rights in their federal Constitution, because it was thought that the adoption of British common law and of representative parliamentary government rendered a Bill of Rights unnecessary.42 The text of the Commonwealth Constitution is comparatively short, and provides almost no protection for rights. The first three articles are inspired by the U.S. Constitution and lay out sequentially the legislative power of Parliament, the executive power, and the judicial power. Most of the rest of the Constitution addresses issues of Australian federalism. The Commonwealth Supreme Court, which is called the High Court, has the last word not only on questions of federal law but also on questions of state law in Australia. As in the federations of Germany and Canada, there are not fully independent competing systems of state and federal courts as there are in the United States.43 This gives the High Court of Australia much greater control over the law of the six Australian states than is enjoyed by the U.S. Supreme Court over the law of our fifty states. The state constitutions in Australia “are longer, less structured and more diffuse” than is the federal constitution, and none of them were enacted by the Imperial British Parliament.44 The Australian Commonwealth Constitution has always been and continues to be enforced by the courts exercising the power of judicial review under a diffuse model. The High Court of Australia is the principle federal court, and it has the last word on both federal and state Australian law. Appellate and trial courts exist as state courts, and they have the initial power to decide questions of Australian federal and state law under the diffuse model of judicial review. The Constitution is also super entrenched and very difficult to amend. Professor Saunders describes the amendment process as follows:



41

Id. at 15. Id. at 13–​17. 43 Id. at 39–​42. 44 Id. at 43. 42

242  The History and Growth of Judicial Review, Volume 1 Section 128 leaves the initiative for proposing change with the Commonwealth Parliament. A Constitution Alteration bill must be passed by each House with an absolute majority, or by one House twice in accordance with a prescribed deadlock procedure. Approval of a proposal for change requires passage at referendum by double majorities: a national majority and a majority of voters in a majority of States. In exceptional cases, diminishing constitutionally guaranteed State representation in the Parliament, altering State boundaries or affecting the constitutional provisions relating to State boundaries including, presumably section 128 itself, a majority is required in the States affected, which in practice may mean a majority in all States. The final step is assent by the Governor-​General, which unlike the rest of the procedure, is a formality.45

Unsurprisingly, only eight of forty-​four referendum bills have been ratified since 1901, most of which have been relatively insignificant. Most of the bills failed to get a majority of the national popular vote; “only five have failed on the requirement for a majority of States alone.”46 As Professor Saunders says, “the record of constitutional change discourages it from being attempted when it is needed and places additional pressure on judicial review.”47 Voting for the federal House of Representatives is done using the alternative vote (AV) system, whereby each voter casts one ballot indicating his first and second choice preferences. Votes are reallocated until a majority winner is found in each territorial house district. This system is a blend of pure territorial voting and proportional representation. It has produced, in practice, in the Australian House of Representatives, a four-​party system with stable left and right coalitions that have frequently alternated in power. No federal House of Representatives district can be more than 10 percent more populous than any other, and the term of office is three years unless Parliament is dissolved earlier as a result of a vote of “no confidence.” There are 150 members of the House of Representatives, with a minimum of five seats for each state. Voting for the Australian Senate is done using a proportional single transferable vote (STV). As a result, “the Senate is more likely than the House to have members who are independents or who belong to minor parties.”48 Since it is unusual for either the Left or the Right to have a majority in the Senate, that body plays an important role in reviewing government legislation. Senators are elected for six-​year terms, with half of the Senate being up for re-​election every three years. There is thus a U.S.-​style staggering of elections to sample the will of the



45

Id. at 47–​48. Id. at 48. 47 Id. at 49. 48 Id. at 120. 46

The Commonwealth of Australia  243 people over a six-​year period of time rather than all at once as in U.K. parliamentary elections. There are seventy-​six senators, including twelve from each state as well as two each from the Capitol Territory and the Northern Territory. Formally, Australia has a Federal Executive Council, which is supposed to advise the governor-​general on matters of law execution, but in reality the executive power lies with a prime minister who appoints the cabinet and who is responsible to a majority of the House of Representatives. The prime minister advises the queen as to who should be appointed governor-​general, and even on whether that officer should be dismissed. Australia experienced the greatest constitutional crisis in its history in 1975, when a governor-​general dismissed a prime minister and called for early elections when the prime minister had not lost a vote of “no confidence” in the House, but his budget had been rejected in the Senate.49 The crisis occurred on November 11, 1975, when Governor-​General Sir John Kerr removed Gough Whitlam, the Labor Party prime minister, and called for new elections, while appointing Malcolm Fraser, the leader of the Conservative Party opposition, as caretaker prime minister. This episode did not lead to formal constitutional change; the governor-​general retains the power to fire the prime minister and call for new elections, while the Senate can still block the prime minister’s budget. In practice, however, both subsequent governors-​general and subsequent Senates have not tried to exercise these powers since 1975, and Sir John Kerr’s actions were widely regarded as being illegitimate. The Australian Labor Party was furious at Sir John Kerr for his role in bringing Fraser to power, and the move ultimately aided an effort to sever ties with Queen Elizabeth II and to turn Australia into a federal constitutional republic. This effort, in turn, fell apart when Parliament proposed that it elect a president by a two-​thirds majority of a joint session of both houses while the voters preferred direct election of the president by the Australian people themselves. Since the voters were allowed only to vote on an option whereby Parliament elected the president, the referendum failed to pass. The governor-​general, thus on behalf of Queen Elizabeth II, remains the ceremonial head of state. The Australian Constitution is a blend of the federalism aspects of the United States’ written constitution, combined with the parliamentary government features of the U.K.’s constitutional system, under which the Queen-​ in-​ Parliament is sovereign.50 Written constitutionalism and U.K.-​ style parliamentary supremacy and sovereignty are contradictions in terms, but Australian federalism made it essential that Australia have a written constitution enforced by the courts exercising the power of judicial review. It was not,

49 50

Id. at 153–​56. Id. at 259.

244  The History and Growth of Judicial Review, Volume 1 however, thought to be essential, in 1901, that a written constitution should include a federal Bill of Rights that bound the federal government or that was incorporated against the states. There is, therefore, no Bill of Rights in the Australian Constitution, although the High Court has deduced from the structure of the Constitution limited judicially enforceable protections for freedom of speech and of the press and against Bills of Attainder. Australia, like the United Kingdom and Canada in 1901, relied solely on parliamentary sovereignty and the common law for the protection of individual life, liberty, and property. The Australian Capital Territory and the state of Victoria did adopt U.K.-​style statutory Bills of Rights in 2004 and 2006, but the Labor Party federal government of Australia, under Prime Minister Kevin Rudd, declined to adopt a federal, statutory Bill of Rights in April 2010, even though a National Human Rights Consultation Committee had recommended that it do so.51 Kevin Rudd’s federal Labor government did agree to establish a parliamentary Joint Committee on Human Rights, which reviews Australian legislation before it is passed to avoid human rights violations in the political process.52 Finally, the Framers of the Australian Constitution considered adding a clause that would have mirrored the Privileges or Immunities, the Due Process, and the Equal Protection clauses of the Fourteenth Amendment, but this proposal was rejected. What finally emerged, instead, was a prohibition of discrimination on the grounds of state residence between subjects of the queen. Australia is thus a country with a written Constitution that is enforced by a diffuse system of courts armed with the power of judicial review, but which lacks a Bill of Rights or an analog to the U.S. Constitution’s Fourteenth Amendment. For a valuable discussion of some of Australia’s paradigm cases, see Australian Constitutional Landmarks.53

II.  Judicial Review in Australia Australia has a full and robust body of case law indicating that judicial review is thoroughly entrenched as a major feature of the Australian Constitution. Australia is thus a judicial review success story. The Australian Constitution does not have an explicit Judicial Review clause, but the Framers of the document clearly expected that there would be judicial enforcement of federalism boundary lines as there had been in the courts of the United States and Canada

51 Stephen Gardbaum, The New Commonwealth Model of Constitutionalism: Theory and Practice (2013). 52 Id. at 205. 53 Australian Constitutional Landmarks, supra note 2.

The Commonwealth of Australia  245 prior to 1900.54 The Australian High Court required early on that parties have standing to sue, although it has been more generous in finding standing than the U.S. Supreme Court is.55 High Court judges are appointed in a nonpolitical process and serve for life.56 There are seven justices on the court, and “constitutional cases are usually heard by all available Justices.”57 “Unanimous judgments are rare. Although joint judgments of two or more judges are common, multiple concurring as well as dissenting judgments are routine. Judgments are also very long.”58 It is thus important to emphasize that Mary Sarah Bilder, in her book The Transatlantic Constitution:  Colonial Legal Culture and the Empire59 accurately forecasts the origins of judicial review in the United States but not necessarily in Australia. Bilder believes that it was the status of the thirteen original North American colonies as corporately chartered entities, which led to federalism umpiring judicial review, but, in Australia, the federal sub-​entities under the Australian Constitution Act of 1901 were territories, which could act ultra vires of their delegated powers under the Australia Constitution Act, 1901, and the Colonial Laws Validity Act, 1865. Thus, it was British statutory and constitutional law, and not British corporate law, which habituated the people of Australia to Privy Council federalism umpiring in the twentieth century. This is an important qualification to Bilder’s thesis about the origins of judicial review. Professor Goldsworthy notes that “The [Australian] Constitution itself says nothing about how it should be interpreted” but, in 1900, “British courts tended towards literalism and formalism, whereas the American Supreme Court was widely believed to have adopted a more purposive or even creative approach.”60 The Australian High Court “initially adopted the doctrine of intergovernmental immunities previously developed in American cases such as McCulloch v. Maryland (1819) and Collector v. Day (1871).”61 This use of American purposive or creative interpretation was less concerned with the meaning of the words of the Australian constitutional text than it was “with inferences from unexpressed premises on which the whole federal system was supposedly based.”62 Each level of government—​federal and state—​“was entitled to exercise its powers without any interference or control from the others.”63 “The Court in these early 54 Goldsworthy, supra note 3. 55 Id. at 111. 56 Id. at 112–​13. 57 Id. at 113. 58 Id. at 114. 59 Mary Sarah Bilder, The Transatlantic Constitution: Colonial Legal Culture and the Empire (2004). 60 Id. at 115. 61 Goldsworthy, supra note 3, at 116. 62 Id. 63 Id.

246  The History and Growth of Judicial Review, Volume 1 years held another doctrine, of ‘reserved state powers,’ to be implicit in the federal system.”64 The modern-​day consensus in Australia is that the High Court of Australia in its early years gave too much weight to inapposite American federalism precedents like McCulloch v. Maryland (1819). By 1920, the membership of the High Court had changed, and the new judges voted “to over-​rule the doctrines of implied intergovernmental immunities and reserved state powers”65 in the High Court’s foundational decision in Amalgamated Society of Engineers v. Adelaide Steamship Co Ltd ((1920) 28 CLR 129). The case arose when a union of engineers filed a claim in federal court relating, in part, to three state governmental employers in the state of Western Australia. Several members of the union were state employees so the case raised the question of whether an intergovernmental immunity precluded the lawsuit. The High Court construed the Commonwealth Constitution literally and formally saying that the federal statute on its face applied to all employees private and state and that there was no constitutional structural bar that prevented the federal government from so legislating. This produced the result that the Commonwealth federal government attained a position of primacy vis-​à-​vis the six states, and the case is in many ways similar to the U.S. Supreme Court’s decision in Garcia v. San Antonio Metropolitan Transit Authority (469 U.S. 528 (1985)). In Garcia, the U.S. Supreme Court held that facially neutral federal labor laws applied to state as well as private employees and that there was no implicit constitutional bar, which prevented such applications of federal law. In the Engineers case, the High Court overruled all of its prior intergovernmental immunity cases. Chief Justice Griffin wrote in the Engineers case that: The more the [pre-​1920 pro-​State power Australian High Court] decisions are examined, and compared with each other and with the Constitution itself, the more evident it becomes that no clear principle can account for them. They are sometimes at variance with the natural meaning of the text of the Constitution; some are irreconcilable with others, and some are individually rested on reasons not founded on the words of the Constitution or on any recognized principle of the common law underlying the expressed terms of the Constitution, but on implication drawn from what is called the principle of ‘necessity’, that being itself referable to no more definite standard than the personal opinion of the Judge who declares it.66



64

Id. at 118. Id. at 120. 66 Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. [1920] 28 C.I.R. 129. 65

The Commonwealth of Australia  247 As a result, the High Court overruled these earlier precedents and opted for a formalistic, textualist reading of the Australian Constitution. In the Engineers case, the High Court of Australia also rejected the doctrines of “implied prohibition” and “reserved powers,” which together claimed that neither the Commonwealth nor the states could be affected by the laws of the other. This meant, in practice, that even where the Commonwealth possesses constitutionally valid authority to craft policy, it could not legislate if doing so would interfere with the legislative or executive power of the states (unless the Constitution explicitly provided for such interference), or vice versa. This doctrine had created a sort of reverse supremacy where acts of states could invalidate or bypass legitimately enacted Commonwealth legislation. The first Australian High Court decision to express the implied prohibition doctrine prior to the Engineers case had been D’Emden v. Pedder ((1904) 1 CLR 91). In that case, Chief Justice Griffin had written that: In considering the respective powers of the Commonwealth and of the States it is essential to bear in mind that each is, within the ambit of its authority, a sovereign State, subject only to the restrictions imposed by the Imperial connection and to the provisions of the Constitution, either expressed or necessarily implied * * * a right of sovereignty subject to extrinsic control is a contradiction in terms.

How does the validity of this rule depend on the balance of federalism between the states and the national government? Neither the Australian states nor the Commonwealth were sovereign when the Imperial Parliament adopted the Australian Constitution, nor in 1920 when the Engineers case was decided. The sovereign, in 1901, was the Imperial British Parliament or more specifically Queen Victoria in Parliament with the Lords Spiritual and Temporal and with the House of Commons of the United Kingdom of Great Britain and Ireland. In a part of the Engineers decision opinion, the High Court explicitly rejected the use of American precedents for guidance, instead opting to use rules of statutory interpretation settled in English law. R.T.E. Latham rued the court’s abandonment of “a copious source of thoroughly relevant learning” for “one of the sorriest features of English law.”67 As a Commonwealth nation, Australian law developed out of English legal traditions, not American law. One can fairly wonder whether the court made the right decision in rejecting “foreign” American precedent for traditional English legal rules given the nature of the Australian federal

67 George Winterton et  al., Australian Federal Constitutional Law:  Commentary and Materials 757 (1999).

248  The History and Growth of Judicial Review, Volume 1 constitution, which drew so heavily on the federal United States, Canadian, and Swiss models. The Engineers case is often hailed as a triumph for textualism, literalism, and formalism over more esoteric methods of interpretation based in philosophy, political theory, structure, intent, the ‘spirit’ of the law, or other metaphysical modalities. In decisions like the Indian landmark case, Kesavananda, constitutional courts have sometimes extrapolated constitutional principles from structural and theoretical deductions. The Engineers decision eschews these approaches for an adherence to strict literal textualism and positivism. In a case like this, which is the better approach—​looking to the literal meaning of the constitutional text, or looking beyond it to other values and forms of reasoning? John Hart Ely argues powerfully in Democracy and Distrust: A Theory of Judicial Review68 in defense of the second holding of McCulloch v. Maryland, that the structure of the federal constitution implicitly preempts Maryland’s tax on the Bank of the United States, even in the absence of a congressional statute to that effect. Isn’t the second holding of McCulloch correct, ultimately, and isn’t the Engineers case therefore wrong?69 In the wake of the Engineers case, Australian legal culture required courts to follow closely the words of any legal text they were interpreting and to give them their ordinary meaning.70 Courts also read words in context, holistically, and with attention paid to intra-​textualism, as Professor Akhil Reed Amar has described it.71 The focus in Australian constitutional interpretation is more textual and legalistic and less structural and intra-​textual than in U.S. constitutional interpretation. Former U.S. Supreme Court Justice Antonin Scalia would have found much to his liking in Australia, but a book like Charles L. Black’s Structure and Relationship in Constitutional Law72 would not be written by an Australian legal academic, which is a shame. Professor Goldsworthy writes that “British courts traditionally held that in interpreting a statute, the pre-​existing state of the law, and the historical context in which it was enacted, could be taken into account, but parliamentary debates could not.”73 The Australian High Court generally followed this rule “against directly consulting the [Constitutional] Convention Debates * * * until 1988, although it was occasionally breached before then.”74 Professor Goldsworthy argues that the Australian High Court wrongly “turned s 92 [of the Constitution]



68

John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980). See also Charles Black, Structure and Relationship in Constitutional Law (1969). 70 Goldsworthy, supra note 3. 71 Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747 (1999). 72 Black, supra note 69. 73 Goldsworthy, supra note 3, at 123–​24. 74 Id. at 124. 69

The Commonwealth of Australia  249 into a partial guarantee of laissez-​faire [in holding unconstitutional the nationalization of all the private and state owned banks in Australia in the 1940’s, rather than reading Section 92 as the much more limited prohibition of state protectionism [and of free trade within Australia] that the framers [of the Australian Constitution] had intended” it to be.75 Finally, in Cole v. Whtifield ([1988] HCA 18; (1988) 165 CLR 360), the High Court for the first time ever consulted the Constitutional Convention debates instead of the text of the Constitution, and as a result the court read Section 92 of the Constitution’s guarantee of free internal trade much more narrowly than it had done before and overruled the interpretation of the bank nationalization cases.76 Professor Goldsworthy argues that the Australian High Court is generally wary of structural reasoning, although it acknowledges the existence of such constitutional principles as “federalism, the separation of powers, responsible government, nationhood, and the rule of law.”77 The Engineers case, it turns out, “spelt the end of reserved state powers, but not of implied intergovernmental immunities.”78 “The judges [in deciding these cases] relied on reasoning not dissimilar to that which was rejected in the Engineers’ Case, and American decisions were once again extensively cited.”79 In Melbourne Corporation v.  the Commonwealth (74 C.L.R. 31 (1947)), the Australian High Court held unconstitutional a federal statute that required that the Australian states but not private persons do all their banking business with a federal bank. The High Court correctly recognized, in my view, that this statute discriminated against the Australian state governments in the same way that the Maryland state tax on the Bank of the United States but not on other Maryland banks discriminated against the U.S. federal government in McCulloch v. Maryland. This decision is a correct structural inference, but it limits the pure, hard textualism of the Engineers case on intergovernmental immunities in my view. Australians would deny that this is the case citing both the Engineers case and Melbourne Corporation v. the Commonwealth as being consistent foundational Australian constitutional law cases. The Australian High Court has relied on an “implied nationhood power,” as the U.S. Supreme Court did during the Gilded Age, when it upheld federal power to print paper money and to pass immigration and deportation laws in the wake of the Union’s victory in the Civil War. The U.S. cases on these topics are The Chinese Exclusion Case (1889) upholding the constitutionality of federal



75

Id. at 126 Id. Id. at 128. 78 Id. 79 Id. 76 77

250  The History and Growth of Judicial Review, Volume 1 immigration laws); and Fong Yue Ting v.  United States (1893) (upholding the constitutionality of federal deportation laws). The Australian High Court’s most important structural holding of all time came in 1992, when it held that there is an implied right to freedom of political communication in Australian Capital Television v. Commonwealth (ACTV) ([1992] HCA 1; (1992) 177 CLR 106). The Australian Constitution contains no Bill of Rights and protects only a small handful of individual rights. It contains no Freedom of Speech and of the Press clause, even though the Framers of the Australian Constitution were well aware of the U.S. Constitution’s First Amendment. The Framers of the Australian Constitution sought to blend judicial enforcement of federalism and a rigid, written Constitution—​modeled on the United States—​with responsible parliamentary government, the common law, and no written Bill of Rights—​modeled on the United Kingdom. This combination seems quite strange to Americans today, who are accustomed to vigorous judicial enforcement of rights and lax judicial enforcement of federalism, but it actually made a lot of sense to Australians, Canadians, and citizens of the United Kingdom in the 1890s. Responsible, parliamentary government had by then produced stellar British prime ministers like Disraeli and Gladstone, who could well be trusted to act with discretion. Moreover, the Lockean natural rights individualism that had so influenced Americans in the 1770s and 1780s had given way to the balancing utilitarianism of Jeremy Bentham and John Stuart Mill, while broad Bill of Rights language had been implausibly blamed by Edmund Burke for the French Revolution’s descent into a Reign of Terror. Finally, intellectuals may have been fascinated with Charles Darwin’s theory of evolution and Herbert Spencer’s Malthusian idea of the survival of the fittest, which became predominant in the United Kingdom after the 1870s. Some of them may have been led by Social Darwinism to support eugenics, racism, colonialism, and other allegedly “progressive” creeds in conflict with the Declaration of Independence’s “simplistic” assertion that “All men are created equal.” Indeed, Australia’s Constitution of 1901 contained a Social Darwinist clause explicitly allowing the federal government to adopt different laws for different races of people. Utilitarianism and Social Darwinism died with the overthrowing of the Nazis and the Fascists in 1945, and with the discovery of the evils of the Holocaust. But, in the British Empire of the 1890s, an individualized Bill of Rights enforced by courts seemed like a quaint eighteenth-​century curiosity. “Progress” in the 1890s meant the realization that all rights are relative and must be balanced off against one another. Australians then would have agreed with Jeremy Bentham that “Natural law was nonsense upon stilts,” and they would thus have disfavored Bills of Rights, which made concrete aspects of natural law. The American Framers

The Commonwealth of Australia  251 were pre-​Benthamite Lockeans, which explains why every U.S. state constitution had a Bill of Rights as did the federal constitution too. In Australian Capital Television v.  Commonwealth, the High Court struck down an extremely restrictive campaign finance law that was an incumbent protection measure. The court held that the Australian Constitution implicitly protected freedom of political expression because without that, representative democracy itself could not function. Since the Australian Constitution set up a representative democracy, it must allow for freedom of political expression because otherwise elections would become meaningless. The Australian High Court also found in another case that the common law of defamation in tort law is inconsistent with the implied freedom of political expression, in a case that Professor Goldsworthy says was influenced by, but not as sweeping as, New York Times v. Sullivan.80 See also Thephanous v. Herald and Weekly Times Ltd ([1994] HCA 46; (1994) 182 CLR 104). That case was Lange v. Australian Broadcasting Corporation ([1997] HCA 25; (1997) 189 CLR 520). In Lange, the judges of the High Court delivered a unanimous judgment and held that the “implied freedom of political communication was * * * based on ‘the text and structure of the Constitution’, rather than on representative democracy as an independent principle.”81 The year before in the McGinty case (1996), the High Court rejected a claim that the Australian Constitution guarantees the structural principle that Americans know as one person, one vote. From 1997 on, the legalism and formalism of the Engineers case came back into vogue among a majority of Australian High Court judges, and the structuralism of Australian Capital Television and of Lange was confined to its facts. In addition to relying on textualism and to a very limited degree on structuralism, Australian constitutional law gives weight to precedent, but also sometimes overrules precedent, as happened in the Engineers case itself.82 The High Court “does not engage in ‘prospective overruling’, because it refuses to concede that overruling involves altering legal rights as opposed to declaring what they always have been.”83 This is consistent with the standard common law model of diffuse judicial review. The High Court “from its inception relied heavily on British and American cases, and to a much smaller extent on Canadian ones, and it continued to do so even after the repudiation of American doctrines in the Engineers’ Case.”84 Today, “South African, Canadian, New Zealand and Indian



80

Id. at 145. Id. at 147. Id. at 130. 83 Id. 84 Id. at 135. 81 82

252  The History and Growth of Judicial Review, Volume 1 cases” are also cited “in that order.”85 The court rarely cited academic writing in the past, but it has done so more often recently.86 The High Court has ruled that “Parliament’s powers should be broadly construed” and the Canadian ‘pith and substance’ test, which has cut down as unconstitutional many a federal Canadian statute is rejected in Australia.87 The Commonwealth government attained a monopoly over income taxation in the 1940s, when it “enacted several statutes whose combined operation forced the states to abandon income taxation.”88 This was upheld as constitutional, at a time of national crisis when Australia faced a serious threat of invasion by the Empire of Japan.89 The High Court has very narrowly construed the very few clauses in the Australian Constitution that do explicitly protect individual rights. “Section 80 provides that ‘[t]‌he trial on indictment of any offense against any law of the Commonwealth shall be trial by jury’. The Court has consistently interpreted these words literally, so as to require trial by jury only if the Commonwealth has provided for the charge to be brought by indictment. It can therefore avoid a jury trial, even for a serious offense punishable by imprisonment, merely by authorizing some other mode of prosecution.”90 The Australian Constitution contains both an Establishment clause and a Free Exercise of Religion clause, but the former has been construed to allow government financial assistance to religious schools, which is widespread, while the Free Exercise guarantee was construed not to protect “a person from compulsory military service on the ground of religious objection.”91 “The most important civil liberties case in Australia’s history was decided in favour of unpopular Communists at the height of the Cold War, by the application of orthodox legal principles.”92 The High Court overturned federal legislation outlawing the Communist Party essentially on Bill of Attainder grounds even though there is no Bill of Attainder clause in the Australian Constitution! “Strictly speaking, the Communist Party case involved the characterization of legislation as exceeding [“legislative”] power [by adopting in essence a Bill of Attainder rule], rather than the enforcement of a limitation on power.”93 Professor Goldsworthy notes that “[o]‌ne free-​standing implied principle that the High Court has enthusiastically enforced is that of the separation of powers,

85

Id. Id. at 136. Id. at 136–​37. 88 Id. at 138. 89 Id. 90 Id. at 141. 91 Id. at 142. 92 Id. at 143–​44. 93 Id. at 144. 86 87

The Commonwealth of Australia  253 or at least the separation of judicial power from executive and legislative power. It has always been zealous in protecting the exclusivity and independent exercise of federal judicial power.”94 In Kable v. Director of Public Prosecutions for NSW ([1996] HCA 24; (1996) 189 CLR 51), the “Court held that no state court vested with federal jurisdiction may exercise, even in cases of state jurisdiction, any non-​judicial power that might jeopardize its reputation for independence from the political branches of the state government.”95 The rule announcing that no judicial court may be given any executive powers to exercise was announced in The Boilermakers Case, R. v. Kirby Ex Parte Boilermakers Society of Australia ((1956) 94 CLR 254). The court found that any intermingling of judicial and executive power was an unconstitutional attempt to undermine judicial independence. This is a stricter rule of independence between federal executive agencies and federal courts than the United States has allowed in our own federal administrative law cases! See Crowell v. Benson (1932). The court has also found, in the separation of judicial and nonjudicial power, “some degree of [protection for] ‘procedural due process.’ ”96 The Court evenly divided in Polyukhovich v.  Commonwealth ([1991] HCA 32; (1991) 172 CLR 501) on “whether or not a retrospective criminal law violates the independent exercise of judicial power.” Professor Goldsworthy rightly calls this a kind of substantive due process claim.97 Professor Stephen Gardbaum points out in his chapter on Australia in The New Commonwealth Constitutionalism:  Theory and Practice98 that a National Human Rights Consultation Committee in Australia, appointed by the Labor government of Kevin Rudd, recently recommended to Prime Minister Rudd that Australia adopt a statutory Bill of Rights modeled on the statutory Bill of Rights in place in New Zealand and the Human Rights Act in the United Kingdom. The federal government declined to adopt a federal statutory Bill of Rights in April 2010, but it did enact, in 2011, a federal law that (1) establishes a ten-​member parliamentary Joint Committee on Human Rights that would examine legislation for its impact on human rights, and (2) provides that a statement of compatibility with human rights must be presented to the house of Parliament in which any legislation is introduced.99 The Australian Capital Territory, in 2004, and the Australian state of Victoria, in 2006, have adopted statutory Bills of Rights modeled on the British Human Rights Act.100 94 Id. at 149. 95 Id. 96 Id. 97 Id. 98 Gardbaum, supra note 51. 99 Id. at 205. 100 Id. at 204. See also David Erdos, Delegating Rights Protection: Bills of Rights in the Westminster World 126–​48 (2010) (on Australia and the failure of national bill of rights genesis).

254  The History and Growth of Judicial Review, Volume 1 Slowly, but surely, all the bastions of the nineteenth-​century British model of responsible parliamentary sovereignty and of the primacy of the common law, unbound by any written constitution or Bill of Rights, have fallen. In the common law world, judicial review of the constitutionality of national legislation now exists in some form or another in the United States, the United Kingdom, India, South Africa, Canada, Australia, Israel, and New Zealand. Some countries have more rigid constitutions and Bills of Rights, while others provide more narrowly for only Second Look judicial review. However, no one continues today to follow the traditional Westminster Model—​not even the government of the United Kingdom itself. The origin and growth of judicial review in Australia is explained by the need for a court to umpire among the federal and state institutions of the Australian government and to umpire between the courts and legislative or executive agencies. Australia has also borrowed a lot of constitutional law from the United Kingdom, the United States, Canada, and Switzerland, especially with respect to federalism and with respect to the creation of federal judicial review of the constitutionality of federal legislative and executive actions. For a long time, the federalism umpiring role in Australia was played by the JCPC. Australian judicial review by the JCPC emerged, as Ran Hirschl would predict, due to efforts of a fading British, imperial hegemonic elite to preserve its grip on power via the JCPC. Judicial review also may have grown because two coequal Liberal and Labor Parties wanted to entrench certain rights in the Constitution to protect themselves when they were out of power, as Tom Ginsburg would predict. The High Court reached a pro-​national power outcome in its 1971 decision in Victoria v. Commonwealth. This case arose when the Commonwealth passed a payroll tax on all employers, including state employers.101 The tax was challenged as an unconstitutional burden on the states, but its constitutionality was upheld by the High Court, which recognized that Australian federalism inherently requires the states to give some powers to become part of the federal unit.102 Victoria v.  Commonwealth is yet another example of the High Court umpiring the relationship of between the states and the Commonwealth using the Constitution as authority to do this. The court’s case law under Section 51 (xxix) of the Australian Constitution103 shows the extent of the High Court’s continuing power to define and police Australian federalism through judicial umpiring. In the Koowarta104 case of 101 122 C.L.R. 353 (1971). 102 Id. 103 “The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to. . . . External affairs.” Austl. Const. §51 (xxix). 104 Koowarta v. Bjelke-​Peterson, 153 C.L.R. 168 (1982).

The Commonwealth of Australia  255 1982, the High Court held that the Parliament could enact laws prohibiting racial discrimination throughout the nation in order to give effect to international conventions outlawing racial discrimination.105 In the following year, the court again handed down a decision defining the power of the federal Commonwealth.106 In the Tasmanian Dams case, the High Court upheld federal legislation prohibiting the building of a dam in the state of Tasmania.107 The court upheld the environmentally motivated federal legislation as a valid exercise of the Commonwealth’s external affairs power because the Australian government was a signatory to conventions that mandated environmental protection.108 Prior to the aforementioned decisions, racial discrimination and environmental matters were all subjects that had been thought to fall squarely within the scope of state and not of federal responsibility. The High Court’s federalism umpiring in the 1980s shows that the Australian people continue to accept the court playing that role. In reliance on the High Court’s decisions, the Australian Parliament has enacted wide-​reaching labor legislation109 as well as laws prohibiting direct and indirect discrimination on the grounds of sex110 and disability.111 The High Court has held, however, that the Commonwealth cannot unilaterally enact “a national corporations law”112 (New South Wales v. Commonwealth (1990) 169 CLR 482). But, the most famous High Court and Privy Council rulings limiting the power of the Australian federal government came in the years immediately after 1945. The post–​World War II Labor government of Australia pushed the envelope of federal power by adopting the Banking Acts of 1945 and of 1947. The Banking Act of 1947, in particular, nationalized all of Australia’s banks and required them “to transfer their assets and business to the Commonwealth Bank, ensuring to the latter a virtual monopoly over Australian banking.”113 The cases arising from this crisis remain important today in terms of their ongoing importance in Australian federalism. As Peter Johnston explains, “Prior to 1947, relations between Labor governments and the private banks had often been strained, particularly after the establishment of the Commonwealth bank by the Fisher Government in 105 Id. 106 Commonwealth v. Tasmania, 158 C.L.R. 1 (1983). 107 Id. 108 Id. The Convention for the Protection of World Cultural and Natural Heritage was adopted by UN-​ESCO in 1972 and was ratified by Australia in 1974. 109 Industrial Relations Reform Act 1993 (Cth). 110 Sex Discrimination Act 1984 (Cth). 111 Disability Discrimination Act 1992 (Cth). 112 Id. at 235. 113 Peter Johnston, The Bank Nationalization Cases:  The Defeat of Labor’s Most Controversial Economic Initiative, in Australian Constitutional Landmarks 85 (H.P. Lee & George Winterton eds., 2010).

256  The History and Growth of Judicial Review, Volume 1 1911.”114 During the depths of the Great Depression “in the early 1930s,” Labor had objected to the insistence of London-​based banks that interest be paid to them “in priority to social welfare measures for the unemployed.”115 Labor had also “espoused bank nationalization in the 1920s as a plank in its political platform.”116 When the Labor Party came to power during the post–​World War II period, it resolved to do something to diminish the power of the banks. The government began by passing the Banking Act of 1945. Peter Johnston explains that this act “represented the first comprehensive measure to establish the Commonwealth Bank as a federal central bank.”117 The act required that the Australian state governments henceforth use the federal Commonwealth Bank for all their banking business. The High Court of Australia held the Banking Act of 1945 unconstitutional in so far as it singled out the states and compelled them to use the Commonwealth Bank (Melbourne Corporation v. Commonwealth (1947) 74 CLR 31). The court said that the national government could not use its enumerated powers under Section 51 of the Australian Constitution in a way that: (1) denies the existence or ability of a state to govern itself, or (2) use its enumerated power in a way that singles out the states.118 The post–​World War II Labor government of Australia struck back against the banks and the High Court by passing the “more radical and pervasive” Banking Act of 1947.119 Under this law, Peter Johnston explains that “[i]‌n effect, the private banks would be nationalized and in their place the Commonwealth Bank would be granted a statutory monopoly to conduct banking operations in Australia.”120 The High Court of Australia in Bank of New South Wales v.  Commonwealth ((1948) 76 CLR 1) struck down the bank nationalization on two grounds as Peter Johnston explains. First, the High Court construed Section 92 of the Australian federal Constitution as guaranteeing the freedom of interstate trade and commerce and as protecting not only against state laws that discriminated against commerce (like U.S. Dormant Commerce clause cases) but also against federal laws that interfered with the positive right of private banks to engage in the business of interstate banking. Section 92 was thus read not only to be a dormant commerce clause but also to be a constitutional right to laissez-​faire. This holding was eventually overturned in Cole v.  Whitfield ((1988) 165 CLR 360), which confined

114 Id. at 87. 115 Id. at 87. 116 Id. at 88. 117 Id. at 88. 118 In the recent case of Austin v. Commonwealth (2003) 215 CLR 185, the High Court combined this two-​part test into a single test that asks if a national law affects a state’s ability to govern itself. 119 Id. at 89. 120 Id.

The Commonwealth of Australia  257 Section 92 to the protection only of free trade although the issue remains controversial down to the present day. Second, the majority in Bank of New South Wales v. Commonwealth ((1948) 76 CLR 1) also based its invalidation of the Banking Act of 1947 on the ground that it exceeded the national government’s Section 51 (xxxi) power to acquire property because the action was not undertaken on just terms. Quite amazingly, the post–​ World War II Labor government of the Commonwealth of Australia appealed the case from the Australian High Court to the Judicial Committee of the Privy Council sitting in London in the United Kingdom as the highest court in the British Empire of which the Labor government must still have thought Australia belonged to! The Labor government’s case defending the nationalization of the private banks in Australia was argued before the JCPC for thirty-​seven days during which time two of the Law Lords died! The JCPC eventually announced both that it did not have jurisdiction over the case and also that it agreed with the High Court’s construction of Section 92 although it formulated the test under that section somewhat differently than had the High Court of Australia.121 Their Lordships of the Privy Council’s reformulation of Section 92 of the Australian Constitution was governing Australian constitutional law until it was overruled by Cole v. Whitfield. The post–​World War II Labor government that had enacted the bank nationalizations lost power in the next Australian elections held after the Bank of New South Wales case, in part, because of its losses in the courts on the bank nationalization issue. The High Court of Australia’s case law construing the Australian Commerce clause122 also shows the High Court’s active role as a federalism umpire. While the U.S. Supreme Court has historically shied away from finding any limits to the U.S. Commerce clause,123 the Australian High Court has umpired the boundaries of Section 51(i) of the Australian Constitution quite vigorously.124 In Wragg v. New South Wales, the Australian High Court noted that the line between interstate trade and domestic trade of a state may be “artificial and unsuited to modern times.”125 However, as the distinction is present in the Australian Constitution, the court will distinguish between the two.126 The High Court stayed true to this pledge and scholars note that “[t]‌he Australian jurisprudence . . . shows that, in a system which divides powers between the center and the regions in much the same way as the United States, 121 Australian Constitutional Landmarks, supra note 2, at 96. 122 Australian Constitution section 51(i) gives the legislature power to legislate “with respect to . . . Trade and commerce with other countries, and among the States.” 123 But see NFIB v. Sebellius, 567 U.S. _​_​_​(2012). 124 Greg Taylor, The Commerce Clause—​Commonwealth Comparisons, 24 Boston Col. Int. & Comparative L. Rev. 235, 245–​50 (2001). 125 (1953) 88 C.L.R. 353, 385. 126 Id.

258  The History and Growth of Judicial Review, Volume 1 lines can be drawn between inter-​state commerce and everything else.”127 The High Court has distinguished federal trade and commerce, which the national government can regulate, from production, which it cannot regulate,128 and the High Court requires a direct connection between trade and commerce and production before the legislature can regulate production under 51(i).129 This is a much more state protective approach than that the U.S. Supreme Court has taken with respect to the U.S. Commerce clause in such landmark cases as United States v. Darby130 and Wickard v. Filburn.131 Those U.S. constitutional cases, however, may be more explained by the U.S. Constitution’s Necessary and Proper clause than by its Commerce clause. The case law in this area shows that notwithstanding the Engineers case and its progeny wherein the High Court has sided with the national government, there remain nonetheless some very important cases where the High Court has sided with the Australian states. The High Court is thus not a biased arbiter of Australian federalism controversies, in the way that the U.S. Supreme Court was between 1937 and 1995. Professor Goldsworthy writes that “British courts traditionally held that in interpreting a statute, the pre-​existing state of the law, and the historical context in which it was enacted, could be taken into account, but parliamentary debates could not.”132 The Australian High Court generally followed this rule “against directly consulting the Convention Debates . . . until 1988, although it was occasionally breached before then. . . .”133 Professor Goldsworthy argues that the Australian High Court wrongly “turned s 92 [of the Constitution] into a partial guarantee of laissez-​faire, rather than the much more limited prohibition of state protectionism that the framers had intended.”134 Finally, in Cole v. Whitfield ([1988] HCA 18; (1988) 165 CLR 360), the High Court consulted the Convention Debates and read Section 92 much more narrowly as being only a dormant commerce clause provision and not as being an affirmative Australian constitutional law right to laissez-​faire government.135 The Framers of the Australian Constitution sought to blend judicial enforcement of federalism with a rigid, written Constitution—​on the model of the United States—​with responsible parliamentary government, the common law, and no written Bill of Rights—​on the model of the United Kingdom in 1901. This Australian combination of federalism judicial umpiring with no judicial

127

Taylor, supra note 124, at 250. O’Sullivan v. Noarlunda Meat Ltd. (1954) 92 C.L.R. 565, 594. Taylor, supra note 124, at 248. 130 312 U.S. 100(1941). 131 317 U.S. 111(1942). 132 Goldsworthy, supra note 3 at 123–24. 133 Id. at 124. 134 Id. at 126. 135 Id. at 126. 128

129

The Commonwealth of Australia  259 protection for individual rights seems quite strange to Americans today who are accustomed to vigorous judicial enforcement of rights and lax judicial enforcement of federalism, but it actually made a lot of sense to Australians, Canadians, and citizens of the United Kingdom in the 1890s. Responsible, parliamentary government had by then produced stellar British prime ministers like Disraeli and Gladstone who could well be trusted to act with discretion. Moreover, the Lockean natural rights individualism that had so influenced Americans in the 1770s and 1780s had given way to the balancing utilitarianism of Jeremy Bentham and John Stuart Mill. Finally, as I  have said in prior chapters, intellectuals in 1900 in Australia, the United Kingdom, and throughout the Western world were fascinated with Charles Darwin’s theory of evolution and of the survival of the fittest. Some of them were led by Darwin to support eugenics, racism, colonialism, and other allegedly “progressive” creeds in conflict with the Declaration of Independence’s Enlightenment assertion that “All men are created equal.” Utilitarianism, Social Darwinism, and Colonialism died with the overthrowing of the Nazis and the Fascists in 1945 and with the discovery of the evils of the Holocaust. But, in the British Empire of the 1890s, an individualized Bill of Rights enforced by courts seemed like a quaint eighteenth-​century curiosity. “Progress” in the 1890s meant the realization that all rights are relative and must be balanced off against one another and that not all men are created equal. Many intellectuals in 1900 did not believe that “all men are created equal, even though in the 1780’s and 1860’s in the United States elites and individuals did believe this. We all obviously think today, in 2020, that Social Darwinism is a gravely mistaken idea and that protections for human dignity and equality must be absolute. Since the adoption of the International Declaration on Human Rights in 1948, almost all intellectuals have believed again that all human beings are born free and equal, as the Massachusetts Constitution of 1780 proclaimed. The High Court has very narrowly construed the very few clauses in the Australian Constitution that do explicitly protect individual rights, thus emphasizing the fact that it is first and foremost a federalism umpire. Professor Stephen Gardbaum points out in his chapter on Australia in The New Commonwealth Constitutionalism:  Theory and Practice136 that a National Human Rights Consultation Committee in Australia appointed by the Labor government of Kevin Rudd recently recommended to former Prime Minister Rudd that Australia adopt an individual rights protecting statutory Bill of Rights modeled on the statutory Bill of Rights in place in New Zealand and on the Human Rights Act in the United Kingdom. But, the federal government of Australia declined



136

Gardbaum, supra note 51, at 204–​21.

260  The History and Growth of Judicial Review, Volume 1 to adopt a federal statutory Bill of Rights in April 2010. Apparently, modern-​day Australians are still quite content to have their High Court be only a federalism and a separation of powers umpire while playing no role at all in protecting entrenched individual rights. The federal government of Australia did enact, in 2011, a federal law that: (1) establishes a ten-​member parliamentary Joint Committee on Human Rights that would examine legislation for its impact on human rights; and that (2) provides that a statement of compatibility with human rights must be presented to the house of Parliament in which any legislation is introduced.137 Moreover, as we mentioned earlier, the Australian Capital Territory, in 2004; and the Australian state of Victoria, in 2006, have also adopted statutory Bills of Rights modeled on the British Human Rights Act.138 But nationwide, Australia continues to view the High Court as being only a federalism and separation of powers umpire and not a Bill of Rights protecting body. Slowly, but surely, all the bastions have fallen of the nineteenth-​century British model of responsible parliamentary sovereignty under the common law, unbound by any written Constitution, or Bill of Rights, and unbound by any equal protection clause. In the common law world, judicial review now exists in some form or another in the United States, the United Kingdom, India, South Africa, Canada, Australia, Israel, and New Zealand. Some countries have more rigid constitutions and Bills of Rights, and others provide more narrowly for only Second Look judicial review. But, no one continues today to follow the traditional Westminster model—​not even the government of the United Kingdom itself. The text of the Australian Constitution, the intentions of its Framers, and the High Court’s case law, since 1902, all make it clear that the birth of judicial review in Australia came about, and has been maintained, by the need for an umpire in federalism and separation of powers cases. In Australia, as in the United States, the European Union (EU), and Germany, federalism and separation of powers umpiring and judicial review have tended to go together hand in hand. In Australia as in Canada, a significant precedent for the High Court’s role as a federalism umpire can be found in the role played by the Judicial Committee of the Privy Council of the British Imperial government. That court was a federalism umpiring body mediating disputes between the national government of Australia and the six Australian states. Other factors that have played a role in the emergence and maintenance of Australia judicial review include borrowing from the United States; fading elite hegemonic preservation by imperial British elites in 1901; and Professor Tom Ginsburg’s intuition that judicial review is retained

137 138

Id. at 205. Id. at 204.

The Commonwealth of Australia  261 and grows in power for “insurance and commitment” reasons, even though that is not why it originates. The traditional elite in Australian history had been the colonial British government, but the Constitution Act and the creation of the High Court disempowered that traditional elite as opposed to hegemonically preserving its power. Australian judicial review grew out of the culture of JCPC resolution of federalism disputes and out of the need for an Australian umpire in federalism and separation of powers disputes that could replace the Privy Council. * * * The origins and growth of judicial review in Australia is explained most importantly by the need for a constitutional umpire to decide federalism and separation of judicial power cases. It thus supports the prior writings mentioned in the introduction of myself, and of Professor Martin Shapiro, Professor Mauro Cappelletti, and Professors Barry Friedman and Erin Delaney. Judicial review in Australia did not emerge for rights from wrongs reasons. Judicial review in Australia was quite consciously borrowed from the United States and Canada, both of which had federalism judicial review when the Constitution of Australia was enacted in 1901. Australia also borrowed the idea of holding popular referenda from Switzerland. Imperial British elites sought to entrench hegemonically their fading power by providing for JCPC judicial review in London of rulings of the High Court of Australia and of its states—​as Ran Hirschl’s theory about the origins of judicial review suggests. Finally, the two main parties—​the Liberal Party on the Right and the Labor Party on the Left have undoubtedly kept judicial review going and have let it grow for insurance and commitment reasons as Professor Tom Ginsburg suggests. All the theories about what causes the origination and growth of judicial review are evident in the Australian case.

Chapter Seven

The Union of India: Umpiring and Rights from Wrongs I have now studied three common law countries, the United States, Canada, and Australia, and I consider here the legal system and the origins and the growth of judicial review in India, the most populous common law country in the world. India has a population of 1,352 billion people, and its population is forcasted to exceed China’s fairly soon. I address India in this order only because the United States achieved independence in 1783; Canada became a Dominion of the British Empire in 1867; Australia became a Dominion in 1901; and India became a Dominion in 1935 when the British Parliament passed the Government of India Act, 1935. That act, which almost completely became the basis for the federalism and separation of powers provisions of India’s post-​independence Constitution, played a huge role in the history of India. The Constitution of India was written with the prior U.S., Canadian, and Australian Constitutions in mind. India differed from Canada and Australia when its new Constitution of 1950 included an American-​style Bill of Rights that was meant to be enforced by judicial review of the constitutionality of legislation. The Indian Constitution also borrowed the idea of Directive Principles from the Irish Constitution, which also predated the Indian Constitution and which contained positive entitlements for the people to social-​welfare rights from their government. The Framers of the Constitution of India intended for the Directive Principles to be non-​justiciable, but the Supreme Court of India has ignored the original intention, and it does itself enforce the text of the Directive Principles. In doing this, the Supreme Court of India has developed comparative constitutional law in new and in very important ways. India, today, has a very active system of diffuse judicial review of national legislative and executive acts, and of state and territorial acts. The Supreme Court of India may well be the most powerful such court in the world. And, it is backed up by state and regional High Courts that also have the power of judicial review. The Supreme Court of India not only has the power to hold unconstitutional amendments to the Indian Constitution; it also has the power to pick new Supreme Court justices!

The History and Growth of Judicial Review, Volume 1. Steven Gow Calabresi, Oxford University Press (2021). © Steven Gow Calabresi. DOI: 10.1093/oso/9780190075774.003.0008

264  The History and Growth of Judicial Review, Volume 1 The Supreme Court of India is thus a self-​perpetuating body: kind of like a law school faculty. The story of how India came to have such a powerful Supreme Court is thus of special importance. Before turning to judicial review in India, it is necessary to note some background facts about the country, as well as to discuss its long and important history. The Republic of India is the second most populous and the seventh largest country territorially in the world. India has the tenth largest economy in the world, and it has recently experienced rapid economic growth. India is the second most population dense of the G-​20 nations, and according to the U.N., it ranks 33rd out of more than 244 nations in population density. India’s GDP per capita ranks only 116th in the world according to the IMF. It is the most populous democracy in the world, and it has been a continuous democracy since it achieved independence from Britain in 1947, except for a short period of emergency rule during the 1970s under Indira Gandhi. India has “the longest surviving constitution in Asia next only to Japan.”1 It also has the longest constitution in the world.2 In 2020, the economy of India was the fifth largest in the world by nominal GDP. Following market-​based reforms introduced in 1991, India became one of the world’s fastest growing economies. The current prime minister of India, Narendra Modi, was elected to office on a platform to further and deepen the market-​based reforms of 1991, and under his leadership India has made major economic progress. The country continues to struggle with corruption and poverty and with Hindu extremism against an Islamic minority. India possesses nuclear weapons, as does its archrival Pakistan, and many world experts consider the border between those two powers to be the most dangerous in the world. India ranks fifth in military expenditures of all the countries in the world, which is astonishing for a country with so much poverty. It is, however, both understandable, and justified, given India’s simmering tensions with such militant and aggressive bordering countries as Pakistan and China—​both of which have nuclear weapons. As a constitutional matter, India is a federation with twenty-​eight states and eight Union territories, with an all-​powerful central government. It is a British-​ style parliamentary democracy with a prime minister who is responsible to the lower house of the legislature. India has a president who is the ceremonial head of state and who can also dissolve state parliaments by emergency proclamation.

1 Mahendra Pal Singh, India, in How Constitutions Change:  A Comparative Study 169 (Dawn Oliver & Carlo Fusaro, eds., 2011). 2 Id.

The Union of India  265 Notwithstanding India’s parliamentary system of government, the country also has a judicially enforceable set of fundamental rights, such that Parliament is neither sovereign nor supreme, as it used to be, and may still be, in the United Kingdom. The Supreme Court of India has the last word on all constitutional questions, and India is a country where the term “judicial supremacy” accurately describes India’s constitutional regime. India is more than 79.8 percent Hindu and 14.2 percent Muslim. It recognizes twenty-​ one scheduled languages, with Hindi and English being the two official languages. Understanding why constitutional democracy and judicial review works in India is important and requires some consideration of the country’s very long history and the legacy of British rule. Four very useful accounts, which I have relied upon heavily in this chapter are books by Bruce Ackerman, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law; Abhinav Chandrachud; An Independent Colonial Judiciary: A History of the Bombay High Court during the British Raj, 1862–​1947; A. Berriedale Keith, A Constitutional History of India: 1600– 1935 (1936), as well as Arun K Thiruvengadam’s book, The Constitution of India: A Contextual Analysis (2017).3 For a comprehensive overlook of all of Indian constitutional law, see the newly published massive treatise by Sujit Choudry, Madhav Kosla, and Pratap Bhanu, The Oxford Handbook of the Indian Constitution.4

I.  History of the Union of India Before discussing the origins and growth of judicial review in India, it is necessary to say something about the country’s history. I  therefore begin with a brief summary of the history of India. I rely here principally on Hermann Kulke and Dietmar Rothermund’s book, A History of India; and on Bruce Ackerman’s book on Revolutionary Constitutions, which I  mentioned above. Kulke and Rothermund have written a superb history of the country of India, which is useful for my limited purposes here. The history in Ackerman’s book is especially useful in describing the origins and growth of judicial review in India. India’s history, prior to 1947, can be crudely divided into three periods: Hindu, Islamic, and British.5 The civilization of ancient India dates back to the third and fourth millennia BC, and emerged as the third major early civilization in the world, after the civilizations of ancient Egypt and of Mesopotamia.6 The holy 3 Abhinav Chandrachud, An Independent Colonial Judiciary: A History of the Bombay High Court during the British Raj, 1862–​1947 (2015). 4 Sujit Choudry, Madhav Kosla, & Pratap Bhanu, The Oxford Handbook of the Indian Constitution 1–​1031 (2016). 5 Hermann Kulke & Dietmar Rothermund, A History of India xvi (5th ed. 2010). 6 Id. at 1.

266  The History and Growth of Judicial Review, Volume 1 texts called Vedas emerged in Sanskrit during the second millennium BC, as did the Hindu caste system.7 Under this system, people are classified from birth as being (1) Brahmins, that is, priests; (2) Kshatryas, that is, warriors; (3) Vaishyas, that is, merchants; or (4) Shudras, that is, workers who do work that is ritually unclean. Intermarriage among members of different castes was historically forbidden. Northern India was conquered in the 1200s and 1300s; and from 1526 to 1707, India was dominated by the Mughal Empire—​an Islamic empire that originated with people invading India from Central Asia from 1200 on. The Mughal Empire dominated much of India, especially in the north, for two centuries. The Mughal Empire was oriented toward Persian culture, and its greatest monument is undoubtedly the Taj Mahal, which was built between 1632 and 1648. Kulke and Rothermund say the Great Mughals raised enormous armies, but they did not even realize that they needed a navy.8 They add perceptively that “India did not conceive of the peripheral foreigners [from Western Europe] as a serious threat as did Japan, which adopted a policy of deliberate isolation.”9 Portugal dominated international trade with India throughout the sixteenth century, until the Dutch and then the English appeared on the scene via the Dutch East India Company, which was created in 1602; and the British East India Committee, which was created in 1600. The Mughals were happy at first that the Portuguese had some trade rivals.10 The Dutch eventually focused their attention on the spice islands of Indonesia, which they ruled as the Dutch East Indies until 1945, but the British and then the French focused on trade with India.11 The French lost all of their extensive holdings in colonial India during the Seven Years War (1756–​1763), which also cost them the province of Quebec in Canada. The British acquired all the holdings, which France lost, as well as acquiring Spanish Florida, some Islands in the Caribbean in the West Indies, and the country of Senegal on the West African coast. The Seven Years War between the British and the French was the first world war in human history, and it was fought on four continents: Europe, North America, Asia, and Africa. It ended with a decisive victory for Britain, which drove the French permanently out of all of North America and all of India. Britain acquired a Second 7 Id. at 19. 8 Id. at 149–​55. See also Arun K Thiruvengadam’s book, The Constitution of India: A Contextual Analysis 13-​15 (2017). 9 Id. at xxi. 10 Id. at 158–​59. Thiruvengadam, supra note 8 at 13-​15. 11 Kulke And Ruthermund, supra note 5 at 160, 166–69.

The Union of India  267 British Empire in Canada and India, as a result of this war, which replaced the First British Empire of the thirteen North American colonies, which Britain had lost in 1783 as a result of the American Revolution. The Second British Empire at the height of its power also included Australia, New Zealand, South Africa, and much of both East and West Africa as well as Zimbabwe, islands in the Caribbean, Gibraltar, St. Helena, the Falkland Islands, and Hong Kong. The British were determined not to make the same mistakes in governing their Second Empire, as they had made in losing their First Empire at the Battle of Yorktown. The British East India Company conquered Bengal in 1757, under Robert Clive. The East India Company fought its battles and won its conquests with Indian mercenary troops, at no cost to British taxpayers.12 The best book I have been able to find on the court system of India from the days when it was controlled by the British East India Company (BEIC) up through the adoption of the Government of India Act, 1935 is A. Berriedale Keith, A Constitutional History of India: 1600–1935 (1936). Keith was a Barrister of the Inner Temple of the Inns of Court whose 868 page book published in 1936 offers a thorough, if unimaginative, positive account of the Indian government and court system under British rule from 1600 to 1935. Keith explains that the BEIC was a special corporation, which could issue currency and which worked with royally chartered courts in Madras, Bombay, and Calcutta from September 24, 1726 on. Astonishingly, the decisions of these three British courts in India were appealable to the King in Council, the predecessor of the Judicial Committee of the Privy Council, which was not created until 1833. Initially, at least “The judicial development of India took place largely without the advantage to be derived from the supervision of the judicial activities by the Privy Council,” given the costs and delays of filing appeals between 1726 and the 1830’s.13 “In 1833 the Judicial Committee was formally constituted as an effective Court of Appeal with the provision for the inclusion therein of members of members with experience of overseas jurisprudence. Rules were provided under the Act, a new set in 1888 reducing the amount at stake [for the JCPC to have jurisdiction] to 10,000 rupees.”14 The rule of India by the BEIC came to an end with the Sepoy Mutiny of 1857. This was a nationwide rebellion, which it took the British army and navy a full year to suppress. From then on all courts in India were British imperial courts. Some BEIC subsidiary courts had PREVIOUSLY co-existed with the royal courts. Those courts and the BEIC, itself, were abolished. India would henceforth be run by the British government.

12

Id. at 176. See A. Berriedale Keith, A Constitutional History of India: 1600–1935 at 18, 74, 154 (1936). 14 Id. at 155. 13

268  The History and Growth of Judicial Review, Volume 1 Britain criminalized and eliminated the barbaric Hindu practice of suttee whereby widows were burned on their husband’s funeral pyre. But, British colonial rule was also, itself, racist, exploitative, and unjust. Happily, the Indian Constitution of 1950 is based on core Enlightenment values and not on Social Darwinist values. The British Raj, which came to power in 1857, after the Sepoy Mutiny, was a complicated project for a nation that had never set out to conquer India, but which suddenly found itself in possession of, and responsible for, the governance of the whole Indian subcontinent, as Kulke and Rothermund explain. I  must stress that British India included not only the current country of India, but also the two Islamic countries of Pakistan and Bangladesh and the Buddhist country of Myanmar, which the British called Burma. Queen Victoria became the empress of India, in 1876, thanks to Prime Minister Benjamin Disraeli.15 From 1833 onward, the Judicial Committee of the Privy Council (JCPC) always used Indian-​trained Hindu or Islamic judges in deciding cases from India that involved those two religions, as is explained by P. A. Howell in The Judicial Committee of the Privy Council 1833–​1876:  Its Origins, Structure and Development.16 This is important because in most of the years between 1833 and 1950, a huge majority of the thousands of cases heard and decided by the JCPC were cases that came from somewhere in British India. Hindu and Islamic judges, and ex-​colonial Indian judges, who were barristers, played a major role in deciding all of these tens of thousands of appeals to the JCPC from 1857 until Indian independence on August 15, 1947. Britain had to govern the Indian subcontinent with great discretion to keep the millions of Hindus, Muslims, and Buddhists in British India from fighting among themselves. It is a testament to the work Britain did in India that it avoided any civil wars between 1857 and 1947. Another testament to the work the British did in India is that they converted a feudal, caste-​based society to Enlightenment values, and they left behind them a highly successful constitutional democracy in India, itself. Upon assuming direct control, in 1858, of the Indian Empire, Kulke and Rothermund note that the British recognized immediately that they would need a fig-​leaf legislature to advise the viceroy, or royal governor of India, and the British created such a legislative body with members who were nominated by the viceroy, 17 and who consisted of British civil servants and a few native people from British India, who the British had confidence in.18In practice, the viceroy’s powers were essentially unlimited,19 but, the British did establish 15 Id. at 194. 16 P. A. Howell, The Judicial Committee of the Privy Council 1833–​1876: Its Origins, Structure and Development (1979). 17 Kulke & Rothermund, supra note 5. Thiruvengadam, supra note 8 at 16-​18. 18 Kulke and Ruthermund, supra note 5, at 195. 19 Id. at 195–​209.

The Union of India  269 “[t]‌hree independent High Courts in Bombay, Calcutta, and Madras,” which were staffed with British and native Indian judges as is described in more detail by A. Berriedale Keith.20 These courts could be used to challenge the legality of government actions, and appeals from the High Courts of India could be, and in tens of thousands of cases were, appealed to the JCPC sitting in London in the United Kingdom. The JCPC retained expert judges in Hindu and Islamic law to ensure that these cases were decided correctly. The Sepoy Mutiny of 1857 ended the rule of India by the British East India Company and direct British rule took its place. The British established shadow legislatures and governments but held them tightly under their thumb . By 1865, the British had established the first of the various British High Courts discussed earlier, which courts would hear cases ab initio, and also appeals, from the Indian local courts. The High Court of Calcutta was the first such British court to be established, and the British Parliament created it on July 1, 1862, under the High Courts Act, 1861. Queen Victoria then established two additional High Courts in Madras, and Bombay by Letters Patent in 1865. Decisions from all three of these original High Courts were appealable to the JCPC in London. In many years, appeals from India outnumbered all of the other appeals put together from all over the world, on the Privy Council’s docket, at a time when the JCPC was also hearing cases from Canada, Australia, New Zealand, Hong Kong, and most of Africa with an empire, which included one-​ fourth of the world. The JCPC used highly trained experts in Hindu and Islamic law in deciding its cases, and it developed a superb reputation. When the independent Supreme Courts of India and Pakistan first met, the Supreme Courts in both countries began their first sessions by adopting resolutions of praise for the good work the JCPC had done. This is astonishing in many ways. It is important to note that the JCPC, as the highest court in the British Empire was the agent of Queen Victoria. It possessed all of Queen Victoria’s prerogative, judicial powers over India to hear appeals from the High Courts in cases or controversies. The JCPC thus engaged in federalism umpiring for India just as it had done for the United States, Canada, and Australia. It thus familiarized the Indian people with federalism umpiring judicial review in which an imperial court reins in colonial subunits for acting ultra vires. The JCPC also stood in for the British monarch when a subject exercised his time-​honored right to go to the foot of the throne and ask for justice to be done in his particular case. The JCPC’s prerogative powers were taken up in whole by the Supreme Court of India, which is quite possibly the most powerful Supreme Court in the world as I explained earlier.



20 Keith, supra note 13, at 203–209.

270  The History and Growth of Judicial Review, Volume 1 The legislature of colonial India adopted a systematic and comprehensive code of the common law, of the kind Jeremy Bentham had argued for, but which never got passed in the United Kingdom itself. The British codified the common law, in India, as a way to help transplant it as a foreign system of law into India.21 This transplantation effort, using codes of the British common law, was a stunning success. It is particularly ironic since a key feature of the common law in almost all other common law countries in the world, including the United Kingdom, is that the common law is traditionally uncodified, judge-​made case law. The British ruled directly in Bengal, but it is important to note in the British Empire in India, there were literally, 562 princely states, or native states, which were not formally under British rule, although they relied on Britain for military and foreign affairs purposes. These so-​called princely states all became part of either India or Pakistan after the end of British rule and the partition of the Indian subcontinent in 1947. Professor Ackerman’s account of the growth of the movement for independence in India by recounting the history of the Congress Party in that country is superb. Professor Ackerman observes that the Congress Party originated in the late nineteenth century, as an organization of pro-​British, classical liberal native members of the elite in Indian society.22 It served as a vehicle from the beginning by which citizens of India were able to serve in government councils, legislative bodies, and executive and judicial positions. Faced with continuing demands for democratic self-​ rule, Kulke and Rothermund note that the British passed an Act of 1909, which was supported by minority Muslim electorates, which divided Hindu-​Muslim unity against British Imperial rule by allowing the Muslims to have separate electorates under a principle called diarchy. Twenty-​five percent of the seats in councils, and in the imperial legislature, were reserved for Muslims, even though they did not account for 25 percent of the population of British India. Only Muslim voters could vote for the representatives in the reserved Muslim seats, which meant the creation of separate Hindu and Muslim electorates. A new Government of India Act, 1919, was ultimately passed to establish the disastrous system of “diarchy” throughout British India and not just in certain areas. “Diarchy” in British India referred to the system of shared rule by Hindu and Muslim electorates. It was formally established for all of India by the Government of India Acts of 1919 and 1935, which devolved some powers to local councils that had included native Indian representation since 1892.

21 Id. 22 Bruce Ackerman, Revolutionary Constitutions:  Charismatic Leadership and the Rule of Law (2019).

The Union of India  271 According to Kulke and Rothermund, the effect of the reserved seat system was that it encouraged Hindu and Muslim extremism, since Muslims need not (and could not), appeal for Hindu votes, and Hindus need not (and could not), appeal for Muslim votes. The whole system was a disaster because it set Indian Hindus against Indian Muslims. The net result was that when Britain gave India its independence in 1947, the country immediately split into Hindu India and Muslim Pakistan, which two countries have been at each other’s throats ever since. Muslim Pakistan then split further into the two predominantly Islamic countries of Pakistan and Bangladesh, in 1971. Professor Ackerman notes that in 1915, Mahatma Gandhi returned to British India after living in South Africa for more than twenty years where he had waged a campaign of nonviolent, non-​acquiescence in racist laws in South Africa.23 Mahatma Gandhi was born in 1869, and he was educated in London. Over time, he became a brilliant leader of the campaign for Indian independence. Gandhi had fought, for the British, in the Boer War before he became an advocate of nonviolence. He had remained in South Africa for a long time after the Boer War, leaving only in 1915. In South Africa, Gandhi had been subjected to the South African class system, which included: (1) the British; (2) those of mixed race; (3) Asian Indians, like Gandhi, living in South Africa; and (4) the native oppressed black African population. As a veteran of the British Army and a Barrister trained at the U.K. Inns of Court, Gandhi was incensed by the racial discrimination he encountered, but the passage of time had caused him to become a pacifist who espoused nonviolent resistance to racism. Gandhi followed these tactics for some time while living in South Africa, where his legacy would later inspire Nelson Mandela. Gandhi was encouraged in his nonviolent, pacifist resistance by the famous Russian author Leo Tolstoy, with whom he exchanged many letters, which are available on the internet. Gandhi led strikes and was imprisoned by the British, but he never resorted to violence. His campaign of nonviolent, passive resistance brought the British Empire in India to its end in 1947. It also helped to inspire Dr. Martin Luther King Jr. to fight segregation with nonviolence in the United States. Gandhi thought that India’s villages were its true core, and he adamantly opposed the strong federal government championed by his friend and ally Jawaharlal Nehru, who was one of a small group of leaders of the Congress Party, which first led the struggle for Indian independence; and, then, second, led the effort to write the Indian Constitution.



23

Id. at 56.

272  The History and Growth of Judicial Review, Volume 1 In 1921, Gandhi was elected president of the Congress Party, and he continued his campaign to turn it into a nonviolent, revolutionary movement. Gandhi never fully succeeded in doing this. As Ackerman explains, Gandhi resigned as president of the Congress Party, in 1929, passing it on to his more political, assertive, and nationalist ally Jawaharlal Nehru.24 In 1934, Gandhi resigned his membership in the Congress Party altogether, although he continued to be jailed for short periods of time for refusing to acquiesce in British racist laws. From 1929 on, Nehru turned the Congress Party from being merely a protest movement into being a mass movement with revolutionary aims, according to Ackerman.25 Under Nehru, the Congress Party ran candidates for all the seats in the legislative bodies created by the British Government of India Act 1935. Ackerman says, “membership skyrocketed from 500,000 in 1935 to 4.5 million in 1938.”26 As a result, the Congress Party became what Ackerman calls “a hegemonic movement party.”27 The Congress Party enjoyed what Ackerman quite rightly describes as “organizational charisma,” and Gandhi and Nehru both enjoyed what Ackerman describes as “leadership charisma.”28 Meanwhile, British India was established as a federal state under the Government of India Act 1935. A. Berriedale Keith writing in 1936 says: the essential principles of the new federation were obviously derived from those in operation in Canada and Australia, both of which Dominions owed much to federalism in the United States. Continental models furnished little that could be adopted, for the problem was new. *** The federation exhibits all the normal characteristics of federal government. There is a rigid constitution, with a very elaborate distinction of federal and local powers, and a federal court whose duty it is to secure the due observance of the limits placed on the centre and the local governments and legislatures. The constitution is written, and amendment is narrowly restricted. But the special circumstances of India result in many variations between the Indian constitution and those of Canada and Australia. On the other hand, it is truly federal, and therefore it differs essentially from the constitution of South Africa, which *** is essentially unitary.29

The Government of India Act 1935 expanded the voting population from seven million to thirty-five million people, but British provincial governors retained important reserve and emergency powers. The structural features of the

24

Id. at 57. Id. a 58. 26 Id. at 58. 27 Id. at 59. 28 Id. at 35. 29 Keith, supra note 13, at 319. 25

The Union of India  273 Constitution of India of 1950 largely follow the outlines of the Government of India Act 1935. The Indian National Congress Party had, as I  have said above following Ackerman, “organizational charisma” as well as two very “charismatic leaders” in the persons of Gandhi and Nehru. No similar mass movements for Canadian or Australian independence were ever formed, as we saw in the previous chapters, so India was a trailblazer in this respect. George Washington, in the United States, was also a charismatic leader. By chairing the Philadelphia Constitutional Convention, which wrote the U.S. Constitution in 1787, and by giving the Constitution his support, George Washington constitutionalized his “leadership charisma.” In 1945, at the end of the Second World War, Britain voted out of office Prime Minister Winston Churchill, and it elected Labor Party Leader Clement Attlee to replace him. Unlike Churchill, who was a racist, imperialist, Attlee was a democratic socialist, who was opposed to British rule over India, in principle. Attlee wanted to spend U.K. tax revenue on creating a new system of socialized medicine in the United Kingdom called the national health service and not on maintaining an empire in India. Attlee informed Lord Mountbatten, the last viceroy of India, of his intention to withdraw from India unilaterally. Lord Mountbatten tried and failed to set up a federal government in British India of Hindus and Muslims.30 Lord Mountbatten then announced the U.K.’s withdrawal, and India became an independent nation on August 15, 1947. As Ackerman describes it, Nehru gave the greatest speech of his life announcing India’s independence to the world. In this speech, he drew on both what Ackerman calls his leadership charisma, and on the Congress Party’s organizational charisma, to assert authority.31 The people of India accepted government under the Congress Party as being wholly legitimate under the circumstances. Jawaharlal Nehru was elected by the Indian Parliament to be the country’s first prime minister, and he served in that job from 1947 until his death in 1964. The Congress Party pushed the British into abandoning their Indian Empire in a way that no political party in Canada or Australia ever did. Nehru and Gandhi had disagreed fundamentally on one crucial constitutional question: How federal should the new Hindu country of India be? Gandhi believed in devolving huge amounts of power to the states and villages of India. Nehru, in contrast, was a nationalist who wanted only a quasi-​federal regime in India. Nehru quite rightly saw India’s villages as places of racial, socioeconomic, and religious oppression. Nehru won this fight because: (1) Gandhi was assassinated in 1948; and (2)  the 1947 war between newly independent India and

30

31

Ackerman, supra note 22, at 58. Id. at 60.

274  The History and Growth of Judicial Review, Volume 1 Pakistan caused the Constituent Assembly to favor a strong national government and to agree with Nehru. I will explain below why India is only a quasi-​federal regime. The Second British Empire of Ireland, Canada, Australia, India, South Africa, East and West Africa, and New Zealand, as well as many island-​nations bent over backward to avoid causing the offenses that had caused the loss of the First British Empire, which had consisted of the thirteen United States. Unfortunately, for the British, an empire that spanned the world, such that the sun never set on its possessions, was simply too diverse, and too nationalistic, to be kept together permanently. The United States, Canada, Australia, and New Zealand were all settled territories, which became very British in their orientation, but even they did not want to be ruled in any way at all by a United Kingdom that was thousands of miles away. The rest of the Second British Empire was conquered territory, like India and Africa, where indigenous people, with strong cultures, were bound eventually to seek independence from British rule. These countries successfully obtained their independence after World War II. This happened, in part, because it was the U.S. foreign policy, as the world’s only superpower in 1945, to oppose the racist, European, colonial empires in the United Nations, if necessary. The U.S. ended its own racist, colonial empire over the Philippines on July 4, 1946. Racist ideas, and projects, like the British Empire in India, and, in much of Africa, were much more prevalent during the Victorian Age, and up until the end of the Second World War, in 1945, than was the case in 1776 when the Declaration of Independence proclaimed that: We hold these truths to be self-​evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.32

Most intellectuals in the period from 1770 to 1810 were Lockeans who believed in the total freedom and equality of all men, which was their birthright. In contrast, most American and European intellectuals, in the late nineteenth and early twentieth centuries, were Social Darwinists, who believed that some races of people were more fit to survive and thrive than were others. This Social Darwinist racism died out as a result of the Holocaust and the horrors of Nazi Germany, and because Presidents Franklin D.  Roosevelt and Harry S Truman after World War II called for an end to racism and to the old colonial empires. Social Darwinism was buried by Eleanor Roosevelt’s Universal



32

The Declaration of Independence, first sentence of paragraph two.

The Union of India  275 Declaration of Human Rights in 1948, which resurrected the Declaration of Independence, by saying in Article I that: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.33

Mahatma Gandhi and Jawaharlal Nehru were among the leaders, along with Eleanor Roosevelt, who succeeded, together with Dr. Martin Luther King Jr., in stamping out racism, at least among intellectuals. Both Gandhi and Nehru were ideally positioned to help end Britain’s racist rule of India because they were both British barristers who had been trained at the Inns of Court, in London, England. This is a remarkable feat in two respects. First, Gandhi and Nehru had to demonstrate real intellectual excellence to be certified to be a British barrister. There were, historically, about seven solicitors, for every one barrister, in the United Kingdom, before the two professions were essentially merged. Gandhi and Nehru were thus in the elite of the elite to be British barristers. Second, Britain overcame its Social Darwinist racism to accept Gandhi and Nehru as members of the bar. Britain’s willingness to do this made Indian independence, in 1947, a much more peaceful and easy process than it might otherwise have been. Notwithstanding Britain’s good treatment of Gandhi and Nehru, it must be acknowledged that racism infected much of the British Empire in India, prior to 1945, particularly with respect to membership in clubs and use of mass transportation. It was, however, strikingly less visible in the colonial British court system, which exercised a power of judicial review of the constitutionality of legislation and of executive branch actions.34 By the 1940s, British decolonization had proceeded so far that one Indian High Court, in Bombay, had eleven native Indian judges, and, only two British judges, when independence occurred. The new government of India, in 1947, made no personnel changes at all in the court system, in the armed forces, or in the bureaucracy. Nehru took the reins of power from Lord Mountbatten, but he did not even fire the few British judges who were still serving on the Indian courts.35 In fact, it was not until January 26, 1950, that India declared itself to be a republic causing King George VI of the United Kingdom to lose his title as the emperor of India. From August 15, 1947 on, India had an elected Indian Constituent Assembly that Ackerman says was created by Lord Mountbatten and that was elected by

33

Universal Declaration of Human Rights, Art. 1. Chandrachud, supra note 3, at 304. 35 Id. 34

276  The History and Growth of Judicial Review, Volume 1 Indian provincial assemblies that had themselves been elected in the winter of 1945–​1946 when Indian independence and Constitution writing were not even on the table of issues being discussed.36 It was this legislative body that both wrote and ratified the Indian Constitution of 1950. To say that the Indian Constituent Assembly had a legitimacy problem would be an understatement. There were no state ratification conventions in India in 1947 or in 1950, as in the United States, between 1787 and 1790, and no consultative referenda, as in Australia. Yet the Indian Constitution of 1950 was accepted as being legitimate by the people of India because, as Ackerman explains, of the “organizational charisma” of the Congress Party and because of the “leadership charisma” of Nehru, and Gandhi (who was assonated in 1948 before the Constitution was completed).37 Nehru and the Congress Party constitutionalized their charisma in the Indian Constitution of 1950 quite effectively, and it is now the second oldest constitution in Asia preceded only by Japan. When India declared independence from the United Kingdom on August 15, 1947, the princely states of Jammu and Kashmir had a majority Muslim population but Hindu princes, and so they joined India with special privileges, which are set out in Article 370 of the Indian Constitution. Governance over this area has led to warfare and ill will between India and Pakistan continuously, since 1947. India is an asymmetric federation in that the states of Jammu and Kashmir have more power than do other states in India. Britain’s success in managing for a century the Hindu-​Islamic divide in India may deserve commendation, given the problems that have evolved in Hindu-​ Islamic relations, since 1947, when Britain granted independence at the same time to India and Pakistan. Nevertheless, it is also true that the British used a divide and conquer approach to Hindu-​Islamic relations with the dyarchy system. Had the British not used such a divide and conquer system, perhaps Hindu-​ Islamic relations would be better today. The same thing applies to the Jewish people and the native Palestinian people in the British Mandate over Palestine, which existed from 1920 to 1948. No one will ever know the answer to the question of whether the British aggravated Hindu and Islamic tensions in India, and Jewish and Palestinian tensions, in the Middle East, or whether it ameliorated them. The British Empire in India was a racist, colonial power in which some historians have claimed that Indians were frequently injured, or even murdered, without white Britons being punished. This claim is made most vocally by Elizabeth Kolsky in Colonial Justice in British India: White Violence and the Rule



36

37

Ackerman, supra note 22, at 59–​60. Id. at 60–​63.

The Union of India  277 of Law.38 The claim is disputed vigorously in an exceptionally well-​written and scholarly book by Abhinav Chandrachud, An Independent Colonial Judiciary: A History of the Bombay High Court during the British Raj.39 To the extent that British racism and colonialism drove the writing of the Indian Constitution and of its Bill of Rights, that document is in part a rights from wrongs document. It is undeniable that there was racial discrimination in British India, and so to some extent colonial racism played a factor in, for example, India’s decision to adopt an American-​style Bill of Rights and judicial review for rights from wrongs reasons.

A.  A Partial History of the Colonial Indian Judicial System in the Bombay High Court from 1862 to 1947 Chandrachud’s incredibly thorough study of the Bombay High Court from 1862 to 1947 comes to the conclusion that Kolsky is mostly wrong about the British Colonial Court System, the British Civil Service, and the British Legal Codes adopted for India. Chandrachud denies, for example, claims that the British judges on the Bombay High Court mistreated their native Indian colleagues on the bench or that they favored white defendants in criminal cases.40 Chandrachud claims that “Kolsky relies too heavily on the Bengal Presidency, and an argument can be made that Bombay was different from Bengal. Bombay was more heterogeneous in its composition than Bengal ***.”41 This raises, as Chandrachud, notes, questions “about the other High Courts of colonial India–​ courts in Calcutta, Madras, Allahabad, Patna, and Lahore.”42 One would need to comprehensively study all of these other High Courts to know whether Kolsky or Chandrachud is right. The strongest argument that Chandrachud makes, and that suggests Kolsky is wrong, is that when Indian independence was declared on August 15, 1947, the advocates of independence chose to retain the whole Indian court system including all of the High Courts and the British as well as the Indian judges then serving on them. Life-​tenured judges stayed in place even if they had been appointed during the Raj period and were white Anglo-​Saxons from the United Kingdom. The only difference that Chandrachud was able to find was that it was only until after independence that the Bombay High Court got its first Indian

38 Elizabeth Kolsky, Colonial Justice in British India: White Violence and the Rule of Law (2010). 39 Chandrachud, supra note 3, at 260, 307. 40 Id. at 305. 41 Id. 42 Id.

278  The History and Growth of Judicial Review, Volume 1 chief justice. This was a very important shift because the chief justice plays a big role in choosing new judges. It is, however, true that the other High Courts of India would have to be studied to know whether they were more racist, like Bengal; or not racist, like Bombay.43 One would also have to examine discrimination not only in cases where whites were criminal defendants, but also by prosecutors in bringing cases. Chandrachud asks in conclusion whether the leaders of free India did not want to destabilize the new country in a period of turmoil, and so they decided to leave colonial institutions—​institutions like the courts, the bureaucracy, the armed forces, and the police—​intact despite their colonial past? It is a good question to which I do not know the right answer for certain. I suspect, however, that Nehru was perfectly happy with the colonial British courts, bureaucracy, and army. All he really wanted to do was to wrest the power to be prime minister away from the British, so he could rule himself, along with the Congress Party, on behalf of the people of India, and get rid of Lord Mountbatten, the last viceroy of India. Nehru also wanted India to be a republic with a ceremonial president as head of state, so he quite rightly ended King George VI’s status as emperor of India in 1950. Canada and Australia in contrast, retain Queen Elizabeth II, as their ceremonial heads of state, at least for now. Nehru also rightly wanted the new Supreme Court of India to have the last word on cases and controversies arising in India, so he ended all appeals to the JCPC sitting in London, in the United Kingdom. Other than these very limited measures, Nehru made no other major changes in Indian governance, and he took over British India as a going matter.

B.  Indian Independence: Sharp Break with the Past or an Evolutionary Constitutionalism? Notwithstanding the arguments made earlier by Chandrachud that the decolonization of India was a long and slow evolutionary process, like decolonization in Canada and Australia, the Indian independence process resembles the American Revolution in that it, in part, resulted in a mass popular migration as well as much violence in the Indian-​Pakistani War of 1947. Between ten and twenty million people moved between India and Pakistan, as a result of the partition of 1947, and somewhere between ten and twenty million people died in the war between India and Pakistan after August 15, 1947.



43

Id. at 300.

The Union of India  279 American independence saw a similar result, albeit with much lower casualties and numbers of migrants, since it led to a massive emigration of at least sixty-​ thousand Tories north to Canada, while thousands of Canadian Whigs moved south to the United States. It is hard, if not impossible, to estimate the casualty rate during the American Revolution, especially since many soldiers died of various diseases. Historians estimate U.S. casualties as having been somewhere between twenty-​five thousand and seventy thousand; French casualties as being somewhere around seven thousand; and British casualties as being somewhere around forty-​four thousand. American and Indian independence thus led to war, to a lot of bloodshed, and to absolutely huge migrations of people. Obviously, nothing like this occurred as a result of Canadian or Australian independence. These facts suggest a sharp break with the past, as Ackerman argues, and not an evolutionary constitutionalism. India, unlike the United States, however, did not fight a Revolutionary War with Britain, but it did fight a very bloody war with its neighbor, Pakistan, in 1947, which then also included the now independent country of Bangladesh. As a result, it is impossible to claim that Indian independence was an entirely evolutionary process like Canadian or Australian independence. Nonetheless, the maintenance by independent India, described by Chandrachud, of the same personnel to run the army, the court systems, and the bureaucracy, as well as most of the Government of India Act 1935, all suggests that Indian independence resulted in a less radical break with the past than occurred in the United States where independence led to the creation of a new and all American army and navy; a new Constitution, in 1785; and a new bureaucracy after 1789. Thus, while I agree with Chandrachud that Indian decolonization was a long seamless process, there was also, as Professor Ackerman says, a powerful mass movement political party, in place, which was demanding Indian independence in the form of the Congress Party. Moreover, Indian independence happened, decisively, on August 15, 1947, whereas it is far less clear when Canada and Australia truly became independent of British rule. This is illustrated, of course, by Queen Elizabeth II’s ongoing role as the ceremonial head of state of Canada and Australia, in 2020. Professor Bruce Ackerman argues in his new book44 that India is a paradigmatic example of a mass popular movement staging a revolution and constitutionalizing its charisma. I  agree. Indian independence is more like American independence than it is like Canadian or Australian independence. Ackerman’s analysis is in some tension, however, with the analysis of Chandrachud, and



44

See supra note 22.

280  The History and Growth of Judicial Review, Volume 1 Ackerman overlooks the continuity of the court system, the bureaucracy, and the army, which is totally unlike what happened in the United States. When the new nations of India and Pakistan came into existence on August 15, 1947, there was immediate conflict over border regions, and the two countries ended up in armed conflict over the princely states of Jammu and Kashmir. But, it is important to note that there was no violent revolution in India, and the new government took over most of British India as “a going concern.”45 The American revolutionaries did not keep their colonial judges, bureaucrats, or armies. The American Revolution marked a sharper break with the past than did Indian independence. The National Congress Party moved very quickly from being an advocate of Indian independence into the position of governing the newly emerged democratic state. In Professor Ackerman’s words, the Congress Party constitutionalized its charisma. The Indian Constituent Assembly, which had been elected under the U.K. Government of India Act’s 1935 inadequate franchise, spent three years amending the Government of India Act 1935 before putting it into effect as the Constitution of India, in 1950. The Indian Constitution, unlike the Canadian and Australian Constitutions, has a very impressive and revolutionary Preamble. I quote it in full below: WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all; FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation; IN OUR CONSTITUENT ASSEMBLY this twenty-​sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

Several comments are appropriate with respect to the Indian Constitution’s Preamble. First, it is striking that the preamble follows the U.S. Constitution’s preamble by invoking “We the People” as the sovereign entity in India. The preambles to the Canadian Constitution Act, 1867, and the Australian Constitution Act, 1901, do not do this. Those constitutions originated as British statutes, so their preambles



45

Kulke & Rothermund, supra note 5, at 242. Thiruvengadam, supra note 8 at 22-​23.

The Union of India  281 invoke the sovereign power of Queen Victoria in Parliament with the Lords spiritual and temporal and with the commons of the Kingdom of Great Britain and Ireland. One cannot imagine a less inspiring beginning to the Canadian and Australian Constitutions as they exist today in 2020. Second, the Indian preamble is striking in its invocation of socialism and in its guarantees of social justice. No prior preamble that I am aware of, with the possible exception of Ireland does anything like this. Today, India is desperately trying to become a free market economy because socialism has left it impoverished as the poorest nation in GDP per capita of the G-​20 Nations. Third, the Indian preamble is striking in that it endorses secularism and the equality of all persons, which literally makes the traditional, Hindu caste system unconstitutional in India. This is an amazing outcome for a country that is almost 80 percent Hindu today. The Preamble to the Constitution of India of 1950 quite simply calls for a social revolution within India with respect to religion and caste as well as socioeconomically. This, too, makes it unusual among the preambles in other constitutional democracies around the world. With these observations having been made, I will now return to my brief recounting of the history of India. War with Pakistan led to a “conservative and centrist attitude” and an embrace of British emergency powers in the form of provision for President’s rule.46 Most of the Indian Constitution is drawn from the Government of India Act 1935, which suggests again that India is in some respects an evolutionary constitutionalism, but the Preamble, the Bill of Rights, and the Directive Principles all clearly point the other way.47 The Constituent Assembly rejected the British Westminster model of reliance on parliamentary sovereignty and the common law to protect liberty. The adoption of a U.S.-​style judicially enforceable Bill of Rights undoubtedly reflects the injustices of British colonial rule and racism, and is an example, of what Alan Dershowitz calls rights from wrongs.48 The adoption of the Indian Bill of Rights and Directive Principles were a sharp break with the tradition of parliamentary sovereignty and supremacy, and of no judicial review, which was then in place in the United Kingdom. It proved to be of pathbreaking importance in spreading the U.S. Bill of Rights idea and broad U.S.-​style powers of judicial review all over the world. Jawaharlal Nehru, who became the new leader of India, was a strong centralist, a pragmatic socialist, a nationalist, and an advocate of land reform and of

46 Kulke and Rothermund, supra note 5 at 243. 47 Id. at 243–​44. 48 Alan Dershowitz, Rights from Wrongs: A Secular Theory of the Origins of Rights (2005).

282  The History and Growth of Judicial Review, Volume 1 a planned economy.49 At the direction of Lord Mountbatten, the last viceroy of India, a 329-​member Constituent Assembly had been elected, under the British Government of India Act 1935 with an inadequate franchise, on December 9, 1946, nine months before India declared independence, by the provinces to draft the new Constitution. The Constitution drafting process was finished on November 26, 1949, and the Constituent Assembly adopted the Constitution with 284 members signing the document. The new Constitution came into effect on January 26, 1950. The untouchable political leader B.  R.  Ambedkar is widely regarded as having been the chief architect of the Constitution of India. Unlike the constitutions of Canada or Australia, the preamble of the Constitution of India describes the adoption of the Constitution as being an act of “We the People of India” in a Constitutional Convention, which the Indian provinces had elected under the British Government of India Act 1935. The Constitution of India was not ratified by “We the People of India,” but, unlike the Constitutions of Canada and Australia, it can at least be said that the Constitution of India is not entirely a British statute. The federalism and separation of powers provisions of the Constitution of India are almost all borrowed from the Government of India Act 1935. Shortly after the adoption of the Indian Constitution, the new republic quickly ended the power of the JCPC to hear any Indian cases in 1950. It must be noted that the people of Canada asked the United Kingdom for the Canadian Constitution Acts of 1867 and 1982, and the people of Australia ratified in referenda the Australian Constitution Act, 1901. In contrast, the Indian Constituent Assembly, elected under the U.K.’s Government of India Act, 1935 gave the Indian Constitution to India itself. The legitimacy of the Constitution stems, as Professor Ackerman’s book makes crystal clear, from the overwhelming popular support for the mass movement that was the Congress Party led by Nehru and Gandhi.

C.  B. R. Ambedkar’s (1891–​1956) Central Role in Drafting the Indian Constitution As I mentioned above, B. R. Ambedkar, a graduate of Columbia Law School, played a central role in the drafting of India’s Constitution. Ambedkar, and his constitutional legacy, are well explained by Martha C. Nussbaum’s excellent essay, “Ambedkar’s Constitution: Promoting Inclusion, Opposing Majority Tyranny,” in



49

Kulke & Rothermund, supra note 5, at 244–​45.

The Union of India  283 Assessing Constitutional Performance.50 Ambedkar was, as Nussbaum explains, born a “dalit that is from a caste *** formally called ‘untouchable,’ and he was viewed by most Hindus during his childhood and youth in that light. *** Since a recent high-​quality survey showed that 30% of Hindu households still practice untouchability, I can add that were he alive today, 30% of Hindu-​Indians would refuse to have physical contact with him.”51 Ambedkar eventually converted to Buddhism, “a religion seen by Indians for centuries as a haven of equal respect.”52 Nussbaum adds that Nehru also admired Buddhism and that a Buddhist symbol of a wheel with equal length spokes occupies the center of the Indian flag.53 Unsurprisingly, given his personal background and education at Columbia Law School, Professor Nussbaum points out that Ambedkar: argued extensively for a particular conception of the Constitution, one in which a central purpose was protecting vulnerable minorities from majority tyranny and promoting their full social inclusion. He focused centrally on the evils of the Hindu caste hierarchy, but he was also passionately concerned with the situation of India’s women and its religious minorities. *** In a very general way, Ambedkar saw the practice of stigmatizing and excluding groups of people as a major obstacle to India’s success as a nation, and one that law could productively address.54

Ambedkar could have used his PhD in economics from Columbia to focus on economic policy, but instead, according to Nussbaum, he effectively turned himself into Nehru’s law minister and constitution writer. It was Ambedkar’s idea to put a U.S.-​style Bill of Rights in the Indian Constitution, in part because his years of studying at Columbia had left him deeply impressed with the U.S. Constitution. Professor Nussbaum shows that Ambedkar thought such a judicially enforced Bill of Rights could help to protect minorities from majority tyranny, which was one of his central concerns. “Here Ambedkar encountered some opposition from Nehru, who did not want U.S.-​style judicial review, because he feared that it would be used by conservative judges *** to block land reform and other economic measures.”55 Nussbuam observes that Ambedkar got his Bill of Rights, and a Due Process clause that was written to protect procedural, and not substantive, due process, 50 Martha C. Nussbaum, Ambedkar’s Constitution:  Promoting Inclusion, Opposing Majority Tyranny, in Assessing Constitutional Performance 295–​336 (Tom Ginsburg and Aziz Z. Huq, eds., 2016). 51 Id. at 296. 52 Id. at 297. 53 Id. 54 Id. at 296. 55 Id. at 305.

284  The History and Growth of Judicial Review, Volume 1 but he had to agree with Nehru to allow for judicial restraint.56 The Indian Constitution, at the outset, therefore, set up a judicially-​restrained system of judicial review. Over time, however, the Supreme Court of India ruled that constitutional amendments that altered the Basic Structure of the Constitution were unconstitutional and that remains Indian Supreme Court doctrine, today. India may thus have begun as judicially-​restrained constitutional regime, but it has evolved, as of 2020, into a judicial supremacy constitutional regime. The Supreme Court of India contributes three members to the five-​member body that picks new Supreme Court judges. The Indian Supreme Court is thus a self-​perpetuating body. Of course, British judges in India, and in Britain itself, were historically picked by the Lord Chancellor, or other members of the legal elite, so, in a way, India on this point has reverted to British practice. The Supreme Court of the United Kingdom today, in 2020, plays a big role in selecting its successors, as well. Professor Martha Nussbaum is thus quite right to say that India’s Constitution is Ambedkar’s Constitution because it has evolved in his direction and away from Nehru’s ideas over the last seven decades.

D.  Post-​Independence History of Constitutional Dimensions The Government of India Act 1935 had been a failure because the imperial viceroy could not get the 565 princely states to accede to federal parliamentary control. Moreover, the Congress Party, led prior to the 1930s, and from then on, by Jawaharlal Nehru, was hell-​bent on complete independence for India from Britain. After an exhausted Britain won World War II, the colonial power was ready to abandon India, Pakistan, and the areas that became Bangladesh and Myanmar (Burma). The military crisis of 1947 augmented the powers of Nehru and of the national Indian government generally. This helped to pave the way for the complete abolition of the 565 princely states and their reorganization into modern India, which now has twenty-​eight states and eight Union territories. The new state boundary lines were drawn in the 1950’s to reflect language usage, and they have proven to be very stable over time. Obviously, however, a federation whose national government has the power to redraw state boundary lines is a very nationalistic federation, which is certainly the case with India. Indian Muslims were led by Mohammad Ali Jinnah, and they argued for the partition of India into two separate countries: India (which was predominantly



56

Id.

The Union of India  285 Hindu) and Pakistan (which then included Bangladesh and which was predominantly Muslim). Pakistan declared its independence at the same time as India. The Indian Independence Act, 1947, was adopted by the Imperial British Parliament sitting in London, and the new nations of India and Pakistan came into existence on August 15, 1947. As I noted above, there was immediate violent conflict over the border regions, and the two countries ended up waging a war over the princely states of Jammu and Kashmir. Tragically, on January 30, 1948, Mahatma Gandhi, one of the world’s greatest men to ever have lived, was assassinated by a Hindu extremist because of his calls for even-​handed justice as between Hindus and Muslims. We will never know what Gandhi might have done to establish peace between India and Pakistan had he lived to do so. Within a few weeks of Indian independence, Pakistan invaded Jammu and Kashmir, and the Indo-​Pakistani War of 1947 began. It was an incredibly violent war, which led to a huge loss of lives. In addition, the partition of British India into Hindu India, and Islamic Pakistan, displaced between ten and twelve million people along religious lines. The violence accompanying partition was enormous. It is important to note, however, that within India itself, there was no violence, and the new government took over most of British India as “a going concern.”57 The National Congress Party moved from being an advocate of Indian independence into the position of governing the newly emerged democratic state with the same army, and the same judges, and the same bureaucrats as those who had served the British viceroy of India. The only difference institutionally was that prior to Indian August 15, 1947, Lord Mountbatten ran India; and, after August 15, 1947, Jawaharlal Nehru ran India. The leadership and the members of the cabinet changed, but there were minimal changes of personnel in the army, the court system, and in the bureaucracy. The bottom line is that Nehru and the Congress Party were not really all that dissatisfied with the British government of India under the Government of India Act 1935. What they really wanted to do was to replace the British elite that was governing India with a new Congress Party elite that spoke for the people of India itself. Hence, they made only four changes to the Government of India Act 1935. They added: (1) a fairly powerless upper house in which the states were represented to please the states; (2) they replaced the JCPC and the Federal Court of India, which Keith discusses on page 419 to 424 of his book, with the Supreme Court of India; (3) they added an American-​style Bill of Rights to their Constitution, which had the effect, over time, of greatly empowering their Supreme Court; and (4) they added a set of Directive Principles conferring on the state the obligation to correct widespread poverty and to eliminate the



57

Id. at 242.

286  The History and Growth of Judicial Review, Volume 1 traditional Hindu caste system. The Indian independence movement ended up being quite conservative, in many respects. It retained the strong federal government, and the weak states, which the Indian government had inherited from the British Empire. The devastating war with Pakistan led to a militaristic “conservative and centrist attitude” between 1947 and 1950, and an embrace of British emergency powers in the form of provision for President’s rule.58 The Government of India Act 1935 was relied on very “heavily” by the drafters of the Indian Constitution.59 The act set up national and state assemblies, which were to govern India subject to a veto by the governor of each state, or by the governor-​general of India, in the case of federal legislation. Direct elections were introduced increasing the franchise from seven million people to thirty-​five million people. There were 562 princely states or native states in India, which were not formally under direct British rule, although they were a part of the British Empire. These princely states all became part of either India or Pakistan after the end of British rule and the partition of the Indian subcontinent in 1947. Their separate existence helps to explain the Republic of India’s federal structure, and its commitment to Supreme Court umpiring of federalism cases. Nehru, the new leader of India, was a pragmatic socialist, a nationalist, and an advocate of land reform and of a planned economy.60 The Indian Constitution, however, differs from the Government of India Act 1935 in that it has an American-​style, judicially enforceable, Bill of Rights adopted in emulation of the U.S. Bill of Rights, and in that it contains Directive Principles, a wholly novel idea about which more will be said later. The American-​style judicially enforceable Bill of Rights was directly borrowed from the U.S. Constitution, although the list of rights spelled out in the Bill of Rights of India is much longer and is more comprehensive than is the U.S. Bill of Rights. India borrowed from the United Kingdom the institutions of responsible parliamentary government with the lower house of Parliament electing the prime minister and the upper house representing the states. Indian quasi-​federalism was a key feature of the regime when it was governed by the British Empire prior to 1947, and India has been a quasi-​federal state ever since independence. The new Constitution was adopted at the end of 1949, and came into effect on January 26, 1950. “It contains the constitution not only of the Federal government but also of the states” and is thus one of the longest constitutions in the world.61

58 Id. at 243. 59 S.P. Sathe, India:  From Positivism to Structuralism, in Interpreting Constitutions 215 (Jeffrey Goldsworthy, ed., 2006). 60 Kulke & Rothermund, supra note 5, at 224–​45. 61 Sathe, supra note 59, at 216.

The Union of India  287 Professor Sathe explains that “The main features of the Constitution of India are: parliamentary government; federalism; weak bicameralism; a bill of rights; directive principles of state policy; separation of powers; amendment procedures and judicial review.”62 Parliament is divided into two houses called the House of the People and the Council of States, but “the constitution does not give the states equal representation in the Council of States.”63 The House of the People sits for a five-​year term, but “one third of the members of the Council of States are elected every two years.”64 In addition, Jammu and Kashmir have greater autonomy than do the other states. In the 1950s, the Indian Parliament successfully redrew all the state boundary lines—​which had hitherto been quite arbitrary—​to put people of similar linguistic groups in the same state. The 565 princely states were reorganized into twenty-​eight states and eight Union territories. The states almost all have unicameral legislatures. The president of India, who is in practice picked by the prime minister, can, subject to judicial review, suspend an Indian state government and institute direct national rule at the request of the cabinet. “Residual legislative power is vested in the Parliament,” except in the cases of Jammu and Kashmir.65 India uses a “majority election system” that “favours *** broad middle-​of-​ the-​road part[ies] like the Congress Party [and the Bharatiya Janata Party (BJP), which is in power today]. The Indian ‘majority election system’ works against smaller parties with a specific ideological profile. * * * [The Indian electoral system is thankfully like the U.K.  and U.S.  systems and is not a proportional representation system like the one that has ruined the governments of Brazil, Italy, and Israel.] The Congress [Party] normally got about 42 to 48 per cent of the national vote, but captured 65 to 75 percent of the seats in the Lok Sabha (House of Commons) [in the initial Indian elections]. The Socialists, on the other hand, often obtained about 30% of the national vote, but usually got only 10 per cent of the seats.”66 Today, the BJP governs India, which is good because the BJP favors neoliberal economic policies, but also harmful because the BJP is a Hindu Nationalist Party that is anti-​Islamic. The Indian states have unicameral legislatures.67 India’s Constitution lacks a supremacy clause, but it is considered to be the highest law of the land, and is enforceable by all of the courts in India exercising American-​style diffuse judicial review.68 The Indian Constitution is “closer to the 62 Id. 63 Id. 64 Id. 65 Id. at 217. 66 Kulke & Rothermund, supra note 5, at 247. 67 Mahendra Pal Singh, India, in How Constitutions Change: A Comparative Study 169, 171 (Dawn Oliver & Carlo Fusaro, eds., 2011). 68 Id. at 170.

288  The History and Growth of Judicial Review, Volume 1 constitutions in the common law countries such as Australia, Canada, and the United States than it is to the constitutions of the civil law countries such as the French Republic and the Federal Republic of Germany.”69 This is not surprising because the United States, Canada, and Australia are all common law countries, which were once ruled by the British, whereas France and Germany are civil law countries with a very different set of legal traditions and history. The Indian Constitution is entrenched, and most constitutional amendments require the approval of a two-​thirds majority of both houses of the national Parliament and of the Supreme Court, which can hold unconstitutional any constitutional amendment that alters the Basic Structure of the Indian Constitution.70 From 1950 until 1973, the Indian Parliament and the Supreme Court of India were engaged in a constant struggle over the constitutionality of land reform laws, which India needed very badly. In 1950, High Courts in several states of India struck down land reform laws as being an unconstitutional abridgment of property rights. Prime Minister Nehru acted at once, as Ackerman explains, and he shepherded through Parliament the First Amendment to the Constitution of 1950, which retroactively denied the courts jurisdiction over the lawsuits in question.71 As Ackerman elaborates, the First Amendment allowed future parliaments to insulate future laws from judicial review by “listing the law on a special Schedule Nine created for this purpose.”72 The constitutionality of the First Amendment and of Schedule Nine was upheld unanimously by the Supreme Court of India in Shankari Prasad v. Union of India, 1951 AIR 458. The Supreme Court knew better than to take on, right away, the charismatic leader who was the founder of modern India. After Nehru’s death in 1964, Ackerman explains that the Congress Party leadership picked a weak successor, Lal Bahadur Shatri to succeed Nehru and to keep a talented “up-​and-​comer,” Morarji Desai, out of power.73 Shastri died in 1966, so the Congress Party elites turned to Nehru’s daughter, Indira Gandhi, to keep Desai out of power and to keep power themselves, as Ackerman explains. This led to the Congress Party winning only 55 percent of the seats in Parliament, instead of the 73 percent they had become accustomed to, in the 1967 elections.74 In 1967, the Supreme Court of India, sensed that the Congress Party was weakened, and it reversed course from the position it had taken in Shankari Prasad, in 1951; and, in the Golaknath case, the Supreme Court held on a 6 to 5 vote that

69

Id. Id. at 172. 71 Ackerman, supra note 22, at 63. 72 Id. at 64. 73 Id. at 65. 74 Id. at 66. 70

The Union of India  289 it had the power to review the constitutionality of constitutional amendments. Ackerman says that Gandhi freed herself of the Congress Party bosses, adopted a socialist platform, which called for nationalizing all banks, nationalizing the property of Indian princes, and a host of welfare measures to boot.75 Gandhi won the election of 1971 on this platform, with a two-​thirds majority, which enabled her to enact constitutional amendments. As Ackerman describes, Gandhi proceeded to enact constitutional amendments overturning the Supreme Court on bank nationalization and Golaknath. A humiliated Supreme Court in the Kesavananda Bharati case accepted bank nationalization, and it overruled the Golaknath case, but seven of the thirteen justices wrote opinions saying that while these constitutional amendments were acceptable, in theory, a constitutional amendment, which altered the Basic Structure of the Indian Constitution of 1950 would be an unconstitutional, constitutional amendment.76 The justices could not agree on what the Basic Structure of the Indian Constitution was, and the court was in a period of great weakness. As Ackerman observes, Gandhi then responded by departing from the usual seniority system in picking the chief justiceship of the Supreme Court to pick one of the six non-​Basic Structure justices from the Kesavananda Bharati case.77 A litigant accused Ghandi of electoral misconduct, and a lower court convicted her of it. It was this lower court ruling, which caused Gandhi to declare a state of emergency.

E.  The State of Emergency and Its Aftermath The state of emergency of 1975 was a period from June 25, 1975, to March 23, 1977, when President Fakhruddin Ali Ahmed (under the advice of Prime Minister Indira Gandhi) declared a state of emergency nationwide under Article 35278 of the Constitution. India was experiencing a period of political and civil unrest after Prime Minister Indira Gandhi was indicted for bribing voters and election malpractice, but was ultimately charged with the much less serious offense of “misusing the government machinery.” President Ahmed invoked a state of emergency after Prime Minister Indira Gandhi’s slap-​on-​the wrist punishment led to widespread protests and political unrest. 75 Id. at 66-​67. 76 Id. at 69. 77 Id. at 67–​68. 78 “(1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Proclamation, make a declaration to that effect.”

290  The History and Growth of Judicial Review, Volume 1 In 1975, Indira Gandhi announced the state of emergency, and she assumed dictatorial powers. In January 1977, new elections were held in India, and Gandhi was voted out of power, overwhelmingly, and the state of emergency was lifted. The Indira Gandhi State of Emergency was the key political event in the life of post-​independence India, and it permanently altered the powers of India’s governmental actors. Prime ministers and members of Parliament lost public esteem, while the Supreme Court of India, which had belatedly fought back against Indira Gandhi, suddenly gained a lot of political power. I shall address in the next section of this chapter the impact the Indira Gandhi Emergency had on the Supreme Court of India and on judicial review in India. In a nutshell, Indian voters came to see the Declaration of Emergency as having been a great wrong with Indira Gandhi’s son, Sanjay, compulsorily sterilizing thousands of men and women. The net result was the political empowerment of India’s Supreme Court for rights from wrongs reasons based on the many abuses that happened during the state of emergency. When Indira Gandhi declared her state of emergency and assumed dictatorial powers, popular support for the Supreme Court of India was cemented in place. The state of emergency lasted twenty-​one months, although the Constitution limits states of emergency to no more than two months; and during the state of emergency, the prime minister was empowered to rule by decree, without constitutional limits. In the words of Prime Minister Gandhi, during this time she brought Indian democracy “to a grinding halt.” The time period was marked by limited civil liberties for Indian citizens and mass imprisonment of Prime Minister Gandhi’s political opposition79 and censorship of the press.80 Additionally, in the absence of an opposition, the legislature and the prime minister made numerous amendments to the Constitution, mainly eroding the Indian system of checks and balances and of federalism.81 Many of these changes were later undone. Once the state of emergency was declared to be over, Indira Gandhi called for new elections in which she and her Congress Party loyalists were trounced. The Janata Party, led by Morarji Desai, won a decisive majority in Ackerman’s words, claiming 298 seats with the Congress Party winning only 153 seats. The new government undid most of what Gandhi had done such that, today, India is a vibrant parliamentary, constitutional democracy. Ackerman observes that in December 1978, both the government of Prime Minister Desai and opposition leader Indira Gandhi joined forces to pass constitutional amendments making it clear that there would never again be a State of Emergency declared nationwide in India.82 79 S.P. Sathe, Judicial Activism in India: Transgressing Borders And Enforcing Limits, at 73 (2002). 80 Ackerman, supra note 32, at 68. 81 Sathe, supra note 79, at 73. 82 Ackerman, supra note 22, at 69.

The Union of India  291 Gandhi won the next election for Parliament, but she was tamed by her experience with the state of emergency. In 1980, the Supreme Court of India, in the Minerva Mills case, “transformed the ‘basic structure doctrine into a powerful weapon,” according to Ackerman.83 An almost unanimous court struck down the parts of the Emergency amendments that Parliament, under Prime Minister Desai had not already done away with. Gandhi sat by passively even though she was again by that time prime minister.84 Indira Gandhi was assassinated in 1984, and she was replaced by her son Rajiv Gandhi. In the 1980s, the Congress Party continued to dominate Indian politics, but its majorities were smaller. The Supreme Court after 1980 worked out the content of the Basic Structure doctrine, which now renders unconstitutional, constitutional amendments that, as Ackerman says, impair:  (1) secularism, (2) democracy, (3) the rule of law, (4) federalism, or (5) an independent judiciary with the power of judicial review.85 Finally, in 2007, Ackerman notes that the Supreme Court of India, in Coelho v. State of Tamil Nadu AIR (SC) 861 (2007), the Supreme Court of India got rid of the practice whereby Parliament in 1951 had been able to put constitutional amendments on Schedule Nine thereby making them judicially unreviewable.86 The court thereby made everything on Schedule Nine subject to attack under the Basic Structure doctrine, and the Supreme Court asserted its supremacy in interpreting the Constitution of 1950 and its legacy. In 2014, the Bharatiya Janata Party (BJP) swept to power promising free market economics and Hindu nationalism. It immediately put forward a constitutional amendment that would allow it to quickly gain control of the Supreme Court, and a five-​judge panel struck down this constitutional amendment by a 4 to 1 vote.87 The BJP wants to challenge Indian secularism and the Congress Party legacy. We shall have to see what happens next since the BJP was just re-​elected, in 2019, but is losing some state elections in 2020. Although the 1975 state of emergency led to constitutional amendments ensuring that no nationwide state of emergency would be called again, it was not until 1994 that the power of the president of India to call states of emergency in the states of India came to be curtailed. To understand the history on this, it is necessary to address India’s quasi-​federal system. The national government of India has the power to redraw state boundary lines, but in practice that power has not been used since the 1950s and may no longer be usable. The national government also has the power to get the president

83

Id., at 71. Id. Id. at 72. 86 Id. at 74–​75. 87 Id. at 75. 84 85

292  The History and Growth of Judicial Review, Volume 1 to dismiss a state government that opposes it and that has led to a major Supreme Court federalism umpiring opinion. The emergency powers in the Indian Constitution were not limited to federal emergencies but could also be used by the president of India, on the advice of the prime minister, to declare states of emergency in particular states. A practice grew up of federal prime ministers asking the president of India routinely to dissolve any state government that was governed by a majority of the opposite political party from the one in power at the federal level. As a result, state governments were dissolved more than ninety times between 1950 and the early 1990s. The Indian Supreme Court finally put an end to this abuse in its federalism umpiring decision in S.R. Bomai v. Union of India ((1994) 2 S.C.R. 664). The Bomai case is the most important ruling on federalism in the history of India. It ended a practice where over ninety state governments had been suspended by the central government prior to 1994, often simply because the states had elected a different party to govern them than the party that controlled the national government. The Bomai case is the Indian Supreme Court’s most important umpiring, federalism decision ever, and it is also one of the most important decisions the court has ever rendered. It is a classic federalism umpiring case.

II.  Judicial Review in the Union of India The Indian colonial courts, and Indian courts from independence on in the 1950s, 1960s, and in most of the 1970s were very weak and used positivistic rather than purposive interpretive techniques. The Government of India Act 1935 provided for the creation of a Federal Court for India, which could hear those appeals from the Indian High Courts, which were not deemed worthy of judicial review by the JCPC but which created circuit splits. This court was short-​lived, and it heard some cases, but because of World War II and then the Indian Independence Act 1947, the Federal Court of India never really got off the ground. The Indian Constitution retained all of the Indian High Courts, and the judges serving on them, but the Federal Court was replaced by the new Supreme Court of India. The colonial administration in British India had been governed under the British Parliament’s constituent acts, which laid down the limits of the legislative power vested in the colonial legislatures and which extended the power of judicial review to the Indian colonial High Courts.88 For most of the period of British rule, India experienced judicial review of legislation by the British High Courts,



88

S.P. Sathe, supra note 79, at 1.

The Union of India  293 spread throughout India, in the sense of a High Court holding some executive or legislative action ultra vires. There was, in addition, judicial review of all executive actions and of all appeals from High Court cases by the JCPC in London, in the United Kingdom, which had the last word on the tens of thousands of questions that reached it. However, the constituent acts under which India was governed lacked a Bill of Rights, so the scope of imperial judicial review was accordingly limited.89 Under the constituent acts, “the judicial attitude in [India] was to interfere with legislative acts only if they clearly transgressed the limits drawn upon their powers.” The colonial court interpreted the constituent acts as if they were ordinary statutes. Limited judicial review under the constituent acts manifested a deep-​seated adherence to the British theory of parliamentary sovereignty and supremacy. The court was unwilling to question the validity of legislation on grounds other than an act being ultra vires.90 There was thus not what Professor Gordon Wood describes as being separation of powers judicial review nor was there Bill of Rights judicial review in colonial India. Judicial review in colonial India took the form Professor Bilder describes in the North American colonies from 1607–​1776. Judicial review in the much stronger U.S.  form did not emerge in India, theoretically, until the Constitution of India came into effect, and it only became a reality in the forty-​ year period from 1980 to 2020. This is notable because acts that violate federalism limitations were notoriously condemned as being ultra vires. When a government at a subordinate level of government exceeds its power, it is acting ultra vires. The same thing can be said when a nation-​sized level of government exceeds its limited and enumerated constitutional powers. Thus, the U.S. law struck down in United States v. Lopez91 was in a real sense an ultra vires law. The same principle underlies all of administrative law. When a government officer exceeds his mandate under a statute, he acts ultra vires or beyond his power. British legal culture worshipped parliamentary sovereignty and supremacy and encompassed no judicially enforceable Bill of Rights. But, British courts, including the High Courts in India and the JCPC were quite exacting in striking down legislative acts that went beyond limited and enumerated powers and executive acts that exceeded an officer’s grant of power. Ultra vires judicial review under British imperial law was thus really just a form of what became federalism and separation of powers judicial review in former British colonies in India, Australia, and Canada once those nations had written

89

Id. Id. 91 514 U.S. 549 (1995). 90

294  The History and Growth of Judicial Review, Volume 1 constitutions. The JCPC thus had the last word on which acts of the national legislatures of Canada, Australia, and India were ultra vires and which were not. It is thus important to emphasize that Mary Sarah Bilder’s book, The Transatlantic Constitution: Colonial Legal Culture and the Empire92 and her seminal law review article on “The Corporate Origins of Judicial Review” do not fully explain the power of judicial review in the Constitution of India, just as those sources did not fully explain the origins of judicial review in the United States, Canada, or Australia. Bilder believes that it was the status of the thirteen original North American colonies as corporately chartered entities, which led to federalism umpiring judicial review, but, in India, the federal sub-​entities may not have been corporations, but they were certainly territories, which could act ultra vires of their delegated powers. Thus, it was probably British constitutional law and statutory law, like the Colonial Laws Validity Act 1865, and not British corporate law, which habituated the people of India to Privy Council federalism judicial umpiring of the reining in of errant subunits. The Indian courts’ policy of maximum judicial restraint carried over from the colonial court system, to the country’s first Supreme Court following independence.93 The new constitution contained a Bill of Rights, called for federalism enumerated powers, and went into painstaking detail in describing exactly what those things meant.94 It should be noted that the Constitution of India did provide for judicial review, and it contained a judicially enforced Bill of Rights. India, like Australia, borrowed the strong form of U.S. judicial review, which I attributed to Professor Gordon Wood, in my chapter on U.S. judicial review, and not merely the weaker JCPC form of judicial review discussed by Professor Bilder. Judicial review in Australia and India was thus not merely created by the need for a reining-​in umpire in federalism cases involving only ultra vires federal subunit misbehavior and administrative law cases. Indian judicial review emerged in the full Gordon Wood form as an act of conscious borrowing of the U.S. model of judicial review. As a practical matter, however, the Supreme Court of India was fairly weak politically from 1950 to 1980, but all-​powerful from 1980 to 2020 as discussed earlier in my history of India. The Constitution of 1950 created a Supreme Court of India, sitting in Delhi, and consisting of a chief justice and “not more than seven other judges.”95 The number of judges has been vastly increased over time so that, today, there are thirty-​four Supreme Court judges in addition to the chief justice, as of 2019. The Supreme Court judges can serve only until they reach the age of sixty-​five, so there 92 Mary Sarah Bilder, The Transatlantic Constitution: Colonial Legal Culture and the Empire (2004). 93 Id. 94 Id. 95 Constitution for the Republic of India, Chapter IV, Article 124 (1950).

The Union of India  295 is frequent turnover in the membership of the court.96 And, the court is constitutionally excused from adhering to the theory of stare decisis as the Constitution gives the court the power to reconsider its decisions for constitutionality.97 The Constitution of India describes in great detail the freedom of the court, its wide jurisdiction, and its power to change its mind. However, the great detail used to empower the courts is typical of all parts of the Indian Constitution, which takes the same approach in granting power to the legislature, the executive, and in defining fundamental rights. The great detail used in explaining the contours of fundamental rights in India initially restricted the Supreme Court’s powers of judicial review. The drafters of the Indian Constitution closed off paths of judicial interpretation through strict definitions and a legal culture that discouraged freewheeling interpretations and that celebrated formalism and positivism. Thus, the Supreme Court of India emerged at the outset with only a limited power of judicial review of horizontal and vertical cases, as well as in Bill of Rights cases. Although India’s 1950 Constitution expressly confers the power of judicial review,98 the Indian political elite at the time of the Founding, in 1950, disfavored activist judicial review powers and thought the court’s role ought to be a deferential one. “Many Indian leaders who had made sacrifices for national independence were of the view that the legislature should be supreme and the courts should merely act as umpires to ensure that the parties played according to the rules of the game. The courts were supposed to interpret the Constitution not in terms of what it should be but in terms of what it is.”99 A similar pro-​legislative bias was evident in the United States, in 1776, as I explained in a prior chapter when the thirteen North American colonies first declared Independence and expelled their royal governors and admiralty court judges. During the 1950s and the early 1960s, under India’s first prime minister, Jawaharlal Nehru, the Supreme Court of India was very judicially restrained as the leaders of India’s movement for independence would have wanted. In addition to Professor Ackerman’s book, I am aided here by a superb book chapter by S.P. Sathe, “India: From Positivism to Structuralism,” in Interpreting Constitutions: A Comparative Study. In 1951, Sathe notes that the Indian Supreme Court’s decision in Shankari Prasad v. Union of India set the tone for the relationship between Parliament and the Supreme Court.100 96 Id. at Chapter IV, Article 124(2). 97 “Subject to the provisions of any law made by Parliament or any rules made under Article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it.” Constitution for the Republic of India, Chapter IV, Article 137 (1950). 98 The Indian Constitution provides for judicial review in Articles 13, 32, 124, 131, 219, 228, and 246. 99 Sathe, supra note 59. 100 AIR 1951 SC 458.

296  The History and Growth of Judicial Review, Volume 1 In Shankari Prasad the Supreme Court was asked to uphold the creation of Schedule Nine as a device whereby the legislature could list bills that violated the Bill of Rights on Schedule Nine thus making them judicially unreviewable.101 In a unanimous decision, the court upheld parliamentary power, as I mentioned above.102 This would seem to be the Indian analogue to the U.S. Supreme Court’s acts of judicial restraint in Plessy v. Ferguson (1896) or Korematsu v. United States (1944) wherein the court upheld blatantly unconstitutional laws and actions. The Indian Supreme Court eschewed any claim to engage in the making of American-​style substantive due process, at least initially. It refused even to engage in judicial review if Schedule Nine was invoked. The Nehru period was thus marked, according to Professor Sathe, by decisions that favored legislative power, such as Shankari Prasad, and by constitutional amendments that conscribed judicial power, especially to protect property rights. “During Nehru’s tenure as prime minister, the Constitution underwent seventeen amendments. . . .  Three of these amendments . . . removed various [forms of] property legislation from the purview of judicial review.”103 The history of the Supreme Court of India from 1950 until Nehru’s death, in 1964, should probably be compared to the behavior of the U.S. Supreme Court during George Washington’s presidency, from 1790 to 1797. Nehru, like Washington, was a great hero of the fight for independence from the British. Washington and Nehru were hugely charismatic figures who were the first president and the first prime minister of their respective countries. It is not at all surprising therefore that the U.S. Supreme Court, from 1790 to 1797, and the Supreme Court of India, from 1950 to 1964, took a back seat and assumed only a minimal role. As Professor Bruce Ackerman shows in Revolutionary Constitutions, the role of the Indian Supreme Court naturally grew slowly as first Nehru, and then other Congress Party leaders, left the scene. The Indian Supreme Court did show some signs of being willing to engage in independent judicial review during this period. For example, in its 1962 decision in Sakal Newspapers Private Ltd. v. India, the Supreme Court of India struck down parliamentary provisions regulating newspaper presses.104 The court held that laws regulating the price and page schedules of newspapers violated the freedom of the press and were therefore unconstitutional.105 Scholars recognize that the transformation from a technocratic restrained court to an incredibly activist court was a very slow one, as Professor Sathe describes it: “The Supreme Court of India started off as a technocratic, positivistic

101

Id. Id.; see also Sathe, supra note 79, at 7. Sathe, supra note 79, at 7. 104 AIR 1962 SC 305. 105 Id. 102 103

The Union of India  297 court in the 1950s but slowly started acquiring more power through constitutional interpretation.”106 The transformation of the Indian Supreme Court into a judicially active entity came about when it reconsidered the question of constitutional limits on the legislature. This was the very issue that had served as a symbol of the Supreme Court’s subservience in the Shankari Prasad decision. Professor Sathe explains that the Framers of the Indian Constitution overwhelmingly expected and wanted the Indian courts to use the positivist, textual mode of interpretation then favored by British judges, and to defer to acts of Parliament. “The positivist model of judicial review was preferred by many leaders of the National Movement, including Prime Minister Nehru.”107 Dr. B. R. Ambedkar, a leader of the oppressed caste of untouchables, favored purposive interpretation over positivism, but his views on this point were in the minority.108 In its early years, the Supreme Court of India was a positivist and deferential institution that was highly protective of private property rights, according to Professor Sathe.109 Professor Sathe notes that “[c]‌ourts in India performed the function of judicial review even before independence. The legislatures created by the Government of India Acts had to function within the ambit of the powers given to them by those acts. If they exceeded their powers, their acts were held ultra vires.”110 Like all other common law nations, India has a single national judiciary with the Supreme Court of India at the apex of the judicial pyramid.111 In the 1950s and 1960s, the Supreme Court did repeatedly strike down as unconstitutional land reform measures and even constitutional amendments that would affect land reform. The Supreme Court of India entered into active judicial review in two stages. First, the court asserted its authority to critically review legislative acts. Second, and much later, the Supreme Court started asserting its power to interpret purposively the Constitution’s language guaranteeing fundamental rights to give meaning to terms such as “equality before the law,” “equal protection of law,” “personal liberty,” “the procedure established by law,” or “freedom of speech and expression,” which appear throughout the Constitution. By the 1980s, the Supreme Court of India had eschewed textual positivism of the kind Nehru had favored, and it adopted purposive interpretation of the kind Dr. Ambedkar had favored. The Supreme Court’s first move toward active judicial review came in its 1967 decision in L.C. Golanknath v. State of Punjab, which I discussed above. Prime

106

Sathe, supra note 79, at 4. Sathe, supra note 59 at 227. 108 Id. at 228–​29. 109 Id. at 229–​36. 110 Id. 111 Id. 107

298  The History and Growth of Judicial Review, Volume 1 Minister Gandhi responded by running against the right wing Supreme Court as an election issue. Thus, “in the 1970’s the right to property was deleted from the list of Fundamental Rights in Part III of the Constitution [by an amendment] and became a mere right only to be deprived of property by statute without implying any promise of judicially assessed compensation for its loss.”112 It was obvious that “the image of the Court, as a friend of the wealthy and defender of the status quo, had galvanized popular support for the ruling party.”113 Gandhi responded as I said above by nationalizing the banks and by asking the Supreme Court in Kesavananda Bharati v. Kerala—​a case decided by a bench of thirteen judges—​to overrule the Golaknath case.114 The Supreme Court, in a moment of weakness, did Gandhi’s bidding, but seven of the thirteen justices said that constitutional amendments that violated the undefined basic structure of the constitution would still be unconstitutional. Prime Minister Gandhi than retaliated against the court by not following seniority in appointing the Supreme Court’s new chief justice. One amendment that Indira Gandhi had made to the Indian Constitution during the state of emergency especially tested the Supreme Court’s newly asserted Basic Structure doctrine in the Kesavananda case, and the Supreme Court’s ability to enforce the Basic Structure doctrine against Indira Gandhi’s emergency government. The Thirty-​Ninth Amendment, which Gandhi proposed, sought to change the structure of checks and balances in election disputes. The proposed amendment would have taken the power to review election disputes away from the courts, and it would have given that power to a special parliamentary committee.115 This amendment was seen as an attempt by Prime Minister Indira Gandhi to prevent judicial scrutiny of her pre-​emergency scandalized election.116 The validity of Prime Minister Gandhi’s election was being appealed, but the amendment was proposed because “instead of letting her fate hang on the outcome of the Supreme Court’s decision on the appeal, [she thought] it was . . . better to quash the entire decision of the High Court through [the] legislative process.”117 In Indira Gandhi v. Raj Narain, the validity of the Thirty-​Ninth Amendment was challenged under the Basic Structure doctrine.118 In a split decision, the court held on November 7, 1975, during Indira Gandhi’s State of Emergency,



112

Id. at 241. Id. at 243. 114 Id. at 244. 115 Sathe, supra note 79. 116 Id. 117 Id. at 75. 118 AIR 1975 SC 2299. 113

The Union of India  299 that the amendment in question altered the Basic Structure of the Constitution of India, and that it was therefore invalid and unconstitutional. This decision is widely applauded as the finest hour of India’s Supreme Court and as marking a turning point in Indian judicial review.119 This is when the wrong of Indira Gandhi’s abuses of power gave rise to a right, which empowered the Supreme Court. Amendment Thirty-​Nine provided “concrete evidence of how majoritarian partisanship could cause total demise of [the] rule of law.”120 The court’s response not only jump-​started meaningful judicial review in India, but it also saved the rule of law, the separation of powers, and quite possibly democracy itself in India’s newly established constitutional democracy. Checking parliamentary power through the Constitution set the foundation for the meaningful emergence of judicial review that soon followed in India. The legitimacy of the Indian Supreme Court’s more prominent role was not widely accepted until its necessity became clear. That clarity occurred only after the executive and the legislature attempted to disregard the Constitution completely in what has been dubbed the “Emergency of 1975.” The Supreme Court of India had resisted Indira Gandhi’s emergency rule. As a direct result, it found, itself, in the late 1970s, with the power to carve out for itself a new and very popular role as an activist and purposive interpreter of the fundamental rights and of the directive principles in the Indian Constitution.121 This is illustrated by an examination of the change in meaning of the Due Process of Law clause in the Constitution of India. U.S. Supreme Court Justice Felix Frankfurter had advised the Indian Constituent Assembly not to include a Due Process clause in the Constitution of India at all, because of the U.S. experience with substantive Due Process during the Lochner era, between 1905 and 1937. As a result, Article 21 of the Indian Constitution provides that “[n]‌o person shall be deprived of his life or personal liberty except according to procedure established by law.” Ironically, this procedural Due Process clause was held by the Indian Supreme Court to have substantive due process content, thus vindicating the fears of Justice Frankfurter in the 1978 decision of the Supreme Court in Maneka Gandhi v. Union of India (1978 AIR 597, 1978 SCR (2) 621). In this case, the political opponents of Indira Gandhi capriciously took away her estranged daughter-​in-​law’s passport, and the Indian Supreme Court invented substantive due process to give back to Maneka Gandhi her passport. The Supreme Court found that there was a due process substantive liberty

119 H.M. Seervai, The Emergency, Future Safeguards and the Habeas Corpus Case 4 (1978). 120 Sathe, supra note 79, at 77. 121 Sathe, supra note 59.

300  The History and Growth of Judicial Review, Volume 1 interest in being able to travel to other nations. Accordingly, the Supreme Court ordered the government to give back to Maneka Gandhi her passport. In these circumstances, many members of the Congress Party probably decided they liked active judicial review after all. But, in July 1980, the Indian government struck again, and it passed a constitutional amendment for a second time overruling the Basic Structure doctrine and holding that Parliament, alone, has the power to amend the Indian Constitution. In Minerva Mills Ltd. and Ors. v. Union of India and Ors. (case citation: AIR 1980 SC 1789), the Supreme Court of India struck down Parliament’s constitutional amendment under the Basic Structure doctrine in sweeping language as I discussed above. Indira Gandhi was by then again prime minister, but she knew she could not oppose the Supreme Court on a constitutional law issue. The unpopularity of Indira Gandhi’s state of emergency, in the 1970s, and the popularity of the Supreme Court for standing up to her, caused the Supreme Court to emerge as a winner. The court eventually started taking account of the Directive Principles when interpreting the fundamental rights clauses in the Constitution of India. The court has interpreted the Indian Constitution’s procedural Due Process clause to include “a right to privacy; rights of prisoners to be treated according to prison rules; a right to shelter; a right to education; a right to sufficient food to avoid starvation; a right to a healthy environment including fresh air and water; and a right to health.”122 Professor Sathe observes that “[d]‌ecisions upholding the rights of the poor and other socially disadvantaged people, and giving them improved access to justice, greatly enhanced the Court’s image. It was no longer a court for landlords, princes, industrialists, and government servants.”123 In the post-​emergency period, the Indian Supreme Court expanded the rights of citizens through a left liberal interpretation of constitutional provisions regarding rights of equality and personal liberty.124 Most notably, the Supreme Court of India declared there to be a fundamental constitutional right to education,125 to shelter,126 and to childhood,127 all of which were described as being part of the fundamental right to life and personal liberty guaranteed by Article 21 of the Constitution.128 Additionally, the court recognized rights for prisoners during trial, for incarcerated individuals, for children involved in delinquency court proceedings, and the court even re-​examined the death penalty.129 The 122 Id. at 252–​53. 123 Id. at 257. 124 Sathe, supra note 79, at 12. 125 Unni Krishnan v. State of A.P. (1993) 1 SCC 645. 126 Olga Tellis v. Bombay Municipal Corporation AIR 1986 SC 180: (1985) 3 SCC 545. 127 M.C. Mehta v. State of T. N. (1996) 6 SCC 756: AIR 1997 SC 699: (1991) 1 SCC 283: AIR 1991 SC 417. 128 Sathe, supra note 79, at 13. 129 Id. at 12.

The Union of India  301 Indian Supreme Court has recognized several other individual rights such as the right to privacy, the right to a speedy trial, “the right to an independent judiciary, and the right to efficient and honest governance.”130 The court responded to a potential democracy-​ending crisis imposed by the elite by asserting itself as a constitutional umpire and champion of individual rights, a role the court continues to fulfill today. One reason why the Supreme Court of India became so powerful is because the court has no standing doctrine and can decide to hear a case based on the justices reading a letter to the newspaper. This is what happened in the foundational 1987 opinion in the Indian case of M.C. Mehta and Anrv v. Union of India v. Ors, 1987 SCR (1) 819. No other court in the world has such a loose, and even relaxed, standing doctrine. In effect, since 1987, any Indian citizen can go to the Indian Supreme Court, as he, formerly, could have gone to the foot of the king’s throne, and he can ask that justice be done as to him. The prerogative powers of the JCPC, which the Supreme Court of India inherited, in full, also explain why the Supreme Court can, in effect, adopt statutes on sexual harassment in the workplace, see Vishaka v. State of Rajasthan (1997); and on euthanasia law, see Aruna Ramachandra Shanbaug v. Union of India (2011). The Indian Parliament belatedly codified the Supreme Court’s sexual harassment in the workplace law, but it was the Supreme Court, which got the legislative process moving. The royal prerogative of the British monarchs is alive and well, and it is thriving in the Supreme Court of India from the 1980s up to 2020. The Supreme Court of India not only protects individual rights, as I have shown. It also acts as a federalism umpire in India as the Bommai case discussed above illustrates. Judge Ahmadi argues in S.R. Bommai v. Union of India,131 that India maintains a “quasi-​federal” structure that mixes aspects of both federal and of unitary systems. On the one hand, India is divided into states and territories. But, on the other hand, the national government has the power, which it exercised sweepingly in the 1950s, to unilaterally redraw state boundary lines. In addition, the president of India can suspend a state government and replace it with a government of his own choosing in an emergency. But, since the Bommai decision, that power of the national government is subject to strict scrutiny under judicial review. Federalism is flourishing in India today. Indian federalism is thus decidedly more nationalist than is U.S.  federalism, but Indian federalism is not negligible as the Bommai case makes clear. To give another example, the upper house of India’s legislature, the Rajya Sabha (“Council of States”) generally has less power than the lower house, which elects

130 131

Id. 2 S.C.R. 644 (1994).

302  The History and Growth of Judicial Review, Volume 1 prime ministers. But, the Rajya Sabha’s members are elected in thirds every two years with the total membership turning over every six years, as happens with the U.S. Senate. The Rajya Sabha cannot be dismissed during a state of emergency, so it provides some protection for the states and indeed for all of India should there ever be another state of emergency. India is truly a quasi-​federal commonwealth. New Supreme Court judges are picked by a five-​member panel, which consists of the chief justice of the Supreme Court of India, the two most senior justices of that court, the president of India, and the minister of justice from the ruling cabinet of the day. Formally, the naming of the new judge is done by the president, but, in practice, the three Supreme Court justices on the judicial selection panel pick their own successors. There is great consternation in India over this fact, especially since the Supreme Court of India has the power to declare unconstitutional, amendments passed to the Indian Constitution if they violate the Constitution’s Basic Structure. Since 1980, the Indian Supreme Court has on four occasions struck down government efforts to change the selection process for Supreme Court justices allowing them to pick their own successors. Each time, the public has supported the judges and not the government. The Supreme Court of India has acquired from the JCPC nothing less than the royal prerogative as it stood prior to its abolition domestically in Britain prior to the abolition of the Court of Star Chamber in 1641. It will be quite interesting to see how this all plays out.

A.  Jurisdiction of the Courts in India In addition to establishing JCPC judicial review of Indian cases involving errant federal subunits, which left an important mark on the powers of the Supreme Court of India, the British also took other important steps in introducing judicial review to India, which resonate down to the present day. The three High Courts established by the British in Kolkata, Mumbai, and Delhi continue to exist in the Union of India during the present day, although now their appeals go to the Supreme Court of India and not to the JCPC. There are today twenty-​four High Courts in India modeled after the three original British High Courts. Today, each High Court consists of a chief justice and up to fifteen judges who must be barristers with five years of experience or civil servants with ten years of experience, including three years of experience in a local Indian court. The High Courts are the Supreme Courts of their states, and all other state courts work under the supervision of the High Court. In some areas, High Courts cover several states or territories. The High Courts exercise original jurisdiction on some occasions, although they usually allow

The Union of India  303 local Indian courts to hear those cases. The High Courts hear appeals from within their states or territories and are a mandatory way station for appeals on their way to the Supreme Court of India. All but six of the Indian Supreme Court justices have been selected from the ranks of the High Court judges. This, of course, adds further to the prestige of the High Courts. In general, there are three grounds for judicial review in the Indian Supreme Court:  (1) disputes between states or between states and the Union, which happen much more often than in the United States; (2) gross deprivation of individual human rights; and (3) by special leave of the Supreme Court, for clarification of the law. This last head of jurisdiction functions much like the U.S. Supreme Court’s resolution of circuit splits. The Supreme Court can and will start a case on a matter raised in a letter to the editor of a newspaper. As a result, the Supreme Court’s power and the scope of its jurisdiction is immense. The Supreme Court of India currently has a five-​ year backlog of cases, which is not surprising given the extent of its jurisdiction. At the rate at which the court is presently resolving cases, it would take the court five years to clear up its backlog. The backlogs in the state High Courts are much worse. Each state has a High Court with jurisdiction based on geography, not on the subject matter of the case, as is typical in common law countries. There are now plans to introduce circuit riding by the Supreme Court justices to address the backlogs. The most senior judge on the Supreme Court of India serves as chief justice. There is a mandatory retirement age of sixty-​five. Judges typically serve relatively short terms before they have to retire. “The judges have mainly come from urban, and higher economic backgrounds: only two have belonged to a Scheduled Caste or Scheduled Tribe.”132 The Supreme Court has only one female judge.133 As of 2019, there were thirty-​four judges on the Supreme Court of India. Realistically, the court probably needs about forty judges to cope with its enormous backlog of cases. The Indian Supreme Court has jurisdiction over disputes between the government of India and the states, disputes between two states, and appeals from a High Court in India. Additionally, the Indian Constitution grants the court wide power to decide any matter it deems it appropriate for the Supreme Court to decide. The Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.134

132

Sathe, supra note 59, at 226. Id. 134 Constitution for the Republic of India, Chapter IV, Article 136(1) (1950). 133

304  The History and Growth of Judicial Review, Volume 1 Two different sized panels hear cases, as was the tradition in the British House of Lords. Benches of seven or more judges hear the really big cases. Two-​judge benches hear the rest of the cases. The Indian Supreme Court has the power to render advisory opinions if asked to do so by the president of India.135 The doctrine of stare decisis applies in India, but the Supreme Court can overrule past opinions. Separate concurring and dissenting opinions are often signed and published, as was historically the case in England.136 Opinions are typically very long. A  recent opinion striking down a BJP government effort to amend the Constitution to alter the method of selecting Supreme Court justices was nearly one thousand pages long. Moreover, since the Indian Supreme Court judges issue their opinions seriatim, it can often be quite difficult to discern the majority holding in a particular case. The weakness of the Indian Supreme Court came to an end with the rights from wrongs empowerment of the Supreme Court following the Indira Gandhi state of emergency and the decision in M.C. Mehta and Anr v. Union of India & Ors (1987 AIR 1086 (1986); 1987 SCR 819). This is the case referred to in which the Indian Supreme Court asserted the power to take jurisdiction over a matter based on a letter to the editor of a newspaper. The Supreme Court of India is unique among the constitutional courts of the world in its willingness to assume jurisdiction over a matter merely on the basis of a letter to one of the judges of the court. In part, this willingness reflects the failure of the political branches in India to address pressing socioeconomic problems. Since the issuance of this opinion, the Indian Supreme Court has played a major role in hearing and resolving public interest litigation. This case is thus of foundational importance. It illustrates that the best explanation for the foundation of Indian judicial review is the rights from wrongs theory of Professor Alan Dershowitz.

B.  Abolition of Jury Trial in India There are no jury trials in either Indian criminal or civil cases, unlike the situation in the United Kingdom, the United States, Canada, and Australia, all of which have retained the common law right to trial by jury in important criminal cases. Like all of the other former common law Dominions in the British Empire, India inherited a tradition of using jury trials, especially in criminal cases. Nevertheless, the 1950 Constitution of India did not protect the right to jury trial, and many Indian states did not use jury trial at all.

135 136

Sathe, supra note 59, at 223. Id.

The Union of India  305 An Indian law commission recommended the abolition of criminal jury trial in 1958. Jury trials are not provided for by the 1973 Indian Code of Criminal Procedure. There was some sentiment that juries had traditionally been biased in favor of Europeans in India, and against the claims of native Indians. Jury trial in criminal cases was thus not the norm in India in its first decade after attaining independence. The use of criminal jury trials in India came to a swift and astonishing end after the very high-​profile and salacious case of KM Nanavati v. State of Maharashtra (AIR 1962 SC 605). I rely, for my description of the case and its effect in abolishing criminal jury trials in India, on the excellent analysis in ­chapter 5 of the book by Gyan Prakash, Mumbai Fables.137 The case that helped lead to the end of the use of criminal jury trials in India involved Kawas Manekshaw Nanavati, “an upright Parsi naval officer: his beautiful English wife Sylvia; and a rich, swinging Sindhi bachelor, Prem Bhagwandas Ahuja.”138 All the parties were rich and of high social status, and the murder case led to intense publicity and national gossip. According to Gyan Prakash, “It was also destined to make legal history as the last jury trial in India.”139 Press coverage of the drama was intense. Prakash notes that the case involved the spectacle of an esteemed Indian naval officer murdering his wife’s lover, Ahuja, after discovering from his wife that she was having an affair with Ahuja that she was unwilling to end. This case attracted a lot of publicity somewhat akin to the O.J. Simpson murder trial in the United States in the 1990s.140 Prakash says that a “nine-​member jury consist[ing] of two Parsis, one Anglo-​ Indian, a Christian, and five Hindus” was seated.141 The jury deliberated for three hours, and Prakash says that it “returned to announce its verdict: Nanavati was not guilty of murder. By an eight to one majority, it also rejected the charge of culpable homicide amounting to murder.”142 The courts ended up reversing the jury, and the Supreme Court of India reached the same conclusion, but public sentiment was strongly in favor of Nanavati. Prakash ends her discussion by saying that “[t]‌he governor then, at Sylvia’s pleading, pardoned Nanavati, who left India to move with Sylvia and his children to Canada.143 As I said above, this case was really similar to the O.J. Simpson case in the United States in the 1990s.

137 Gyan Prakash, Mumbai Fables (2010) (Reproduced with permission of Princeton University Press). 138 Id. at 160. 139 Id. 140 Id. at 161–​71. 141 Id. at 171. 142 Id. at 180. 143 Id. at 202.

306  The History and Growth of Judicial Review, Volume 1 The net result of this trial was that the use of juries in criminal cases in India came to an end. They were regarded as being too emotional and too arbitrary and capricious to ever be relied upon again. The Constitution of 1950 had not provided for a right to jury trial, and in the wake of the Nanavati trial, they were quietly phased out, with their final abolition in 1973. India never used jury trial after independence in India in civil cases. Civil jury trial has today disappeared in the United Kingdom, except in libel and slander cases; in Canada; and in Australia. Criminal jury trial is still used in serious cases in the United Kingdom, Canada, and Australia. The United States continues to use juries in 2 percent of all federal criminal cases, but 98 percent of U.S. criminal cases are settled by plea bargaining. Even in civil litigation, 95 percent of all U.S. cases are settled out of court, meaning there is no jury trial. The right to jury trial appears to be disappearing everywhere in the common law world. * * * In summary, India borrowed the vertical federalism judicial review umpiring of errant subunits, which the British JCPC had exercised, and it conferred those umpiring powers and judicial review, as borrowed from the United States, on its Supreme Court. The key phase of Indian Supreme Court judicial review came, however, after the Indira Gandhi state of emergency when the court began engaging in rights from wrongs judicial review. The Indian Bill of Rights, itself, is a rights from wrongs document that grew out of the bitter Indian experience with racist, British colonialism. Bruce Ackerman rightly notes in Revolutionary Constitutionalism that the Congress Party, which accomplished Indian independence, was a mass political movement, which succeeded in constitutionalizing its charisma. This movement occurred because of British wrongs, which led to rights in the Indian Bill of Rights. What should immediately become apparent from the discussion of India’s court system so far is how deep an imprint the period of British imperial rule made on the Indian court system. The British created the High Courts, and the Indian government chose to keep and expand them. The British overlay the High Courts with appeals to an unanswerable JCPC, and the Indians have stumbled into creating just such an all-​powerful court with the Supreme Court of India. Privy Council and Supreme Court review was enacted for federalism and separation of judicial power umpiring reasons, and so too was the Supreme Court of India created for the same reasons as well as for rights from wrongs reasons suggested by the Indian Bill of Rights and the period of racist British colonial rule. Indian judicial review in enumerated powers cases and in horizontal judicial review cases, and in Bill of Rights cases was borrowed from the United States. The main difference between India, on one side, and Canada and Australia, on the other, is that India had from the outset, in its Constitution, a Bill of Rights, which was a judicially enforceable rights from wrongs document; and a set of

The Union of India  307 directive principals, which were not meant to be judicially enforceable, but which now have become so. The federalism and judicial separation of powers umpiring, which the Supreme Court of India now engages in is supplemented by enormous judicial power to enforce the rights from wrongs Bill of Rights and the Directive Principles clauses. The Supreme Court of India is so powerful that it can largely govern the nation although it does not yet have control over taxes and the budget. The British common law legacy of a strong judiciary is very much alive in India today.

III.  What Explains the Origins and Growth of Judicial Review in India? I begin as always with Ran Hirschl’s theory that judicial review under the Government of India Act 1935 was set up by the fading British colonial elites who wrote the Government of India Act 1935 to hegemonically entrench themselves in power. Phrased in this way, Hirschl’s claim accurately describes the Indian case in 1947, on the eve of independence. There is, however, no reason to think that the elites who wrote the Indian Constitution and Bill of Rights were trying to hegemonically entrench themselves in power. The Statute of Westminster, 1931 gave a Dominion like India the power to declare its independence at any time. The Indian elites at the Constitutional Convention were merely copying the Government of India Act 1935, which provided for a federalism umpire for India with all of its then many jurisdictions including a number of High Courts and a Federal Court above them. Once the Constitution went into effect, the Federal Court became the Supreme Court of India. There is no good history of the Federal Court, and of its relationship to the JCPC in English that I am aware of. The Federal Court was only created by the Government of India Act 1935, and it then became the Supreme Court of India when the Constitution of India was ratified. The Indian elites at the constitutional convention made a deliberate decision to add a Bill of Rights to their Constitution that was judicially enforceable, and in doing this they were borrowing from the U.S. American example. Indian elites did not seek to entrench themselves, in 1947, nor did they feel a need to do so. As Bruce Ackerman points out, India was in fact run by the Movement Party that created independent India—​the National Congress Party—​for almost the entirety of Indian history from 1947 until 2014. Only in the last six years has the BJP emerged as a strong-​enough second party to be able to win two consecutive national elections. Professor Tom Ginsburg argues that judicial review emerges when two relatively coequal political parties seek “insurance and commitment” by placing

308  The History and Growth of Judicial Review, Volume 1 certain values in the Constitution so that if one party loses an election, it is not totally rendered powerless. The problem with Professor Ginsburg’s theory in India is that for almost the entirety of the first seventy years of independence, it was governed by only one political party—​the Congress Party—​with only a few sporadic instances where the Hindu Janata Party or the BJP has governed instead. The Hindu Janata Party merged with another party, to become the BJP, and it does actually control the Indian national government today, in 2020. India today has a meaningful two-​party system with the BJP, on the Right; and the Congress Party, on the Left, contesting elections. Still, Professor Ginsburg’s theory has something going for it because the foundational cases that established strong form judicial review in India like the Kesavandaanda case and the Maneka Gandhi case, and the Minerva Mills case were all cases where the Indian Supreme Court boldly challenged the elite government in power and received outpourings of public support for doing so. Thus, although I do not believe the Indian Constitution originated for “insurance and commitment” reasons, I do believe that the enormous growth in the power of the Indian Supreme Court since the Indira Gandhi emergency has occurred in part for those reasons. Support for judicial review in India, today, may thus exist for Professor Ginsburg’s reasons of “insurance and commitment.” The thing Professor Ginsburg’s theory cannot explain is the origins of judicial review after Indian independence and prior to 1980. Third, there is the theory that Indian judicial review emerged for federalism umpiring reasons. This was undoubtedly true when the British set up the JCPC to monitor disputes among the Indian states and the 565 princely states on the Indian subcontinent, but it is much less true today. The government of the Union of India is practically a unitary nation-​state, and the states and territories retain very little power. There is really only one very important federalism case cutting back on national power, S.R. Bommai v. Union of India ((1994) 2 S.C.R. 664). It is admittedly a very important states’ rights case and enumerated federal powers case, but the Bommai case aside, there is little Supreme Court of India caselaw boosting state power. Still, the Indian Supreme Court does today play the role of an umpire among many of India’s minority religions and ethnic groups. Professor John Hart Ely, in Democracy and Distrust: A Theory of Judicial Review144 argued that courts are needed to protect minorities from majority tyranny and to keep the political processes of change open, and the Indian Supreme Court has certainly flourished performing both of these tasks.



144 John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980).

The Union of India  309 The Supreme Court of India plays a very important role in umpiring lawsuits between the Indian states against one another, which are filed much more frequently than are such lawsuits between the American states.145 This is a form of judicial federalism umpiring and given the litigious nature of the Indian states, it surely establishes that federalism umpiring was a main cause of the introduction of judicial review in the British Empire. It is also a major reason why such judicial review persists in India today. Fourth, and most powerful is the theory that Indian judicial review has grown immensely stronger because of the rights from wrongs hypothesis of Professor Alan Dershowitz. This coincides completely with the fact that the Supreme Court of India was a very weak body initially, whose decisions were repeatedly overruled by constitutional amendment, until the Indira Gandhi state of emergency, and the Supreme Court’s brave resistance to it, galvanized public opinion behind the Supreme Court. I  think that the rights from wrongs process best explains the incredible growth of Indian judicial review since 1980. The court has consistently taken the lead with issues ranging from poverty to sexual harassment in the workplace to euthanasia. Indian voters feel their politicians and governments are corrupt, but they have confidence in their Supreme Court. This is the real reason why the Supreme Court of India is the most powerful branch of the Indian government. The voters trust the court, and, since the Gandhi state of emergency, the voters have not trusted their politicians. The other rights from wrongs story in India is the writing of the Indian Bill of Rights itself. This occurred because of India’s long and unpleasant experience with British racism and colonialism. The Indian Bill of Rights bans racism and is a much lengthier document than is the U.S. Bill of Rights. The Indian Bill of Rights is vigorously construed by the Supreme Court of India, which now reads it in a purposive way. The addition of the Bill of Rights to the Constitution marked a departure from the paths Canada and Australia initially followed in 1867 and in 1901, respectively. The addition of the judicially enforced Bill of Rights to the Constitution of India in 1950 is a classic rights from wrongs story. It has also no doubt contributed to other new democracies post-​1950 incorporating bills of rights in their constitutions. Active judicial review in India has meant interpretation of the Constitution in a manner consistent with the text and spirit of the Constitution. It has meant more rights for individuals, respect for the rule of law, and the court fulfilling the role described in the Constitution. Contrary to Professor Hirschl’s theory, judicial review grew in power in India after the emergency to save the country from



145

Conversation with Prithviraj Datta.

310  The History and Growth of Judicial Review, Volume 1 its ruling elite and their authoritarian leanings, not to entrench an elite that was losing political power. Judicial review in India thus originated and grew for five reasons. First, the history of Privy Council vertical, federalism judicial review umpiring in the British Imperial period habituated Indians to the idea of judicial review of the legality of legislation. Second, Indians deliberately decided to borrow stronger judicial review from the U.S. Constitution, and they inserted a clause to this effect, as well as borrowing from the United States the judicially enforceable Bill of Rights idea. Third, Indira Gandhi’s state of emergency in the 1970s led all players in Indian politics to want judicial review for rights from wrongs reasons. The Bill of Rights was also added to the Indian Constitution from the beginning for rights from wrongs reasons. Fourth, judicial review in India has functioned as in the Bommai case and in vital separation of powers cases as an umpire between the Union government and the states and among the various entities of the Union government. And, fifth, as Professor Bruce Ackerman has shown in Revolutionary Constitutions, the Indian National Congress Party was part of a mass mobilization of people who successfully sought independence by peaceful means and constitutionalized its charisma. The Supreme Court today is empowered by the constitutionalized charisma of India’s Founding Fathers. The origins and growth of judicial review in India are thus the result of all of these factors coming together at once.

Chapter Eight

The State of Israel The State of Israel came into existence on May 14, 1948 (5 Iyar 5708) when David Ben-​Gurion and a Constituent Assembly declared Israeli independence. The British Mandate over Palestine was scheduled to end the next day on May 15, but the new Israelis in Tel Aviv took down the Union Jack and raised the Israeli flag on May 14. Israeli independence and statehood came about through a remarkable historical process that began in nineteenth-​century Europe. I will describe that process in Section I. Israel, today, is a country of 9.256 million people of whom 74.2 percent are Jewish, 20.9 percent are Arabs who are Muslims, and 2 percent of whom are Christians. The Law of the Return Jewish population, which counts all of those people in the world who can legally “return” to Israel and acquire citizenship automatically, is 23.5  million people. Since the 1967 Six Day War, Israel has occupied continuously the area, which constituted the biblical lands of Israel and Judeah, as well as all of the city of Jerusalem, which is a Holy site for Christians, Muslims, and Jews. The Israelis granted the Palestinians living in the Gaza Strip their complete independence, it entered into the 1978 Camp David peace treaty with Egypt, and Israel has allowed a lot of Palestinian self-​rule in the West Bank while building perimeter fences to protect itself from terrorist attacks. Today, 31 percent of all of the Jewish people in the world live in Israel, as compared to 51 percent who live in the United States. France comes in third with a 3 percent Jewish population for now. Jewish people are currently fleeing from France to emigrate to Israel because of growing anti-​S emitism in France. Jerusalem is the capital of Israel, and it has recently been recognized as such by the United States. Israel has a highly skilled workforce and is one of the most educated countries both in the Middle East and in the world. It also has one of the highest life expectancies in the world. Israel’s GDP per capita places it 36th in the world. Israel’s legislature is called the Knesset, which is a unicameral body with 120 members, which elects the prime minister of Israel. The country uses an extreme form of proportional representation, which results in a large multiparty system. Coalition governments have to be frequently cobbled together from many parties to get 61 of the 120 votes in the Knesset needed to form a government. From

The History and Growth of Judicial Review, Volume 1. Steven Gow Calabresi, Oxford University Press (2021). © Steven Gow Calabresi. DOI: 10.1093/oso/9780190075774.003.0009

312  The History and Growth of Judicial Review, Volume 1 1948 until the 1990s, Israel adhered to the old British Westminster Model of parliamentary sovereignty, no written constitution, and no judicial review of the constitutionality of legislation and protection of liberty under the common law. Thanks in part to historical events during the Israeli founding but largely due to the work of one man, former Israeli Supreme Court president, Aharon Barak, this situation changed, in the early 1990s. Today, Israel has a partially written Constitution; and a very powerful system of judicial review of the constitutionality of legislative, executive, and military acts. Israeli judicial review is one of the strongest systems of judicial review in the world. My understanding of the Israeli system of judicial review had been greatly helped by Professor Bruce Ackerman’s excellent book, Revolutionary Constitutions:  Charismatic Leadership and the Rule of Law; and by Professor Suzie Navot’s excellent book, The Constitution of Israel: A Contextual Analysis. Israel inherited some civil law rules from the Ottoman Empire, which had borrowed them from Continental Europe, some Jewish law legal rules, and some English common law rules as a result of the United Kingdom’s governance of Israel from 1917 to 1948 under a League of Nations’ Mandate.1 I include Israel in Volume I of my two-​book treatise not only because of its common law heritage, but also because of its heritage as a part of the British Empire. Israelis inherited from the British a very robust conception of the judicial role, and that is why I include Israel in this volume.2 Former Israeli Supreme Court President Aharon Barak has told me in conversation that he thinks Israel’s common law heritage was an important factor in making it possible for him to introduce judicial review in Israel.

I. History As Professor Ackerman points out, “[t]‌he French Revolution offered the Jews of Europe the prospect of a new political identity.”3 Prior to 1789, all European Jews were, at best, second-​class citizens confined to live in a ghetto, the doors of which would be locked at night. Post 1789, the Catholic Church was regarded as a source of embarrassment by the French revolutionaries who tried unsuccessfully to get the French people to worship a Goddess of Reason. The Enlightenment idea that all men are created equal led the French revolutionaries to welcome 1 Suzie Navot, The Constitution of Israel: A Contextual Analysis (2014) says at page 3 that “The ultimate result of [Israel’s] anglicisation was a mosaic system made up of many legal pebbles: Ottoman, Muslim, French, Jewish, and, above all, English.” 2 See also Assaf Likhovski, Law and Identity in Mandate Palestine (2006). 3 Bruce Ackerman, Revolutionary Constitutions:  Charismatic Leadership and the Rule of Law 296 (2019).

The State of Israel  313 Jews into the social and political community. The Congress of Vienna in 1814 led to the re-​emergence of discrimination against Jews in my Italian grandfather’s home town of Ferrara, Italy. But, many Jews in Ackerman’s words, “rejected cultural patterns that forced them to live a life that set them apart from prevailing social mores.”4 Thus, my great-​grandfather became a Freemason and assimilated with other pro-​Enlightenment individuals in Italy. In the 1870s, a number of Jews living under severe persecution in the former Russian Empire, which held frequent pogroms and anti-​Semitic boycotts; and some living in Eastern Europe, developed the idea, from their reading of the Bible, that the Jews as a people should escape constant persecution by emigrating to the Holy Land, which was then governed by the Ottoman Empire. Small communities of Jews thus began to emigrate to Israel as early as 1870 to escape Russian persecution and for biblical reasons. Theodore Herzl is widely regarded as having founded the Zionist movement in 1897, but the movement actually predates him. In 1896, Herzl wrote a book The Jewish State, which urged secular and religious Jews to stop trying to assimilate and to instead form an all Jewish state.5 Herzl’s advocacy of Zionism was very powerful. It led to the creation of the World Zionist Organization (WZO). Herzl argued that all the Jews in the world should come together to end the two thousand-​year-​old diaspora and to join together living in a common land set aside by one or another of the European colonial powers. According to Ackerman, Herzl considered a Jewish state in Palestine, in Argentina, and in modern-​day Uganda.6 David Ben-​Gurion, who became the Founding Father of Israel, was a young Zionist who was passionately committed to socialism, as were many of the early Zionists. Ackerman explains that Ben-​Gurion settled in Israel before World War I with the aim of creating a Jewish state there. He ended up playing a very consequential role, indeed. It should be noted that Englishmen and Americans were extremely critical of the Russian pogroms and anti-​Semitic boycotts, which they heatedly denounced. Russia was quite rightly viewed in the West as being barbaric in its treatment of its large Jewish population. Russian mistreatment of Jewish people was one of the major reasons why the United Kingdom initially refused to join the Triple Entente with France and Russia to oppose Germany and Austria-​Hungary. As a result of the vicious discrimination and murder that Eastern European Jews had suffered, Englishmen and Americans were very supportive of the movement of Jews from Russia and Eastern Europe to Israel from the 1890s on. This



4 5 6

Id. Id. Id. at 297.

314  The History and Growth of Judicial Review, Volume 1 ending of the diaspora whereby Jews were cast out of Israel and spread all over the world, only to be persecuted, was seen as being a critical human rights cause. In 1914, World War I began, and it pitted the Allied countries of the United Kingdom, France, and Russia, against the German Empire, the Austro-​ Hungarian Empire, and the Ottoman Empire. The British enjoyed immediate success against the Ottoman Empire, which they evicted from Palestine and from all the Arab countries. Britain thus replaced the Ottoman Empire as the governing power in what are now the countries of Israel and Jordan. Eventually, after World War I, the League of Nations awarded the United Kingdom a mandate to govern the territory of Palestine and Transjordan, which the British in fact did from 1917 to 1948. This mandate covered all of the areas that are today Israel, Jordan, and the Gaza Strip. In 1917, with the British firmly in control of all of Palestine and Arabia, the Jewish people of Palestine petitioned the government of the United Kingdom for a statement as to the legitimacy of their status as residents of the Holy Land. The United Kingdom responded in 1917 by issuing the Balfour Declaration, which said as follows: His Majesty’s government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-​ Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.

With this blessing in place, Judaism thrived in the Holy Land and the number of Jews living there increased enormously. Astonishingly, Jews living in the British Mandate of Palestine in the 1920s and 1930s revived Hebrew as a spoken language. Hebrew had been used in religious services in Europe, but, as Ackerman observes, the everyday languages of European Jews had been Yiddish and Ladino.7 This changed in the 1920s and 1930s. Most European Jews in British Palestine were committed socialists or communists, and there was strong support for the socialist kibbutz movement.8 David Ben-​Gurion emerged in the 1920s as a leader of the General Federation of Hebrew Workers, which Ackerman describes as having been a collection of socialists in 1920.9 Ben-​Gurion established a political wing of this organization,

7

Id. at 297. Id. 9 Id. at 298. 8

The State of Israel  315 and by the early 1930s Ackerman says that Ben-​Gurion obtained the World Zionist Organization’s endorsement, and he founded the Mapai Party, which would itself found the State of Israel in 1948. The British maintained an elected National Assembly in Palestine during the mandate period. When the United States greatly restricted Jewish immigration with a racist law passed in the 1920s, many European Jews chose to emigrate to Mandate Palestine instead of going to Latin America, according to Ackerman.10 The leading military figure in Mandate Palestine, according to Ackerman, was Vladimir (Ze’ev) Jabotinsky, who was a defender of “modernity, science, and freedom, and condemned Orthodoxy with fervor.”11 He opposed socialism, and his banner was ultimately taken up by Menachem Begin, one of Israel’s founders about whom my readers shall hear a lot more.12 In 1933, a negotiation was reached with the Nazis whereby 50,000 German Jews were allowed to leave Germany and emigrate to Israel. Between 1929 and 1938, 250,000 Jews arrived in Palestine. With millions of Jews seeking to emigrate from Continental Europe, the British announced they would not allow any further Jewish immigration into Palestine. The Nazi dictator Adolf Hitler actually proposed exporting all of Europe’s Jews to Madagascar, but unfortunately no one took him up on the idea. A British white paper of 1939 agreed to allow 75,000 additional Jewish immigrants into Israel prior to 1944 after which additional entries would require Arab approval. Ackerman notes that the British were worried about “a violent Arab backlash that would precipitate all-​out war.”13 In March 1940, the British high commissioner issued an edict barring Jewish people from buying any more land in 95 percent of Palestine. Jews trying to flee to Israel who were caught by the British were deported to Mauritius. During World War II, 1.5 million Jews fought in the U.S., British, or Soviet armies against the Nazis, and many of them went on to fight for the State of Israel. In 1943, the Soviet Union released Menachem Begin from prison, and he immediately went to Israel where he began organizing violent resistance against the British for their policy of keeping new Jewish immigrants out of the Holy Land. In July 1946, Begin’s military arm, Irgun, bombed British headquarters at the King David Hotel in Jerusalem, which led to major casualties.14 Ben-​Gurion used his control over the Workers Federation to create an armed wing that eventually became the Israeli Defense Force (IDF) or army. Irgun was subsumed into the IDF, but Begin founded the Herut political party as a classical liberal alternative to the Mapai Party’s socialism.15

10

Id. at 299. Id. 12 Id. at 299–​300. 13 Id. at 300. 14 Id. at 301. 15 Id. 11

316  The History and Growth of Judicial Review, Volume 1 By 1945, it became clear to the victorious Allies that Nazi Germany had sought to exterminate the Jews in its control through a Holocaust that had left more than 6 million Jews dead, 1.5 million of whom were children. Global sentiment, especially in the United States, was intensely sympathetic to the Jewish people and to their desire for a homeland in Palestine. When the Jewish people declared independence from Britain on May 14, 1948, and the creation of a Jewish state in Eretz-​Israel to be known as the State of Israel, President Harry S. Truman immediately recognized the new state and government. The United Nations (U.N.) passed a resolution prior to Israeli independence calling for peacefully coexisting Jewish and Palestinian states in Palestine with U.N. control of the City of Jerusalem, which is of sacred importance to Jews, Christians, and Muslims. This plan was, however, never executed. David Ben-​Gurion was, at this time, the head of a Provisional Council of State, with thirty-​seven members representing the Israeli people and their significant factions, which had the backing of the WZO.16 Ben-​Gurion read the Israeli Declaration of Independence aloud on the radio and pledged to elect a constituent assembly, which would write a Constitution for Israel.17 The new State of Israel was immediately attacked by five Arab armies. Israel eventually won a tenuous peace with slightly larger territories than it had had under the U.N. Resolution. Following the 1949 Armistice Agreements, the United Kingdom recognized the State of Israel, and it finally stopped impeding Jews from trying to immigrate to Israel. Elections were held in January 1949 with 90 percent of the settler community participating.18 Ackerman explains that when the constituent assembly convened in February 1949, Ben-​Gurion turned his back on the Constitution-​ writing project, over the strenuous objections of Menachem Begin, and passed a law setting up the constituent assembly as the 120-​member Knesset, which was now the ordinary legislature for Israel.19 The Knesset would be a Westminster Model parliamentary sovereignty regime. Ben-​Gurion, as the prime minister of this regime, would have total power unchallenged by any Supreme Court with the power of judicial review.20 Professor Ackerman offers a sustained analysis of why Ben-​Gurion as the “charismatic leader” of Mapai, which had some organizational charisma, decided not to write an Israeli Constitution in 1949. Among the factors were the sharp splintering of the constituent assembly among socialists and

16

Id. at 302 Id. at 302–​3. Id. at 304. 19 Id. at 304–​5. 20 Id. 17 18

The State of Israel  317 communists of various types, classical liberals like Begin, and religious Jews who wanted Israel to be only a Jewish State. In addition, Ben-​Gurion felt that the French tradition of worthless paper constitutions was less worthy of emulation than the British Westminster Model of step-​by-​step inductive evolutionary constitutionalism and reliance on the common law to protect liberty.21 The constituent assembly, which was now called the Knesset, did adopt what is called the Harari Resolution, which said that Israel would henceforth in all future Knessets enact Basic Laws, which would have constitutional status, in a step-​ by-​step process.22 Ben-​Gurion supported the Harari Resolution, which passed with fifty votes in favor, thirty-​eight religious Zionists opposed, three abstaining, and eleven members of the Knesset who left the chamber.23 Israel thus lost its chance to adopt a founding Constitution, in the wake of the Holocaust, which would have been a triumph for the principle of Human Dignity, which was instead championed by the Universal Declaration of Human Rights of 1948 and the German Basic Law of 1949.24 Between 1948 and 1958, the Jewish population of Israel increased from eight hundred thousand to two million. Nineteen years later, another Arab-​Israeli war was fought. The 1967 Six Day War was fought in June 1967 between Israel and her neighbors, including Egypt, Syria, and Jordan. The Israelis routed the Egyptian army and conquered the entire Sinai Peninsula from Egypt, which Israel occupied until the Camp David Peace Accords were signed by Egyptian President Anwar Sadat and by Israeli Prime Minister Menachem Begin on September 17, 1978. The Israelis also routed the Jordanian army in the 1967 Six Day War, and they conquered the entire West Bank from Jordan. Finally, the Israelis conquered the Syrian army and captured the critically important Golan Heights from Syria. These Syrian mountains had been used to shoot downhill at Israelis, putting them in extreme strategic danger. As a result of the Six Day War, Israel had conquered not only the entire land of the biblical Kingdom of Israel, but the Golan Heights and the Sinai Peninsula as well. All this was accomplished with fewer than one thousand Israeli casualties, as compared with more than twenty-​two thousand Arab casualties. Across the Arab world, Jewish minority communities were expelled with many of their members going to Israel or Europe.



21

Id. at 310. Id. at 311–​12. 23 Id. at 312–​13. 24 Id. at 313–​14. 22

318  The History and Growth of Judicial Review, Volume 1 In the 1960s and 1970s, Israel faced what Professor Ackerman calls a succession crisis as founding leader, David Ben-​Gurion, left office in 1963 and as others vied to take his place.25 Levi Eshkol and Golda Meir served as prime ministers, but to the Mapai Party’s dismay, Menachem Begin, the last of Israel’s founding fathers, won the elections of 1977 on a free market political platform with his Likud Party.26 The Mapai Party had by then long rebranded itself as the Labor Party. The Six Day War had been a momentous victory for Israel, but it brought with it a huge problem. Millions of Islamic Palestinians lived in the West Bank and the Gaza Strip, and Israel, a Jewish Democratic State, would now have to govern them. Thus was launched a peace process, which has gone on continuously from 1967 to 2020 with only one major success. In the late 1970s under Prime Minister Menachem Begin, Israel reached a peace agreement with Egypt whereby Egypt recognized Israel’s right to exist, the two sides exchanged ambassadors, and Israel returned the Sinai Peninsula to Egypt as already mentioned. In the early 1970s, some Jews were allowed to leave the Soviet Union to go to Israel, although most were not. After the Fall of Communism in Eastern and Central Europe, millions of Jews were able finally to flee and many went to Israel. Over 120,000 Ethiopian and other African Jews were ultimately able to flee to Israel under the Law of the Return, which allows anyone with a parent of Jewish background to emigrate to Israel. The new Jewish immigrants supported Menachem Begin’s Likud Party, which came to power in 1977. Begin promoted the career of an incredibly talented lawyer, Aharon Barak, who had served as the attorney general for Yitzhak Rabin’s scandal-​ridden government in 1975. Begin used Barak as his main legal advisor during the negotiation of the Camp David peace accords with Egyptian President Anwar Sadat in 1978 and then appointed the young superstar to the Supreme Court of Israel when a vacancy on that court opened up. It was Supreme Court Justice Aharon Barak who finally gave Israel both its Constitution and judicial review in the 1990s. Today, roughly 6,576,722 million Jews live in the State of Israel. These Jews speak Hebrew as their first language even though it had been a dead language, except for religious services, until it was reborn in modern-​day Israel. For the first time since the Romans destroyed the Second Temple in 70 A.D., there is again a Jewish state in Palestine, albeit one beset by difficulties with the Palestinians, who want their own state; and with neighboring countries like Lebanon and Syria who refuse to recognize Israel’s right to exist.



25 26

Id. at 314–​16. Id. at 317.

The State of Israel  319

II.  Judicial Review in Israel Israel has had a very complex and fascinating history with respect to the creation and growth in power of judicial review of the constitutionality of legislation, executive branch action, and military actions. I feel this history is best dealt with by telling the story of four important time periods: (1) The period of the British Mandate; (2)  the period of Independence, the First Knesset, and the Harari Resolution; (3) the period from 1951 to 1992 when Israel had a Westminster Model system of parliamentary sovereignty, no written constitution, and no judicial review; and (4) the period from 1992–2020 in which Israel has acquired a written constitution and an exceptionally powerful form of judicial review.

A.  Judicial Review during the British Mandate The British set up the following courts during the period of the mandate. First, there were four tiers of civil courts with petty civil and criminal cases handled in Magistrates’ courts. The major towns had municipal magistrates who sat as single judges. By the end of the Magistrate period, “there were five British chief magistrates and thirty four magistrates.”27 As explained in Assaf Likhovsky’s book, Law and Identity in Mandate Palestine: Four district courts were established in Jerusalem, Jaffa, Haifa, and Nablus. A fifth district court was established in 1937 in Tel Aviv. . . . A court of appeal (later named the Supreme Court) was established in Jerusalem to hear criminal and civil appeals of the decisions of the district courts and to decide (sitting as a high court of justice) administrative and constitutional law matters. The Supreme Court was at first composed of a British president and three Palestinian members—​a Muslim, a Christian, and a Jew. However the composition of the court fluctuated during the mandate, and in 1945 it comprised a British Chief Justice aided by two British judges and two “native” ones, a Jew and an Arab. Appeal from the Supreme Court of Palestine lay with the Privy Council in London, but this appeal was limited to certain civil matters.28

What was clear from the outset was that from 1917 to 1948, the British conception of powerful judges was the law in Mandate Palestine. The Palestine Order in Council, 1922, which governed the mandate, provided in Article 46 as follows:

27

28

Likhovski, supra note 2, at 20. Id.

320  The History and Growth of Judicial Review, Volume 1 The jurisdiction of the Civil Courts shall be exercised in conformity with the Ottoman Law in force in Palestine *** and such Orders in Council, Ordinances and regulations as are in force in Palestine (E”I) *** subject [to their being] exercised in conformity with the substance of the common law, and the doctrines of equity in force in England, and with the powers vested in and according to the procedure and practice observed by or before Courts of Justice and Justices of the Peace in England *** Provided always that the said common law and doctrines of equity shall be in force in Palestine so far only as the circumstances of Palestine and its inhabitants and the limits of His Majesty’s jurisdiction permit and subject to such qualification as local circumstances render necessary.

The local courts in Palestine on occasion used Article 46 to borrow from English Tort Law and to borrow the doctrine of consideration for Palestinian contract law.29 Generally, the Supreme Court, however, did not use Article 46 during the first fifteen years of the mandate. “In the late 1930s, judicial attitudes toward the interpretation of Article 46 changed as a result of two factors. One was the appointment of new judges to the Supreme Court.”30 The second was the result of Judicial Committee of the Privy Council’s (JCPC) intervention in Palestinian law first in dicta in a 1935 case, Faruqi v. Ayub; and second in the Privy Council’s final disposition of the Palestinian case of Faruqi v. Ayub. The facts of this case and of the dispute are not important to this book, but what is important was that there was extensive dialogue back and forth between the Privy Council and the Supreme Court over how to apply Article 46.31 I mention this because on the eve of Israeli independence, Israelis were already steeped in the British culture and approach to judging, and Israelites had also, like the Americans, the Canadians, the Australians, and the Indians before them, experienced Privy Council review in this case of the Supreme Court of Palestine. The idea of judicial review and of powerful judges was thus in the air in 1947.

B.  Independence, the First Knesset, and the Harari Resolution “On November 29, 1947, the U.N. General Assembly voted for the establishment of a Jewish state on the territory known as Palestine or the Land of Israel.”32 The



29

Id. at 64. Id. at 67. 31 Id. at 67–​83. 32 Navot, supra note 1, at 4. 30

The State of Israel  321 U.N. envisioned coexisting Jewish and Palestinian states with the Holy City of Jerusalem being run by the U.N. itself because of its central importance to the Jewish, Christian, and Islamic faiths. The Jews accepted the U.N. Resolution, but the Arabs rejected it. On April 29, 1948, the British government announced that its mandate over Palestine would end on May 15, 1948. The British were too weak to maintain imperial commitments. They had walked away from their Empire in India in 1947, and they intended to walk away from Palestine as fast as they possibly could. As a result, the Israeli People’s Council spent three weeks drafting an Israeli Declaration of Independence that would announce the creation of a Jewish state in Eretz-​Israel that would not discriminate on the basis of religion, race, or sex. On Friday, May 14, 1948, in Tel Aviv, the People’s Council, presided over by David Ben-​Gurion, issued the Declaration of the Establishment of the State of Israel, it took down the Union Jack, and it raised the new flag of Israel. The United States immediately recognized the existence of the State of Israel. Because of the central importance of the Declaration of Independence to Israeli Democracy, I have reproduced the full text of it below. “Provisional Government of Israel Official Gazette: Number 1; Tel Aviv, 5 Iyar 5708, 14.5.1948 Page  1 The Declaration of the Establishment of the State of Israel The Land of Israel was the birthplace of the Jewish people. Here their spiritual, religious and political identity was shaped. Here they first attained to statehood, created cultural values of national and universal significance and gave to the world the eternal Book of Books. After being forcibly exiled from their land, the people kept faith with it throughout their Dispersion and never ceased to pray and hope for their return to it and for the restoration in it of their political freedom. Impelled by this historic and traditional attachment, Jews strove in every successive generation to re-​establish themselves in their ancient homeland. In recent decades they returned in their masses. Pioneers, defiant returnees, and defenders, they made deserts bloom, revived the Hebrew language, built villages and towns, and created a thriving community controlling its own economy and culture, loving peace but knowing how to defend itself, bringing the blessings of progress to all the country’s inhabitants, and aspiring towards independent nationhood. In the year 5657 (1897), at the summons of the spiritual father of the Jewish State, Theodore Herzl, the First Zionist Congress convened and proclaimed the right of the Jewish people to national rebirth in its own country. This right was recognized in the Balfour Declaration of the 2nd November, 1917, and re-​affirmed in the Mandate of the League of Nations which, in

322  The History and Growth of Judicial Review, Volume 1 particular, gave international sanction to the historic connection between the Jewish people and Eretz-​Israel and to the right of the Jewish people to rebuild its National Home. The catastrophe which recently befell the Jewish people—​the massacre of millions of Jews in Europe—​was another clear demonstration of the urgency of solving the problem of its homelessness by re-​establishing in Eretz-​Israel the Jewish State, which would open the gates of the homeland wide to every Jew and confer upon the Jewish people the status of a fully privileged member of the community of nations. Survivors of the Nazi Holocaust in Europe, as well as Jews from other parts of the world, continued to migrate to Eretz-​Israel, undaunted by difficulties, restrictions and dangers, and never ceased to assert their right to a life of dignity, freedom and honest toil in their national homeland. In the Second World War, the Jewish community of this country contributed its full share to the struggle of the freedom-​and peace-​loving nations against the forces of Nazi wickedness and, by the blood of its soldiers and its war effort, gained the right to be reckoned among the peoples who founded the United Nations. On the 29th November, 1947, the United Nations General Assembly passed a resolution calling for the establishment of a Jewish State in Eretz-​Israel; the General Assembly required the inhabitants of Eretz-​Israel to take such steps as were necessary on their part for the implementation of that resolution. This recognition by the United Nations of the right of the Jewish people to establish their State is irrevocable. This right is the natural right of the Jewish people to be masters of their own fate, like all other nations, in their own sovereign State. Accordingly we, members of the People’s Council, representatives of the Jewish Community of Eretz-​Israel and of the Zionist Movement, are here assembled on the day of the termination of the British Mandate over Eretz-​ Israel and, by virtue of our natural and historic right and on the strength of the resolution of the United Nations General Assembly, hereby declare the establishment of a Jewish state in Eretz-​Israel, to be known as the State of Israel. We declare that, with effect from the moment of the termination of the Mandate being tonight, the eve of Sabbath, the 6th Iyar, 5708 (15th May, 1948), until the establishment of the elected, regular authorities of the State in accordance with the Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948, the People’s Council shall act as a Provisional Council of State, and its executive organ, the People’s Administration, shall be the Provisional Government of the Jewish State, to be called “Israel.” The State of Israel will be open for Jewish immigration and for the Ingathering of the Exiles; it will foster the development of the country for

The State of Israel  323 the benefit of all its inhabitants; it will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations. The State of Israel is prepared to cooperate with the agencies and representatives of the United Nations in implementing the resolution of the General Assembly of the 29th November, 1947, and will take steps to bring about the economic union of the whole of Eretz-​Israel. We appeal to the United Nations to assist the Jewish people in the building-​ up of its State and to receive the State of Israel into the community of nations. We appeal—​in the very midst of the onslaught launched against us now for months—​to the Arab inhabitants of the State of Israel to preserve peace and participate in the upbuilding of the State on the basis of full and equal citizenship and due representation in all its provisional and permanent institutions. We extend our hand to all neighboring states and their peoples in an offer of peace and good neighborliness, and appeal to them to establish bonds of cooperation and mutual help with the sovereign Jewish people settled in its own land. The State of Israel is prepared to do its share in a common effort for the advancement of the entire Middle East. We appeal to the Jewish people throughout the Diaspora to rally round the Jews of Eretz-​Israel in the tasks of immigration and upbuilding and to stand by them in the great struggle for the realization of the age-​old dream—​the redemption of Israel. Placing our trust in the Almighty, we affix our signatures to this proclamation at this session of the provisional Council of State, on the soil of the Homeland, in the city of Tel-​Aviv, on this Sabbath eve, the 5th day of Iyar, 5708 (14th May, 1948).

David Ben-​Gurion [and many other co-​signers not listed.]” As I  described earlier in discussing the history of Israel, the Provisional Council of State governed Israel until elections were held for a Constituent Assembly, at which point the Provisional Council dissolved, and the Constituent Assembly became the legislature of Israel, as well as being a constituent assembly. The voters of Israel knew when they were electing the Constituent Assembly that it would wear two hats: one as a Constituent Assembly and the other as the Legislature of Israel. Upon its election in January 1949, the Constituent Assembly adopted as its name “the First Knesset.” Professor Suzie Navot argues that this was part of an effort by David Ben-​ Gurion and others to bury the idea of writing an Israeli Constitution and to

324  The History and Growth of Judicial Review, Volume 1 move on to considering only regular legislative business. Ben-​Gurion favored the Westminster system of parliamentary sovereignty, no written constitution, and no judicial review of the constitutionality of legislation. He also feared that writing a constitution would lead to cultural wars among more orthodox and more secular Jews at a time when all Jews needed to be united in the Israeli War of Independence. The Knesset debated whether to try to draft a Constitution, and the debate was, in fact, angry and indecisive. Professor Suzie Navot explains that: Ultimately, the Knesset adopted a compromise that, in terms of comparative constitutional law was unique: Israel would introduce a constitution in ‘stages.’ Thus, the Knesset completed its constitutional deliberations by endorsing what became known as the Harari Resolution (named after MK Harari who proposed it), according to which ‘The First Knesset charges the Constitution, Law, and Justice Committee with the preparation of a proposed constitution for the State. The constitution will be composed of chapters, each comprising a single Basic Law unto itself. The chapters will be brought before the Knesset and together will constitute the Constitution of the State.’ The First Knesset (or Constituent Assembly) ultimately dispersed without having prepared so much as a ‘draft constitution for the state’, nor did it adopt a single Basic Law. Upon its dissolution, the First Knesset enacted the Transition (Second Knesset) Law 1951, which provided that ‘The Second Knesset *** shall have all the powers *** that the First Knesset and its members had’ and that this provision would also apply to the Third Knesset and every subsequent Knesset.33

Thus, David Ben-​Gurion got his way in the short run: Israel would have British Westminster-​style parliamentary sovereignty, there would be no written constitution, and there would be no judicial review. But, the door was left open to every subsequent Knesset to draft one Basic Law or even a whole constitution’s worth of Basic Laws. As we shall see, it is through that door that President Aharon Barak eventually charged in the 1990s.

C.  1951 to 1992—​Israel as a Westminster-​Style Democracy During the period between 1951 and 1952, Israel adopted Basic Laws on the Knesset and on holding elections, but it did not enact any Basic Laws regulating



33

Id. at 9.

The State of Israel  325 individual rights. During this period of time, the Knesset was essentially sovereign, there was not much to point to as being a written constitution, and there was no judicial review of the constitutionality of legislation. The Supreme Court of Israel was established in 1948 by the Knesset, and it is the High Court of Justice when it rules on the legality of all government actions. Some individuals have tried to argue, correctly in my view, that the Israeli Declaration of Independence was a constitution because it, and it alone, gave rise to the Israeli State, which gave rise to the Knesset. Professor Navot, however, explains that these claims were overwhelmingly rejected in court.34 President Aharon Barak, however, the father of both the Israeli Constitution and of Israeli judicial review agrees with me that the Israeli Declaration of Independence is judicially enforceable against the Knesset. Professor Navot points out, however, that a subtle culture of rights protectiveness did grow up on the Israeli Supreme Court, functioning as the High Court of Justice, after the new Israeli government chose to follow British Mandate legislation in place of other legal texts, which would have granted the government extensive powers to abridge rights. Thus, in the 1950 Shayeb decision, the petitioner said that the defense minister would not let him practice his profession as a teacher due to his political views and in violation of the rule of law and his right to occupational freedom. The court held a single cabinet minister or government official could not exercise this great a power, essentially ruling for Shayeb on administrative law grounds. Similarly, in the famous Kol Ha’am case, whose ruling is the cornerstone of the freedom of expression principle in Israel, the interior minister closed a newspaper named Kol Ha’am (The People’s Voice) that published a series of articles against government policies for ten days. A 1919 British Mandate order allowed for this, but the court reversed, saying the minister’s decision did not adequately account for “the status of freedom of expression in Israel.”35 The court deduced that principle from the Israeli Declaration of Independence saying that even if the declaration was not legally binding in Israel, laws and ministerial orders ought to be interpreted in light of it. The court noted that Israel is a democracy and that democracies cannot function without freedom of speech. The court said it would interpret laws as being consistent with the protection of freedom of speech and that only if the interior minister used a balancing test, which showed that it was “highly probable that public order might be seriously and severely harmed,” could speech be banned.36



34

Id. at 12–​17. Id. at 224. 36 Id. at 225. 35

326  The History and Growth of Judicial Review, Volume 1 In the Katalan case in 1979, the Prison Service sought to order that an enema be given to a prisoner against his will to recover drugs he had supposedly ingested. The court held that everyone in Israel has a right to maintain his dignity and bodily integrity and that this right applies to prisoners. Justice Barak ordered that, as a matter of administrative law, no single official could order that such a procedure be done to Katalan. These three opinions show that the Israeli High Court of Justice could use its administrative law powers to protect rights in Israel even prior to 1992. The Knesset may have been sovereign in this period of time, but cabinet ministers were not and their orders were judicially cut down. Twelve Basic Laws were enacted between 1951 and 1992, which regulated the structure of the Knesset, election law, the military, the economy, the judiciary, and various other matters as well. However, no Basic Laws were enacted conferring individual rights. The Supreme Court ruled early on that the Basic Laws could be trumped by subsequent laws, unless they were entrenched, when the Basic Law was made. In Basic Law, The Knesset, enacted in 1958, three entrenched provisions were included in the Basic Law that could only be repealed by 61 out of 120 members of the Knesset—​an absolute majority. It is very hard to get such a vote in the Knesset because of frequent absenteeism and because proportional representation leads to there being so many parties in the Knesset. Entrenched Section 4 of the Basic Law, the Knesset provided that the Knesset would be elected by secret ballots following the electoral rule of proportional representation. This Basic Law entrenched itself by requiring that it could only be altered in the future by a vote of sixty-​one members of the Knesset. 37 As Professor Navot recounts, in 1969, the Supreme Court had to consider a challenge brought by an individual named Dr. Bergman against a campaign finance law, which had passed the Knesset by a plurality vote, but not with sixty-​ one votes. The campaign finance law violated Section 4 of the Basic Law—​the Knesset, by giving public funds to political parties represented in the outgoing Knesset, but not making public funds available to new parties that had been formed, or to old parties that had no seats in the outgoing Knesset. This campaign finance law clearly altered Section 4—​the Knesset by changing the electoral rules without sixty-​one members of the Knesset acknowledging that they were amending a Basic Law. The campaign finance law was thus struck down as being, in essence, unconstitutional.38



37 38

Id. at 20. Id. at 20–​21.

The State of Israel  327 The Bergman v. Minister of Finance case was a mini-​Israeli version of Marbury v. Madison. For the first time in the history of Israel, the Supreme Court of Israel had quite correctly stuck down as unconstitutional an act of the Knesset. The legislature had to either reword the Party Financing Law to satisfy the court or to pass it again, this time with sixty-​one votes in the Knesset. The Bergman case was much discussed, but it was not until 1995 that the Israeli Supreme Court openly acknowledged the supremacy of the entrenched Basic Laws over ordinary laws. Bergman proved to be the first swallow of a spring that did not become summer until 1992. During the period between 1951 and 1992, the Knesset adopted many other Basic Laws of Israel.39 From the founding of the state under the Mapai Party of David Ben-​Gurion, the government had opposed the entrenchment of human rights enforced by judicial review because it believed in the Westminster Model of parliamentary sovereignty, no written bill of rights, and no judicial review. In 1977, Menachem Begin’s Likud Party came to power, and it favored the entrenchment of basic rights. However, its coalition partners in the religious parties blocked any effort to enact a Basic Law on Human Rights at this time. It was not until the early 1990s that the logjam was broken.40

D.  The Basic Law on Human Dignity, the Basic Law on Occupational Freedom, and the Bank Hamizrahi Decision In 1992, thanks to the persistent efforts of MK Amnon Rubinstein, two Basic Laws protecting the least controversial human rights were finally passed by the Knesset. Basic Laws on more contentious human rights such as freedom of expression, the principle of equality, and freedom of religion were put off until another day. The Knesset thus approached the constitutional protection of human rights in the same piecemeal fashion as it had approached the constitutionalization process since the sitting of the first Knesset.41 The Basic Law on Human Dignity was passed on March 17, 1992. It provides that: “Article 1:  The purpose of this Basic Law is to protect Human dignity and liberty, in order to establish in Basic Law the values of the State of Israel as a Jewish and democratic state.

39

Id. at 25. Id. at 26–​27. 41 Id. 40

328  The History and Growth of Judicial Review, Volume 1 Article 2: There shall be no violation of the life, body, or dignity of any person as such. Article 3: There shall be no violation of the property of a person. Article 4: All persons are entitled to protection of their life, body and dignity.”

The Basic Law on Human Dignity goes on to guarantee the right to leave Israel, it contains protections against abuse by the police or army, the right to privacy, and a number of other rights as well. I read this language as protecting all of the rights that are, for example, protected under the U.S. Constitution, including those protected by the Fourteenth Amendment. The Basic Law on Freedom of Occupation was passed in 1992 and then repassed in 1994. It provides that: “Article 1: Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel. Article 2: The purpose of this Basic Law is to protect freedom of occupation, in order to establish in a Basic Law the values of the state of Israel as a Jewish and democratic state. Article 3: Every Israeli national or resident has the right to engage in any occupation, profession or trade.”

The Basic Law on Freedom of Occupation goes on in this vein for several additional articles, and then, in Article 7, it entrenches itself by requiring that there be a majority of the Knesset to change it. I view this Basic Law as being a wonderful guarantee of freedom of occupation in Israel. My only regret is that the U.S. Supreme Court, in The Slaughter-​House Cases (1873), declined to find a right to freedom of occupation in U.S. constitutional law, incorrectly in my view. I also disagrees with a more modern case, Williamson v. Lee Optical Co. (1955), which also declined to enforce freedom of occupation. These two new Basic Laws passed in 1992 strikingly altered the Israeli Constitution by providing for the constitutional protection of human rights. However, only the Basic Law on Freedom of Occupation was entrenched so that sixty-​one votes would be needed to alter it. The Basic Law on Human Dignity is not entrenched and can thus be altered by a mere majority of those who happen to be present and voting at any given time in the Knesset. Aharon Barak has argued, and I agree, that amendments to this Basic Law depriving it of force would violate the Israeli Declaration of Independence,

The State of Israel  329 would thus be unconstitutional, and such amendments should be struck down as unconstitutional amendments by the Israeli Courts. The Knesset has only the enumerated powers granted to it by the Declaration of Independence, which clearly forbids discrimination on the basis of religion, race, or sex and which clearly contemplate protection of both freedom of expression and privacy. Suzie Navot observes that there was little public awareness or debate about the importance of these two Basic Laws.42 This is contrary to the situations I have examined in prior chapters where there was a lot of public debate and awareness of constitutional change in the United States, in Canada, in Australia, and in India when constitutional change occurred. The religious parties initially objected to the Basic Laws, but their objections were overcome when both laws began by recognizing the nature of Israel as a Jewish and Democratic state. Only about thirty-​two members of the Knesset voted for one of these Basic Laws while 21 members voted against43, showing how little understood they in fact were. The laws contain a limitations clause like that found in Section 1 of the Canadian Charter of Rights and Freedoms. Proportionate laws that are reasonably necessary in a democratic society can overcome the Basic Laws. Nonetheless, Justice Aharon Barak, in an article entitled “The Constitutional Revolution: Protected Human Rights” argued that these two Basic Laws were now constitutional rules, which the Knesset was bound by.44 Israel was no longer, according to Aharon Barak, a stranger to the world of judicial review, which has now become the norm among constitutional democracies. The key moment at which Israelis became aware of the scope of what they had done by enacting the two Basic Laws in 1992 came in the decision of a case, Hamizrahi Bank v. Migdal, (1992), which concerned the validity of a law enacted after the two 1992 Basic Laws, which new law infringed the Basic Laws. President Aharon Barak’s opinion for the court departed from the timid approach of the Bergman case, and he explicitly declared that because of the Harari Resolution, the Knesset always wore two hats: one as an ordinary legislator and the other as an ongoing constituent assembly. When the Knesset enacted Basic Laws, it was wearing its constituent assembly hat. Ordinary laws that conflicted with Basic Laws were thus unconstitutional and could be struck down by the courts exercising the power of judicial review. Israel had a constitution in Barak’s view, which consisted of all the Basic Laws

42

Id. at 27. Ackerman, supra note 3 at 321. 44 Navot, supra note 1, at 30. 43

330  The History and Growth of Judicial Review, Volume 1 enacted by the Knesset. Ordinary legislation by the Knesset that was inconsistent with the Basic Laws was quite simply unconstitutional. I think that President Barak was absolutely right that thanks to the Harari Resolution; and to the fact that the First Knesset was elected to be a Constituent Assembly; and that every subsequent Knesset was to have all the powers of the First Knesset; the Basic Laws written by the Knesset do form a written constitution of Israel, which the courts must enforce against ordinary Knesset legislation using the power of judicial review. In his decision in Hamizrahi Bank v. Migdal, President Barak first gave Israel a constitution and then gave the courts the power of judicial review! Hamizrahi Bank v. Migdal is thus even more than an Israeli Marbury v. Madison because it gave Israel a written constitution as well as giving the courts the power of judicial review. Hamizrahi Bank v. Migdal brought to an end the idea that Israel was a Westminster Model democracy with parliamentary sovereignty, no written constitution, and no judicial review of legislation. Israel firmly joined the huge number of democracies all over the world today, which have popular sovereignty, written constitutions, and judicial review of legislation. Hamizrahi Bank v. Migdal made it clear that all of the Basic Laws, even those that are not entrenched, are part of the Israeli Constitution and can only be changed by the adoption of a new Basic Law and not of an ordinary law. The Knesset follows this understanding in drafting legislation, and the general public has accepted this understanding as well. Some of the religious parties have protested that Barak’s constitutionalization process is a way of enforcing secular values, but so far this has not undermined what Barak sought to do. It should be noted that since the Knesset can amend a Basic Law as construed by the courts with a new Basic Law that comes out the other way, Israel has, like Canada, only a weak form of Second Look judicial review. This is technically true, but it is not true on the ground given the way the Israeli government is proceeding. The fact that Israeli Supreme Court justices play a major role in the selection of their own successors guarantees that the Supreme Court will usually have the last word. New Basic Laws cannot violate the Declaration of Independence. Moreover, the Israeli Supreme Court is empowered by the fact that Israel’s use of extreme proportional representation guarantees that there will always be a lot of parties in the Knesset. This means that it will be hard enough for the Knesset to form a government, and impossible for it to assemble a sixty-​one member majority of the Knesset which can hold together and beat the Supreme Court of Israel in a fight over the meaning of the Constitution of Israel. Israel may not need a federalism or a separation of powers umpire given that it is a unitary state with a parliamentary system of government. But, it does need an entity to play umpire among all of the many parties in the Knesset and call foul balls when they occur.

The State of Israel  331 Israel can be usefully compared here to Japan, which is a G-​20 nation that is also a unitary state with a parliamentary system of government. Japanese politics have been almost completely dominated by the conservative Liberal Democratic Party, which has been in power in Japan almost continuously over the last seventy years and which is in power today, in 2020. The Supreme Court of Japan, which has the power of judicial review has been too scared to exercise it because one party dominates all of Japanese politics. Prime Minister Shinzo Abe has two thirds majorities in both houses of the national parliament, and he controls all of the executive power as Prime Minister. This explains why the Supreme Court of Japan has held only eight laws to be unconstitutional, since it came into existence over seventy years ago. The contrast with Israel could not be clearer. Eight parties won seats in the Israeli elections of March 2020, and the Israeli Knesset had a very hard time just forming a government. Such a weak government will not win a fight with unremovable Supreme Court justices who play a big role in picking their own successors. In reality, the Israeli Supreme Court may end up being as powerful as the Supreme Court of India, which I just discussed in the prior chapter. Israel still has no clauses or Basic Laws barring discrimination on the basis of religion, race, sex, or sexual orientation; no freedom of expression clause or Basic Law; no free exercise of religion clause or Basic Law; and no ban on unreasonable searches and seizures. Aharon Barak believes, and I agree with him, that all these rights are covered by the Basic Law guaranteeing Human Dignity. Ever since the adoption of the German Basic Law in 1949, which starts out with a Human Dignity Clause, and follows it with an extensive Bill of Rights, it has been clear to comparative constitutional law scholars that Human Dignity requires protection against discrimination, freedom of expression, freedom of religion, and protection against unreasonable searches and seizures. Since 1995, the Supreme Court of Israel has followed this approach in its individual liberties case law. The court does apply proportionality review, and laws can be saved from unconstitutionality if they are reasonably necessary in a free and democratic society, as under Section 1 of the Canadian Charter of Rights and Freedoms.45 Recently, Prime Minister Benjamin Netanyahu’s government has tried to redefine Israel’s constitutional identity by, as Professor Ackerman says, “emphasizing its biblical origins rather than the Enlightenment ideals of the Zionists who fought and won Israel’s struggle for independence.”46 Netanyahu launched his assault on Aharon Barak’s Constitution of Dignity by persuading a 62 to 55 absolute, majority of the Knesset to pass a Basic Law that identifies Israel first, 45 For a comprehensive description of the current state of Israeli Human Rights Law, see Navot, supra note 1, at 221–​61. 46 Ackerman, supra note 3, at 319.

332  The History and Growth of Judicial Review, Volume 1 and foremost as the home for the Jewish people and claiming Jerusalem as an all Jewish city while stripping Arabic of its status as an official language alongside Hebrew.47 To the extent that this law discriminates on the basis of race or religion, I think it is unconstitutional as a violation of Israel’s Declaration of Independence. Professor Ackerman rightly says that the new Basic Law reflects the folly of Prime Minister David Ben-​Gurion in not constitutionalizing his charisma in 1949, which is true.48 In January 2019, the Supreme Court of Israel announced that it would convene an eleven-​justice panel to hear challenges to the Netanyahu Basic Law.

III.  The Origins and Growth of Israeli Judicial Review Bruce Ackerman has defined constitutional regimes as being:  1) those that grow out of a mass popular movement like the Zionist movement that helped to create Israel; 2) elite constructions like the effort engaged in in Hamizrahi Bank v. Migdal by President Aharon Barak, which gave Israel both a Constitution and a system of judicial review; and 3) evolutionary constitutionalisms like those of the United Kingdom and Canada to which Israel has some passing resemblances. I think all three modes of constitution formation have been at work in Israel from 1948 to the present day. I think Israel Human Dignity Constitution is a rights from wrongs reaction to the Holocaust of which constitution writer Aharon Barak was a child survivor. Barak lived in a Nazi concentration camp as a child, and his zeal for human dignity, a very robust conception of human rights, and very active judicial review all stem from that experience. The phrase Human Dignity first appears in comparative constitutional law with the German Basic Law of 1949, which was a rights from wrongs reaction to Nazism. Human Dignity in German constitutional law is an unamendable feature of the German Constitution, and it has come to embody all of the individual rights guaranteed in the German Bill of Rights in Articles I though XIX. Human Dignity is also guaranteed by Article I of the Universal Declaration of Human Rights of 1948. Aharon Barak, who is one of the world’s best comparative lawyers, undoubtedly understands that Human Dignity has become a legal term of art as a result of the German constitutional experience since 1949 and the Universal Declaration of Human Rights of 1948. He is thus right to read the Israeli Basic Law on Human Dignity of 1992, accordingly. To the extent that Barak, himself, is seen as the

47 48

Id. at 321. Id., at 320–​3

The State of Israel  333 Creator of the Israeli Constitution and system of judicial review of the constitutionality of legislation, it is quite clear that this system is, at least in part, a rights from wrongs reaction to the Holocaust. That is probably true as well in accounting for the motivations of the 1992 Knesset, which enacted the Basic Law on Human Dignity as well as the many additional Supreme Court justices, in addition to Barak, who have made judicial review work in Israel. Israeli judicial review did not arise to fulfill a need for a federalism or separation of power umpire since Israel is a unitary nation-​state without a separation of powers system. A few early rights ruling such as in the Kol Ha’am case distinguished between what a minister could do acting alone as compared to what he could do acting with the full backing of the Knesset and are thus separation of powers or administrative law cases. These isolated cases do not change the fact that Israeli judicial review emerged for rights from wrongs reasons. Israeli judicial review also did not emerge as a consequence of the Zionist mass mobilization, which led to the creation of Israel and to its Declaration of Independence. To the contrary, David Ben-​Gurion and the other early leaders of Israel self-​consciously rejected written constitutionalism and judicial review in favor of adopting the British Westminster parliamentary sovereignty model. It should be remembered that from the Nineteenth Century to the end of World War II the ideal regime was considered by many to be a Westminster Model of parliamentary sovereignty and enforcement of the common law. This is the legal tradition, which David Ben-​Gurion grew up in. It is only since the Second World War that the U.S. model of a Bill of Rights and judicial review of legislation for constitutionality has taken the world by storm. Israeli judicial review also did not emerge, as Professor Tom Ginsburg might predict, because two fairly equal mass parties wanted to settle certain basic ground rule principles for reasons of insurance and commitment. The founding period of Israeli politics was completely dominated by the Mapai and the Labor Party, while the 1992 constitutionalization period was completely dominated by the Likud Party and other parties that splintered off of the Likud. There was simply no time when two relatively coequal parties could have hashed out such a deal. Extreme proportional representation makes it highly unlikely that Israel will ever have anything that even approaches a two party system. Israeli judicial review has probably been tolerated and has certainly grown in power for insurance and commitment reasons. Ran Hirschl claims that Aharon Barak’s constitutionalization and judicial review project was an attempt at elite hegemonic entrenchment by secular Ashkenazi Jews of European origin as many more religious Sephardic Jews of Middle Eastern origin began to emigrate to Israel. Hirschl is right that in the 1990s Sephardic Jews were gaining political power, but Barack’s advocacy

334  The History and Growth of Judicial Review, Volume 1 of judicial review dated back clearly and publicly to the 1970s long before the Sephardic emigration, and it was clearly rooted in his experience as a Holocaust survivor, as Professor Ackerman explicitly agrees.49 I thus think Hirschl’s explanation of the causes and origins of Israeli judicial review is just plain wrong. Israeli adoption of written constitutionalism and of judicial review was probably in part a function of borrowing. By the early 1990s, when Barak gave Israel a written constitution and judicial review, the institution of judicial review existed in constitutional democracies all over the world including France and Canada, which had once been hostile to it. Just as the Westminster Model of parliamentary sovereignty was popular from 1867 to 1945 during the height of the British Empire, the American and German models of written Constitutions and Bills of Rights backed up by judicial review of legislation had swept the globe by the 1990s. As a brilliant comparativist, Aharon Barak could not have helped but to be influenced by these developments. I thus think borrowing, in addition to rights from wrongs, helps to explain the emergence of judicial review in the Israeli context. This in no way undermines Professor Ackerman’s argument that there was super-​majority support for an entrenched, written Constitution in Israel in 1948 and 1949 when Prime Minister David Ben-​Gurion chose not to enact a constitution right away. Finally, I think the emergence of judicial review in Israel is in part due to the weakness of the Knesset due to proportional representation. As I said above, the most recent Israeli election produced an eight party Knesset that had trouble even forming a government. Proportional representation makes the Knesset weaker, and it therefore makes the Supreme Court stronger. This seems to me to be an important factor in the development of Israeli judicial review.

IV.  Conclusion Israel is the first of the common law formerly British imperial polities, which seems to have adopted judicial review solely for rights from wrongs, borrowing reasons, and because of legislative and executive branch weakness. Unlike the United States, Canada, Australia, and India, Israel is a unitary nation-​state with no separation of powers. As a result, Israel has no need for a federalism or a separation of powers umpire. Israel is not a case that fits Professor Tom Ginsburg’s model of two coequal dominant political parties engaging in “insurance and commitment.” I  also reject as implausible Professor Ran Hirschl’s theory that Israeli judicial review is the product of a fading Ashkenazi elite entrenching itself



49

Id. at 319.

The State of Israel  335 against a rising Sephardic movement. In addition, I do think Israeli judicial review is partially explained by the weakness of the Knesset as a result of extreme proportional representation. This weakness in the legislative and executive powers greatly augments the Supreme Court of Israel’s judicial power. Finally, I think that Israel’s experience under British rule during the Mandate of Palestine years left behind a common law heritage in which judges are expected to play a big role. The common law tradition is also closely linked to the idea of constitutionally limited government and has been since the Glorious Revolution of 1688.

Chapter Nine

The Republic of South Africa The Republic of South Africa is the twenty-​fifth largest in the world by geographical territorial size. South Africa is also the twenty-​fourth most populous country in the world, with almost sixty million people. It ranks 170th out of 244 nations in population density, which means that, at least, in theory, there ought to be enough land for everyone in the country to live on. South Africa has the ninety-​sixth highest GDP per capita of any nation in the world, according to the International Monetary Fund (IMF). South Africa is highly diverse and recognizes eleven official languages, including English and Afrikaans, which is a variant of Dutch and of European origin. South Africans are 78% Christians, 10.0% no religion, 4.4% traditional faiths, 1.6% Muslims, and 1% Hindus. South Africa has the largest economy in Africa, and the twenty-​eighth largest economy in the world. It is considered to be a newly industrialized state. Poverty is pervasive, however, and one-​quarter of the population lives on only $1.25 a day. South Africa is 79.2 percent black African, 8.9 percent colored, 8.9 percent white, 2.5 percent Indian or Asian, and 0.5 percent other. The black South African population is, in turn, divided among members of many tribes, which speak many different languages. South Africa is, in short, a highly diverse society, and it has been committed to constitutionalism and the rule of law since 1994 when Nelson Mandela was first elected president of South Africa, vindicating the hopes of many.1 The South African success story is all the more remarkable because many people had feared that the white, racist Afrikaner oligarchy, which had built six nuclear bombs, might wage a very violent genocidal civil war with the four-​fifths majority of the South African population that was of black African descent. The fact that this did not happen is almost a miracle come true. This favorable development is almost entirely due to the wise, Gandhian leadership of Nelson Mandela, who became the country’s first president and who was a long-​time leader of the African National Congress (ANC) Party; to Desmond

1 Mark S. Kende, Constitutional Rights in Two Worlds: South Africa and the United States 1 (2009). For a much earlier assessment, see Ziyad Motala, Constitutional Options for a Democratic South Africa (1994).

The History and Growth of Judicial Review, Volume 1. Steven Gow Calabresi, Oxford University Press (2021). © Steven Gow Calabresi. DOI: 10.1093/oso/9780190075774.003.0010

338  The History and Growth of Judicial Review, Volume 1 Tutu, who provided popular guidance and preached peaceful coexistence of the racial groups in South Africa; and to the restraint, realism, and wisdom of F.W. de Klerk, the last leader of the South African apartheid regime. Mandela, Tutu, and de Klerk all received well-​earned Nobel Peace Prizes for their role in South Africa’s transition from a racist oligarchy to a constitutional democracy with a strong and judicially enforceable South African Bill of Rights. My discussion of South Africa draws on the following scholarly books and book chapters: Bruce Ackerman, Revolutionary Constitutionalism: Charismatic Leadership and the Rule of Law; Mark S.  Kende, Constitutional Rights in Two Worlds:  South Africa and the United States; Bonny Ibhawoh, Imperial Justice: Africans in Empire’s Court; Heinz Klug, The Constitution of South Africa: A Contextual Analysis; Hugh Corder, “The Republic of South Africa”; and Heinz Klug, “South Africa: From Constitutional Promise to Social Transformation.”2

I. History Modern human beings have lived in South Africa for at least 170,000  years. South Africa’s indigenous people in the seventeenth century were known as the Khosian, and they engaged in hunting and fishing. Bantu-​speaking peoples lived in the northern part of the area, which is now South Africa, according to Professor Mark Kende.3 When Europeans first “discovered” South Africa, the indigenous peoples were the Bantu speakers, Xhosa people, and Zulu peoples. Bartolomeu Dias, a Portuguese explorer, sailed down the western coast of Southern Africa and then sailed up the country’s eastern coast some distance. On his return trip to Portugal, Dias saw the Cape of Good Hope, which acquired its name because it led to the riches of trade with the East Indies. By 1795, the British had occupied the Cape of Good Hope region during the Napoleonic Wars, when the Netherlands fell temporarily under French control. By 1806, Cape Town had also become a British colony. The British government encouraged settlement in the South African colony so as to control its territory better; and, in 1807, the British Parliament passed the Slave Trade Act of 1807, which banned the slave trade in South Africa and throughout the British Empire. In 1833, the British Parliament passed 2 Bruce Ackerman, Revolutionary Constitutionalism:  Charismatic Leadership and the Rule of Law (2019); Kende, supra note 1; Bonny Ibhawoh, Imperial Justice: Africans in Empire’s Court (2013); Heinz Klug, The Constitution of South Africa: A Contextual Analysis (2010); Hugh Corder, The Republic of South Africa, in How Constitutions Change (Dawn Oliver & Carlo Fusaro, eds., 2011); and Heinz Klug, South Africa:  From Constitutional Promise to Social Transformation, in Interpreting Constitutions:  A Comparative Study (Jeffrey Goldsworthy, ed., 2006). 3 Kende, supra note 1, at 17.

The Republic of South Africa  339 the Slavery Abolition Act, which abolished slavery in all British colonies, including South Africa. British missionaries arrived in South Africa preaching abolition of slavery, even freeing slaves held by Afrikaners.4 Professor Mark Kende explains that some South African Afrikaners blamed these actions by the British, which led to huge numbers of Afrikaners engaging in the “Great Boer Trek,” whereby the Afrikaners moved north and east to found two Afrikaner slave-​owning constitutional oligarchies in areas then not under British control.5 Professor Mark Kende notes that the Afrikaners established two slave-​owning states in South Africa in the mid-​nineteenth century: the Orange Free State and the South African Republic. These states adopted U.S.-​style presidential, separation of powers constitutions. Meanwhile, in the British Cape Town colony, the government allowed blacks who met a property qualification to vote in elections, according to Kende.6 Diamonds were discovered in the 1860s, and by 1870 exports from the cape were booming. Cecil John Rhodes came to South Africa at this time and made a fortune in the diamond industry. Rhodes was eventually named prime minister of the British areas in Southern Africa, and the British named what is now the country of Zimbabwe after Rhodes, calling it Rhodesia.7 In 1899, war broke out between the British and the Afrikaner Boers over access to diamonds and gold. Britain had half a million troops fighting one hundred thousand Boers, and Britain won, using what Professor Kende describes as an extremely harsh scorched-​earth policy.8 In 1909, the imperial British Parliament passed the South Africa Act of 1909, which created the Union of South Africa on May 31,1910. This Union was a Dominion within the British Empire, coequal in status, with the Dominions of Canada, India, and Australia. Provinces were created in Cape Natal, the Transvaal, and the Orange Free State, according to Kende.9 The country at this time consisted of 4,000,000 Africans; 500,000 coloreds; 150,000 Indians; and 1,275,000 whites.10 South Africa was concerned that the Government of South Africa Act 1909 of the U.K. Parliament subjected its highest courts to judicial review by the Judicial Committee of the Privy Council (JCPC) sitting in London in the United Kingdom. The British reassured the South Africans that the JCPC would hear few South African cases, if any, because South Africa was not a federation. The



4

Id. Id. 6 Id. 7 Id. at 19. 8 Id. 9 Id. at 20. 10 Id. 5

340  The History and Growth of Judicial Review, Volume 1 British attributed the large number of JCPC decisions in Canada to the need to determine what laws were within the power of the Canadian federal government to enact and what laws were within the power of the Canadian provinces to enact. The British thus believed that in 1909, JCPC judicial review was mainly caused by the Canadian’s need for a federalism umpire. Since South Africa had no such need, the British predicted few cases would be appealed from South African courts to the JCPC. As Professor Ackerman notes, Mahatma Gandhi arrived in South Africa in 1893,11 and he served as a British soldier in the Boer War before he became commited to non-​violence. Gandhi began a campaign on behalf of Indians and other Asians who were emigrating to South Africa seeking gold and diamonds by arguing that they were entitled to equal rights with white British South Africans. Ackerman says that Gandhi formed a Natal Indian Congress Party to compete in South African elections and that he inspired Westernizing black elites to do the same thing.12 In 1912, several black African groups formed the African National Congress (ANC) movement, to protest racial discrimination and exclusion from the franchise.13 It was not until 1943, when the ANC Youth League was created by “young university graduates like Nelson Mandela, Walter Sisulu, and Oliver Tambo,” as Ackerman explains, that the ANC was able to transform itself from being an elite movement into being a mass movement seeking revolutionary change.14 Ackerman adds that these young activists then took over the ANC’s Executive Committee after World War II.15 In 1913, the Native Lands Act was passed, which severely restricted black ownership of land. Mahatma Gandhi was outraged by British racism in South Africa, between 1893 and his departure in 1915, and he began to practice nonviolent resistance to the British racist laws while he lived in South Africa, according to Professor Kende. Gandhi was imprisoned when he refused to take off his Turban in a South African court. And, he was not allowed to ride on a train because he tried to sit in the white department of the train. Gandhi was imprisoned many times during his years in South Africa for his nonviolent refusal to acquiesce in British racism. Gandhi’s nonviolent refusal to acquiesce to racist laws in South Africa came to characterize his behavior in India as a leader there of the Congress Party. He had a huge impact on both future South African President Nelson Mandela and on Dr. Martin Luther King Jr. in the United States.16 Dr. King preached nonviolent

11

Ackerman, supra note 2. Id. at 81. 13 Id. 14 Id. at 81. 15 Id. 16 Id. at 20–​21. 12

The Republic of South Africa  341 refusal to acquiesce in racist laws from the Montgomery bus boycott until his assassination in 1968. Gandhi developed his philosophy of nonviolent resistance in letters between himself and the famous Russian novelist Leo Tolstoy. As I mentioned before, in the chapter on India, these letters are available online. Gandhi’s outlook reminds me of New England Quakers who in the eighteenth and nineteenth centuries were pacifist opponents of slavery and advocates of women’s rights. The Quakers in the United States made a huge contribution to both of those causes. During the period when South Africa was a British Dominion and under imperial British control from 1910 until 1931, the JCPC, sitting in London in the United Kingdom, served as the highest court of appeals for cases from South Africa, as is explained by Professor Bonny Ibhawoh.17 As I  discussed above, white South Africans were opposed to JCPC judicial review and were reassured by the British that the empire’s highest court would have only a minimal impact in South Africa. Black South Africans, however, supported JCPC judicial review in South Africa because for the few who could afford an appeal to the JCPC in London, the JCPC offered at least the hope of non-​racist justice being delivered by the imperial government, according to Professor Bonny Ibhawoh.18 The JCPC, according to Professor Bonny Ibhawoh, “made final rulings and interpretations on a vast variety of laws across the Empire Commonwealth, including Roman-​Dutch law from South Africa, British Guyana, and Salome; Spanish law from Trinidad; pre-​revolutionary French law from Quebec; the Napoleonic Code from Mauritius; Sardinian law from Malta; Venetian law from the Ionian islands; medieval Norman law from the Channel Islands; Muslim, Buddhist, and Hindu law from India; Ottoman Law from Turkey, Cypress, and Egypt; Chinese law from British courts in Shanghai; and diverse indigenous customary laws from across Africa.”19 All in all, the JCPC did a superb job given the enormous range of countries and different legal systems over which it had jurisdiction. It was nonetheless an agent of fading elite British hegemonic control over South Africa, and as such, illustrates Ran Hirschl’s view in Towards Juristocracy in terms of the origins of judicial review.20 The JCPC played a role in South African affairs. Some black Africans and people in South Africa from India appealed their cases to the JCPC.21 Of course, these cases came not only from South Africa, but also from the areas the British called Rhodesia, East Africa, and West Africa, all of which the British Empire controlled. Lord Haldane said in 1922 that:

17

Ibhawoh, supra note 2. Id. at 25–​27. Id. at 29. 20 Ran Hirschl, Towards Juristocracy (2007). 21 Id. at 37. 18 19

342  The History and Growth of Judicial Review, Volume 1 We sit *** to administer Buddhist law, or Hindu law, or Mohammedan law, one after the other. We administer Roman-​Dutch law from South Africa or from Ceylon, or French law from Quebec, or the common law of England for Ontario . . . [We] try to look for the common principle underlying systems of jurisprudence of differing kinds. [We] know that the form often veils over a very similar substance. We are constantly finding that, where great broad principles of justice are concerned, you find—​veiled, but still there and only distinguished by technicalities—​the same substance as belongs to other systems.22

The JCPC, however, played a much more minor role in the history of South Africa than it did in the history of Canada, Australia, or India. This is because, first, the JCPC had doctrines that limited its power to intervene in South Africa,23 second, South Africa was not a federal regime like Canada, Australia, and Indiia, and, third, because the JCPC was acutely aware of the fact that South African white people felt it was an illegitimate, colonial court and did not want JCPC judicial review. Moreover, as Professor Bonny Ibhawoh points out, since considerable funds were needed to appeal to the JCPC, it was a rich man’s court, and colonial officials from Nigeria to Canada tried to make it hard for the indigent to raise funds in their native countries to challenge colonial rulings in the JCPC.24 In 1931, the Union of South Africa was effectively granted independence from the British Empire when the imperial Parliament sitting in London passed the Statute of Westminster, indicating that it would no longer legislate as to the internal affairs of South Africa. “Then in 1934, the South African Parliament adopted The Status of Union Act which asserted South Africa’s independence.”25 By 1934, the Afrikaners had already disenfranchised black Cape Town voters. In addition, the government passed segregation laws, as well as travel and living restrictions. The Afrikaner National Party became dominant, according to Professor Bonny Ibhawoh.26 Debates occurred in South Africa about the abolition of appeals to the JCPC. There was a bitter debate in 1937, after South Africa had declared itself independent of Britain, which illustrates the role the Privy Council played in South African life. British white South Africans wanted to retain JCPC judicial review, but the Afrikaner majority of white South Africans wanted to abolish it, according to Professor Bonny Ibhawoh.27 Between 1920 and 1933, there were only ten appeals from South Africa to the JCPC, according to Professor Bonny Ibhawoh—​a sure sign of growing South

22 Ibhawoh, supra note 2, at 43. 23

Id. at 44–​45. Id. at 51. Id. at 21. 26 Id. 27 Id. at 25–​26. 24 25

The Republic of South Africa  343 African nationalism.28 Professor Bonny Ibhawoh also notes that there was much complaint in the 1930s that the JCPC was deciding incorrectly cases of Roman-​Dutch  law.29 During World War II, many Afrikaners, including some who went on to become prime ministers, expressed pro-​Nazi sympathies. In 1948, the Afrikaner National Party finally won a decisive electoral victory over the small, liberal English Party that had long eluded it, and racist apartheid laws were adopted and entrenched. In 1950, the white Afrikaner, racist, oligarchy in South Africa ended appeals to the JCPC recognizing that that court would never approve of the laws of the racist apartheid regime.30 Heinz Klug argues that South Africa had a pseudo-​democratic regime based on the Westminster Model of parliamentary sovereignty, no Bill of Rights, and no judicial review. He observes that in 1961 the South African parliament passed the Republic of South Africa Constitution Act of 1961, which replaced Queen Elizabeth II, as the ceremonial head of state in South Africa, with an official called the State President. This occurred when South Africa was kicked out of the Commonwealth of Nations because of its racist, oligarchical government.31 South Africa rejoined the Commonwealth of Nations in the 1990s, after the overthrow of the racist apartheid regime. Professor Kende notes that India became the first nation in the world to denounce South African apartheid in 1946 in the new United Nations General Assembly. Unfortunately, two years later, in 1948, the white Afrikaners won the South African elections, and they used their parliamentary majority to entrench their rule and to set up, in detail, the vicious, totalitarian system of racist apartheid.32 The government passed laws regulating where black people could live and work and that restricted black travel.33 In 1950, South Africa abolished the right to appeal decisions from the appellate division of the then-​Supreme Court of South Africa to the JCPC. In 1955, the ANC issued a Freedom Charter that called for racial equality, which had a lasting impact because it was issued by a congress drawn from all racial groups, and also from urban and rural areas, according to Professor Kende. Ackerman explains that the ANC joined together with Indian, colored, and white allies in calling for the 1955 Freedom Charter.34 Ackerman says that the 1955 Freedom Charter defined:

28 Id. at 159. 29 Id. 30 For a discussion of the abolition of the appeal in South Africa, see Ibhawoh, supra note 2, at 158–​60. 31 Klug, The Constitution of South Africa: A Contextual Analysis, supra note 2. 32 Kende, supra note 1, at 24. 33 Id. 34 Ackerman, supra note 2, at 81.

344  The History and Growth of Judicial Review, Volume 1 the aims of the liberation movement. The Charter’s vision was broadly similar to that set out by the [Indian National Congress party] in India—​calling for a democratic South Africa that guaranteed fundamental rights to all citizens, regardless of class or color, and urging land redistribution and other interventions by the state to achieve social and economic equality.35

The Afrikaner oligarchy never again allowed “a mobilized oppositional assembly” to meet again in South Africa for thirty years.36 Ackerman explains that the 1955 Charter’s Enlightenment constitutionalism came to be challenged by black Africans, who opposed its vision of a multiracial state, and by the Communist Party (CP), which denounced its bourgeois nature.37 This was telling because Ackerman says that Nelson Mandela served “as a secret member of the CP’s Central Committee.”38 In 1960, the apartheid National Party government massacred black protesters protesting apartheid “pass laws” at Sharpeville.39 Oliver Tambo fled the country to set up an ANC in exile, as it became clear that Ghandian passive resistance was going to be met with violence by the Apartheid Oligarchy in the government. As Ackerman notes, the ANC was at this point forced to set up a military wing called the Spear of the Nation.40 Just like the American Minutemen, who won the Battles of Lexington and Concord on April 19, 1775, against British troops fighting for King George III, the ANC’s Spear of the Nation played a critical role in shaping South African history. Nelson Mandela fully supported the turn to the Spear of the Nation, just as George Washington came to the aid of the minutemen.41 Neither Mandela nor Washington agreed with Mahatma Gandhi on pacifism. In 1964, the government tried Nelson Mandela and Walter Sisulu for their leadership roles in the ANC. They were given sentences of life imprisonment and spent more than twenty years in prison on Robben Island off Cape Town’s coast, breaking heavy rocks during the hottest part of the day and surrounded by criminals guilty of ordinary violent crimes. After Mandela was sentenced, Professor Kende notes that he made the following powerful statement: During my lifetime I  have dedicated myself to the struggle of the African people. I  have fought against white domination, and I  have fought against black domination. I have cherished the ideal of a democratic and free society in



35

Id. Id. 37 Id. at 82. 38 Id. 39 Kende, supra note 1, at 25. 40 Ackerman, supra note 2, at 82. 41 Id. at 82. 36

The Republic of South Africa  345 which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.42

In 1961, South Africa adopted a Constitution that declared the country a republic with a Westminster-​style sovereign Parliament and without judicial review. And, as I mentioned above, Queen Elizabeth II ceased to be the Queen of South Africa, in 1961, and South Africa was kicked out of the Commonwealth of Nations. During the 1960s, 1970s, and 1980’s, the ANC was cut off from any contact at all with Nelson Mandela and other leaders in prison.43 The ANC leadership was in exile, and its members in South Africa could not communicate with one another. The ANC was thus unable to build up the kind or “organizational charisma” that so helped the Indian Congress Party, as Professor Ackerman points out.44 Nonetheless, the ANC, fractured as it was by the violence directed against it, gained a lot of legitimacy for the fight it was waging. The ANC received a lot of international support, but its financial dependence on the Soviet Union for funding alienated anti-​communist democratic leaders like Margaret Thatcher and Ronald Reagan who were then waging a Cold War against the Soviet Union. The racist oligarchical government of South Africa denounced the ANC as consisting of communist terrorists to whip up support for apartheid among white South Africans. In 1976, fifteen thousand schoolchildren marched in Soweto Township in a protest over a new government policy that half their classes be taught in Afrikaans, and Professor Kende notes that “without warning the police opened fire and killed many young marchers * * * creating an international uproar.”45 In 1977, the police killed Steven Biko, the Malcolm X of South Africa’s resistance movement, with Nelson Mandela being the Martin Luther King.46 In 1983, Professor Kende notes that the government revised the Constitution to create a bizarre tricameral legislature with one house representing white people, a second house representing the mixed-​race colored population, and a third representing the Indian community in South Africa. This document was obviously a sham,47 which in effect guaranteed total white power through the National Party of the Afrikaner whites.

42

Kende, supra note 1, at 27. Ackerman, supra note 2, at 82. 44 Id. at 82–​83. 45 Kende, supra note 1, at 27. 46 Id. 47 Id. at 30. 43

346  The History and Growth of Judicial Review, Volume 1 Nonetheless, as Professor Ackerman points out, the 1983 Constitution sought to tap into “a worldwide trend toward ‘consociationalism’ in multicultural societies.”48 Such societies include countries like Switzerland or Lebanon where the principle of one person, one vote does not work very well. Political Scientist Arend Lijphart made a plea for consociational democracy under some circumstances in, for example, most recently Patterns of Democracy: Government Forms and Performance in Thirty-​Six Countries.49 Prime Minister P.W. Botha’s call for consociational democracy at least represented an effort by the racist, oligarchical government of South Africa to rejoin the Western world, but Botha’s proposal fell ridiculously short of anything that Westerners could possibly have supported as Ackerman observes.50 Botha did not create a fourth chamber of Parliament for black voters who he did not allow to vote at all. Finally, Botha encouraged the Zulu nation to form an Inkatha Freedom Party (IFP) led by Mangosuthu Buthelezi to challenge the ANC as a spokesman for South African blacks.51 As things turned out, the IFP had no support among black South Africans outside of its traditional KwaZulu homeland. Elections were held for the tricameral parliament in 1983 and 1984, but the ANC staged massive boycotts. In May 1986, a massive strike of 1.5  million workers showed the ANC’s strength.52 Spear of the Nation attacks that same year forced Botha to declare a State of Emergency.53 Botha continued to defend apartheid in public, but Ackerman says that at this point Botha sought to co-​opt the ANC leadership by opening secret negotiations with Nelson Mandela.54 These talks began in 1985 and continued until Botha suffered a stroke in 1989. Mandela was very cautious in dealing with Botha, and he insisted that the Freedom Charter of 1955 and a rule of one person, one vote was non-​negotiable. Mandela wanted nothing to do with a consociational government.55 In 1989, F.W. de Klerk replaced Botha as the head of the National Party government of apartheid South Africa. Ackerman explains that the State of Emergency of 1986 finally led to Margaret Thatcher and Ronald Reagan supporting economic embargoes that would cripple South Africa, while the rise of Mikhail Gorbachev meant that the ANC could no longer necessarily depend on Moscow for funding. Oliver Tambo, who was the head of the ANC-​in-​exile began exploring top secret 48 Ackerman, supra note 2, at 83. 49 Arend Lijphart, Patterns of Democracy:  Government Forms and Performance in Thirty-​Six Countries (2nd ed. 2012). 50 Ackerman, supra note 2, at 83. 51 Id. 52 Id. at 84. 53 Id. at 84. 54 Id. at 84–​85. 55 Id. at 85.

The Republic of South Africa  347 talks with the British about a peaceful solution to the South Africa crisis. Future South African President Thabo Mbeki conducted these talks as Ackerman explains.56 Mbeki faced severe pressure from both ANC and pro-​apartheid hard-​ liners. Ackerman explains that Albie Sachs played an important role in writing up a set of principles that included universal suffrage with one person, one vote and an entrenched bill of rights, which could be enforced against the legislature using judicial review.57 All of this drew on the Freedom Charter of 1955. Finally, after the fall of the Berlin Wall in 1989 and the death of Soviet communism, the apartheid South African government in early 1990 “freed Nelson Mandela from prison, along with other political prisoners, and it lifted the ban on political parties.”58 Nelson Mandela was immediately invited to give a speech to a joint session of the U.S. Congress, where he said the following, as Professor Kende recounts: We could not have made an acquaintance through literature with human giants such as George Washington, Abraham Lincoln, and Thomas Jefferson and not have been moved to act as they were moved to act. We could not have heard of and admired John Brown, Sojourner Truth, Frederick Douglass, W.E.B. DuBois, Marcus Garvey, Martin Luther King Jr., and others—​we could not have heard of these and not been moved to act as they were moved to act. We could not have known of your Declaration of Independence and not elected to join in the struggle to guarantee the people’s life, liberty, and the pursuit of happiness.59

Thus was launched the transition process that led to Mandela’s election as president of South Africa in 1994, under a 1993 interim Constitution negotiated between the ANC and the National Party. Getting from 1990 to 1993 turned out, however, to be very hard. Mandela, who had been in prison for decades, was unknown to young ANC members and was opposed by black nationalists and communists. He had only limited control over his base. F.W. de Klerk, meanwhile, faced paroxysms of fear now that he had freed an ANC leadership that the apartheid regime had reviles as being communist terrorists. Professor Ackerman very clearly explains how Mandela and de Klerk negotiated these shoals.60 The death toll tripled from two thousand to six thousand per year during the 1994 negotiations.61 President de Klerk shocked his base by legalizing not only the ANC but also the Communist Party and the Spear of the Nation.62 Mandela was

56

Id. at 86–​87. Id. at 87. 58 Kende, supra note 1, at 30. 59 Id. at 30. 60 Ackerman, supra note 2, at 89–​94. 61 Id. at 90. 62 Id. at 91. 57

348  The History and Growth of Judicial Review, Volume 1 able eventually to pacify the Spear of the Nation while de Klerk avoided a military coup d’état. Ackerman says that there was one unbridegeable difference between them and that was de Klerk’s call for a consociational democracy and Mandela’s demand for one person, one vote with universal suffrage. In the end, de Klerk blinked in exchange for a guarantee of constitutional principles laid out by Albie Sachs and with their roots in the Freedom Charter of 1955.63 Both men agreed to a provisional government elected by all the people of South Africa, which would draft a Constitution, which would implement thirty-​four Constitutional Principles, which Constitution would then be judicially reviewable by the South African Constitutional Court.64 The elections of 1994 were the first in the history of South Africa in which all citizens of all races could vote together equally. The ANC won in a landslide with 61 percent of the vote; followed by the National Party with 20 percent; and the Inkatha Freedom Party, which represented Zulu tribe members, with 11 percent, according to Professor Kende.65 These results confirmed both what Professor Ackerman might call Nelson Mandela’s “charismatic leadership” and the ANC’s position as a “charismatic organization,” notwithstanding the many decades of violent suppression of the ANC and the imprisonment and exiling of its leaders by the apartheid regime.66 The elections also confirmed that the ANC spoke for black South Africans, and the Inkatha Freedom Party did not. The Interim Constitution contained thirty-​four Constitutional Principles, while an elected Constitutional Assembly was tasked with drafting a permanent Constitution within two years by a two-​thirds majority of the National Assembly and Senate, according to Professor Kende.67 It was agreed that a new Constitutional Court would have to certify that the final Constitution was consistent with these Constitutional Principles.68 Professor Kende notes that “ultimately, the Constitutional Assembly (CA) reached a compromise just before the two-​year limit expired.”69 To understand South Africa’s current Constitution, it is necessary to a say a little bit about the legal history of the country. South Africa has a mixed civil law and common law heritage.70 Professor Kende explains that the private law and criminal law in South Africa drew from the Civil Law tradition of the white Afrikaners who were of Dutch origin. In contrast, white South Africa’s

63

Id. at 94–​100. Id. at 99. 65 Kende, supra note 1, at 35. 66 Ackerman, supra note 2, at 35. 67 Kende, supra note 1, at 33–​34. 68 Id. at 34. 69 Id. at 36. 70 Corder, supra note 2, at 261, 262. 64

The Republic of South Africa  349 constitutional law, administrative law, and commercial law drew from the Common Law tradition of the white English minority and dated back in some respects to the period of British imperial rule.71 The 1910 Constitution of South Africa was a Westminster parliamentary sovereignty document, with independent courts, but no Bill of Rights, and with a right to appeal cases from the appellate division of the Supreme Court to the JCPC in London, in the United Kingdom. The 1961 apartheid Constitution, and the 1983 apartheid Constitution, were also parliamentary sovereignty documents. In the late 1980s, Professor Kende recounts that the South African President ruled using emergency powers.72 The electoral system in South Africa under the apartheid government had been a first-​past-​the-​post majoritarian system. The ANC Party had committed itself to the idea of a judicially enforceable Bill of Rights in documents, which it published in 1943, 1955, and 1988.73 The 1955 Charter of Freedom was of paramount importance. The key tension in negotiations over the drafting of the new Constitution came from the ANC’s desire for land reform, along with one person, one vote majority rule, and the National Party’s desire for consociational democracy, protection of private property rights, and constitutional continuity in rule. The end of communism, with the fall of the Berlin Wall and the inspired leadership of Nelson Mandela, Desmond Tutu, and F.W. de Klerk, made a peaceful transition in power possible. The interim Constitution of 1993 was formally passed by the apartheid government’s tricameral Parliament, thus preserving legal continuity, according to Professor Kende. The Constitutional Assembly agreed to a compromise Constitution, but the Constitutional Court astonishingly refused to certify the proposed Constitution unless some minor changes were made in it. The Court held that the proposed Constitution violated thirty-​four of the Constitutional Principles, mostly in fairly minor ways, according to Professor Kende. The First Certification Judgement’s refusal was bold, given South Africa’s negligible history of judicial review. The court explained that provincial powers were not adequately defined, that the labor clause was improperly insulated from judicial review, and that certain rights were not adequately entrenched to preclude amendment. Under the final Constitution, a National Council of Provinces replaced the Senate.74 The Constitutional Convention made all of the changes requested by the Constitutional Court, and the new Constitution went into effect. The Constitutional Court’s judicial review of the compliance of the draft



71

Id. Kende, supra note 1, at 261. 73 Id. at 267. 74 Id. at 37. 72

350  The History and Growth of Judicial Review, Volume 1 Constitution with the Constitutional Principles is the Marbury v. Madison moment of South African judicial review. Judicial review was thus a key part of the very process of emergence of the South African Constitution. South Africa thus became yet another former possession of the British Empire, whose courts had once been subject to supervision by the JCPC, but which moved on to adopt a system of judicial review. It followed the lead of the United States, Canada, Australia, and India in doing so. This is evident in the preamble to the South African Constitution, which deserves to be quoted here: We, the people of South Africa, Recognise the injustices of our past; Honour those who suffered for justice and freedom in our land; Respect those who have worked to build and develop our country; and Believe that South Africa belongs to all who live in it, united in our diversity. We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law; Improve the quality of life of all citizens and free the potential of each person; and Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations. May God protect our people.

This stirring language reflects the influence of the Preambles of the U.S., Indian, and German constitutional preambles. The final 1996 Constitution of the Republic of South Africa begins by affirming the principles of “human dignity, equality, freedom, non-​racialism, and non-​sexism, the supremacy of the Constitution and the rule of law, free fair elections and a multi-​party system of democratic governance,”75 according to Professor Corder. In affirming human dignity as the cornerstone of the South African Constitution, I think that South Africa was drawing directly on the German Basic Law of 1949, as the German Constitution is called, adopted after the Holocaust and Nazism. Professor Corder adds that “[t]‌he Bill of Rights * * * is modeled generally on the approach of the Canadian Charter of Fundamental Rights and Freedoms of 1982, but



75

Corder, supra note 2, at 270.

The Republic of South Africa  351 significantly includes a brace of protected socio-​economic rights [such as guarantees as to] basic levels of housing, health care, food, water, and social security, although [the grant of these rights] is qualified by references to their ‘progressive realization within available resources.’ ”76 Professor Corder notes that the South African Constitutional Court must consider international law and may consider foreign law in rendering its opinions.77 The South African Constitution establishes a bicameral legislature with a directly elected National Assembly and an indirectly elected Council of Provinces. The president of South Africa is elected indirectly by Parliament and is both head of state and head of the government and cabinet. Similar systems also exist at the provincial level. The Constitution is enforced by a very vigorous and active Constitutional Court, which enforces the rights and structure provisions. The court has tried to enforce the Constitution’s positive entitlement guarantees, but Professor Corder explains that the “enforcement of such judgments [by the political branches] has been inconsistent.”78 The 1996 Constitution provided that Constitutional Court judges would serve for twelve-​year terms, but there is a mandatory retirement age of seventy. The Constitution of South Africa has been amended seventeen times as of 2020. The first sixteen amendments are all quite minor,79 but the Seventeenth Amendment makes some nontrivial but not earth-​shattering changes to the South African judicial system. The Constitutional Court has issued major opinions holding the death penalty to be unconstitutional and finding a constitutional right to gay marriage. There are a greater proportion of white South Africans serving in the judiciary than in the legislative or executive branches, which may at some future point raise a problem. The biggest flaw in the South African Constitution lies in the decision to move from a first-​past-​the-​post majoritarian system, which it had under apartheid, to proportional representation. Hugh Corder states that there is a problem with “sustained and intemperate attacks on court judgments by leading politicians”, which he attributes to the Constitutions use of proportional representation, which gives extremists a platform to vent their anger.80 I agree, as I have said in prior chapters, that proportional representation is a very bad way to set up a countries’ electoral system, and I much prefer a first past post in a territorial district, which is the electoral system in place in the

76

Id. Id. at 271. Id. at 273. 79 Id. at 274–​75. 80 Id. at 279. 77 78

352  The History and Growth of Judicial Review, Volume 1 United States, in Canada, in Australia, in India, and in the United Kingdom. Unfortunately, the ANC has been able to dominate parliament through proportional history continuously since 1992, so there is no chance at all that the electoral system will be reformed.

A critical factor in the continuing success of the South African constitutional regime was the wise moderation of President Nelson Mandela as South Africa’s first president. He made a smart choice as Ackerman says in picking Thabo Mbeki as the ANC’s deputy president, and he appointed “distinguished jurists, like Arthur Chaskalson and Albie Sachs to the South African Constitutional Court along with judges who were familiar with the old regime.”81 Mandela wisely followed George Washington’s example of retiring from office, rather than dying in office like Prime Minister Nehru had done in 1964. As a result, President Mandela had control over who his successor would be, and Ackerman explains why Thabo Mbeki was the right choice.82 Ackerman recounts the subsequent history of the South African regime down to the present day. He makes a powerful case that newly elected President Cyril Ramphosa, who was a close Mandela aide, is the right person to help the country recover from the corruption of former President Jacob Zuma. He compares Cyril Ramphosa to India’s Morarji Desai.83 All in all, however, the South African Constitution of 1996 has been a splendid success and has smoothed the way for a peaceful transition from a hateful racist oligarchy to a rights-​protective constitutional democracy with an excellent Bill of Rights. South Africa’s Constitution and legal system have held up well over time.84 There is still gross racial injustice in South Africa, and an urgent need for land reform, but the newly elected government of South Africa is taking on this challenge.

II. Judicial Review The discussion below on how South African judicial review has worked out in practice relies in part on an essay by Professor Heinz Klug, “South Africa: From Constitutional Promise to Social Transformation,” in Interpreting Constitutions: A Comparative Study.85 The South African Constitution emerged, as was explained 81 Ackerman, supra note 2, at 102. 82 Id. at 105. 83 Id. at 104–​15. 84 For a moving and thought-​provoking account of South Africa’s history and its current constitution, see Edwin Cameron, Justice: A Personal Account (2014). 85 Klug, South Africa: From Constitutional Promise to Social Transformation, supra note 2.

The Republic of South Africa  353 above, through a two-​stage process of constitution making. As Professor Klug explains, “[T]‌he conflicting parties first negotiated an ‘interim’ Constitution and then, after democratic elections, empowered the new Parliament to sit as a Constitutional Assembly in order to produce a ‘final’ Constitution. In order to secure the trust of the former governing white minority, and thus to enable an elected majority to produce a democratically defined Constitution, the newly created Constitutional Court was required to certify that the Constitutional Assembly had, in producing the ‘final’ Constitution, remained faithful to the constitutional principles adopted by the negotiators and appended to the ‘interim’ Constitution.”86 South Africa’s Marbury v. Madison moment came at the start of the country’s post-​apartheid constitutional history, when the South African Constitutional Court, in effect, reviewed and passed upon the constitutionality of South Africa’s new Constitution. It is hard to imagine a greater or more formative assertion of the power of a Constitutional Court than was exercised, in effect, in this case. The Constituent Assembly did meet after the Constitutional Court’s consideration of the constitutionality of South Africa’s proposed new Constitution, and made all the changes in that document that the Constitutional Court had said were required. The new Constitution of South Africa was then promulgated by President Nelson Mandela and went into effect on February 4, 1997.87 In Professor Klug’s words, it “marks the shift, together with the 1993 ‘interim’ Constitution, from parliamentary sovereignty to constitutional supremacy, thus fundamentally changing the role of the judiciary and the significance of constitutional interpretation.”88 The new Constitution explicitly includes “socio-​economic rights in the bill of rights,” and “the Constitutional Court has provided a bold and innovative vision of the rights and forms of governance guaranteed by the Constitution.”89 Constitutional Court justices are appointed to a nonrenewable twelve-​year term with a mandatory retirement age of seventy.90 Professor Klug observes that “[a]‌ppointments to the court are made by the President, either in consultation with the [Judicial Service Commission] and the leaders of the political parties represented in the National Assembly—​in the case of the Chief Justice and the Deputy Chief Justice—​or, for the remaining positions on the court, from a list of nominees prepared by the [Judicial Service Commission] after the President consults with the Chief Justice and the leaders of political parties.”91

86

Id. Id. at 267. 88 Id. 89 Id. 90 Id. at 283. 91 Id. at 283–​84. 87

354  The History and Growth of Judicial Review, Volume 1 Professor Klug adds that “[w]‌hile the first appointments to the Constitutional Court were dominated by lawyers, judges and legal academics who had gained high stature during the struggle against apartheid or whose integrity was recognized nationally and internationally, concern for the need to achieve or maintain racial and ethnic representation on the panel seems to have determined more recent appointments. Ten years after its inauguration the Justices of the Constitutional Court reflect the diversity of South Africa with two female, three white, six African, one Indian and two physically disabled justices on the eleven person panel.”92 The 1996 Constitution contains a lengthy list of rights, duties, and government structures. There is also a rights limitation clause modeled on Section 1 of the Canadian Charter of Rights and Freedoms discussed earlier. This clause seeks to balance individual rights as against the state’s power to limit rights under particular circumstances. One of the Constitutional Court’s first major cases was its decision, contrary to public opinion in South Africa, to hold the death penalty unconstitutional in S v.  Makwanyane and Others (1995 (3) SA 391). The Constitutional Court in Professor Klug’s words, “assert[s]‌the importance of the ordinary or plain meaning of the text as the primary source of constitutional rules.”93 But, it also consults the legislative history of the Constitution where it is relevant.94 The court rejects reliance on public opinion or present-​day consensus of the kind favored by U.S. Supreme Court Justice Anthony Kennedy, on the ground that the assessment of such opinion is a legislative and not a judicial task.95 Section 39 of the Constitution requires interpreters to consider international law, and it says they “may” consult foreign court decisions. Professor Klug says that “early predictions and fears that the Constitutional Court might uncritically follow foreign jurisprudence and particularly that of the United States Supreme Court have proven unfounded.”96 The South African Constitutional Court tries to give a generous and purposive interpretation to the constitutional language it is construing.97 The court follows the German model and interprets rights as not only imposing negative limits on the power of the government, but also as imposing positive obligations on the government to better realize the rights in question.98 The court said in Carmichele v. Minister of Safety and Security (2001 (4) SA 938 (CC) para. 33) that



92

Id. at 284. Id. at 285. 94 Id. at 286. 95 Id. at 287–​88. 96 Id. at 290. 97 Id. at 292–​95. 98 Id. at 295–​96. 93

The Republic of South Africa  355 “where the common law deviates from the spirit, purport and objects of the Bill of Rights, the courts have an obligation to develop it by removing that deviation.”99 The South African Constitution also contains some internal directives as to how much certain rights should be implemented,100 and, significantly, as Professor Klug observes, “at least two Justices of the Constitutional Court have made reference to the notion of the basic structure of the Constitution used by the Indian Supreme Court in its jurisprudence striking down validly enacted Constitutional Amendments. To this extent the Constitutional Assembly and the Court have left open the future of the Court’s role in the formal amending process under the final Constitution.”101 Professor Klug adds that “[d]‌ignity, equality, and freedom play a foundational role in South Africa’s post-​apartheid Constitution.”102 Dignity is the foundational right and is the ultimate source of all of the other rights protected, as in the German Basic Law.103 This played a role in the court’s holding that capital punishment was unconstitutional, as well as in its rejection of juvenile whipping and of the common law’s criminalization of sodomy.104 The Constitutional Court declined to follow as speech protective an approach as that taken by the U.S. Supreme Court in New York Times v. Sullivan for the defamation of public figures, in part because of human dignity concerns. The court did, however, allow a defense of reasonable publication to protect partially freedom of expression concerns.105 The South African Constitution does also, as mentioned, affirmatively protect socioeconomic rights, like the right to housing and the right to healthcare.106 Finally, the Constitutional Court does police the boundary lines of national, regional, provincial, and concurrent powers.107 The South African Constitutional Court is most affected by the legacy of racism, apartheid, and colonialism, which it has responded to by treating its new Constitution and Bill of Rights as a decisive break with the past, just as the German Basic Law was a decisive break with Nazism and just as the three Reconstruction Amendments to the U.S. Constitution are a decisive repudiation of slavery, racism, and systems of caste. The South African Constitutional Court has referred to ubuntu—​human nature, humanness, one’s real self—​as a source of indigenous values that should be consulted in

99

Id. at 296–​97. Id. at 297–​98. Id. at 300. 102 Id. at 301. 103 Id. at 303. 104 Id. at 301. 105 Id. at 306. 106 Id. at 307–​8. 107 Id. at 309–​14. 100 101

356  The History and Growth of Judicial Review, Volume 1 construing the Constitution. As Professor Klug explains, “there seems to be an attempt to define the spirit of ubuntu as providing a connection between indigenous value systems and universal human rights embodied in international law and comparative constitutional jurisprudence.”108 Indigenous law is not followed where it discriminates on the basis of gender, but has been relied on to strengthen the land rights of indigenous peoples.109 For a moving account of the South African Constitution, see Edwin Cameron, Justice: A Personal Account.110 I will now discuss a couple of landmark South African constitutional law cases just to show how rich the Constitutional Court’s jurisprudence is. I should begin by noting that South Africa’s Constitutional Court was among the first in the world to recognize the fundamental human rights of LGBTQ people and legalize LGBTQ marriages. This is totally unsurprising because the Constitution of South Africa explicitly recognizes freedom from discrimination for LGBTQ people. Nonetheless, some of the people of South Africa disapproved of the Constitutional Court’s decisions in this regard, but the court issued those opinions anyway. In its decision in Certification of the Constitution of the Province of Kwazulu-​ Natal, 1996 (4) SALR 198 (CC), the Constitutional Court was faced with the question of whether to certify the Constitution of Kwazulu-​Natal. Under the federal Constitution, which creates a bicameral legislature, the upper house of which represents the provinces, a province can adopt a Constitution so long as it is certified by the Constitutional Court. The province of Kwazulu-​Natal was overwhelmingly dominated by the Zulu people who had tried unsuccessfully to get autonomy when the South African Constitution was written and ratified. The Zulu people had their own political party, the Inkatha Freedom Party, that was independent of the African National Congress Party of President Nelson Mandela. The province of Kwazulu-​Natal submitted a constitution for itself that purported to alter the relationship of the province to the national government in several ways. The Constitutional Court refused to certify the proposed Constitution of Kwazulu-​Natal saying that it clearly violated the Constitution of South Africa. The Constitutional Court opinion was obviously right. This is an example of federalism umpiring judicial review in South Africa of the kind we have seen in prior chapters in the United States, Canada, Australia, and India. The South African Constitutional Court is thus, in a very small number of cases, a federalism umpire.

108

Id. at 316. Id. at 318. 110 Cameron, supra note 84. 109

The Republic of South Africa  357 In its decision in President of the Republic of South Africa v. Hugo, 1997 (4) SA 1 (CC), the Constitutional Court addressed a very difficult question after President Nelson Mandela pardoned all 440 women, in prison, who had children under the age of twelve. President Mandela did this saying that he knew from his twenty years in prison under the apartheid government the hardship that the imprisonment of a parent causes on children. Hugo, who was an imprisoned man with children under the age of twelve, sued asking to be released because President Mandela’s pardon of women only violated the South African Constitution’s ban on all forms of sex discrimination. The Constitutional Court agonized over this case, noting that the pardon of these 440 women only reinforced gender stereotypes and was constitutionally problematic. The court noted that there were many, many more men, in prison with children under the age of twelve, than there were women. To extend the pardon to men, with children under the age of twelve, could have huge social consequences. The Constitutional Court concluded that President Mandela’s pardon of 440 women only with children under the age of twelve was regrettable in that it furthered gender stereotypes, but that it was constitutional. The court noted that historically, the pardon power originated in the United Kingdom as a prerogative power of the king; and that it was a discretionary act of grace. The court concluded that such prerogative acts were essentially not judicially reviewable, and so it upheld the pardon. Justice Kriegler dissented saying that the case was awkward, because President Mandela had clearly acted in good faith, but he held that the pardon was clearly an unconstitutional form of sex discrimination that he would have struck down. He was not persuaded by the majorities’ prerogative power, act of grace argument. In Soobramoney v.  Minister of Health (Kwazulu-​Natal) 1998 (1)  SALR 765 (CC), the Constitutional Court was asked by a man who had kidney failure and needed to be on dialysis to reverse the decision of the healthcare authorities denying him access to dialysis because of his kidney problems. The government defended its decision saying that Soobramoney did not need temporary dialysis until a kidney transplant could be done because he was ineligible for a kidney transplant due to his ischemic heart disease and cerebrovascular disease. The government said there were simply not enough dialysis machines to cover patients who needed permanent dialysis because they were ineligible for a kidney transplant. Soobramoney sued alleging that the government was violating a clause in the Constitution, which said that “No one may be refused emergency medical treatment” and another clause, which said that “Everyone has the right to life.” The Constitutional Court expressed great sympathy for Soobramoney’s situation, which it agreed was tragic. Unfortunately, the Constitutional Court concluded

358  The History and Growth of Judicial Review, Volume 1 that there were simply not enough resources available to the government of South Africa for it to be able to provide healthcare to people in his situation. The Constitutional Court upheld the government’s actions showing that even when there are positive entitlements to government aid, the Constitutional Court would not enforce them to overturn a triage decision in a case like Soobramoney’s. In Government of the Republic of South Africa v. Grootboom, (2000) ZACC 19, Case CTT 11/​00 (CC), the Constitutional Court was asked to consider whether the Cape Metropolitan Council had acted unconstitutionally in bulldozing Mrs. Grootboom’s shack and all of her personal belongings. Mrs. Grootboom had left intolerable living conditions in an area called Wallacedene and had settled on private land that had been earmarked for the construction of future low-​income housing, which was called “New Rust.” The private landowner obtained a court order directing the bulldozing of all shacks on “New Rust,” and Mrs. Grootboom’s shack was among those bulldozed. The South African Bill of Rights provides as follows with respect both to the right to private property and the right to adequate housing. I quote only the most relevant parts of the constitutional text as it stood when this case was decided: Property Article 25. (1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property. (2)  Property may be expropriated only in terms of law of general application—​ (a) for a public purpose or in the public interest; and (b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court. *** (8) No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1). *** Housing Article 26. (1) Everyone has the right to have access to adequate housing. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. (3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

The Republic of South Africa  359 How should we understand the 25th Article of South Africa’s Bill of Rights as it stood when the cases discussed were decided, which protects private property and guarantees the payment of just compensation with the 26th Article of South Africa’s Bill of Rights, which guarantees an affirmative constitutional entitlement to adequate housing? These two articles of the Bill of Rights are obviously in some tension with one another. This is especially the case because white South Africans own 90 percent of the land in South Africa, even though they are only a small percentage of the population. Moreover, much of that white-​owned land was stolen from black Africans either during the Afrikaner or British colonial period or under the post-​1948 regime of apartheid. South Africa desperately needs land reform and redistribution, but it does not want to scare away international investors by taking away, without just compensation, some of the land owned by the small white minority. South Africa cannot afford to pay just compensation for all the land it needs to confiscate. These are the underlying problems in Mrs. Grootboom’s case. The Constitutional Court, in the Grootboom case, ended up reaching the following conclusions, all of which seem reasonable to me. The court entered an order directing the Cape Metropolitan Council to make a more vigorous effort than it had to date to provide adequate low-​income housing. The court emphasized that Article 26 requires the council to do this. The court declined, however, to vindicate Mrs. Grootboom for leaving Wallacedene and settling on someone else’s land in “New Rust,” which had been identified as a place where in the future new low-​income housing might be built. The Constitutional Court thus respected the Article 25 private property rights of the private owner of the “New Rust” land. Finally, the court observed that if it had ruled for Mrs. Grootboom, the court would have vindicated her action to jump the queue in getting a spot on land that was identified as a place where new low-​income housing might be built. The Constitutional Court quite rightly said that such a ruling would be unfair to other individuals in need of better housing who had not tried to jump the queue. The Constitutional Court revisited the tension between the Article 25 protection of private property and the Article 26 guarantee of a right to housing in Modderklip East Squaters v.  Modderklip Boerdery (Pty) Ltd. (187/​03, 213/​ 03) (2004) ZASCA 47; (2004) 3 All SA 169 (SCA) (27 May 2004). In this case, Modderklip Boerdery owned farm land that the owner was using to grow hay. Illegal squatters began building shacks on Modderklipp’s land, and Modderklip sought and could not obtain a court order evicting the squatters. As a result, forty thousand squatters end up living in shacks on Modderklip’s land, which had streets built on it as well as shops. Modderklip sued, claiming its Article 25 private property rights had been violated.

360  The History and Growth of Judicial Review, Volume 1 The Constitutional Court concluded that, unlike in Mrs. Grootboom’s case, it was simply not feasible or realistic to think that forty thousand people could be forcibly evicted, in a humane and constitutional way, from fifty hectares of land. The court also held that it was not reasonable for Modderklip, alone, to have to bear the burden of paying for land for the housing of forty thousand people. The Constitutional Court held that the squatters could legally remain on Modderklip’s land, but it ordered that Modderklip be compensated by the government for the loss of this land under the terms of Section 12 of the Expropriation Act 63 of 1975. This seems to us to be a wise and correct resolution of this very difficult case. The issue of land reform and constitutional amendment is now being addressed by the South African legislature in 2020. I have now finished my canvasing of just a few of the South African Constitutional Court’s opinions. I  think the opinions just discussed are wise, moderate, and reach the correct outcome in every case with the possible exception of President of the Republic of South Africa v. Hugo where I lean toward the opinion of the dissenting judge. Even so, the Hugo case is a very hard case indeed. I hope I have persuaded my readers that the South African Constitutional Court is, indeed, a remarkable institution. I turn next to the question of what explains constitutional change in South Africa? This story of a mass popular movement with a charismatic leader constitutionalizing his charisma is well told by Bruce Ackerman, in Revolutionary Constitutions. This leads directly to the question of why judicial review originated and grew in South Africa to which I will now turn.

III.  Origins and Growth of Judicial Review The bottom line here is that judicial review originated in South Africa, in 1994, because the ANC wanted it for rights from wrongs reasons, and not because of the white Afrikaner minority’s desire for fading elite hegemonic preservation. The Afrikaner minority did not have enough votes behind it to prevail. The Afrikaner minority desperately wanted consociational democracy instead of universal suffrage and one person, one vote. It did not get that either. The great moral wrongs of racist Afrikaner and British imperial rule could only be overcome with a new Democratic Constitution, accepted by blacks and whites, with a very generous Bill of Rights, which is enforced by a very powerful Constitutional Court. The ANC, led by Nelson Mandela, had called for a racially inclusive democracy with a Bill of Rights and judicial review ever since the

The Republic of South Africa  361 Freedom Charter of 1955. White South Africans facing minority status in South Africa desperately wanted a Bill of Rights and judicial review. The obvious thing to do was for white South Africans to endorse the ANC’s Freedom Charter of 1955. Moreover, the conditions existed for a return to judicial review because South Africa was, until 1950, under the jurisdiction of the JCPC. Some South Africans, in 1994, were old enough to remember the benevolent rule of that court.111 Professor Ran Hirschl suggests in Towards Juristocracy that the reason why South Africa entrenched judicial review by a Constitutional Court, in 1994, is because white South Africans, who were losing power, insisted on it in an act of fading elite hegemonic preservation. With all due respect to Professor Hirschl, white South Africans in 1994, who had been forced to dismantle their six atomic bombs, were in no position to insist on anything at all. The gracious treatment Nelson Mandela extended to F.W. de Klerk obviously saved many lives and produced a happy and peaceful transition process. But, white South Africans were simply not powerful enough, in 1994, to have been able by themselves to insist on the writing of a generous Bill of Rights and the creation of a Constitutional Court, unless the ANC was willing to go along. The ANC, which is a quintessentially Ackermanian mass popular movement, insisted on judicial review plus a Bill of Rights, and they got what they asked for. They had been asking for judicial review and a Bill of Rights ever since the Freedom Charter of 1955. South African judicial review did not begin as Professor Tom Ginsburg predicts because two equally powerful political parties wanted “insurance and commitment.” The ANC was so much more powerful than the white National Party or the Zulu Inkatha Freedom Party that the Ginsburgian thesis cannot apply here, although the 10 percent of the population that was white, and the ten percent of the population that was Asian or of mixed racial background undoubtedly appreciated the 80 percent of the black African majority’s decision to engage in “insurance and commitment.” The flourishing of South Africa since 1996 has no doubt been due, in part, to constitutional “insurance and commitment.” Certainly, the lack of “insurance and commitment” in South Africa’s neighboring country of Zimbabwe has led to economic devastation there. South African judicial review also results in part from borrowing. South Africans borrowed heavily from the Canadian Charter of Rights and Freedoms of 1982 and from the German Basic Law of 1949. They particularly borrowed from Germany the idea of creating one very powerful Constitutional Court, which alone has the power of judicial review in South Africa. South Africa is thus the only instance in this book about formerly British common law



111

Ibhawoh, supra note 2.

362  The History and Growth of Judicial Review, Volume 1 countries with judicial review, which has a Constitutional Court rather than a Supreme Court. The origins and growth of judicial review in South Africa, where once the Privy Council reigned, are due to the rights from wrongs hypothesis and to borrowing much like the Israeli case, which I discussed in the previous chapter. Professor Ackerman makes a powerful case that in South Africa, as in India, “charismatic leadership” and “organizational charisma” came together to lead to the writing of a founding constitutional text of which the Constitutional Court is the legitimate guardian. I think Professor Ackerman is indisputably right about that. The major difference is that India borrowed a Bill of Rights and judicial review from the United States in its Constitution of 1950, while South Africa borrowed its Bill of Rights, Constitutional Court, and system of judicial review from Germany and Canada. This is all true, but the U.S. model was a catalyst for the emergence of Kelsonian judicial review in Germany, and the Warren Court inspired Canadian constitution-​writer Pierre Elliot Trudeau. The U.S. model is therefore at the root of all of this in some way, even though important revisions and refinements have been made along the way. In 1949, David Ben-​Gurion, who had grown up under British imperial rule, opted for the Westminster Model of sovereign, parliamentary government and the common law as the ideal constitution. In the 1990s, both President Aharon Barak of the Israeli Supreme Court and the people of South Africa saw the U.S. model of a written bill of rights enforced by judicial review with a system of checks and balances as being superior to the Westminster Model. I turn now to the United Kingdom, itself, which is the latest country to reject the Westminster Model.

Chapter Ten

The United Kingdom of Great Britain and Northern Ireland: A Functional System of Second Look Judicial Review From the Glorious Revolution of 1688 up until the end of World War II, the United Kingdom of Great Britain and Northern Ireland believed it had the world’s most exceptional and desirable Constitution. Its key components emerged fully with the accession to the throne in 1837 of Queen Victoria who reigned from 1837 to 1901 and for whom the Victorian Age is named. Queen Victoria’s predecessor King William IV threatened to pack the House of Lords to get it to pass the Electoral Reform Act of 1832, and he was the last British monarch to pick a prime minister without the support of a majority of the House of Commons. His death in 1837 marked the death of the British monarchy as a political rather than as a symbolic institution. The British Constitution that prevailed until the end of World War II had five features. First, there was a belief in the absolute sovereignty and supremacy of Parliament that was incompatible with judicial review by courts and judges of the constitutionality of Acts of Parliament. Second, there was a belief that parliamentary government and the common law better secured liberty than did a judicially enforceable Bill of Rights. Third, there was a belief that the head of state’s ceremonial royal functions should be in different hands than the head of the government. Fourth, there was a belief that the head of government should serve at the pleasure of the House of Commons and should be removable at a moment’s notice. And fifth, there was a belief that the voters should not directly elect the head of the government but that they should instead elect deputy, members of the House of Commons, who should then pick the prime minister. Cumulatively, this model of government was called the Westminster Model, and Britain governed all the Dominions in its empire under this model with one very important exception. Canada, Australia, New Zealand, South Africa, and India all had Westminster Model Constitutions, enacted for them as statutes by the imperial British Parliament, but there was one really big difference between the Commonwealth countries of the British Empire and Britain herself. The

The History and Growth of Judicial Review, Volume 1. Steven Gow Calabresi, Oxford University Press (2021). © Steven Gow Calabresi. DOI: 10.1093/oso/9780190075774.003.0011

364  The History and Growth of Judicial Review, Volume 1 highest court in Britain, itself, was a committee of highly esteemed Law Lords who were members of the House of Lords, and the Royal Prerogative with respect to deciding court cases had been eliminated inside England and Wales itself, in 1641, by Oliver Cromwell’s Long Parliament. However, in the Channel Islands (which were part of the Duchy of Normandy); and on the Isle of Man; and in all foreign royal holdings from Gibraltar to India to Canada to Australia to South Africa, The Queen’s subjects still had the right, through a court known as the Judicial Committee of the Privy Council (the JCPC), to file petitions with the monarch, seeking the relief of grievances and appealing the decisions of the colonial courts as to the division of powers among national and state entities in the Dominoins, as to the separation of powers in the Dominions, and as to whether Dominion law was repugnant to the law of the U.K. and therefore null and void. And, the monarch still retained the royal prerogative power to decide judicial cases and controversies outside of England and Wales. The JCPC was nothing other than the Curia Regis, or the Court of Star Chamber, which had been tamed at home in Britain, in 1641, but which were still active in the one-​quarter of the world that was the home of the British Empire in the Victorian Age and upon which “the sun never set.” The JCPC, itself, had been tamed and domesticated by a statute passed by Lord Brougham, in 1833, which allowed: (1) only superb lawyers to sit on the Judicial Committee, (2) that included provision for Indian assessors and colonial judges to sit on the Judicial Committee in Hindu and Muslim cases from India, and (3) which compelled the monarch to accept the JCPC’s verdicts as binding and to issue them. The Judicial Committee of the Privy Council Act, 1833, took away the monarch’s royal prerogative to decide cases from the colonies, and it gave to the colonies in their place a first-​rate court to which they could appeal cases. The existence of the JCPC allowed colonists who could afford to do so to appeal cases concerning the legality of Canadian, Australian, South African, and Indian legislative enactments. This was the one right, which the Westminster Model denied to U.K. citizens, while affording it to the one-​quarter of the globe, which constituted the Second British Empire. The United Kingdom (U.K.) did not allow U.K. citizens in England, Wales, or Scotland to challenge the constitutionality or legality of Acts of Parliament in court. But, U.K. colonists in the Dominions could challenge their colonial legislatures and executive in court, so long as they did not challenge an act of the imperial Parliament itself or an act of the Monarch. This divergence in access to judicial review of the constitutionality of legislation could not last, and it did not last. India was the first colony, which upon independence, opted for a Bill of Rights and for judicial review of the constitutionality of legislation, in 1950. Canada came next, adopting a Charter of Rights and Freedoms, in 1982, judicially enforceable by overturning legislation, with a

The United Kingdom of Great Britain and Northern Ireland  365 Second Look doctrine. South Africa adopted a Bill of Rights and judicial review of the constitutionality of legislation, in 1996. And, even New Zealand adopted a statutory Bill of Rights to guide legislative interpretation, in 1990. Australia is still a holdout for the Westminster Model, although the Australian State of Victoria and the Country’s Capitol Territory adopted New Zealand-​type statutes. But, one by one the dominoes of the Westminster Model have all fallen and the U.S. model of a judicially enforced Constitution and Bill of Rights has swept the globe. Ironically, even the United Kingdom itself has now rejected the Westminster Model, having adopted a statute called the Human Rights Act of 1998 (HRA), which in Section 3 directs U.K.  courts to construe statutes, if it is at all possible to do so, to comply with the European Convention on Human Rights (ECHR), which is now incorporated into British domestic law. Section 4 of the Human Rights Act calls on U.K. courts, which cannot construe a statute to accord with the European Convention on Human Rights, to issue a Declaration of Incompatibility—​after which Parliament swiftly votes on whether to repeal the offending law. I know of only one such declaration of incompatibility where Parliament has failed to repeal the offending law. It concerned voting rights for prisoners.1 The great irony of the Rise and Fall of the Westminster Model of Parliamentary Sovereignty is that it is the United Kingdom, itself, which hooked the United States, Canada, Australia, India, and perhaps even Israel and South Africa, on the virtues of umpiring federalism judicial review. As the earlier chapters of this book have shown in detail, the Royal Prerogative exercised through the JCPC spread judicial review all over the common law world. Eventually, the institution, and its virtues, came to be so widely appreciated that the United Kingdom, itself, adopted a watered-​down and successful form of Second Look judicial review. This chapter tells the curious story of how the champion of the Westminster Model came to endorse Bills of Rights, judicial review, federalism, and checks and balances. As I write this book in 2020, I have no idea what the future will bring to the United Kingdom. The U.K.’s relationships with the European Union, after Brexit became a reality; and with Scotland, and, as a signatory of the European Convention on Human Rights, are all up in the air. One thing, however, is clear; and that is that the Westminster Model of responsible parliamentary government with no Bill of Rights or judicial review is dead. If that

1 For a thorough and thought-​provoking review of the Human Rights Act, 1998, see Steven Gardbaum, The New Commonwealth Model of Constitutionalism: Theory and Practice 157–​58 (2013). See also David Erdos, The United Kingdom and the Human Rights Act, in Delegating Rights Protection: The Rise of Bills of Rights in the Westminster World 106–​25 (2010).

366  The History and Growth of Judicial Review, Volume 1 model cannot survive in the United Kingdom, it cannot survive anywhere else. I have been greatly aided in my understanding of the U.K.’s system of judicial review by my friend, Professor Stephen Gardbaum’s, excellent book, The New Commonwealth Model of Constitutionalism: Theory and Practice.2

I. History The United Kingdom (U.K.) is the fourth most population dense of the G-​20 nations and, according to the United Nations, the United Kingdom ranks fifty-​first out of 244 nations in population density. The United Kingdom ranks twenty-​ seventh in the world in GDP per capita according to the International Monetary Fund (IMF), which is well behind the United States and Australia. It is a member of the G-​7 nations and of the G-​20 nations. The United Kingdom is a wealthy and powerful nation with its own very distinctive constitutional traditions. The United Kingdom has an unwritten, custom-​based Constitution, which (as I have discussed) is not entrenched and is not enforced against Parliament by courts exercising the full power of judicial review. English legal history, like the history of the common law, is thoroughly and comprehensively treated in the superb book by John H. Langbein, Renée Lettow Lerner, and Bruce P. Smith, History of the Common Law: The Development of Anglo-​American Legal Institutions.3 Although the United Kingdom did not really become a democracy until the Reform Acts of 1832, 1867, and 1911 were passed, its Constitution dates back—​ according to Sir Edward Coke—​to the pre-​Norman Conquest reign of King Edward the Confessor in the 1060s. The Norman pledges to follow the Leges Edwardii of Edward the Confessor were thus both practically and legally binding on future kings. Some modern historians have dismissed Coke’s claim as being only the Whig Party theory of history, but all agree that the most important document in English constitutionalism is the Magna Carta or Great Charter of Liberties. Magna Carta was agreed to by King John in 1215, and signed before the barons on the fields of Runnymede.4 From 1215 to 1603, England was governed as a mixed regime with power shared by the three great estates of the realm: the Monarchy, the House of Lords, and the House of Commons. The monarch was powerful but constitutionally constrained. The eight strong monarchs during this period included: Edward I, Edward III, Henry IV, Henry V, Edward IV, Henry VII, Henry VIII, and Queen 2 Professor Stephen Gardbaum’s, excellent book, The New Commonwealth Model of Constitutionalism: Theory and Practice (2013). 3 John H. Langbein, Renée Lettow Lerner, & Bruce P. Smith, History of the Common Law: The Development of Anglo-​American Legal Institutions (2009). 4 Richard Huscroft, Ruling England 1042–​1217 (2005).

The United Kingdom of Great Britain and Northern Ireland  367 Elizabeth I. Nonetheless, it is a blunt fact of English history that between 1300 and 1487, five English kings were deposed by Parliament, or by other foes, and were murdered. The five deposed and murdered English kings prior to 1485 included:  Edward II, Richard II, Henry VI, Edward V, and Richard III. Pre-​ sixteenth-​century England was not, by any stretch of the imagination, an absolute monarchy.5 Between 1487 and 1603, three powerful English monarchs of the Tudor dynasty reigned, but each of them was careful to get Parliament’s backing for everything they did. These three powerful monarchs were Henry VII, Henry VIII, and Elizabeth I. In 1603, the Tudor dynasty ended, and the Stuart dynasty of James I and later of his son, Charles I, began. The Stuarts were foreigners in England, having originated in Scotland, of which they were also kings, and they began trying to impose absolute monarchy, and a theory of the Divine Right of Kings, in England. They were followers of Jean Bodin’s sixteenth-​century theory of the Divine Right of Kings to rule absolutely, which is best exemplified by King Louis XIV’s absolute rule in France in the seventeenth and eighteenth centuries. Both James I  and Charles I  faced strong opposition from Parliament and from the English common law judges, like Sir Edward Coke, for granting royal monopolies in exchange for money, and for imprisoning bankers and releasing them only in exchange for “loans” that were not repaid. On June 7, 1629, Charles I was forced by a Parliament, led by Sir Edward Coke, to agree to the Petition of Right, which forbade taxation except by Parliament, forbade imprisonment without cause, and which forbade the use of martial law. From 1629 until 1640, Charles I ruled personally without ever calling Parliament into session. During this period, the Whig theory of history, which carried the day politically (and it is the winners who get to write history), contends that he broke all of his pledges in the Petition of Right, imprisoned members of Parliament, persecuted the Puritans brutally, and used the Court of Star Chamber to impose punishments like ear cropping and branding on both cheeks. He also initiated proceedings in the Court of Star Chamber against jurors who had voted to acquit individuals in criminal trials. He seems to have believed that he was bound by no laws, since he was God’s agent in England, Wales, and Scotland. The Parliament, which convened in 1640, passed a Triennial Act providing that there must be a session of Parliament at least once every three years, abolished the Court of Star Chamber and the ecclesiastical Court of High Commission, and ordered the High Church Archbishop of Canterbury—​ whom Charles I had appointed—​to be held prisoner in the Tower of London. 5 For histories of medieval England, see Maurice Keen, England in the Later Middle Ages (2nd ed. 1973); J.E.A. Jolliffe, The Constitutional History of Medieval England from the English Settlement to 1485 (1961).

368  The History and Growth of Judicial Review, Volume 1 Charles tried to march into the House of Commons with troops to arrest five parliamentarians, but no one in the House claimed to know where the five members of parliament were. Charles I  then fled London for Oxford, and the English Civil War began. Soon thereafter the Archbishop of Canterbury was beheaded at Tower Hill. Charles I lost the Civil War, and he was himself beheaded after a trial held in Westminster Hall, during which he refused to answer questions because he denied Parliament’s power to try him. Parliament abolished the House of Lords, and Oliver Cromwell became the Lord Protector of England until his death, governing essentially as a puritanical and disliked dictator. The English monarchy was restored in 1660 under Charles I’s son, Charles II, but three years into the reign of the next Stuart King, James II, the dynasty was overthrown as a result of the Glorious Revolution of 1688. Three statutes of constitutional dimension were passed during the second half of the seventeenth century: the Habeas Corpus Act of 1679; the English Bill of Rights of 1689; and the Act of Settlement of 1701, which forbade Roman Catholics from ascending to the throne and which gave English judges tenure during good behavior of the monarch who had appointed them. From 1688 until the ascension to the throne of Queen Victoria in 1837, English monarchs continued to exercise some executive power, but Parliament exercised legislative power, and independent judges with life tenure during good behavior, after 1761, exercised judicial power. England was thus a checks and balances Aristotelian mixed regime with a “balanced constitution” when the Framers of the U.S. Constitution wrote that document in Philadelphia in 1787. Parliament was sovereign according to William Blackstone because in it were represented the three great estates of the realm: the King, the House of Lords, and the House of Commons—​the One, the Few, and the Many. England prided herself during the eighteenth century for having a balanced constitution with monarchical, aristocratic, and democratic elements. It was inconceivable that English judges could judicially review Acts of Parliament because the King-​in-​Parliament was sovereign, and thus every Act of Parliament was akin to a constitutional amendment in the United States. Blackstone’s acknowledgment of the sovereignty of the King-​in-​Parliament came from Hobbes who had hated mixed regimes and preached that sovereignty must be concentrated in one place. Since the English regime after 1689 was obviously a mixed regime, Blackstone invented the idea of solving Hobbes’s puzzle by saying sovereignty lay in the King-​in-​Parliament with the House of Lords and the House of Commons. This phrase morphed in the nineteenth and twentieth centuries into a belief in “parliamentary sovereignty” as the king and then the House of Lords became mere ceremonial window dressing.

The United Kingdom of Great Britain and Northern Ireland  369 By 1911, “parliamentary sovereignty” meant, in practice, the sovereignty of the House of Commons. Since prime ministers like Margaret Thatcher and Tony Blair both won three House of Commons elections with only 43 percent of the vote, by the 1990s, it was clear that, in the United Kingdom, sovereignty lay in 43 percent of the U.K. voting public. This was an insane constitutional arrangement, and it produced some very bad results. During the period between 1714 and 1837, prime ministers existed in Great Britain, but at times with very little real power. The first prime minister to be voted out of office by the House of Commons was Lord North in 1782, who achieved this honor by losing the American Revolutionary War. The United Kingdom only became a full-​fledged parliamentary regime well into the nineteenth century, when Queen Victoria ascended to the throne in 1837. In 1832, and again in 1867, Britain expanded voting rights and ended a system of parliamentary rotten boroughs. The House of Lords was also reduced to symbolic status by statutes passed in 1911 and 1949. In the great 1911 reform, the House of Lords’ power to veto laws by failing to pass them was clipped to a power only to delay laws from going into effect for two years. This delaying power was then shortened to one year in 1949.6 The tradition in England for electing members of the House of Commons has been to carve the country into 650 or so territorial districts and allow whoever wins a plurality in each district to become the Member of Parliament for that district. This has led, until 2020, to a two-​and-​one-​half-​party system with the Conservative Party and the Labor Party alternating in holding the office of prime minister. In a recent U.K. election in December of 2019, the Conservative Party won 365 seats, the Labour Party 202 seats, and the Scottish National Party 48 seats. The United Kingdom obviously has a very serious Scottish independence threat with which it must contend, now that it has left the European Union. The tradition in England going back at least to 1688, and arguably since Magna Carta, has been one of parliamentary sovereignty and supremacy.7 The King-​in-​Parliament was supposedly sovereign historically because it spoke for all three of the great estates of society: the Monarch, the Aristocracy, and the People. In 1997, Tony Blair and the Labour Party won the national elections for Parliament on a platform that promised major constitutional changes. Major changes were made and are well described in Vernon Bogdanor’s book, The New British Constitution; and in Peter Leyland’s book, The Constitution of the United Kingdom: A Contextual Analysis.8 Three of Prime Minister Blair’s constitutional changes merit a quick mention here. 6 Chris Ballinger, The House of Lords 1911–​2011: A Century of Non-​Reform (2012). 7 See Jeffrey Goldsworthy, Parliamentary Sovereignty: Contemporary Debates (2010). 8 Vernon Bogdanor, The New British Constitution (2009); and Peter Leyland, The Constitution of the United Kingdom: A Contextual Analysis (2nd ed. 2012).

370  The History and Growth of Judicial Review, Volume 1 First, Prime Minister Blair reformed the House of Lords by reducing the number of hereditary peers in the House of Lords from 758 to 92. That body is now dominated by lifetime peers and is only a revising chamber that tries to edit the work of the House of Commons. Nonetheless, the House of Commons only rarely uses its power to enact laws notwithstanding the House of Lords, so it would be wrong to dismiss the current House of Lords as being totally a cipher. There are currently 804 members of the House of Lords so the voices of the 92 hereditary lords, who are elected by the 758 hereditary lords, are in practice drowned out by the lifetime peers. Second, Prime Minister Blair devolved national power to four subnational entities: (1) a newly elected Scottish Parliament, which can legislate on domestic matters for Scotland; (2)  a somewhat less-​powerful Welsh Assembly, which legislates for Wales; (3) a carefully balanced legislature for Northern Ireland in which both Protestants and Catholics are guaranteed a role in decision-​making; and (4) an elected mayor and council for the City of London. The decision to devolve power, in this particular way, was a terrible mistake. If Prime Minister Blair had wanted to devolve power, he ought to have created thirty state governments, within the United Kingdom, and devolved power to all of them equally. This would have created an impossible collective action problem for anyone who wanted to organize secession from the U.K.. By devolving power to only four entities, one of which was Scotland, Prime Minister Blair made Scottish secession much, much easier. It will be interesting to see how the new Prime Minister Boris Johnson will deal with the Scottish National Party now that Brexit has happened. Third, Prime Minister Blair pushed through Parliament the Human Rights Act of 1998 (HRA), which has had the effect of incorporating the European Convention on Human Rights (a sweeping trans-​European Bill of Rights hereinafter referred to as the ECHR) into domestic U.K. law. This statute empowers the British courts to enforce the ECHR in ordinary domestic U.K. cases. Section 3 of the Human Rights Act, 1998, orders the English courts to interpret English law, if it is at all possible to do so, to be compatible with ECHR rights. If the courts find it impossible to reconcile U.K.  law with the ECHR, then Section 4 of the Human Rights Act, 1998, directs the courts to issue a declaration of incompatibility. This sends the matter back to Parliament, which may amend or not amend the U.K. law using a fast-​track procedure. Since 1998, the United Kingdom has had what might be called a weak form of Second Look judicial review, as is described by Professor Gardbaum in his excellent book. The courts can declare a U.K. law that violates the ECHR to be incompatible with the Human Rights Act, but Parliament must act to repeal or alter the law if it feels moved to do so. Since 1998, the United Kingdom has also removed its highest court from the House of Lords, and it has created it, as a separate

The United Kingdom of Great Britain and Northern Ireland  371 branch of government, called the Supreme Court of the United Kingdom. It has also greatly changed the judicial selection process by reforming the anomalous role played historically by an official called the Lord Chancellor, who simultaneously exercised legislative, executive, and judicial power and whose role was abolished. The U.K.’s unwritten Constitution, dating back to 1215 or 1066 or earlier, is a wonder to behold, but modern-​day Britain is struggling with many, very basic constitutional questions. Evolutionary, unwritten constitutionalism has avoided war and revolution, except in the 1640s and in 1688, but the Constitution that has resulted is not adequately keeping up with the change of events. Perhaps the greatest flaw in the unwritten U.K. Constitution is the ease with which huge constitutional changes can be made by transient majorities in the House of Commons, or in a single referendum put before the voters for majority decision. Political parties that typically have won only 43 percent of the nationwide vote in one election are able to make major, irreversible constitutional amendment-​ like decisions. Both Prime Ministers Margaret Thatcher and Tony Blair made major changes of constitutional dimensions without ever winning 51 percent of the nationwide vote, although, in their defense, it should be acknowledged that they advertised the changes they would make if they won in party manifestos. David Cameron won a majority in Parliament in 2015 with only 37 percent of the vote. Overall, the U.K. Constitution is not adequately entrenched today, and it is, in many respects, a disaster that is waiting to happen, or that may have already happened.9 For those who wish to consult it, the scholarship on English legal history beyond Professor Langbein’s Treatise is immense.10 One other recent change in British constitutionalism bears mentioning—​ an increasing and unfortunate reliance on popular referenda to decide constitutional questions, which Professor Bruce Ackerman quite rightly calls “the product of short-​term decisions by no-​nonsense politicians who chose to use the referendum device without regard to its long-​term implications.”11 The first such use of a popular referendum came, in 1975, when a majority of electors voted that Britain should join the Common Market, which later became the European Union. A second instance of reliance on popular referenda occurred, in 1997, when Prime Minister Tony Blair’s government held referenda in Scotland and Wales to determine whether those jurisdictions wanted devolution of powers.

9 For a rosier assessment, see Dawn Oliver, The United Kingdom, in How Constitutions Change: A Comparative Study 329–​55 (Dawn Oliver & Carlo Fusaro, eds., 2011). 10 J.H. Baker, The Common Law Tradition:  Lawyers, Books, and the Law (2000); Ralph V. Turner, Judges, Lawyers, Books, and the Law (2000); Ralph V. Turner, Judges, Administrators and the Common Law in Angevin England (1994). 11 Revolutionary Constitutions: Charismatic Leadership and the Rule of Law, at 12 (2019).

372  The History and Growth of Judicial Review, Volume 1 Both jurisdictions voted in favor of devolution, and Parliament then had to act to devolve powers and to set up legislative assemblies in Scotland and Wales. The third use of referenda occurred under the Conservative Party government of David Cameron. On May 5, 2011, the United Kingdom held a referendum on whether to keep the U.K.’s wonderful, first-​past-​the-​post system of voting, or whether to switch to proportional representation instead. Fortunately, for the United Kingdom, the voters there were smart enough to reject proportional representation by a 67.9 percent margin with a national turnout of 42 percent of the voters. The low turnout of voters on such an important vote shows why relying on referenda is such a bad idea. The voters simply do not know enough to make these decisions, and they often simply stay home and do not vote. If one does the math, 67 percent of 42 percent of the voters is 28.518 percent of the British electorate, which prevailed in retaining the first past the post-​system in the referendum on proportional representation in 2011. It so happens that the 28 percent-​plus British voters decided this referendum correctly, but it is quite easy to imagine a future referendum, which a 28 percent-​plus number of British voters could get horribly wrong. The fourth use of referenda also occurred under the Conservative Party government of David Cameron. On September 18, 2014, a referendum was held on whether Scotland should declare itself independent of the United Kingdom. The referendum failed with 45 percent of the voters voting yes, and 55 percent of the voters voting no. Scots living in England, Wales, and Northern Ireland were not allowed to vote in this referendum, and the voting age in Scotland was lowered to sixteen. The holding of this referendum with this voting electorate was idiotic, and the outcome only fueled the movement for Scottish independence as well as leading to more devolution of powers. Even more idiotic was the referendum held on June 23, 2016, in which a slim majority of U.K. voters voted to leave the European Union—​an action known as Brexit. Here, 51.9 percent of the voters voted for Brexit, and as a result the United Kingdom has now under Prime Minister Boris Johnson withdrawn from the European Union (EU). The submission of such a highly complex issue of momentous importance about which the government and the House of Commons knew much more than did British voters was an act of lunacy of catastrophic importance. The outcome of the Brexit vote led to David Cameron’s resignation as prime minister, and his replacement by Theresa May. Professor Ackerman provides an excellent account of the history of British referenda on the U.K.’s EU referenda from the early 1970s up through May of 2019.12 He shows, historically, that none of the prime ministers who called for 12 Bruce Ackerman, Revolutionary Constitutions:  Charismatic Leadership and the Rule of Law 12–​18 (2019).

The United Kingdom of Great Britain and Northern Ireland  373 these referenda to be held had any idea how inconsistent they were with the unwritten, British Constitution of Parliamentary supremacy. The U.K. Supreme Court had to rule, as Professor Ackerman explains, that referenda in the United Kingdom are meaningless under the British Constitution because of parliamentary sovereignty. Brexit shows that the modern British Constitution is not only a disaster waiting to happen: it is also a disaster that has already happened. The absence of checks and balances in the twenty-​first-​century British Constitution has led to horrible consequences.

II. Judicial Review As I  have previously noted, the tradition in the United Kingdom, from its emergence as a democracy in the nineteenth century, down to the present day, was one of responsible party governments, the sovereignty of the Queen-​in-​ Parliament—​which came to mean the sovereignty of transient majorities of the House of Commons—​and opposition to a written constitution or Bill of Rights that was judicially enforced by courts to strike down Acts of Parliament.13 It is striking that while the British imperial Constitution of the eighteenth century was a “balanced Constitution” with the monarch, the aristocracy, and the people, checking and balancing, the actions of one another, the modern-​ day British Constitution has almost no checks and balances in it at all. And, it acknowledges the absolute power of transient majorities of the House of Commons, usually elected with less than 43 percent of the vote nationwide to make constitutional changes. The United Kingdom clung to the Westminster Model until Tony Blair’s Labor Party won the 1997 parliamentary election with 43.2  percent of the vote nationwide, after campaigning on a manifesto that promised sweeping constitutional reforms. Beginning in the 1970s, and continuing until 1997, there was a fierce debate that raged in the United Kingdom over whether the country should adopt a judicially enforced Bill of Rights. After a twenty-​year-​long fight, the proponents of a judicially enforced Bill of Rights won in 1997. Prime Minister Tony Blair’s New Labor government passed the HRA, 1998, which went into effect on October 2, 2000, to implement judicial review of the constitutionality of legislation in England. There is talk of the United Kingdom withdrawing from the ECHR, and of the United Kingdom drafting a distinctly British Bill of Rights. The future of British 13 See Charles Howard McIlwain, The High Court of Parliament and its Supremacy (1890).

374  The History and Growth of Judicial Review, Volume 1 human rights law, if there is a future, is still very much up for grabs. For now, all I can do is to discuss the HRA as it has existed to date. Prime Minister Blair’s reforms have changed U.K. judicial review in two ways that merit discussion. First, the incorporation of the HRA, at least for the moment into U.K. law has given Britain, in effect, an entrenched Bill of Rights, which can almost always be enforced against Parliament. Second, devolution of powers seems to have led very recently at least in two major cases to the Supreme Court of the United Kingdom engaging in federalism and separation of powers umpiring judicial review. I discuss each of these developments separately in Parts A and B below.

A.  Judicially Enforced Bill of Rights The Human Rights Act (HRA) incorporated into domestic British law the comprehensive human rights guarantees of the European Court of Human Rights (ECtHR). Prior to the adoption of the HRA, Britain was a signatory to the ECHR, but that document could only be enforced by a private party suing the U.K. government and securing an order from the ECtHR, which sits in Strasbourg, France, to mend its ways—​orders with which the British government did not always comply. The U.K. government had an embarrassing record of losing more cases decided by the ECtHR than almost any other government in Europe. This embarrassing record became a major part of the case for adopting the Human Rights Act, 1998. The Human Rights Act, 1998 incorporated the European Convention on Human Rights and Freedoms into the U.K.’s domestic law, which is currently enforceable by all litigants in cases before U.K. courts. Section 2 [of the Human Rights Act] required the U.K.’s courts to take the ECtHR’s jurisprudence into account [in deciding] HRA cases, but it did not say that British courts were bound by that jurisprudence. Sections 3 and 4 of the Human Rights Act, 1998 contained the two new rights-​protecting judicial powers. Section 3 (1) stated that: “so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way that is compatible with the [European Convention’s catalogue of individual] rights.” Section 3(2) made this applicable whenever the legislation in question was enacted and affirmed that this section “does not affect the validity, continuing operation or enforcement of any incompatible primary legislation.” Rather, section 4 [of the Human Rights Act] empowered, but does not require, the higher British courts to make a declaration of incompatibility with respect to such legislation, repeating in section 4(6) that such a declaration would have no effect on the validity or on the continuing operation of the provision in which it is given. Section 4 adds that it is “not binding on the parties to the proceedings in which it is made.” Section 10, in turn, empowered the relevant executive branch ministry to seek

The United Kingdom of Great Britain and Northern Ireland  375 to amend British legislation subject to a declaration of incompatibility (or an adverse ECtHR ruling) by a “fast-​track” remedial order as an alternative to the ordinary legislative process, but there is no obligation to respond to the courts.14 Professor Gardbaum adds that: [s]‌ection 6 [of the Human Rights Act], which has been referred to as the most significant provision of the HRA, makes it unlawful for all public authorities (defined to exclude Parliament but as including the courts) to act incompatibly with Convention rights—​unless mandated to do so by primary legislation that cannot be interpreted consistently with the rights. * * * [S]ection 6 has become the most frequent basis for litigation under the HRA. Both the Scottish Parliament and the Northern Ireland Assembly, created with limited competencies by the 1998 devolution legislation, are public authorities under section 6, so that their legislative acts must be compatible with Convention rights. * * * The HRA sets up a separate system of strong-​form judicial review of legislative acts of these two devolved assemblies alongside the weak-​form review of acts of the UK Parliament at Westminster.

According to Professor Gardbaum, the HRA also mandated pre-​enforcement political rights review, which he thinks has proven very effective and successful. Professor C.B. Picker noted as well that [t]‌he HRA requires the executive branch of the British government (the ministries and civil servants), as well as the judiciary, to follow the HRA’s requirements and to interpret subsequent acts of Parliament in conformity with it. Thus, all organs of the government will be required to act in conformity with those parts of the ECHR covered by the HRA—​including the police and local governments. Furthermore, the HRA also requires courts to consider, but not be bound by, ECtHR jurisprudence, when confronted with an issue involving the HRA. That jurisprudence includes not only British law on the subject, but also non-​British law.15

All in all, the Human Rights Act, 1998, clearly moved the United Kingdom from a Constitution with no judicial review of the constitutionality of legislation, to a Second Look Model of judicial review, as I defined that term earlier in this book. Now that the act is potentially up for amendment or potentially even repeal, by the new Conservative Party government of Prime Minister Boris Johnson, we all will 14 Gardbaum, supra note 1, at 157–181. 15 C.B. Picker, ‘A Light Unto the Nations’—​The New British Federalism, the Scottish Parliament, and Constitutional Lessons for Multiethnic States, 77 Tulane L. Rev. 1, 14 (2002).

376  The History and Growth of Judicial Review, Volume 1 have to see what Prime Minister Johnson proposes to replace it. While the British courts cannot formally strike down an Act of Parliament as violating the ECHR, they can and have “interpreted” statutes, purposively and creatively, to render them compliant with the convention. This represents a major change in the practice of statutory interpretation in the British courts, which were, prior to the passage of the HRA, very positivist, textual, and formalistic. The HRA has eliminated that form of statutory interpretation in the many cases that may impinge on an ECHR right. The British courts also can and have declared Acts of Parliament to be in violation of the ECHR, thereby triggering a fast-​track legislative process to correct the incompatibility. This is plainly a Second Look system of judicial review of the constitutionality of Acts of the Westminster Parliament. We will have to see if Prime Minister Johnson’s Tories allow this to remain in place. The House of Lords, which was the U.K.’s highest court until the recent creation of the Supreme Court of the United Kingdom, “established a general policy of following the ‘clear and constant’ jurisprudence of the [European Court of Human Rights].”16 This meant, as Professor Gardbaum pointed out, that “the [Human Rights Act] functions in the shadow of a powerful international court,”17 which uses a strong form and not a Second Look Model of judicial review. As a result, judicial review under the HRA is probably much more aggressive than it otherwise might be, because there is a powerful and active international human rights court whose precedents the U.K. courts have chosen to follow. What will happen if Britain rescinds its joining of the ECHR is anyone’s guess. Professor Gardbaum described the impact of the HRA as of 2013 in the following terms:  “approximately forty pieces of legislation [have been] effectively found in final judgments of the courts not to be compatible with Convention rights. That is, where the courts have relied on either the section 3 interpretive power to render the provision compatible with a right where it was not under initial, more conventional modes of statutory interpretation, or on section 4 to make a declaration of incompatibility.”18 The general practice of the U.K. courts is “to use section 3 as the ‘primary remedy’ where ‘possible’ and only if it is not, to use section 4.”19 The leading case, according to Professor Gardbaum, on when the courts can depart from traditional U.K. formalistic rules of statutory interpretation to “creatively” and “purposively” construe statutes to be compatible with the ECHR is Ghaidan v. Godin-​Mendoza ([2004] UKHL 30).20 Sections 3 and 4 of the Human Rights Act, 1998, which were at issue in Ghaidan v. Godin-​Mendoza, provide as follows:

16

Gardbaum, supra note 1 at 169. Id. at 159. Id. at 171. 19 Id. 20 Id. at 172. 17 18

The United Kingdom of Great Britain and Northern Ireland  377 3. Interpretation of legislation. (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. (2) This section—​



(a) applies to primary legislation and subordinate legislation whenever enacted; (b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and (c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.



4. Declaration of incompatibility. (1) Subsection (2)  applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. (3) Subsection (4)  applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right. (4) If the court is satisfied—​



(a) that the provision is incompatible with a Convention right, and (b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility, it may make a declaration of that incompatibility.

(5) In this section “court” means—​





(a) (b) (c) (d)

the Supreme Court; the Judicial Committee of the Privy Council; the Court Martial Appeal Court; in Scotland, the High Court of Justiciary sitting otherwise than as a trial court or the Court of Session; (e) in England and Wales or Northern Ireland, the High Court or the Court of Appeal. (f) the Court of Protection, in any matter being dealt with by the President of the Family Division, the Vice-​Chancellor or a puisne judge of the High Court.

378  The History and Growth of Judicial Review, Volume 1 (6) A declaration under this section (“a declaration of incompatibility”)—​



(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and (b) is not binding on the parties to the proceedings in which it is made.



Ghaidan v. Godin-​Mendoza [2004] UKHL 30 House of Lords. In Ghaidan v. Godin-​Mendoza, the House of Lords was presented with a case in which: the original tenant died after the Human Rights Act 1998 came into force on 2 October 2000. In April 1983 Mr Hugh Wallwyn-​James was granted an oral residential tenancy of the basement flat at 17 Cresswell Gardens, London SW5. Until his death on 5 January 2001 he lived there in a stable and monogamous homosexual relationship with the defendant Mr Juan Godin-​Mendoza. Mr Godin-​Mendoza is still living there. After the death of Mr Wallwyn-​James the landlord, Mr Ahmad Ghaidan, brought proceedings in the West London County D Court claiming possession of the flat. Judge Cowell held that on the death of Hugh Wallwyn-​James Mr Godin-​Mendoza did not succeed to the tenancy of the flat as the surviving spouse of Hugh Wallwyn-​James within the meaning of paragraph 2 of Schedule 1 to the Rent Act 1977, but that he did become entitled to an assured tenancy of the flat by succession as a member of the original tenant’s family under paragraph 3(1) of that Schedule. Mr Godin-​ Mendoza appealed, and the Court of Appeal, comprising Kennedy, Buxton and Keene LJJ, allowed the appeal: [2003] Ch 380. The court held he was entitled to succeed to a tenancy of the flat as a statutory tenant under paragraph 2. From that decision Mr Ghaidan, the landlord, appealed to your Lordships’ House.21

The Law Lords observed that “on the death of a protected tenant of a dwelling-​ house his or her surviving spouse, if then living in the house, becomes a statutory tenant by succession. But marriage is not essential for this purpose. A person who was living with the original tenant as his or her wife or husband is treated as the spouse of the original tenant***. In Fitzpatrick v.  Sterling Housing Association Ltd [2001] 1 AC 27 your Lordships’ House decided this provision did not include persons in a same-​sex relationship. The question raised by this appeal is whether this reading of paragraph 2 can survive the coming into force of the Human Rights Act 1998. In Fitzpatrick’s case the original tenant had died in 1994.”



21

Ghaidan v. Godin-​Mendoza [2004] UKHL 30.

The United Kingdom of Great Britain and Northern Ireland  379 The Law Lords in Ghaidan v. Godin-​Mendoza ([2004] UKHL 30) used their Section 3 power under the Human Rights Act, 1998, to reinterpret U.K. law to allow a right of surviving same-​sex partners to succeed to a tenancy after finding that discrimination on the basis of sexual orientation violated the ECHR. Since the member of a male-​female cohabitancy would have had a right to succeed to a tenancy in this case, it would be sex discrimination to deny to the survivor of a male-​male co-​tenancy the same right. This seems to me to be a pretty straightforward and important case, which the Law Lords decided correctly. Professor Gardbaum describes Ghaidan v.  Godin-​Mendoza [2004] UKHL 30 as being the paradigm British case prior to 2013 that was decided under the Human Rights Act, 1998. If so, then the Human Rights Act, 1998, has clearly made a difference in British law, since a pre-​1998 case involving a same-​sex couple was decided against the surviving spouse of that couple based on traditional, literal English interpretations of statutes. It is thus fair to say that in cases like Ghaidan v. Godin-​Mendoza [2004] UKHL 30, the Human Rights Act, 1998, has led to a weak form of judicial review of the constitutionality of Acts of Parliament. A majority in Parliament could always overrule Ghaidan v. Godin-​ Mendoza [2004] UKHL 30, but that has not happened, and it is highly unlikely to happen. I can therefore safely conclude that Britain now has a weak form of Second Look-​style judicial review. The Human Rights Act, 1998, has, at a minimum, caused British courts to abandon their wooden, highly textualist approach to statutory interpretation when that approach produces an outcome that the U.K. courts think is inconsistent with the ECHR, in banning discrimination on the bases of sex or sexual orientation. The Human Rights Act, 1998, has thus had a huge impact on methods of statutory interpretation in the U.K. courts when such interpretation seems to lead to outcomes inconsistent with the ECHR. Professor Gardbaum notes that as of 2013, “approximately forty pieces of legislation” have been effectively found in final judgments of U.K. courts “not to be compatible with Convention rights.”22 These forty cases include Section 3 of the HRA cases, where the courts have construed U.K. statutes to be Convention compliant, and Section 4 cases where the U.K. courts have issued declarations of incompatibility.23 As of 2013, “twenty-​seven declarations of incompatibility have been issued by the higher courts, of which nineteen have become final * * * and eight were overturned on appeal.”24 “As yet, Parliament has not overridden



22

Gardbaum, supra note 1, at 172. Id. 24 Id. at 173. 23

380  The History and Growth of Judicial Review, Volume 1 a section 3 interpretation per se,” with one minor exception.25 “As of [2013], eighteen of the nineteen final declarations of incompatibility have resulted in amendment or repeal of the relevant provision of primary legislation, and one remains unremedied since it was issued on January 2007.”26 The unremedied violation concerns a ban on prisoners voting, an issue that the European Court of Rights Grand Chamber resolved most recently in Scoppola v. Italy, on May 22, 2012, where it upheld a more limited Italian ban on prisoners voting but struck down “the U.K.’s ‘general, automatic and indiscriminate’ ban on * * * Article 3 [grounds].”27 “Given the prime minister’s stated aversion to seeing prison inmates voting and apparent pledge not to [follow the European Court of Human Rights (ECtHR) judgments in this area of law] immediately after the ECtHR’s May 2012 decision in Scoppola, it seems that this will be the first declaration of incompatibility that Parliament chooses to leave unremedied.”28 Professor Gardbaum gives the HRA high marks for creating a climate in the United Kingdom of “greater rights-​awareness than before—​among citizens, courts, public officials, Parliament and [the] government.”29 “There are also more legally recognized rights than before.”30 The invalidation of approximately forty statutory provisions under Sections 3 and 4 of the Human Rights Act “is not an inconsiderable number. Even with respect to the nineteen final declarations of incompatibility alone, this means that U.K. courts are finding incompatibilities at very roughly the same average rate per year as the Canadian Supreme Court.”31 Professor Gardbaum worries that the “overarching weakness of the [Human Rights Act] as a practical experiment in the working of ” [what I choose to call Second Look Judicial Review] has been the dominance over it of the ECtHR system of what is often effectively supranational strong-​form judicial review.”32 “The meaning and application of human rights in the United Kingdom rests ultimately with the European Court.”33 He concludes that perhaps “a suitably drafted ‘British bill of rights’ might provide a somewhat better practical test of the new [Second Look Model of judicial review] than [has been provided so far by the Human Rights Act.]”34

25

Id. at 174–​75. Id. 27 Id. at 175. 28 Id. at 178. 29 Id. at 182. 30 Id. at 183. 31 Id. at 185. 32 Id. at 195. 33 Id. 34 Id. at 203. 26

The United Kingdom of Great Britain and Northern Ireland  381 As I  noted earlier, in the general election held in the United Kingdom in December 2019, Boris Johnson’s Conservative Party won a huge majority in Parliament. Prime Minister Johnson faces huge and complex challenges in light of the reality now of Brexit. Whether Johnson will want to spend time or political capital on constitutional or judicial review reform is unclear. The future of judicial review of the constitutionality of legislation in light of the ECHR in the United Kingdom is thus quite uncertain. The U.K. Supreme Court handed down a striking HRA decision recently in Lee v. Ashers Baking Company Ltd and others, [2018] UKSC 49. In this case, the a lawsuit was brought by Gareth Lee against Ashers Baking Co. and others because the Christian Bakery refused to make a cake for his wedding that would celebrate same-​sex marriage. The U.K. Supreme Court ruled that there had been no discrimination against Lee on the basis of his sexual orientation. The Supreme Court held that in the United Kingdom, one cannot be forced to promote a message one fundamentally disagrees with. The Supreme Court panel’s decision was unanimous. The U.K. Supreme Court relied in its opinion on U.S. Supreme Court cases forbidding compelled speech. The Ashers Baking Company case shows that the United Kingdom is fully accustomed today to its role as a national Bill of Rights enforcer. It will take some fairly decisive statutory changes by the new Conservative Party government to change the U.K. Supreme Court’s new vision of its role. I suspect U.K. Bill of Rights enforcement is probably here to stay.

B.  Umpire in Federalism and Separation of Powers Cases An even more striking recent development is that both in 2017 and in 2019, the U.K. Supreme Court for the first time since Sir Edward Coke clashed with King James I, in the early 1600s, has engaged in separation of powers umpiring between The Queen and the prime minister, on one side, representing the executive branch of the U.K. government, and Parliament, on the other side, representing the legislative branch of the U.K. government. This separation of powers judicial umpiring occurred in the very important case of R (Miller) v. Secretary of State for Exiting the European Union, [2017] UKSC 5 (Miller case one).35 In this case, the Supreme Court of the United Kingdom considered whether Her Majesty, The Queen, could revoke on her own, at the suggestion of the prime minister, all forty or so treaties, by which the United Kingdom made itself a

35 United Kingdom Supreme Court. British and Irish Legal Information Institute (BAILII). January 24, 2017. Archived from the original on September 8, 2019. Retrieved September 27, 2019.

382  The History and Growth of Judicial Review, Volume 1 member of the European Union. There was some question as to whether statutes had been enacted by Parliament that made its approval of Brexit necessary. Historically, the monarch had always had the power to enter into and to revoke, at her own discretion, all treaties. In the United States, presidents have always asserted that they have the unilateral right to revoke treaties. President George Washington revoked the U.S.  alliance with France, in 1793, with his Neutrality Proclamation, and Presidents George W.  Bush and Donald Trump have unilaterally revoked various arms control treaties that Russia was violating. In the case of the European Union treaties, the United Kingdom had held a referendum, at Parliament’s request, on whether or not the United Kingdom should leave the European Union. This referendum was held on June 23, 2016. The result was that 51.9 percent of those voting cast votes in favor of leaving the European Union, while 48.11 percent had cast votes in favor of remaining in the European Union. The voter turnout was 72.21  percent of all registered voters. The outcome of the referendum led to the immediate resignation of Conservative Prime Minister David Cameron, who had called the referendum to mollify hardliners, but who had campaigned in favor of the United Kingdom remaining in the European Union. After Cameron resigned following the outcome of the referendum, Theresa May became prime minister in his place. Prime Minister Theresa May’s government was of the view that, in 2017, she and the executive branch of the U.K. government had the authority, either because of the referendum, or, because of The Queen’s historical power to abrogate treaties, to withdraw from the European Union with no further action being needed by Parliament. Mrs. Miller sued, arguing that in the United Kingdom, sovereignty lies in Parliament, and she argued therefore that only an Act of Parliament could bring about Brexit. The Supreme Court of the United Kingdom in an astonishing separation of powers umpiring opinion agreed with Mrs. Miller. I  agree with the Supreme Court’s reasoning in this case, but I also think it is a remarkable slap down by the court of the executive branch of The Queen and the prime minister. I reproduce here several key paragraphs of the U.K. Supreme Court’s separation of powers umpiring opinion: Originally, sovereignty was concentrated in the Crown, subject to limitations which were ill-​defined and which changed with practical exigencies. Accordingly, the Crown largely exercised all the powers of the state (although it appears that even in the 11th century the King rarely attended meetings of his Council, albeit that its membership was at his discretion). However, over the centuries, those prerogative powers, collectively known as the Royal prerogative, were progressively reduced as Parliamentary democracy and the rule of law developed. By the end of the 20th century, the great majority of what

The United Kingdom of Great Britain and Northern Ireland  383 had previously been prerogative powers, at least in relation to domestic matters, had become vested in the three principal organs of the state, the legislature (the two Houses of Parliament), the executive (ministers and the government more generally) and the judiciary (the judges). It is possible to identify a number of seminal events in this history, but a series of statutes enacted in the twenty years between 1688 and 1707 were of particular legal importance. Those statutes were the Bill of Rights 1688/​9 and the Act of Settlement 1701 in England and Wales, the Claim of Right Act 1689 in Scotland, and the Acts of Union 1706 and 1707 in England and Wales and in Scotland respectively. (Northern Ireland joined the United Kingdom pursuant to the Acts of Union 1800 in Britain and Ireland). 42. The independence of the judiciary was formally recognised in these statutes. In the broadest sense, the role of the judiciary is to uphold and further the rule of law; more particularly, judges impartially identify and apply the law in every case brought before the courts. That is why and how these proceedings are being decided. The law is made in or under statutes, but there are areas where the law has long been laid down and developed by judges themselves: that is the common law. However, it is not open to judges to apply or develop the common law in a way which is inconsistent with the law as laid down in or under statutes, ie by Acts of Parliament. 43. This is because Parliamentary sovereignty is a fundamental principle of the UK constitution, as was conclusively established in the statutes referred to in para[graph] 41 above. It was famously summarised by Professor Dicey as meaning that Parliament has ‘the right to make or unmake any law whatsoever; and further, no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament’—​op cit, p 38. The legislative power of the Crown is today exercisable only through Parliament. This power is initiated by the laying of a Bill containing a proposed law before Parliament, and the Bill can only become a statute if it is passed (often with amendments) by Parliament (which normally but not always means both Houses of Parliament) and is then formally assented to by HM The Queen. Thus, Parliament, or more precisely the Crown in Parliament, lays down the law through statutes—​or primary legislation as it is also known—​and not in any other way. 44. In the early 17th century Case of Proclamations (1611) 12 Co Rep 74, Sir Edward Coke CJ said that ‘the King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm’. Although this statement may have been controversial at the time, it had become firmly established by the end of that century. In England and Wales, the Bill of Rights 1688 confirmed that ‘the pretended power of suspending of laws or the execution of laws by regall authority without consent of Parlyament is illegall’

384  The History and Growth of Judicial Review, Volume 1 and that ‘the pretended power of dispensing with laws or the execution of laws by regall authoritie as it hath beene assumed and exercised of late is illegall’. In Scotland, the Claim of Right 1689 was to the same effect, providing that ‘all Proclamationes asserting ane absolute power to Cass [ie to quash] annull and Dissable lawes . . . are Contrair to Law’. And article 18 of the Acts of Union of 1706 and 1707 provided that (with certain irrelevant exceptions) ‘all . . . laws’ in Scotland should ‘remain in the same force as before . . . but alterable by the Parliament of Great Britain.’ ”

The Supreme Court of the United Kingdom held that since Parliament is sovereign, only an Act of Parliament could bring about Brexit. Neither the Brexit referendum, nor The Queen, acting on the advice of Prime Minister Theresa May, had the power to bring about Brexit according to the U.K. Supreme Court’s opinion. Parliament subsequently voted on Brexit, and Brexit was adopted by Parliament into law. Members of Parliament seemed to feel a political need to defer to the referendum results, even though, legally, the Supreme Court of the United Kingdom had held that Brexit was a decision that only Parliament could make. This case not only holds that Parliament is sovereign and that referenda have no legal effects in the United Kingdom. It also holds that The Queen on the advice of the prime minister, which the U.K. Supreme Court characterizes as the executive branch, lacks the power without an Act of Parliament to effectuate Brexit even though it was Parliament that had voted to hold the Brexit referendum in the first case. It is no accident that the U.K. Supreme Court cites as authority for its decision the early seventeenth-​century Case of Proclamations (1611) 12 Co Rep 74 decided by Sir Edward Coke. No U.K. Supreme Court or committee of Law Lords had engaged in separation of powers umpiring of this kind since 1611! This case is a truly extraordinary development. It represents a major assertion of power by the U.K. Supreme Court over the prime minister of a kind never seen before. Even more extraordinary is the recent case of R (on the application of Miller) v. The Prime Minister and Cherry and others v. Advocate General for Scotland, [2019] EWHC 2381 (QB) and [2019] CSIH 49 (the Miller case two). In this case, the High Court of England and Wales and in the Inner House of the Court of Session in Scotland decided cases concerning the legality of Conservative Prime Minister Boris Johnson’s request that Her Majesty The Queen prorogue, that is, end, a session of Parliament for a period of time between the 9th and 12th of September and the 14th of October 2019 allegedly to stop a debate in the House of Commons over Brexit. On the 28th of August, following the advice of Prime Minister Johnson, “[a]‌n Order in Council was made that Parliament be prorogued between those dates and that the Lord

The United Kingdom of Great Britain and Northern Ireland  385 Chancellor prepare and issue a commission for proroguing Parliament accordingly.”36 The High Court of England and Wales upheld the legality of the prorogation, but the Inner House of the Court of Session of Scotland held that the prorogation was unlawful. The Supreme Court of the United Kingdom agreed to hear appeals from both courts to decide, itself, whether the prorogation was, or was not, lawful. The unanimous opinion of the Supreme Court was that the prorogation was unlawful, and so the Supreme Court affirmed in the case from Scotland and reversed in the case from England and Wales. The case was heard by the largest panel of possible judges, including all eleven members of the Supreme Court of the United Kingdom. The decision had nothing to do with the merits of Brexit, but it did address the executive power question of whether the royal prerogative still allowed prorogation, in 2019, and whether a decision over prorogation was justiciable, that is, whether the courts could review it, as well as resolving a disagreement between the Scottish and English courts on this separation of powers matter. The U.K. Supreme Court said that [t]‌he first question is whether the lawfulness of the Prime Minister’s advice to Her Majesty is justiciable. This Court holds that it is. The courts have exercised a supervisory jurisdiction over the lawfulness of acts of the Government for centuries. As long ago as 1611, the court held that “the King [who was then the government] hath no prerogative but that which the law of the land allows him.”

The opinion in 1611 that the U.K. Supreme Court is relying on here is the same famous decision of England’s greatest judge in history, Sir Edward Coke, which the U.K. Supreme Court had relied upon in 2017. The U.K. Supreme Court is really slapping down what the prime minister did in the most embarrassing possible way. The U.K. Supreme Court went on to explain that “[t]‌wo fundamental principles of our Constitution are relevant to deciding [the proroging] question. The first is Parliamentary sovereignty—​that Parliament can make laws which everyone must obey: this would be undermined if the executive could, through the use of the prerogative, prevent Parliament from exercising its power to make laws for as long as it pleased. The second fundamental principle is Parliamentary accountability ***.” The U.K. Supreme Court concluded that “[t]‌his was not a normal prorogation in the run-​up to a Queen’s Speech. It prevented Parliament from carrying out its



36

The Miller One case opinion.

386  The History and Growth of Judicial Review, Volume 1 constitutional role for five out of the possible eight weeks between the end of the summer recess and exit day on 31st October [for the U.K. to leave the European Union].” The U.K. Supreme Court added that “[t]his prolonged suspension of Parliamentary democracy took place in quite exceptional circumstances: the fundamental change which was due to take place in the Constitution of the United Kingdom on 31st October. Parliament, and in particular the House of Commons as the elected representatives of the people, has a right to a voice in how that change comes about. The effect upon the fundamentals of our democracy was extreme.” The U.K. Supreme Court was thus “bound to conclude, therefore, that the decision to advise Her Majesty to prorogue Parliament was unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.” The result that that led to in the Supreme Court’s words was that “[t]‌his Court has already concluded that the Prime Minister’s advice to Her Majesty was unlawful, void and of no effect. This means that the Order in Council to which it led was also unlawful, void and of no effect and should be quashed. This means that when the Royal Commissioners walked into the House of Lords it was as if they walked in with a blank sheet of paper. The prorogation was also void and of no effect. Parliament has not been prorogued.” The Supreme Court concluded that both houses of Parliament were still in session, and they could meet under their normal rules and with their normal presiding officers. The Miller case was an extraordinary assertion of judicial power that calls to mind the U.S. Supreme Court’s decision in Marbury v. Madison in 1803. It umpires between the Scottish and English court systems, as a federalism umpire; and it umpires between the executive branch and the legislature as a separation of powers umpire. This second of two remarkable U.K. Supreme Court judicial umpiring decisions suggests that judicial review is very much alive and well in the United Kingdom today. Many aspects of the British Constitution are currently contested. For example: (1) people are not satisfied with the selection process for the House of Lords; (2) they are not satisfied with the Civil Service; (3) they are not satisfied with the electoral system; (4) constitutional conventions are always changing; (5) no one knows when a referendum ought to be held or what meaning a referendum has as a matter of law; and (6) Scotland wants another referendum on independence sometime soon. The current British constitutional system is too flexible and is not sufficiently rigid or constrained.

III.  The Origins and Growth of Judicial Review of Acts of Parliament Judicial review in the United Kingdom under the HRA, and in umpiring decisions quoted earlier like the two Miller cases, is best explained by borrowing

The United Kingdom of Great Britain and Northern Ireland  387 from the United States, Canada, Australia, India, and even Germany and the ECtHR. The emergence of judicial review in the United Kingdom also coincided with the devolution of power to Scotland, Wales, and Northern Ireland, thus creating a need for a federalism umpire. Finally, the U.K. Supreme Court has now twice asserted itself against efforts by the prime minister and The Queen to act without Parliament when the court thought it was unconstitutional for the executive branch to do so. The U.K. Supreme Court is asserting a new power to umpire separation of powers disputes. The need for an umpire is augmenting U.K. Supreme Court judicial review power today in 2020. U.K. Supreme Court umpiring was acutely evident in the second Miller case when the High Court of England and Wales reached the opposite conclusion from the one arrived at by the Inner House of the Court of Session as to the legality of The Queen’s prorogation of Parliament in September of 2019. The Supreme Court of the United Kingdom, with all eleven justices hearing the two cases, broke the tie by unanimously siding with the Scottish court and disagreeing with the High Court of England and Wales. This is a classic example of how federalism and separation of powers umpiring creates a need for judicial review. In addition, the adoption by the United Kingdom of the ECHR, in 1998, as a judicially enforced Bill of Rights added to the judicial review powers of the U.K. Supreme Court. The cause of this development was embarrassment that the United Kingdom kept losing so many human rights cases when they were heard by the ECtHR. There is, accordingly, a mild rights from wrongs story that explains the adoption of the Human Rights Act, 1998, although a desire to borrow that which was fashionable and in style probably provides the major explanation for the adoption of this act.

IV.  Conclusion I have now completed case studies on the origins and growth of judicial review in Israel and in the six major G-​20 common law countries of: (1) the United States, (2) Canada, (3) Australia, (4) India, (5) South Africa, and (6) the United Kingdom of Great Britain and Northern Ireland. I began with a review of the history of the Privy Council of the First and Second British Empires, which essentially taught the five common law countries to expect and to have judicial review of the constitutionality of legislation. I identified three major causes of the growth and origin of judicial review in the G-​20 countries and in Israel, which I studied. First, as Professor Martin Shapiro’s prior work suggests, the need for a federalism umpire, and occasionally a separation of powers umpire, played a major role in the development of judicial review of the constitutionality of legislation in the United States, in Canada, in Australia, and in India. Now, in the United

388  The History and Growth of Judicial Review, Volume 1 Kingdom, in the two Miller cases excerpted earlier, the Supreme Court of the United Kingdom has had to play the role of a separation of powers umpire as well as the role of a federalism umpire when the Scottish courts disagreed with the High Court of England and Wales over the legality of the prorogation of Parliament in September of 2019. All of this helps to prove the claim I made in the introduction to this book that the need for a vertical and horizontal umpire is, in fact, a major cause of the origins and growth of judicial review. Second, as the prior work of Professor Alan Dershowitz, Rights from Wrongs: A Secular Theory of the Origins of Rights37 shows, there is a rights from wrongs phenomenon at work in the growth of judicial review in the United States, after the Civil War; in Canada, with the 1982 adoption of the Canadian Charter of Rights and Freedoms; in India, after the Indira Gandhi State of Emergency led to a massive trampling on human rights; in Israel, after the Holocaust; in South Africa, after racist apartheid misrule; and in the United Kingdom, after that country accumulated an embarrassing record before the ECtHR prior to 1998. This helps to prove the claim I made in the beginning of this book that judicial review of the constitutionality of legislation often occurs in response to a deprivation of human rights. Professor Ackerman’s work shows that major deprivations often give rise to charismatic mass movements as he explains in Revolutionary Constitutions. Mass movement political parties may then constitutionalize their charisma or gain control of a Supreme Court and permanently alter its case law, as happened in the United States after 1937. Even more minor rights deprivations like Canada’s mistreatment of the people of Quebec or the U.K.’s compiling of a lousy record in the European Court of Human Rights led respectively to the Canadian Charter of Human Rights and Freedoms and the U.K. Human Rights Act. Wrongs do not have to get so bad that a revolution on a human scale becomes necessary to correct them. This is a point Professor Ackerman may want to consider. Third, I  think I  successfully showed that the seven common law countries all borrowed a lot in writing their Constitutions. The U.S. Constitution of 1787 borrowed from the so-​called Balanced or Mixed Regime British Constitution, which the American colonists perceived to have existed in 1787 when the U.S. Constitution was written. The U.S. Bill of Rights was largely borrowed from the Bills of Rights of the eleven American states, which wrote constitutions between 1776 and 1789. The Canadian Constitution’s federal structure was in part borrowed from U.S. federalism, and the Canadian Charter of Rights and Freedoms was in part borrowed from the Warren Court’s expansive constructions of the U.S. Bill of 37 Alan Dershowitz, Rights from Wrongs: A Secular Theory of the Origins of Rights (2005).

The United Kingdom of Great Britain and Northern Ireland  389 Rights. Australia borrowed its federalism and separation of judicial powers clauses from the United States and from Canada. India borrowed heavily from the British Imperial Government of India Act, 1935, in setting up its federal and separation of powers structures. It borrowed the idea of having a judicially enforceable Bill of Rights from the United States. Israel and South Africa both, in the 1990s, borrowed the idea of judicial review from the many countries, which by then had judicial review. Finally, and most ironically, the United Kingdom, which had bequeathed to its five colonies the idea of judicial review through the mechanism of the Privy Council, ended up borrowing that idea back when, in 1998, the United Kingdom adopted a Second Look-​style system of judicial review of the constitutionality of legislation. Now the U.K. Supreme Court seems to have embarked on a process of separation of powers and federalism umpiring, which seems borrowed from the many former U.K. colonies that are now nation-​states with separation of powers and federal judicial umpiring regimes. There is, in the seven G-​20 common law countries, some evidence of the Ran Hirschl phenomenon of fading British imperial elites seeking to hegemonically entrench themselves in power via the JCPC. The JCPC was so viewed in Australia in 1901 when the British Empire passed the Australia Constitution Act, 1901. It was also viewed that way when the United Kingdom passed the Government of South Africa Act, 1909. Critically, in the Statute of Westminster, 1931, the U.K. government expressly allowed any of its Dominion government to abolish Privy Council review and most Dominion governments chose to retain such review until after World War II, but abolished it thereafter. The Ran Hirschl thesis on the origins and growth of judicial review of the constitutionality of legislation is thus partially confirmed by the data from the seven common law countries I studied with respect to their views about JCPC judicial review. Finally, Professor Tom Ginsburg’s thesis that judicial review originates in countries that have two evenly balanced political parties that want “insurance and commitment” is a good idea. I think that it does help courts that already have the power of judicial review to grow more powerful. But, I think that “insurance and commitment” only rarely gets judicial review going in regimes that do not have it. In addition, Israel’s experience, along with the U.S., Canadian, Australian, Indian, South African, and U.K. experiences all suggest that Common Law countries may be particularly drawn to judicial review. This could be because judges are the heroes in the common law tradition and not scholars or codifiers. In contrast, in the Civil Law countries, judges are usually minor players and the heroes are the writers of codes or the scholars who interpret them. Everything else being equal, it will probably remain easier for a common law country to adopt judicial review than for a civil law country to do so. This is part of the reason why

390  The History and Growth of Judicial Review, Volume 1 all the civil law countries with judicial review have a specialized tribunal, which is called a Constitutional Court. South Africa is the only common law country that I are aware of, which has a Constitutional Court, and it is a mixed civil law, common law country because the Afrikaners followed the civil law, while the British population followed the common law. My message is that judicial review of the constitutionality of legislation emerges as the result of (1) the need for a judicial umpire; (2) a reaction of rights from wrongs, which may if they are serious enough give rise to what Bruce Ackerman calls mass political movements; and (3)  borrowing; (4)  elite hegemonic entrenchment; (5) insurance and commitment; or (6) being a common law country like Israel with a weak legislature. Finally, it is worth noting that judicial review picked up steam in the U.K. once the courts no longer faced a monolithic majority in the House of Commons. The U.K. Supreme Court can now navigate between Scotland on the one hand and England and Wales on the other hand. Even separation of powers disputes between the Prime Minister and Members of Parliament in the U.K. seem to empower the U.K. Supreme Court. The U.K. Supreme Court does not have the luxury of navigating among a president, senate, house of representatives, and the states, which the U.S. Supreme Court has, but it has more political space in which to act than it did prior to 1998. In Volume II, I  will show that the same phenomena apply to the civil law countries that belong to the G-​20 nations: (1) the Federal Republic of Germany, (2) Japan, (3) the Republic of Italy, (4) the Republic of France, (5) the Republic of Korea, (6) the Federative Republic of Brazil, (7) Mexico, and (8) Indonesia. I will show the same thing for the European Union’s Court of Justice and for the Council of Europe’s European Court of Human Rights—​both of which govern common law as well as civil law jurisdictions. I thus can offer a universal theory as to what are the causal factors in both the origins of judicial review of the constitutionality of national legislation and in its growth in power over time.

Conclusion The American and Westminster Models I have now completed case studies on the origins and growth of judicial review in Israel and in the six major G-​20 common law countries of: (1) the United States, (2) Canada, (3) Australia, (4) India, (5) South Africa, and (6) the United Kingdom of Great Britain and Northern Ireland. I draw the following conclusions from these case studies. This book began with a review of the history of the Privy Council of the First and Second British Empires, which essentially taught the six common law countries to expect and to have judicial review of the constitutionality of legislation and of executive actions. I have identified four major causes of the growth and origin of judicial review in the G-​20 countries and in Israel, which I studied. First, as my own and Professor Martin Shapiro’s prior work suggests, the need for a federalism umpire, and occasionally a separation of powers umpire, played a role in the development of judicial review of the constitutionality of legislation in the United States, in Canada, in Australia, in India, and most recently in the United Kingdom. This helps to prove the claim I made in the beginning of this book that the need for a vertical and horizontal umpire is, in fact, a major cause of the origins and growth of judicial review. It is not clear to me how Professor Ackerman’s new book Revolutionary Constitutions: Charismatic Leadership and the Rule of Law (2019) explains this very common form of judicial review, which appears without a charismatic leader and without a charismatic movement. Second, as the prior work of Professor Alan Dershowitz, Rights from Wrongs: A Secular Theory of the Origins of Rights (2005); and Bruce Ackerman, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law (2019) suggests, there is a rights from wrongs phenomenon at work in the growth of judicial review in the United States, after the Civil War; in Canada, with the 1982 adoption of the Canadian Charter of Rights and Freedoms; in India, after the Indira Gandhi State of Emergency led to a massive trampling on human rights; in Israel, after the Holocaust; in South Africa, after racist apartheid misrule; and in the United Kingdom, after that country accumulated an embarrassing record before the European Court of Human Rights prior to 1998. This helps to prove the claim I made in the introduction that judicial review of the constitutionality of legislation often occurs in response to deprivations of human rights. Professor The History and Growth of Judicial Review, Volume 1. Steven Gow Calabresi, Oxford University Press (2021). © Steven Gow Calabresi. DOI: 10.1093/oso/9780190075774.003.0012

392  The History and Growth of Judicial Review, Volume 1 Ackerman’s work shows, in particular, that such deprivations often give rise to mass movement charismatic political parties, which then write a Constitution or a Bill of Rights or gain control of a Supreme Court and permanently alter its case law, as happened in the United States in 1937. I should note, however, that Alan Dershowitz’s Rights from Wrongs phenomenon is in practice divided between: (1) really egregious wrongs, which lead to revolutions on a human scale, as Ackerman shows in Revolutionary Constitutions; and, (2) much less egregious wrongs, like Canada’s mistreatment of Quebec, or the United Kingdom’s embarrassing record before the European Court of Human Rights, which can lead to a judicially enforced Bill of Rights without the need for an Ackermanian revolution on a human scale. The Canadian Charter of Rights and Freedoms and the United Kingdom’s Human Rights Act gave rise to judicial review in a constitution-​changing way without there being anything like a mass mobilization of charismatic leaders and a revolution on a human scale. Constitutional change occurred in Canada and in the U.K. without any loss of life or the mass emigration of people, which did occur as a result of the American Revolution, the Indian Revolution, Israeli independence, or the ending of South African apartheid. Third, I  believe I  established that the seven common law countries all borrowed a lot in writing their constitutions. The U.S. Constitution of 1787 borrowed from the so-​called Balanced or Aristotelian Mixed Regime British Constitution, which the American colonists perceived to have existed, in 1787, when the U.S. Constitution was written. The U.S. Bill of Rights was largely borrowed from the Bills of Rights of the eleven American states, which wrote constitutions between 1776 and 1789. The Canadian Constitution’s judicially enforced federal structure was, in part, borrowed from U.S. federalism, and the Canadian Charter of Rights and Freedoms was in part borrowed from the Warren Court’s expansive constructions of the U.S. Bill of Rights. Australia borrowed its judicially enforced systems of federalism and separation of judicial powers from the United States and from Canada. India borrowed heavily from the British Imperial Government of India Act 1935, in setting up its federal and separation of powers structures. It borrowed the idea of having a judicially enforceable Bill of Rights from the United States. India also borrowed from Ireland the idea of having a set of Directive Principals. Israel and South Africa both, in the 1990s, borrowed the idea of judicial review from the many countries, which by then had judicial review. Finally, and most ironically, the United Kingdom, which had bequeathed to its five colonies the idea of judicial review through the mechanism of the Privy Council ended up borrowing that idea back when, in 1998, the United Kingdom adopted a system of Second Look judicial review of the constitutionality of legislation. The United Kingdom now appears to be borrowing umpiring judicial review in separation of powers and federalism cases from other common law nations, which

Conclusion   393 have had such umpiring judicial review for centuries, in the case of the United States, Canada, and Australia. A fourth, and final major cause of the growth of judicial review, may be having a system of checks and balances, extreme proportional representation, and a common law heritage, which extols the role of judges and leads to a very weak legislature. Israeli judicial review may have been facilitated by such a system. I do believe the U.S. Supreme Court’s ability to navigate among the president, the Senate, and the House of Representatives and between the states and the federal government empowers the Supreme Court. It can almost always find an elected ally somewhere. In contrast, the Supreme Court of Japan in a unitary nation-​state with a parliamentary system of government is bound to be weak. It faces off against a prime minister with two-​thirds majorities of both houses of the national legislature behind him and no state governments. No wonder the Supreme Court of Japan has only struck down eight laws as being unconstitutional since World War II. I did notice, in studying the undemocratic, British Empire, the Ran Hirschl phenomenon of fading British Imperial elites seeking to hegemonically entrench themselves in power via the Judicial Committee of the Privy Council (JCPC). The JCPC was so viewed in Canada, in 1875 when the Supreme Court of Canada was created; in Australia in 1901, when the British Empire passed the Australia Constitution Act, 1901; and in South Africa, when the British Empire passed the Government of South Africa Act, 1909. Neither the Australians nor the South Africans wanted JCPC judicial review, after they saw what JCPC judicial review had led to in Canada after 1867. Critically, in the Statute of Westminster, 1931, the U.K.  government expressly allowed any of its Dominion governments to abolish JCPC judicial review, and most Dominion governments chose to retain such review until after World War II, although they abolished it once the war had ended showing they were not in any hurry to get rid of the JCPC. The Ran Hirschl thesis on the origins and growth of judicial review of the constitutionality of legislation thus explains judicial review in part in the undemocratic British Empire. I cannot think of a single constitutional democracy today anywhere in the world where judicial review was born because a fading hegemonic elite was seeking to entrench itself in power as it lost the ability to win elections. I thus disagreed with Professor Ran Hirschl’s book, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (2007) in so far as he argues that the expansion of Canadian judicial review after the passage of the Canadian Constitution Act of 1982 by the British Parliament was an attempt by English-​speaking Canadians, as a fading hegemonic elite, to entrench their power over Quebec. I also disagreed with Ran Hirschl that the emergence of Israeli judicial review, in the 1990s, was an effort by Ashkenazi fading elites to entrench their power against a new rising Sephardic Jewish movement. Finally, I disagreed

394  The History and Growth of Judicial Review, Volume 1 with Ran Hirschl that the emergence of judicial review in South Africa, in the 1990s, was primarily due to a fading white elite trying to entrench itself in power. I pointed out instead that the African National Congress (ANC) Party had asked for judicial review and a comprehensive Bill of Rights in the Freedom Charter of 1955; and, in the 1990s, the ANC got what it had long wanted. The fact that white South Africans had by the 1990s come around to seeing that the ANC was right about judicial review and an entrenched Bill of Rights was of only secondary importance. Professor Tom Ginsburg argues in Judicial Review in New Democracies: Constitutional Courts in Asian Cases (2008) that judicial review originates in countries that have two evenly balanced political parties that want “insurance and commitment.” I  think that insurance and commitment is a good idea, and I believe that a desire for it helps courts that already have the power of judicial review to grow more powerful, but it rarely, if ever, gets judicial review going. Umpiring, Rights from Wrongs, Borrowing, and political space in which courts can act are all phenomena that lead to the birth of judicial review, but insurance and commitmet is not. Mobs of people do not storm the Bastille crying “we want insurance and commitment” or a regime “with multiple veto points, or because two evenly matched political parties wanted it for reasons of “insurance and commitment.” The United Kingdom from the age of Gladstone and Disraeli to the age of Thatcher and Blair was a two party democracy, but it did not end up adopting judicial review for “insurance and commitment reasons.” I have a number of additional thoughts about the differences between Professor Bruce Ackerman’s project in Revolutionary Constitutions and the two additional volumes he has promised us, and my own project in this first book of a two-​book series. First, I  commend Ackerman for distinguishing between totalitarian revolutions and revolutions on a human scale. There is a big difference between the totalitarian Bolshevik Revolution of 1917 and the revolutions on a human scale that Ackerman describes in Revolutionary Constitutions, which occurred in India, in Israel, and in South Africa. It is important to tell the stories of the Indian, South African, and Israeli Revolutions, and Ackerman has done that exceptionally well. Totalitarian revolutions are akin to the French Revolution but worse and more deadly. The Revolutions on a Human Scale that Ackerman writes about are truly akin to the American Revolution of 1776 and have made the world a better place. Revolution is not necessarily always a bad thing. It depends on the circumstances; on the means the revolutionaries are willing to use to obtain their end; and on the character of the revolutionary men and women like George Washington, Mahatma Gandhi, David Ben-​Gurion, and Nelson Mandela, as

Conclusion   395 opposed to men like Adolf Hitler, Vladimir Lenin, Joseph Stalin, or Mao Ze Dong. It also depends on having realistic and attainable ambitions and not a utopian desire to alter human nature and society. Second, I think Ackerman’s project differs from mine in that he is really addressing the causes of nation and constitution creation, which he identifies as being: (1) revolutions on a human scale, (2) elite bargains, or (3) evolutionary Hayekian constitutions that are almost a form of spontaneous order. Constitution-​creation and judicial review-​creation are two separate, although inter-​related subjects. To some extent Ackerman and I are seeking answers to different question: both of them being of great importance. Nation state creation and constitution-​creation precede in time the creation of a system of judicial review much less the growth in power of that system over many decades. Ackerman usefully addresses the nationstate creation and constitution-​ creation question in Revolutionary Constitutions by proving that India, South Africa, France, Italy, Poland, Burma, Israel, and Iran all have something in common with one another, which was hitherto not recognized. This is a neat trick, especially since Ackerman’s countries include common law and civil law countries on three Old World continents: Asia, Africa, and Europe. My project differs fundamentally from Ackerman’s in that I am trying to determine what causes judicial review of the constitutionality of legislation and of executive action to get started and to grow. I take it as a given that there is a nation-​state, and possibly even a constitution, and ask the second-​order question of what makes judicial review grow better in some settings than others. As a result, I have had to study the common law systems of judicial review separately from the civil law systems of review since court systems differ radically in the common law and the civil law world. I weigh hypotheses that have been advanced by different theorists of judicial review to measure, empirically, which theories, as to how judicial review gets started, have explanatory power and which do not. As it turns out, Ackerman’s theory has great explanatory power for the countries, which he studies, while Ran Hirschl’s and Tom Ginsburg’s theories do not. I have chosen the fifteen G-​20 constitutional democracies plus the Council of Europe and Israel as my data set because collectively the G-​20 nations account for 85 percent of the world’s GDP. I have also chosen these seventeen jurisdictions to study because they are an even mix of common law and civil law nations. The countries I study are on all six inhabited continents: North and South America, Asia, Australia, Africa, and Europe. I have countries from the Global South and from the Global North. I have rich countries and poor countries. I cover the most populous Protestant, Catholic, Jewish, Hindu, and Islamic countries in the world. And, I cover countries with large and small populations and territories but that are globally

396  The History and Growth of Judicial Review, Volume 1 influential. Unlike Ackerman, my book covers the New Worlds of North and South America, and of Australia, as well as the Old Worlds of Europe, Asia, and Africa. The story of Volume I has been the story of the demise of the once all-​powerful Westminster Model of parliamentary supremacy, no Bill of Rights, and no judicial review in the common law world. The Westminster Model has been replaced with a love for checks and balances and an appreciation for written Bills of Rights, and judicial review by Supreme Courts throughout the common law world, which could fairly be called the American Model. The story of Volume II will be the demise in the civil law countries of the French Revolutionary love for parliamentary sovereignty, its disdain for written Bills of Rights, and its uncompromising hatred of gouvernement des juges. This French Model has been replaced in the Civil Law world with the German Basic Law Model: with its love for checks and balances, its all powerful Bill of Rights, and its magnificent Constitutional Court and system of judicial review. The German Model today is not only triumphant in all of Europe, including France. It is also triumphant in the civil law nations of East Asia and, increasingly, Latin America. Volume II covers eight civil law jurisdictions and two mixed civil law/​ common law jurisdictions:  (1) the Federal Republic of Germany, (2)  Japan, (3) the Republic of Italy, (4) the Republic of France, (5) the Republic of Korea, (6) the Federative Republic of Brazil, (7) Mexico, (8) Indonesia; (9) the European Union; and (10) the Council of Europe’s European Court of Justice. I will show in Volume II, as I showed in Volume I, that: (1) the need for a federalism or separation of powers umpire often leads to judicial review getting started; (2)  rights from wrongs often leads to judicial review getting started; (3)  borrowing also leads to judicial review getting started; and (4)  a divided polity, either as a result of checks and balances, or as a result of extreme form of proportional representation, leads to judicial review getting started. Ran Hirschl is wrong that judicial review gets started in Canada, Israel, and South Africa because of elite hegemonic entrenchment, and Tom Ginsburg is wrong is that judicial review gets started for for reasons of insurance and commitment. Ackerman gets a big part of the story of what gets judicial review started right, but there are other causal factors that he will perhaps address in his next two books in his three book series. For now at least, I think I can offer a universal empirical demonstration as to what gets judicial review of the constitutionality of national legislation started and what causes judicial review to grow in power over time in the seventeen most important democracies in the world.

Index For the benefit of digital users, indexed terms that span two pages (e.g., 52–​53) may, on occasion, appear on only one of those pages. 4 Letters and Other Writings of James Madison (Madison), 175–​76 abortion law, Canada, 203, 206, 225–​26 R. v. Morgentaler, 225 abortion law, United States, 102 Gonzales v. Carhart (partial-​birth abortion), 112 Roe v. Wade, 102–​3, 104, 139, 141, 152, 154–​ 55, 225 Account of the European Settlements in America II, An (Burke), 62n.63, 74 Ackerman, Bruce, 370–​72, 374–​75, 376, 381, 391–​93. See also mass popular movement; rights from wrongs umpiring appeals to elites, pre–​Civil War, 128 Canada, 193 Failure of the Founding Fathers, The, 135 Israel, 311–​12, 313–​14, 318–​19, 319n.27, 321, 322, 328, 329–​30 mass popular movements, 104, 120, 135, 147–​48, 152, 157, 159, 162, 178, 181 Fourteenth Amendment, 157 (see also Fourteenth Amendment) Revolutionary Constitutions: Charismatic Leadership and the Rule of Law (see Revolutionary Constitutions: Charismatic Leadership and the Rule of Law) We the People, Volume I: Foundations, 122, 181 We the People, Volume 2: Transformations, 122, 181 We the People, Volume 3: The Civil Rights Revolution, 104, 181 Act of Settlement (1701), 114 Act of Union (England and Scotland), 73 Adams, John, Thoughts on Government, 125–​26 Adkins v. Children’s Hospital, 97, 103, 180 Administrative Appeals Tribunal Act, 239

Administrative Decisions (Judicial Review) Act 1977, 239 Admiralty Courts, 20, 66, 80, 115–​16, 271 African National Congress (ANC), 9–​10, 338, 341, 344–​53, 354–​55, 358, 361, 396 Afrikaners, 45, 95, 337–​38, 339–​41, 343, 347, 351, 357, 358, 360, 376 Alden v. Maine, 104 “Alternative Forms of Judicial Review” (Tushnet), 241, 242n.48 Amalgamated Society of Engineers v. Adelaide Steamship Co Ltd, 232, 247–​52, 254–​55 Amar, Akhil Reed, 132 America’s Unwritten Constitution: The Precedents and Principles We Live By, 146n.86, 160, 161 Bill of Rights: Creation and Reconstruction, The, 101–​2, 137 Constitution and Criminal Procedure: First Principles, The, 125, 125n.49 Establishment Clause, 137 “Intratextualism,” 248n.74, 250–​51 Ambedkar, B.R., Indian Constitution (1891–​ 1956), 273–​75, 282–​84, 296 “Ambedkar’s Constitution: Promoting Inclusion, Opposing Majority Tyranny” (Nussbaum), 297–​99 American Exceptionalism: A Double-​Edged Sword (Lipset), 192 American Revolution Boston Tea Party, 81–​83 Canada, 190–​91 Gaspee, burning, 80–​82 George III and royal prerogative, 22, 36, 79, 80, 81 King-​in-​Council, 73, 79, 80, 83 Privy Council, North American colonies, 42–​44 America’s Unwritten Constitution: The Precedents and Principles We Live By (Amar), 146n.86, 160, 161 anti-​discrimination. See discrimination

398 Index apartheid South Africa, 6–​7, 45, 338, 343, 345, 347–​48, 350–​51, 352–​55, 360, 361, 370, 391–​92 U.S., Jim Crow, 100, 164–​65 Appeals to the Privy Council from the American Plantations (Smith), 40, 47, 65, 69–​70 Areopagitica: A Speech of Mr. John Milton for the Liberty of Unlicensed Printing, to the Parliament of England (Milton), 137 Aruna Ramachandra Shanbaug v. Union of India, 280 assisted suicide, Canada, 193, 226 Attlee, Clement, 273 Attorney-​General for Ontario v. Attorney General for Canada (the Appeals Reference Case), 217 Austin v. Commonwealth, 257n.122, 260 Australia (Commonwealth of), 229–​53. See also specific topics Administrative Appeals Tribunal Act, 239 Administrative Decisions (Judicial Review) Act 1977, 239 alternative vote system, 244–​45 Amalgamated Society of Engineers v. Adelaide Steamship Co Ltd, 232, 247–​52, 254–​55 Austin v. Commonwealth, 257n.122, 260 Australian Capital Television v. Commonwealth (ACTV), 251–​ 52, 254–​55 Australian Capital Territory Human Rights Act, 31–​32 Banking Acts of 1945 and 1947, 259–​61 bank nationalization cases, 251, 259–​61 Bank of New South Wales v. Commonwealth, 260–​31 Bentham, Jeremy, 234, 253, 254, 270 Bill of Rights, lack of, 2, 230–​31, 234, 235–​36, 243, 246–​47, 252–​54 bill of rights, modern, 106–​7 Bill of Rights, recent recommendation, 239, 257 borrowing, 8 campaign finance laws, 254 Cole v. Whitfield, 233, 251, 260–​61 Colonial Laws Validity Act of 1865, 43, 242, 247 Commerce Clause, 231–​33 Commerce Clause equivalent, 211–​12 Commonwealth v. Tasmania, 255nn.110–​ 11, 258 Communist Party, 256 Constitution (see Constitution, Australia) constitutional crisis (1975), 246

constitutional democracy, 229 Darwin, Charles, 234, 254 Deakin, Alfred, 238 D’Emden v. Pedder, 203 Diffuse Model, 24–​25 elite hegemonic entrenchment, 8, 230, 233–​ 34, 238–​39, 253, 257 Elizabeth II, Queen, 229 Federal Executive Council, 245–​46 federalism umpiring and judicial review, 124–​25, 222 federalism umpiring and separation of powers, 229–​31, 235–​36, 235n.16, 240, 251, 252 federal legislation, constitutionality, 2 federation and Dominion, 229 Fraser, Malcolm, 246 Freedom of Information Act, 239 human rights, 234–​40, 247, 257 Human Rights Act, 31–​32 independence, 229, 242 Judiciary Act of 1902, 239 Kable v. Director of Public Prosecutions for NSW, 256 Kerr, John, 246 Koowarta v. Bjelke-​Peterson, 258 Lange v. Australian Broadcasting Corporation, 254–​55 Liberal Party and Labor Party, 230–​31 Melbourne Corporation v. Commonwealth, 251–​52, 260 Mill, John Stuart, 234, 253 National Human Rights Consultation Committee, 239, 247, 257 New South Wales v. Commonwealth, 258–​59 Ombudsman Act, 239 parliamentary sovereignty, 240, 247, 257 political parties, 230–​31 Polyukhovich v. Commonwealth, 256–​57 Privy Council, ending, 46, 95–​38 proportional representation–​pure territorial voting blend, 244–​45 responsible parliamentary government, 106, 229–​30, 234, 240, 253, 257 Rudd, Kevin, 239, 247, 257 Second Look, 206, 207 separation of powers umpiring, 239, 256 Sex Discrimination Act, 256n.114, 258–​59 single transferable vote system, 245 size, population, and GDP, 229 Social Darwinism, 234, 254 speech, freedom of, 247, 252–​53 Statute of Westminster of 1931, 242

Index  399 Tasmanian Dams, 258 Thephanous v. Herald and Weekly Times Ltd, 254 ultra vires, 43–​47, 247 utilitarianism, 234, 253, 254 Victoria v. Commonwealth, 257–​58 Wragg v. New South Wales, 231 Australia (Commonwealth of), High Court federalism umpiring, 229–​30, 236, 237, 240, 247, 252, 257, 258–​59 founding, 232–​44 Australia (Commonwealth of), history, 231–​44 Aboriginals, 231–​32 British Empire, Australian colonies, 231–​33 Constitutional Convention (1897 & 1898) and High Court, 232–​44 Australia (Commonwealth of), judicial review, 233–​34, 238–​39, 244–​61 1945, 106 Constitution Framers on, 230 origins, 24, 229–​30 Australia Acts of 1986, 229 Australia Constitution Act of 1901, 46, 84, 247 “Australia: Devotion to Legalism” (Goldsworthy), 231, 232n.6, 233, 247, 251, 254, 256–​57 Australian Capital Television v. Commonwealth (ACTV), 251–​52, 254–​55 Australian Capital Territory, Second Look Model, 31 Australian Capital Territory Human Rights Act, 31–​32 Australian Constitution, The (Sawyer), 232–​33, 233n.11 Australian Federal Constitutional Law: Commentary and Materials (Winterton), 248n.70, 250 “Australian Judicial Review” (Foley), 235, 235n.14, 237, 237n.21, 239n.36, 240 “Australian State Constitutions” (Saunders), 236, 236n.18 “Australia’s Federal Courts: Their Origins, Structures and Jurisdiction” (Crock and McCallum), 239–​40, 239n.35, 240n.40 Baker v. Carr, 100–​2, 141 Balfour Declaration of 1926, 38–​40, 94–​95 Canada, 38, 94–​95, 201–​2 Israel, 315–​16, 325 Ballinger, Chris, The House of Lords 1911–​2011: A Century of Non-​Reform, 369, 369n.6 Banking Acts of 1945 and 1947 (Australia), 259–​61

bank nationalization Australia, 251, 259–​61 India, 298–​99 “The Bank Nationalization Cases: The Defeat of Labor’s Most Controversial Economic Initiative” (Johnston), 256n.117, 259–​61 Bank of New South Wales v. Commonwealth, 260–​31 Barak, Aharon, 311–​12, 322, 328, 329–​30, 331, 333–​34, 359 “The Constitutional Revolution: Protected Human Rights,” 328 bartending occupation, women, 97 Barton, Edmund, 237–​38 Basic Law on Freedom of Occupation (Israel), 316–​28 Basic Law on Human Dignity (Israel), 313–​ 16, 328 Basic Laws, Israel (1992), 312–​28 Basic Structure doctrine, India’s Constitution, 275–​76, 279, 280, 298, 306, 308–​9 Battle of Hastings, 16–​17 Bayard v. Singleton, 126–​27 Beard, Charles, An Economic Interpretation of the Constitution of the United States, 118, 132–​33 “Becoming Supreme: The Federal Foundation of Judicial Supremacy” (Friedman and Delaney), 140–​41 response to, 140–​49 Ben-​Gurion, David, 311, 312, 314, 318, 319, 320–​21, 322, 323–​30, 394 Bentham, Jeremy, 82, 234, 253, 254, 270 Bergman v. Minister of Finance, 328, 334–​35 Bhanu, Pratap, The Oxford Handbook of the Indian Constitution 1-​1031, 266 Bickel, Alexander, The Least Dangerous Branch: The Supreme Court at the Bar of Politics, 1n.1, 28–​29, 133 Bilder, Mary Sarah, 68–​74 corporate law theory, 68–​74 “The Corporate Origins of Judicial Review,” 39–​40, 113 judicial review discovery, 88 Marbury v. Madison, Marshall on, 89–​90 origins, judicial review, 110 repugnancy and divergence, 36, 41, 47, 61–​ 62, 69–​71, 88–​90 Rhode Island, appeals from, 70–​72 Transatlantic Constitution: Colonial Legal Culture and the Empire, The (see Transatlantic Constitution: Colonial

400 Index Bilder, Mary Sarah (cont.) Legal Culture and the Empire, The (Bilder)) vertical judicial review umpiring, 3–​4, 67, 88–​89, 110 bilingualism, Canada, 185, 195 Billius, George Athan, The Constitution Heard Round the World, 1776–​1989: A Global Perspective, 107 Bill of Rights criminal procedure protections, 138–​39 G-​20 nations, 106–​7 Bill of Rights, Australia lack of, 2, 230–​31, 234, 235–​36, 243, 246–​ 47, 252–​54 recent recommendation, 239, 257 Bill of Rights, Canada, 2, 183, 188, 198, 200, 203, 205–​7, 218–​19 Bill of Rights, India, 263, 266–​69, 271, 286, 290–​ 91, 295, 296, 298–​99, 302–​4, 365 Bill of Rights, New Zealand, 31–​32, 239, 365 Bill of Rights, South Africa, 338, 344, 346–​47, 349, 350, 352–​57, 358–​59, 360–​61, 365 Bill of Rights, United Kingdom, 386–​87 Bill of Rights, United States, 2, 136–​40, 238–​39 Article I, Sections 9 and 10, 136–​37 constitutionally enforceable, 2 fading elite hegemonic entrenchment, 132, 133, 136–​40 First Amendment, 137, 238–​39 Fourteenth Amendment, 147 judicially enforceable, first, 98–​99 Ninth Amendment, 139 Second Amendment, 138 Tenth Amendment, 139 Bill of Rights: Creation and Reconstruction, The (Amar), 101–​2, 137 Black, Charles L., Structure and Relationship in Constitutional Law, 248 Black Codes, 157, 158, 159, 160, 161, 162, 165, 171–​72 Blair, Tony, 53 Constitution reforms, 53, 371–​72, 374–​75 elections and parliamentary sovereignty, 370 Human Rights Act, 203, 372 Blyew v. United States, 170 BNA. See British North America Act, 1867 Board of Trade colonial appeals (pre-​1679), 56 creation, William III, 56 federalism umpiring, 91 Judicial Committee of the Privy Council replacement, 84

North American colonies, 52, 67–​69 repugnance, 71 review, constitutionality of legislation, 63–​64 salaries, gubernatorial, 80 Bogdanor, Vernon, The New British Constitution, 369n.7, 371 Boilermakers Case, R. v. Kirby Ex Parte Boilermakers Society of Australia, The, 256 Bombay High Court, 1862–​1947, 277–​78 Independent Colonial Judiciary: A History of the Bombay High Court during the British Raj, 1862–​1947, An (Chandrachud), 266, 287–​88, 290, 292–​69 borrowing, 8, 54–​55, 381, 393 Australia, 8 Brazil, 8 Canada, 8, 183–​84, 188–​89, 195, 198, 199, 203, 208, 218, 226–​27 Canadian Charter of Rights and Freedoms, 108 common law countries, 393 France, 8 German Basic Law, 8, 108 German Basic Law, by South Africa, 344, 350, 358 Germany, 8 India, 8 Indonesia, 8 Israel, 329–​30, 331 Italy, 8 Japan, 8 judicial review growth, 8 Mexico, 8 South Africa, 358 South Korea, 8 United Kingdom, 368, 373 United States, 8, 108, 152 Boston Tea Party, 81–​83 Bowman v. Middleton (1792), 126–​27 Bowsher v. Synar, 101, 104 Brazil borrowing, 8 Constitutional Court, 118 Brexit, 366, 372, 375–​76, 386–​88 British Empire. See also United Kingdom (of Great Britain and Northern Ireland); specific colonies, countries, and topics Union of South Africa, 339, 340–​43 British North America Act, 1867, British Empire, 35–​36, 94 Bilder, Mary Sarah, 92–​93

Index  401 Haldane and Watson’s interpretation, 94 national and provincial power, Judicial Committee of the Privy Council, 84 Privy Council interpretation, 35–​36 renaming, Constitution Act 1867, 218 (see also Constitution Act, 1867) British North America Act, 1867, Canada, 185–​ 86, 193–​94, 196, 198 Attorney-​General for Ontario v. Attorney General for Canada (the Appeals Reference Case), 217 commerce amendment, 211 Edwards v. A-​G Canada, 226 invalidation, 220 renaming, Constitution Act 1867, 218 Sections 91 & 92, 209 Brougham, Lord, 92–​93, 94, 364–​65 Brown, John, 80–​81 Brown v. Board of Education, 97–​98, 102–​3, 104, 141 Brutus, Essay XI, 125 Bryan, William Jennings, 176 Buckley v. Valeo, 101, 104 Buck v. Bell, 99 Burger Court, 97–​98, 101, 102, 103–​4 Burke, Edmund, 82, 253 An Account of the European Settlements in America II, 62n.63, 74 Burr, Aaron, 143 Bush v. Gore, 104, 106, 141, 152 Byng, Viscount Julian, 200–​1 By Royal Appointment: Tales from the Privy Council –​the Unknown Arm of Government (Rogers), 47 Calabresi, Guido, A Common Law for the Age of Statutes, 28 Calabresi, Steven G. See also specific topics fading elite hegemonic entrenchment, 38–​39 “The Hamdan Case, the Unitary Executive, and the Constitutionality of Jurisdiction Stripping: A Textualist Response to Justice Scalia,” 29, 29n.6 Lockean unrenumerated rights, 8n.13 Marbury v. Madison and Constitution, 121 “On Originalism and Liberty,” 27, 28n.5 origins and causes, judicial review, 120–​21 Privy Council, 41 Second Look models, 28 umpiring, 3 Calder v. Bull, 126, 132n.66, 137 Cameron, David, 374–​76

Cameron, Edwin, Justice: A Personal Account, 340n.14, 346 campaign finance laws Australia, 254 Canada, 204 Israel, 334 Canada, 183–​227. See also specific topics 1945, 106 abortion law, 203, 206, 225–​26 American Revolutionary war, 190 assisted suicide, 193, 226 Balfour Declaration of 1926, 38, 94–​ 95, 201–​2 bilingualism, 185, 195 Bill of Rights, 2, 183, 188, 198, 200, 203, 205–​ 7, 218–​19 Boilermakers Case, R. v. Kirby Ex Parte Boilermakers Society of Australia, The, 256 borrowing, 8, 183–​84, 188–​89, 195, 198, 199, 203, 208, 218, 226–​27 British North America Act, 1867 (See British North America Act, 1867, Canada) campaign finance laws, 204 Canada (AG) v. Bedford, 226 Canadian Constitution Act (1867) (see Canadian Constitution Act (1867)) Carter v. Canada (Attorney General), 226 Charter of Rights and Freedoms (see Charter of Rights and Freedoms (Canada)) Colonial Laws Validity Act of 1865, 41, 47, 94–​95, 185, 194, 201–​2 Commerce Clause, 210, 211–​13 Constitution (see Constitution, Canada) constitutional history, 188–​204 1608–​1867, 189–​94 1867–​1931, 194–​97 1931–​1982, independence, 197–​99 1982–​present day, Constitution Act, 199–​204 Dedham, Lord, 194–​95 Diffuse Model, 24–​25 Dominion Day, 185 European Convention on Rights and Freedoms, 203 evolutionary constitutionalism, 9–​10, 193 expression, freedom of, 193, 204, 225–​26 fading elite hegemonic entrenchment, 8, 183–​84, 187–​89, 198, 203, 208, 226–​27 federalism, 208–​10, 211, 212–​13, 215–​16 federalism and separation of powers umpiring, 183–​84, 189, 198, 200, 203, 208, 226–​27

402 Index Canada (cont.) federalism umpiring, emergence, 124–​25 federal legislation, constitutionality, 2 founding moments, 183 French settlement and Quebec Act of 1774, 191–​92 government overview, 184 Hunter v. Southam, 221 individual rights, 218, 221 Canadian Constitution Act (1867), 218, 221 Charter of Rights and Freedoms, 217, 218–​ 19, 226–​27 Second Look Model, 219–​28 Labatt Breweries of Canada Ltd v. Attorney General of Canada, 212–​13 libertarian aspects, 193 Meech Lake Accord, 203 Mulroney, Brian, 203, 223–​24 Nadan v. The King, 37, 41, 44 origins and growth, 183–​84, 185, 187–​88 parliamentary sovereignty, 200, 206–​7, 218 Peace, Order, and Good Government residuary power, 193, 209, 212–​13, 214, 215, 220 population and GDP, 184 Privy Council control, 188 end, 44, 95–​38 separation of powers umpiring, 183–​84 umpiring, 188 provinces and governance, 184, 186–​87 Reference Appeal Case, 218 Reference re Remuneration of Judges of the Provincial Court (P.E.I.), 218 Reference re Same-​Sex Marriage, 226 Reference re Secession of Quebec, 216 Reference re Securities Act, 213 responsible parliamentary government, 106, 203, 208–​9 rights from wrongs, 183–​84 R v. Crown Zellerbach, 214 R v. Oakes, 219–​20, 224 Second Look Model, 8, 204–​28 (see also Second Look Model) federalism, 209–​17 individual rights, 219–​28 separation of powers, 217–​19 separation of powers umpiring, 183–​84 Statute of Westminster of 1931, 185–​86, 201–​2, 208 Supreme Court of Canada, 183–​84, 220–​22 Tories, 192–​93

trade and commerce regulation, 209–​12 Trudeau, Pierre Elliott (see Trudeau, Pierre Elliott) ultra vires, 43–​47, 208, 220 United Kingdom (see Constitution, United Kingdom) United States (see Constitution, United States) Canada, judicial review, 183–​84, 187–​89, 198, 203, 208, 226–​27 Constitution and Bill of Rights, 127–​40 Federalist Party judges, 130 origins and causes, 183–​84, 188, 198, 208, 227 origins and growth, 183–​84, 187–​88 Second Look Model, 8, 204–​28 (see also Second Look Model) federalism, 209–​17 individual rights, 219–​28 separation of powers, 217–​19 Second Look Model, brief history, 208–​9 vertical, 35–​37 Canada, Supreme Court, 183–​84, 220–​22 “Canada: From Privy Council to Supreme Court, in Interpreting Constitutions: A Comparative Study” (Hogg), 208–​10, 213, 215 Canada (AG) v. Bedford, 226 Canadian Constitution, The (Dodek), 192n.14, 193–​94 Canadian Constitution Act (1867), 183, 185–​86, 187, 188, 193, 194, 196, 198, 202 1982–​present day, 199–​204 federalism and judicial review, 208–​10, 211, 212–​13, 215–​16 federalism and separation of powers umpiring cases, 195 history, 196–​97 individual rights, 218, 221 Cappelletti, Mauro Comparative Constitutional Law: Cases and Materials, 41–​42 umpiring, 3 Carmichele v. Minister of Safety and Security, 349 Carter v. Canada (Attorney General), 226 Case of Proclamations, 383–​84, 388 Case of Proclamations (1611), 383–​84, 388 Case of the Judges, 1788, 125 “The Case of the Prisoners and the Origins of Judicial Review” (Treanor), 108n.12, 120, 125 Certification of the Constitution of the Province of Kwazulu-​Natal, 1996, 350

Index  403 Chandrachud, Abhinav, An Independent Colonial Judiciary: A History of the Bombay High Court during the British Raj, 1862–​1947, 286–​88, 290, 292 charismatic leadership, 391–​93 South Africa, 355, 358–​59 United Kingdom, 370 Charles I, King, 19, 20, 43, 50, 53, 61, 140, 367–​68 Charles II, King, 19, 50–​51, 56, 57, 58, 59, 62, 72, 78, 137, 369 Massachusetts Bay Charter of 1628, 78 Restoration of the Monarchy (1660), 50–​51 Charles River Bridge v. Warren Bridge, 128, 146 Charter of Rights and Freedoms (Canada), 29–​ 30, 108, 183, 184, 217, 227 adoption (1982), 203, 205–​6, 364–​65, 370, 391–​92 borrowing, 108 borrowing from U.S., 372–​73, 393 Constitution Act 1982 and adoption, 188–​ 89, 202 constitution change, for juridical review, 392–​93 countries borrowing from: Section 1, limitations clause, 328, 348 countries borrowing from: South Africa, 358 individual rights, 217, 218–​19, 226–​27 overrides, 222 power shift, state to federal, 222 R. v. Morgentaler, 225 R v. Oakes, 219–​20, 224 Second Look Model, 206–​7, 208, 220–​22 Section 11(d), 218 Section I override clause, 203–​4 Supreme Court of Canada, 203, 208, 220–​22 Trudeau, Justin, 203–​4, 215–​16 United Kingdom permission, 185, 200 checks and balances, 140 constitutional democracies, 10–​11 India, 275–​76, 308 Japan, 124 South Africa, 359 United Kingdom, 366, 369, 376 United States, 178–​79 Chevron v. N.R.D.C., 110 China, insurance and commitment, 9 Chinese Exclusion Case, The, 252 Choudry, Sujit, The Oxford Handbook of the Indian Constitution 1-​1031, 266 Citizens United v. FEC, 104–​5, 152, 154–​55 City of Flores v. Boerne, 104 civil law countries. See also specific countries

judicial review theory, 23 Civil Rights Act of 1866, 157–​59, 160, 161, 170 Civil Rights Act of 1870, 164 Civil Rights Act of 1871, 164 Civil Rights Act of 1875, 150, 164–​65, 167, 171–​72 Civil Rights Act of 1964, 103, 179 Civil Rights Cases, 150, 155, 164–​65, 167, 172, 238 Cleveland, Grover, 119, 165–​66, 169, 170–​71, 172, 178 Clinton v. City of New York, 104 Cohen, William, Comparative Constitutional Law: Cases and Materials, 41–​42 Cohens v. Virginia, 146 Coke, Edward Case of Proclamations and Brexit, 388 vs. Charles I, 49, 367–​68 vs. James I, 49, 122, 367–​68 local laws, areas governed by, 71 Lord Chief Justice of England, 21 profession of law, origins, 19 royal governorships, 59–​60 Stuart kings, war with, 20 on U.K Constitution, origins, 366–​67 on “The Whig Theory of History,” 17 Cole v. Whitfield, 233, 251, 260–​61 Collected Legal Papers (Holmes), 47 Collector v. Day, 247 Colonial Justice in British India: White Violence and the Rule of Law (Kolsky), 287 Colonial Laws Validity Act of 1865, 41, 47, 94–​95 Australia, 43, 242, 247 Canada, 41, 47, 94–​95, 185, 194, 201–​2 India, 43, 269 repeal, 41, 47, 94–​95 colonies, North American, 38–​74. See also Privy Council, North American colonies Commentaries on the Laws of England (Blackstone), 19–​20 Commerce Clause Australia, 231–​33 Canada, 210, 211–​13 United States, 24–​25, 104–​5, 110–​11, 146, 180 “The Commerce Clause –​Commonwealth Comparisons” (Taylor), 211–​12 commitment. See insurance and commitment common law countries, 391. See also specific countries and topics borrowing, 393 elite hegemonic entrenchment, 394 judicial review, 369–​81 rights from wrongs, 391–​93

404 Index Common Law for the Age of Statutes, A (Calabresi), 28 common law legal tradition, history, 16–​22 Battle of Hastings, 16–​17 Blackstone, Williams, Commentaries on the Laws of England, 19–​20 Charles I and Divine Right of Kings, 19, 20, 43, 50, 53, 61, 140, 367–​68 Charles II, 19, 50–​51, 53, 56, 57, 58, 59, 62, 72, 78, 137, 369 Coke, Edward, 17, 20 constitutional government, 18 Court of Star Chamber, 18 (see also Court of Star Chamber (Curia Regis)) Edward I, King, 18 Edward I to Tudors, 18 Edward the Confessor, 15–​17, 19, 366–​67 Elizabeth I, 19, 50, 60, 367 George III, King: royal prerogative and American Revolution, 36, 79, 80, 81 Henry I, King, 15–​17 Henry II, King, 16–​17 Henry III, King, 43 Henry VII, King, 19, 43, 367 Henry VIII, King, 21, 366–​67 heritage, 392–​93 Inns of Court, 19–​20 James I (James VI of Scotland), King, 19, 43, 49, 50, 60, 140 James II, King, 19, 53, 58–​59, 62, 137–​38, 369 judge-​made case law and binding judicial precedents, 16 judges, position, 22 judicial review, origins, 20 King-​in-​Parliament, 21 King John and Magna Carta, 16–​17, 366–​ 67, 371 Leges Edwardae, 15–​17, 366–​67 Mary II, Queen, 21 origins, England, 16–​17 parliament, origins, 18 parliamentary sovereignty, 19–​20 Privy Council, 20 responsible parliamentary government, 22 Roman law, 16–​17 royal courts of justice, 20 Stuarts, 19, 20 Tudors, 18, 19, 367 Victoria, Queen, 363 William the Conqueror, 17 Commonwealth v. Caton, 125 Commonwealth v. John Franklin (1802), 127 Commonwealth v. Tasmania, 255nn.110–​11, 258

Communist Party, 256 Comparative Constitutional Law: Cases and Materials (Cappelletti and Cohen), 41–​42 comparative government, 2. See also specific topics Concentrated Model, 23, 31–​32 consociationalism, 351 Constitution, Australia Article 73, 239–​40 Constitution Act of 1901, 46, 247 constitutional crisis (1975), 246 enactment (1901), 229 Establishment clause, 256 Framers, on judicial review, 230 Free Exercise of Religion clause, 256 rigid entrenched, 229 Section 75, 239–​40 separation of powers, 243 writing, 233–​34 Constitution, Canada, 186 Canadian Constitution Act (1867) (see Canadian Constitution Act (1867)) changes, 1982, 186 dual federalism, 187 history, 186–​87, 188–​204 1608–​1867, 189–​94 1867–​1931, 194–​97 1931–​1982, independence, 197–​99 1982–​present day, Constitution Act, 199–​204 Queen-​in-​Parliament, 186 Constitution, India Ambedkar (1891–​1956), 273–​75, 282–​ 84, 296 amendments, 274–​75, 349–​50 amendments, Indira Gandhi, 275 amendments, overruling Basic Structure doctrine, 278, 280 amendments, post-​Indira Gandhi emergency rule, 308–​10 amendments, Supreme Court review, 264, 298, 303, 306 Basic Structure doctrine, 275–​76, 279, 280, 298, 306, 308–​9 Directive Principles, 263, 278, 279, 291, 295, 302, 304, 305 independence, evolutionary constitutionalism or sharp break?, 278–​82 post-​independence, 284–​89 post-​independence dimensions, 284–​89 survival, 264

Index  405 Constitution, South Africa adoption, 349 amendments, 344, 361 consociationalism, 351 current, 360–​46 Interim, 346, 354, 361 preamble, 361–​44 proportional representation, 345 tricameral legislature, 351 Constitution, United Kingdom, 366–​67 1688–​World War II, 363 balanced or mixed regime, 367, 369, 372, 376 Blair and other recent reforms, 53, 371–​72, 374–​75, 377 Blair and recent reforms, 53, 371–​72, 374–​ 75, 377 contested aspects, current, 368 currently contested aspects, 368 Constitution, United States 1787, 115 1789, sole written in democracy, 101 checks and balances and veto points, 10–​ 11, 140 Commerce Clause, 24–​25, 104–​5, 110–​11, 146, 180 Contracts Clause, 136, 137 Due Process Clause, 138–​39 Establishment Clause, 137 fading elite hegemonic entrenchment, 127–​40 Fifth Amendment, Takings Clause, 139–​40 First Amendment Establishment Clause, 137 Free Exercise Clause, 137 Religion Clauses, 137 Framers, Philadelphia Convention, and elite hegemonic entrenchment, 128–​ 29, 131–​32 General Welfare Clause, 147 mass mobilization, 135–​36 success, 131 “We the People of the United States,” 122 Constitution Act, 1867, 218 Constitutional Court, 1–​3 Brazil, 118 civil law countries, 23–​24 Diffuse Model, 32–​33 Germany, 118, 124, 203 Kelsenian, 10, 24 South Africa, 344–​45, 346–​58, 361 constitutional democracy, Australia, 229 Constitutional History of the First British Empire (Keith), 57, 60

constitutionalism Enlightenment, 347 evolutionary, Canada, 9–​10 Constitutional Law of Canada (Hogg), 220–​22, 223, 224 constitutional oligarchies, 54 constitutional regimes, defined, 328 “The Constitutional Revolution: Protected Human Rights” (Barak), 328 Constitutional Rights in Two Worlds: South Africa and the United States (Kende), 337n.1, 337–​41, 343–​45, 348–​49, 350–​ 51, 353–​54, 355–​60, 361 Constitution and Criminal Procedure: First Principles, The (Amar), 127n.51, 138–​39 Constitution Heard Round the World, 1776–​ 1989: A Global Perspective, The (Billius) The, 107 Constitution of Australia: A Contextual Analysis, The (Saunders), 231, 243–​44 Constitution of Canada: A Contextual Analysis, The (Webber), 186–​87, 196 Constitution of Israel: A Contextual Analysis, The (Navot), 311–​12, 312n.1, 323, 328, 329–​30, 331–​32, 334 Constitution of South Africa: A Contextual Analysis, The (Klug), 338, 338n.2, 349 Constitution of the United Kingdom: A Contextual Analysis, The (Leyland), 369n.7, 371 Contracts Clause, 136, 137 Coolidge, Calvin, 119, 178, 180 Cooper v. Aaron, 141 coordination theories, 10–​11 Corder, Hugh, “The Republic of South Africa,” 338–​39, 338n.3, 344–​45 corporate law theory Bilder, Mary Sarah, 68–​74 Cappelletti and Cohen, 41–​42 “The Corporate Origins of Judicial Review” (Bilder), 39–​40, 113 Correspondence of the Justices, 105, 142–​43 Court of Star Chamber (Curia Regis), 18, 4​ 3, 60, 73–​74, 92–​93, 121 abolition, colonies on, 82–​86 monarchy, 43, 44, 49 Craig v. Boren, 103 Creation of the Presidency, 1775–​1789, The (Thach), 84, 115 criminal procedure protections, Bill of Rights, 138–​39

406 Index Crock, Mary Elizabeth, “Australia’s Federal Courts: Their Origins, Structures and Jurisdiction,” 238, 238n.30 Crowell v. Benson, 256 Crown and Canadian Federalism, The (Jackson), 201–​2 Curia Regis (Court of Star Chamber). See Court of Star Chamber (Curia Regis) Dahl, Robert, “Decision-​Making in a Democracy: The Supreme Court as a National Policy-​ Maker,” 174–​75, 174n.105 Dartmouth College v. Woodward, 123, 146 Darwin, Charles, 173, 234, 254 Descent of Man and Selection in Relation to Sex, The, 173 On the Origin of the Species., 173 Deakin, Alfred, 238 Debs v. United States, 179 “Decision-​Making in a Democracy: The Supreme Court as a National Policy-​ Maker” (Dahl), 120, 177n.111 Declaration of Independence, 277n.38, 283 on judges, English and colonial, 116–​17 Declaration of the Establishment of the State of Israel, 318–​20, 323–​28 Declarations of Rights, U.S. states, 114–​15, 117 Dedham, Lord, 194–​95 de Klerk, F.W., 338, 352–​53, 354–​55, 358 Delaney, Erin, 80 “Becoming Supreme: The Federal Foundation of Judicial Supremacy,” 140–​41 “Becoming Supreme: The Federal Foundation of Judicial Supremacy,” response to, 140–​49 umpiring, 3, 5n.8 Delegating Rights Protection: Bill of Rights in the Westminster World (Erdos), 29, 31n.10 D’Emden v. Pedder, 203 democracy. See also specific nations and topics G-​20 nations, 106–​7 Democracy and Distrust: A Theory of Judicial Review (Ely), 103, 203, 250, 293, 306–​7 demos creation, 193 departmentalism, 101–​2, 106, 111, 139, 141–​ 42, 154–​55 departmental judicial review, 153 Dershowitz, Alan. See also rights from wrongs umpiring rights from wrongs (see rights from wrongs) Rights from Wrongs: A Secular Theory of the Origins of Rights, 6–​7, 8nn.12–​13, 159, 160, 161, 370, 391–​93

Desai, Moraji, 306–​7, 308, 346 Descent of Man and Selection in Relation to Sex, The (Darwin), 173 devolution of powers, 39–​40, 53, 368, 374–​ 75, 377 Dicey, Albert Venn, The Privy Council: The Arnold Prize Essay, 1860, 48–​49 Diffuse Model, 24–​28 Australia, 24–​25 Canada, 24–​25 India, 24–​25 Japan, 24–​25 United Kingdom, 24–​25 United States, 24–​26, 27 Directive Principles (India), 263, 278, 279, 291, 295, 302, 304, 305 discrimination, laws against. See also sex discrimination and laws; specific laws and types Australia, 258–​59 Israel, 323, 327, 328 South Africa, 350, 355 United Kingdom, 381 United States (see also Fifteenth Amendment; Fourteenth Amendment; Thirteenth Amendment) Brown v. Board of Education, 97–​98, 102–​ 3, 104, 141 Plessy v. Ferguson, 103, 177–​78, 271 Distinct Judicial Power: The Origins of the Independent Judiciary, 1606–​1787, A (Gerber), 56, 84, 117, 119, 125–​27 District of Columbia v. Heller, 8n.13, 105 divergence, repugnancy and, 36, 43, 69–​ 71, 88–​90 Divine Right of Kings, 19, 140, 367 Dodek, Adam, The Canadian Constitution, 192n.14, 193–​94 Dominion Day, 185 Dred Scott v. Sandford, 25, 106, 139, 141, 144–​ 45, 146, 154–​55, 160, 161–​62 Due Process Clause India, 278, 279, 299 United States, 138–​39 Dworkin, Ronald, Law’s Empire, 8n.13 Dymes v. Ness (1724), 126–​27 Dystopia of 1776, 83, 114 Dystopia of 1787, 84, 115 Economic Interpretation of the Constitution of the United States, An (Beard), 131, 132–​33 education, right to, India, 279

Index  407 Edward I, King, 18 Edwards v. A-​G Canada, 226 Edward the Confessor and Leges Edwardae, 15–​17, 19 Eisenhower, Dwight, 119–​20 Electoral Reform Act, 1832, 93 Elizabeth I, Queen, 19, 50, 60, 367 Elizabeth II, Queen, 229 Ely, John Hart, Democracy and Distrust: A Theory of Judicial Review, 203, 250, 293, 306–​7 “The Emergence of the Commonwealth Constitution” (Williams), 231, 231n.5, 232–​33 Emergency, Future Safeguards and the Habeas Corpus Case 4, The (Seervai), 276, 298–​99 England. See United Kingdom (of Great Britain and Northern Ireland) English Civil War, 19, 49, 50–​51, 368 Enlightenment constitutionalism, 347 enumerated powers judicial review Friedman and Delaney, response to, 144–​50, 151, 155 Hamilton, Alexander, 118 Wood, Gordon, emergence, 44–​46 Epstein, Lee, 128 Erdos, David Delegating Rights Protection: Bill of Rights in the Westminster World, 29, 31n.10 Delegating Rights Protection: The Rise of Bills in the Westminster World, 31n.10, 370 “The United Kingdom and the Human Rights Act,” 365n.1 Westminster World, 32 erga omnes, 23, 24 Essay XI (Brutus), 125 Establishment Clause Australia, 256 United States, 137 eugenics, 97, 98, 99, 174–​75, 176, 177, 178–​79, 234, 254 European Convention on Human Rights (ECHR), 31, 365, 369, 370, 372–​73, 377 Canada, 203, 222 Ghaidan v. Godin-​Mendoza, 377–​86 Evarts Act of 1891, 168–​69 evolutionary constitutionalism, 9–​10 Canada, 9–​10, 193 United Kingdom, 9–​10 Ex Parte Garland, 143 Ex Parte McCardle, 143–​44 Ex Parte Merryman, 144

Ex Parte Milligan, 143 Ex Parte Yerger, 143–​44 expression, freedom of Australia, 230–​31 Canada, 193, 204, 225–​26 India, 274–​75 Israel, 326, 328 South Africa, 350 United States, 138 fading elite hegemonic entrenchment, 51, 91, 93, 381. See also Hirschl, Ran; specific countries Australia, 230, 233–​34, 238–​39, 253, 257 Canada, 183–​84, 188, 198, 208, 227 India, 291 Israel, 329 South Africa, 342, 358 United Kingdom, 374 United States, 128, 130, 132–​33, 135–​36, 154, 156–​57, 161–​62, 171–​72, 176, 178 Constitution, Framers and Philadelphia Convention, 128–​29, 131–​32 Whittington vs., 111–​12 failed state, 84, 115 Failed State Problem (1787), 131 Faruqi v. Ayub, 323 Federal Executive Council (Australia), 245–​46 “Federalism, Nationalism, and Reason” (Trudeau), 210n.41, 215 federalism and separation of powers umpiring, 111–​12 federalism umpiring, 3–​6, 111–​12, 124–​25, 364, 368, 370, 373, 391. See also vertical federalism umpiring; specific countries emergence, judicial review, 124–​25 necessity, 5, 391 Privy Council, 91 federalism umpiring, Australia High Court, 229–​30, 236, 237, 240, 247, 252, 257, 258–​59 separation of powers, 229–​31, 235–​36, 235n.16, 240, 251, 252 federalism umpiring, Canada Second Look Model, 209–​17 separation of powers, 16, 183–​84, 189, 198, 200, 203, 208, 226–​27 federalism umpiring, Germany, 124–​25 federalism umpiring, India, 124–​25, 263, 276–​ 77, 292, 293 S.R. Bommai v. Union of India, 264–​65

408 Index federalism umpiring, United Kingdom, 364, 368, 370, 373, 387–​90 separation of powers, 387–​90 federalism umpiring, United States, 269 vertical, 148, 152 (see also vertical federalism judicial review) Bill of Rights and Fourteenth Amendment, 147 King-​in-​Council, 147, 152 Federalist No. 78, 1, 24–​25, 86–​87, 117–​19 Federal Questions and the Domestic Relations Exception (Silverman), 28, 30n.8 Ferejohn, John, 3 Fifteenth Amendment mass popular movement, 162 rights from wrongs, 157–​58, 159 Supreme Court interpretations, 1870–​ 1883, 169 Fifth Amendment Due Process Clause, 138–​39 Takings Clause, 139–​40 First Amendement, 137, 238–​39 Establishment Clause, 137 freedom of press, 137 Religion Clauses, 137 First Amendment, 137, 238–​39 First Certification Judgement, 361 Fletcher v. Peck, 123 Foley, Kathleen E., “Australian Judicial Review,” 233–​34, 233n.11, 237, 237n.21, 239n.36, 239n.38, 240, 241 Fong Yue Ting v. United States, 252 food, right to, India, 279 4 Letters and Other Writings of James Madison (Madison), 121–​34 Fourteenth Amendment, 154, 157, 166, 170 mass popular movement, 162 rights from wrongs, 157–​58, 159, 160–​61 State Action requirement, 150 Supreme Court interpretations, 1870–​ 1883, 168–​69 France borrowing, 8 insurance and commitment, 9 mass political mobilization, 9–​10 separation of powers, 5 Franklin, Benjamin, 82, 84, 132 Franklin Before the Privy Council, Whitehall Chappel–​London, 1774, 64n.68 Fraser, Malcolm, 246 Freedom Charter (South Africa), 344–​45, 352–​ 53, 354–​55, 358, 361 Freedom of Information Act, 239

freedom of press, 137–​38. See also expression, freedom of; speech, freedom of Free Exercise Clause, 137 Free Exercise of Religion clause, Australia, 256 Friedman, Barry, 80 “Becoming Supreme: The Federal Foundation of Judicial Supremacy,” 140–​49 umpiring, 3, 5n.8 Friedman and Delaney, response to, 149–​61 British imperial history and judicial review, 151 Constitutional amendments, overturning Supreme Court decisions, 154 departmental judicial review, 153 enumerated powers, 144–​50, 151, 155 hegemonic elite entrenchment, 1789–​ 1894, 117 horizontal judicial review horizontal federalism cases, 1776–​ 1803, 144–​47 separation of powers cases, 141–​46 internal improvements, federal spending, 147–​50 origins, federal judicial power, 141 Supreme Court legislative body dialogue, 154 political pushback for controversial decisions, 154–​55 Supreme Court justices selection, 153–​54 strategic retirement, 154 Frontiero v. Richardson, 103 Furman v. Georgia, 28, 103, 154 G-​20 nations, 23. See also specific nations bills of rights, 106–​7 democracy, 106–​7 judicial review, strong, 106–​7 Galligan, Brian J., “Judicial Review in the Australian Federal System: Its Origin and Function,” 236, 236n.18, 238n.30, 239, 241, 241n.41 Galton, Francis, 99, 174 Gandhi, Indira, 264 assassination, 309 election, 1971, 306–​3 judicial review, 275–​79 state of emergency and aftermath, 284–​ 85, 289–​92 Gandhi, Mahatma, 271 assassination, 301–​2 charismatic leader, 280, 286, 296–​97 vs. Nehru on federalism, 271

Index  409 racism, removing, 271 in South Africa, 341, 347–​48 Garcia v. San Antonio Metropolitan Transit Authority, 247–​48 Gardbaum, Stephen, The New Commonwealth Model of Constitutionalism: Theory and Practice, 31–​33, 365–​66nn.1–​3, 366, 373, 377, 386 Australia, 239, 257 Canada, 200, 206, 223–​24 Great Britain, 366, 373, 377, 386 Second Look judicial review, 29, 31–​33 Garfield, James A., 166–​67, 172, 175 Gaspee, The, 80–​82 gender discrimination. See sex discrimination and laws; women General Welfare Clause, 147 George III, King, 36, 79 Dystopia of 1776, 83 royal prerogative and American Revolution, 36, 79, 80, 81 George V, King, 38–​40 Gerber, Scott Douglas, A Distinct Judicial Power: The Origins of the Independent Judiciary, 1606–​1787, 84, 117, 119, 125–​27 German Basic Law borrowing, 8, 108 borrowing, by South Africa, 344, 350, 358 Germany (Federal Republic) 1920s, Constitutions and elections, 108 borrowing, 8 Concentrated Model, 23, 31–​32 Constitutional Court, 118, 203 federalism umpiring and judicial review, 124–​25 länder powers, 214 middle-​level equal protection, 219–​20 power, division of, 124, 243 powers, 214 umpiring plus rights from wrongs, 6–​7 Gettysburg Address (1863), Lincoln, 174–​75 Ghaidan v. Godin-​Mendoza, 377–​86 Gibbons v. Ogden, 123, 128, 146, 238 Gillman, Howard, “How Political Parties Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875–​1891,” 168, 169, 171 response to, 153–​56 Ginsburg, Tom, 394. See also Collected Legal Papers (Holmes); insurance and commitment

Judicial Review in New Democracies: Constitutional Courts in Asian Cases, 8–​9 Glorious Revolution in America, The (Lovejoy), 59 Glorious Revolution of 1688, 46, 59, 61, 79, 137, 331, 363, 369 Goebel, Julius, Jr., “The Matrix of Empire,” 47–​48 Goesaert v. Cleary, 97, 103 Golaknath, 275, 303 Goldsworthy, Jeffrey “Australia: Devotion to Legalism,” 231, 232n.6, 233, 247, 251, 254, 256–​57 Parliamentary Sovereignty: Contemporary Debates, 369n.8, 371 Gonzales v. Carhart, 27 Gonzales v. Raich, 104, 109 Gookin v. Calvert, 56 government, comparative, 2 Government of India Act (1919), 270 Government of India Act (1935), 229, 263, 265, 273–​80, 291, 292, 295–​97, 300–​1, 302–​4, 373, 393 Government of the Republic of South Africa v. Grootboom, (2000), 351–​58 governorships, royal, 57, 59, 61, 70, 80, 81–​82, 83, 114, 115–​16, 270, 271 Grant, Ulysses S., 119–​20, 159, 164–​65, 168–​70, 171–​72, 175 Great Britain. See United Kingdom (of Great Britain and Northern Ireland) Great Britain and the American Colonies, 1606–​ 1763: Documentary History of the United States (Greene), 74–​78 Greeley, Horace, 172–​73, 174, 175 Greene, Jack P. Great Britain and the American Colonies, 1606–​1763: Documentary History of the United States, 74–​78 Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States 1607–​1788, 51, 57, 69, 79, 80 Gregg v. Georgia, 27, 103, 154 Gregory v. Ashcroft, 104 Griffin, Samuel (Chief Justice), 248, 249–​50 Griswold v. Connecticut, 8n.13, 102 habeas corpus, 164, 168 Habeas Corpus Act of 1679, 67–​68, 143–​44, 369 Haldane, Lord, 37–​38

410 Index Hamburger, Philip, 119 Holmes & Ketchum v. Walton, 127 Law and Judicial Duty, 90–​91 “The Hamdan Case, the Unitary Executive, and the Constitutionality of Jurisdiction Stripping: A Textualist Response to Justice Scalia” (Calabresi), 28, 30n.8 Hamilton, Alexander Federalist No. 78, 1, 24–​25, 86–​87, 117–​19 horizontal and enumerated powers judicial review, 118 President’s term, 132, 136 sovereignty to “We the People of the United States,” 89 Hamizrahi Bank v. Migdal, 328 Hammer v. Dagenhart, 135–​36, 141, 150, 177, 179 Ham v. M’Law (1789), 126–​27 Harari Resolution (Israel), 321, 322, 328, 329 Harding, Warren G., 119–​20, 178, 180 Harrison, Benjamin, 168–​69, 172–​73, 178 hate speech, Canada, 193, 204, 225–​26 Hayburn’s Case, 142–​43 Hayes, Rutherford B., 166–​67, 169, 175, 177 health, right to, India, 279 health care, right to, South Africa, 344, 350 health insurance, United States, 109 hegemonic elite entrenchment, fading. See fading elite hegemonic entrenchment hegemonic movement party, India, 273 Henry I, King, 15–​17 Henry II, King, 16–​17 Henry III, King, 43 Henry VII, King, 19, 43, 367 Henry VIII, King, 19, 367 Hepburn v. Griswold, 150, 155, 168 High Court (Australia), 232–​44 federalism umpiring, 229–​30, 236, 237, 240, 247, 252, 257, 258–​59 founding, 232–​44 “The High Court and Australian Federalism” (Selway), 235, 235n.15 High Court of Parliament and its Supremacy, The (McIlwain), 376, 376n.16 Hirschl, Ran, 54–​55 fading elite hegemonic entrenchment (see fading elite hegemonic entrenchment) Gilman and response to, 171–​72 South Africa, 342, 358 “The Strategic Foundations of Constitutions,” 8n.14 Towards Juristocracy, 38–​39, 128, 129–​30, 166, 183–​84, 188, 198, 233–​34, 342, 358

History of India, A (Kulke and Rothermund), 269, 279–​80, 295 History of the Common Law: The Development of Anglo-​American Legal Institutions (Langbein, Lerner & Smith), 92, 366, 366n.4 Hobbes, Thomas, 101, 122 Hogg, Peter W. “Canada: From Privy Council to Supreme Court, in Interpreting Constitutions: A Comparative Study,” 183, 208–​10, 213, 215 Constitutional Law of Canada, 220–​22, 223, 224 Hollow Hope: Can Courts Bring About Social Change?, The (Rosenberg), 120, 177n.112 Holmes, Oliver Wendell, Collected Legal Papers, 47 Holmes & Ketchum v. Walton, 127 horizontal and enumerated powers judicial review (1776–​1787) Hamilton, Alexander, 118 Privy Council, North American colonies, 44–​46 Wood, Gordon, 44–​46 horizontal judicial review power, 88 origins, 24–​25 from vertical federalism judicial review, 88 horizontal judicial review power, Friedman and Delaney Civil Rights Cases, 150, 155, 164–​65, 167, 172, 238 Correspondence of the Justices, 142–​43 Dred Scott v. Sandford, 144–​45, 154, 155 Ex Parte Garland, 143 Ex Parte McCardle, 143–​44 Ex Parte Merryman, 144 Ex Parte Milligan, 143 Ex Parte Yerger, 143–​44 Hayburn’s Case, 142–​43 Hepburn v. Griswold, 150, 155, 168 Kendall v. Stokes, 143 Little v. Barreme, 142–​43 Marbury v. Madison, 142–​43, 155 Mayor of City of New York v. Miln, 128, 146 McCulloch v. Maryland, 145–​46, 147 Prize Cases, The, 143, 168 separation of powers cases, 141–​46, 150, 155 United States v. E.C. Knight, 141, 144, 150, 155, 238 Youngstown Sheet & Tube Co. v. Sawyer, 100, 104, 142–​43

Index  411 horizontal separation of powers judicial review cases, 141–​46 emergence (1776–​1787), 44–​46 House of Lords 1911–​2011: A Century of Non-​ Reform, The (Ballinger), 369n.7, 370 Howell, P.A., The Judicial Committee of the Privy Council: 1833–​1876: Its Origins, Structure, and Development, 47, 64–​65, 66–​67, 93–​94, 270 “How Political Parties Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875–​1891” (Gillman), 167–​68, 169, 171 response to, 153–​56 Hoyt v. Florida, 103 human rights. See also Bill of Rights; specific topics Australia, 31–​32, 234–​40, 247, 257 European Convention on Human Rights (ECHR), 31, 222, 365, 369, 370, 372–​ 73, 377 European Convention on Rights and Freedoms, 203 United Kingdom, 31 Universal Declaration of Human Rights, 99–​ 100, 277n.39, 283–​84, 321, 328 Human Rights Act (HRA) Australian Capital Territory, 31–​32 United Kingdom, 31–​32, 53, 203, 239–​40, 257, 365, 369, 372–​73, 377, 392–​93 Ghaidan v. Godin-​Mendoza, 377–​86 Hunter v. Southam, 221 Huscroft, Richard, Ruling England 1042–​1217, 366, 366n.4 Ibhawoh, Bonny, Imperial Justice: Africans in Empire’s Court, 84n.116, 338–​39, 338n.3, 342–​43 Imperial and Executive Tyranny of 1776, 131 Imperial Appeal: The Debate on the Appeal to the Privy Council, 1833–​1986 (Swinfen), 35–​37, 42, 43–​45, 52–​53, 197–​98 Imperial Control of the Administration of Justice in the Thirteen American Colonies (Washburne), 52n.28 Imperial Justice: Africans in Empire’s Court (Ibhawoh), 84n.116, 338–​39, 338n.3, 342–​43 Independent Colonial Judiciary: A History of the Bombay High Court during the British Raj, 1862–​1947, An (Chandrachud), 266, 286–​88, 290, 292

India, 263–​96. See also specific topics Ambedkar, B.R., 273–​75, 282–​84, 296 apartheid, denouncing, 343 Aruna Ramachandra Shanbaug v. Union of India, 280 Bill of Rights, 263, 266–​71, 286, 290–​91, 295, 296, 298–​99, 302–​4, 365 borrowing, 8 Colonial Laws Validity Act of 1865, 43, 269 Constitution (see Constitution, India) Diffuse Model, 24–​25 Due Process Clause, 278, 279, 299 economy, 265 elite hegemonic entrenchment, 8, 291 fundamental rights, judicially enforceable, 266 Gandhi, Indira (see Gandhi, Indira) Gandhi, Mahatma (see Gandhi, Mahatma) Golaknath, 275, 303 Government of India Act (1919), 270 Government of India Act (1935), 229, 263, 265, 273–​80, 291, 292, 295–​97, 300–​1, 302–​4, 373, 393 government structure, 265–​66 hegemonic movement party, 273 independence, 229, 263, 264, 270, 271, 281, 287 evolutionary constitutionalism or sharp break?, 278–​82 Hindu–​Muslim split after, 271 independence movement, 277–​78 Indian Independence Act, 1947, 265, 280, 301–​2 Indira Gandhi v. Raj Narain, 276 Indo-​Pakistani War of 1947, 302 insurance and commitment, 291–​92 Judicial Committee of the Privy Council caseload, 84 judicial supremacy, 117–​18 jury trial, 307–​10 Kesavananda Bharati v. State of Kerala, 250, 275–​76 KM Nanavati v. State of Maharashtra, 288 L.C. Golanknath v. State of Punjab, 275 Maneka Gandhi v. Union of India, 278, 291–​92 mass political mobilization, 9–​10, 290 mass popular migration, 290 M.C. Mehta and Anr v. Union of India & Ors, 279–​80, 284–​85 Minerva Mills Ltd. and Ors. v. Union Of India and Ors, 279, 291–​92, 308 Modi, Narendra, 265

412 Index India (cont.) Mohammad Ali Jinnah, 284–​85 Nehru, Jawaharlal (see Nehru, Jawaharlal) population, 264 Privy Council, end, 45, 95–​38 religions, populations, 266 responsible parliamentary government, 305 rights from wrongs umpiring, 284–​85, 286, 290–​91, 293–​96, 304 Sakal Newspapers Private Ltd. v. India, 273 Shankari Prasad v. Union of India, 271–​72, 273, 288, 295 S.R. Bommai v. Union of India, 280, 292, 296 Suttee Prevention Act, 275 ultra vires, 43–​47, 266–​70, 274, 276–​77 Vishaka v. State of Rajasthan, 280 India, history of union of, 265–​92 Ambedkar and Indian Constitution, 282–​84 colonial, Britain and JCPC, 268–​69 colonial, British East India Company, 274 colonial, Dutch, 268 colonial, French, 274 colonial Indian judicial system, Bombay High Court, 1862–​1947, 277–​78 Gandhi, Nehru, and Indian National Congress, 273 independence, 1947 to present, 285–​86 independence, evolutionary constitutionalism or sharp break?, 278–​82 post-​independence constitutional dimensions, 284–​89 pre-​colonial, 266 Second British Empire and racism, 282–​85 Sepoy Mutiny of 1857 and end of British East India Company rule, 272, 274–​75 state of emergency (1975) and aftermath, 289–​92 Universal Declaration of Human Rights, 283–​71 India, judicial review, 291, 292–​310 diffuse, 264 federalism umpiring, 124–​25, 263, 276–​77, 292, 293 jurisdiction, courts, 302–​4 jury trial abolition, 307–​10 origins and growth, 304–​7 robust, 32 India, Supreme Court, 264 activist court, 271, 273, 278 citizens’ rights, 279 Constitution, amendment review, 264, 298, 303, 306

federalism umpiring and S.R. Bommai v. Union of India, 280, 292, 296 judicial restraint, 269, 299 judicial supremacy, 266 land reform laws, 274–​75, 295, 298 members and selection, 270, 280, 298–​99 private property rights, 272, 274, 275, 303 “India” (Singh), 264 India: A History (Keay), 279–​80 “India: From Positivism to Structuralism” (Sathe), 271–​72, 273–​74, 275–​76, 278, 279, 302, 305, 307–​8 Indian Independence Act, 1947, 265, 280, 301–​2 Indira Gandhi v. Raj Narain, 276 Indonesia, borrowing, 8 Indo-​Pakistani War of 1947, 302 Inkatha Freedom Part (IFP), Zulu, 350, 351, 355, 358 Inns of Court, 19 In Reckless Hands: Skinner v. Oklahoma and the Near-​Triumph of American Eugenics (Nourse), 99 insurance and commitment, 8–​9, 48–​49, 54–​55 Civil War and Reconstruction, 157–​ 58, 159–​60 Great Britain and Northern Ireland, 374 India, 291–​92 Israel, 328, 331 South Africa, 358 Takings Clause, 139–​40 United Kingdom, 381 United States, 112, 137, 140 INS v. Chadha, 28, 101, 104, 110–​11 “Intratextualism” (Amar), 248n.74, 250–​51 Ireland. See also United Kingdom (of Great Britain and Northern Ireland) Anglo-​Irish Treaty of 1921 and Irish Free State, 37–​44, 79n.105, 94, 95 Ireland, Northern. See United Kingdom (of Great Britain and Northern Ireland) Irish Free State, 37–​44, 79n.105, 94, 95 Isaac Austin v. The Trustees of the University of Pennsylvania, 127 Israel, 311–​31. See also specific topics Ackerman, Bruce, 311–​12, 313–​14, 318–​19, 319n.27, 321, 322, 328, 329–​30 Balfour Declaration of 1926, 315–​16, 325 Barak, Aharon, 311–​12, 322, 328, 329–​31, 333–​34, 359 Basic Law on Freedom of Occupation, 316–​28 Basic Law on Human Dignity, 313–​16, 328

Index  413 Ben-​Gurion, David, 311, 312, 314, 318, 319, 320–​21, 322, 323–​30 Bergman v. Minister of Finance, 328, 334–​35 borrowing, 329–​30, 331 campaign finance laws, 334 discrimination, laws against, 328 elite hegemonic entrenchment, 8, 329 expression, freedom of, 326, 328 Faruqi v. Ayub, 323 government and legislature, 311–​12 history, 312–​18 insurance and commitment, 328, 331 Katalan case, 333–​34 Kol Ha’am case, 328, 332 Ottoman Empire, 312, 312n.1, 313, 315 parliamentary sovereignty, 311–​12, 321, 322, 328, 329–​30 population, ethnicities, and geography, 311 proportional representation, 311–​12, 328, 330, 331, 333–​34 religion, freedom of, 312–​13, 328 rights from wrongs umpiring, 328, 329–​30 search and seizure, 328 Second Look Model, 27, 32–​33 sex discrimination laws, 323, 327, 328 Shayeb, 332 Six Day War (1967), 311, 321–​22 speech, freedom of, 332 United Hamizrahi Bank Ltd. v. Migdal Kfar Shitufi, 328 Zionist movement, 313–​14, 321, 324–​25, 328 Israel, judicial review, 319–​27 1951–​1992, Westminster-​style democracy, 321 Barak, origination, 322 Basic Law on Human Dignity, Basic Law on Occupational Freedom, and Bank Hamizrahi decision, 324–​27 British Mandate, 319–​20 Declaration of the Establishment of the State of Israel, 318–​20, 323–​28 Harari Resolution, 321, 322, 328, 329 independence, first Knesset, and Harari Resolution, 320–​24 origins and growth, 327–​34 present-​day, 311–​12 Israel, Knesset, 311–​12 1951–​1992, 330–​31, 333–​12 Basic Laws (1992), 312–​28 establishment, legal, 321 First, 322, 328–​30 judicial review, 328, 330, 331

Italy 1920s, Constitutions and elections, 108 borrowing, 8 mass political mobilization, 9–​10 Jackson, Andrew, 111, 119–​20, 128, 130, 143, 146, 150, 158, 167 Jackson, D. Michael, The Crown and Canadian Federalism, 201–​2 Jackson, Robert, 180 Jacksonian era, 146–​47 Jacksonsonians, 129–​30 James I (James VI of Scotland), King, 19, 43, 49, 50, 60, 140 James II, King, 19, 53, 58–​59, 62, 137–​38, 369 Jamestown Colony, 43, 50, 52, 59, 81–​82, 125 Japan 1920s, Constitutions and elections, 108 borrowing, 8 checks and balances, lacking, 124 Diffuse Model, 24–​25 elite bargain, 9–​10 Supreme Court, 123–​24 Jay, John, Federalist Papers, 118 Jefferson, Thomas, 128 Marbury v. Madison, 145 Jeffersonians, 129–​30 Jews. See Israel Jinnah, Mohammad Ali, 284–​85 John, King, 16–​17, 366–​67, 371 Johnson, Andrew, 143, 158, 160, 165, 168 Johnson, Boris, 372, 375–​76, 377, 386–​87 Johnson, Lyndon, 98, 119–​20, 141, 179 Johnston, Peter, “The Bank Nationalization Cases: The Defeat of Labor’s Most Controversial Economic Initiative,” 255n.113, 260–​61 Jones & Laughlin Steel Co. v. United States, 180, 211–​12 Jones v. Fullerton, 62 judge-​made case law and binding judicial precedents, 16 judges. See also specific courts and topics common law tradition, position, 22 Constitution framers on, 116–​17 Judicial Activism in India: Transgressing Borders and Enforcing Limits (Sathe), 266 Judicial Committee Act (1833), 65 Judicial Committee of the Privy Council (JCPC), 35–​36, 364–​65 Board of Trade, replacing, 52 British North America Act, 84 end, Statute of Westminster Act, 1931, 94–​38

414 Index Judicial Committee of the Privy Council (JCPC) (cont.) historical origins, 74–​81 King-​in-​Council, replacement for, 92 origins, 74–​81 South Africa, 339, 341, 342–​43, 358, 360, 361–​62 terminology, by statute, 38 United Kingdom, 364–​65 vertical federalism judicial review, 47 Judicial Committee of the Privy Council: 1833–​1876: Its Origins, Structure, and Development, The (Howell), 47, 64–​65, 66–​67, 93–​94, 270 Judicial Committee of the Privy Council Reform Act (1833), 65, 92–​93 judicial review, 38–​39, 381, 394. See also specific countries and topics comparative analyses, 1 emergence, Wood and Marbury v. Madison, 86–​88, 89–​90 independent judiciary power, as norm, 3 judicial review, origins and growth, 1–​11, 20, 39, 155. See also specific countries Bilder, Mary Sarah, 110, 113 (see also Bilder, Mary Sarah) Canada, 183–​84, 187–​88 causes, 3–​10 borrowing, 7 Calabresi on, 120–​21 elite bargain, 9–​10 elite hegemonic entrenchment, 8 evolutionary constitutionalism, 9–​10 insurance and commitment, 8–​9 mass political mobilization, 9–​10 rights from wrongs hypothesis, 6–​7, 112 umpiring, federalism and separation of powers, 3–​6 common law legal tradition, 20 discoverer, Wood vs. Bilder, 88 explanation, satisfactory, 2 G-​20 democracies, 2–​3 horizontal judicial review, 24 importance, 6 Israel, 332–​34 literature, 2–​3 nations practicing, 2 South Africa, 360–​62 judicial review, origins and growth, United States, 155. See also Marbury v. Madison Bilder, Mary Sarah, 110, 113 causes, 120–​21

federalism and separation of powers umpiring, 111–​12 federalism umpiring, 124–​25 insurance and commitment, 112 Marbury v. Madison, 1, 24–​25 rights from wrongs hypothesis, 6–​7, 112 Wood, Gordon S., 86–​88, 89–​90, 110, 113, 114, 118–​19 world overview, 101–​10 judicial review, origins and growth, United States (1776–​1803), 107–​16 judicial review, origins and growth, United States (1789–​1894), 116–​40, 156 Ackerman’s mass mobilization, 135–​36 colonial and state courts, at founding, Marshall on Marbury v. Madison, 24–​25 Constitution, Framers and Philadelphia Convention, 128–​29, 131–​32 constitutional democracies, 2 constitutionality of legislation, 1–​3 Constitution and Bill of Rights, fading elite hegemonic entrenchment, 127–​40 (see also fading elite hegemonic entrenchment) Federalist No. 78, 1, 24–​25, 86–​87, 117–​19 Wood, Gordon S., 86–​88, 89–​90 judicial review, South Africa, 342, 358 judicial review, United States Adams, John, 130–​31 vs. Federalist Party, 129–​30 Civil War and Reconstruction, 159–​60, 161–​ 62, 166, 167, 168–​69 founders, 148–​49 Hirschl, Ran, 51, 91, 93 Hoover, Herbert, 178 Lochner era, 106, 151, 178 Marshall, John, 130 origins, 128–​29 United States, 11 Whittington, 111–​12 judicial review, United States (1875–​1891), GOP, 171–​72 “Judicial Review Before Marbury” (Treanor), 108n.12, 120 Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Ginsburg), 8–​9 “Judicial Review in the Australian Federal System: Its Origin and Function” (Galligan), 237n.25, 238, 238n.30, 239, 241, 241n.41 Judicial Review of Legislation in Canada (Strayer), 187

Index  415 judicial supremacy, 140–​41 India, 117–​18 response to, 140–​49 Judiciary Act of 1789, 143–​44, 168 Judiciary Act of 1801, 168, 169, 171–​72 Judiciary Act of 1875, 168–​69 Judiciary Act of 1902, 239 jury trial, 307–​10 Justice: A Personal Account (Cameron), 340n.14, 346 Kable v. Director of Public Prosecutions for NSW, 256 Kamper v. Hawkins, 125 Katalan case, 333–​34 Keay, John, India: A History, 279–​80 Keith, A. Berriedale, Constitutional History of the First British Empire, 57 Kelsenian Constitutional Court, 10, 24 Kendall v. Stokes, 143 Kende, Mark S., Constitutional Rights in Two Worlds: South Africa and the United States, 337n.1, 337–​41, 343–​45, 348–​49, 350–​51, 353–​54, 355–​60, 361 Kennedy, John F., 120, 141 Kerr, John, 246 Kesavananda Bharati v. State of Kerala, 250, 275–​76 King, William Lyon Mackenzie, 200–​1 King-​Byng-​Thing, 200–​1 King-​in-​Council, 36, 48 American Revolution, 73, 79, 80, 83 Court of Star Chamber, colonies and abolition on, 59 Judicial Committee of the Privy Council replacing, 92 judicial review, origins, 88 Marshall and Marbury v. Madison, 89–​90 post-​American independence, 91–​92 Privy Council, North American colonies, 51–​ 52, 58, 60–​50, 61–​62, 66–​67, 68, 69 vertical federalism judicial review, 68, 80 vertical federalism judicial review, U.S., 147, 152 King-​in-​Parliament, 19–​20, 46, 80, 86, 87, 88, 89 United Kingdom, 369, 371 United States, 118–​19, 121, 122, 134–​35, 140 Klug, Heinz Constitution of South Africa: A Contextual Analysis, The, 338–​39, 338n.3, 349 “South Africa: From Constitutional Promise to Social Transformation,” 338–​39, 338n.3, 346–​50

KM Nanavati v. State of Maharashtra, 288 Knesset (Israel). See Israel, Knesset Kol Ha’am case, 328, 332 Kolsky, Elizabeth, Colonial Justice in British India: White Violence and the Rule of Law, 287 Koowarta v. Bjelke-​Peterson, 258 Korematsu v. United States, 97, 100, 151, 271 Kosla, Madhav, The Oxford Handbook of the Indian Constitution 1-​1031, 266 Kulke, Hermann, A History of India, 269, 272, 279–​80, 295 Labatt Breweries of Canada Ltd v. Attorney General of Canada, 212–​13 Lambert, Richard, “The ‘Ten Pound Act’ Cases and the Origins of Judicial Review in New Hampshire,” 114, 114n.27 länder powers, 214 land reform India, 274–​75, 295, 298 South Africa, 346, 357, 361 Langbein, John H., History of the Common Law: The Development of Anglo-​American Legal Institutions, 82, 366, 366n.4 Lange v. Australian Broadcasting Corporation, 254–​55 Latham, R.T.E., 250 Law and Identity in Mandate Palestine (Likhovski), 84n.117, 322–​23 Law and Judicial Duty (Hamburger), 90–​91 Lawrence v. Texas, 8n.13, 104 Law’s Empire (Dworkin), 8n.13 Lawson, Gary, “The Hamdan Case, the Unitary Executive, and the Constitutionality of Jurisdiction Stripping: A Textualist Response to Justice Scalia,” 29, 29n.6 L.C. Golanknath v. State of Punjab, 275 Least Dangerous Branch: The Supreme Court at the Bar of Politics, The (Bickel), 28, 103, 146 Lee v. Ashers Baking Company Ltd and others, 381 Leges Edwardae, 15–​17, 366–​67 Lerner, Renee Lettow, History of the Common Law: The Development of Anglo-​ American Legal Institutions, 366, 366n.4 Leyland, Peter, The Constitution of the United Kingdom: A Contextual Analysis, 369, 369n.8 “ ‘A Light Unto the Nations’ —​The New British Federalism, the Scottish Parliament, and Constitutional Lessons for Multiethnic States” (Picker), 377

416 Index Lijphart, Arend, Patterns of Democracy: Government Forms and Performance in Thirty-​Six Countries, 346, 346n.49 Likhovski, Assaf, Law and Identity in Mandate Palestine, 68n.89, 322–​23 Lincoln, Abraham, 354 departmentalism, 111 Dred Scott, 25, 161–​62 Fourteenth Amendment, 161 Gettysburg Address (1863), 174–​75 Grant, Ulysses, 165 mass popular movement, 152 reconstructive president, 111 Supreme Court, 119–​20, 168, 169 Thirteenth Amendment, 158 Lipset, Seymour Martin, American Exceptionalism: A Double-​Edged Sword, 192 Little v. Barreme, 142–​43 Lochner v. New York, 104, 105, 141, 154–​55, 171, 172, 175, 176–​78, 180, 238–​39 Locke, John, 101 Lockean rights natural law, 114–​15 unrenumerated, 8n.13 Lords of Trade, 36, 51, 52, 57, 91 Lovejoy, David S., The Glorious Revolution in America., 59 Loving v. Virginia, 103 Madison, James 4 Letters and Other Writings of James Madison, 121–​34 expression, freedom of, 138 Federalist Papers, 118 President’s term, 132 state laws, federal veto, 89 Magliocca, Gerard, 146 Magna Carta, 16–​17, 67–​68, 138–​39, 366–​ 67, 371 Malthus, Thomas, 173 Mandela, Nelson, 337–​38, 345–​51, 353–​55, 358, 361 Maneka Gandhi v. Union of India, 278, 291–​92 Marbury v. Madison, 1, 24–​25, 86–​88, 141, 144–​45 horizontal judicial power, 142–​43, 155 Jefferson’s complaint, 145 Marshall’s opinion, 24–​25, 86–​87, 89, 120, 121, 122–​23, 125, 140–​41 Marshall’s opinion, Bilder on, 89–​90 Marshall’s opinion, Friedman and Delaney on, 140–​41

Whittington on, 106–​10 Wood, Gordon S., 88 Marshall, John Burr’s treason trial, 143 influence, continuing, 125 Jacksonian presidents on, 150 Marbury v. Madison opinion, 24–​25, 86–​87, 89, 120, 121, 122–​23, 125, 140–​41 Marbury v. Madison opinion, Bilder on, 89–​90 Marbury v. Madison opinion, Friedman and Delaney on, 140–​41 McCulloch v. Maryland, 145 repugnancy, 89 sovereignty to “We the People of the United States,” 89 Marshall Court Dartmouth College v. Woodward, 123, 146 Fletcher v. Peck, 123 Martin v. Hunter’s Lessee, 146 Mary II, Queen, 21 Massachusetts Bay Charter of 1628, 78 Massachusetts Bay Colony, 50, 52, 59, 63, 66, 78 mass popular migration, India, 290 mass popular movement (mobilization), 9–​10 Ackerman, 104, 120, 135, 147–​48, 152, 157, 159, 162, 178, 181 France, 11 India, 9–​10, 11, 290 Italy, 11 South Africa, 9–​10, 11 United States, 11 Fifteenth Amendment, 162 at founding, 135–​36 Fourteenth Amendment, 157, 162 Thirteenth Amendment, 162 “The Matrix of Empire” (Goebel), 47–​48 May, Theresa, 375–​76 Mayor of City of New York v. Miln, 128, 146 Mbeki, Thabo, 345, 352–​53 McCallum, Ronald, “Australia’s Federal Courts: Their Origins, Structures and Jurisdiction,” 239–​40, 239n.35, 240n.40 McCubbins, Matthew, 10n.20 McCulloch v. Maryland, 123, 141, 238, 247, 250, 251–​52 horizontal judicial review power, Friedman and Delaney, 145–​46, 147 Marshall’s opinion, 145 McDonald, Forrest, We the People: The Economic Origins of the Constitution, 131 McDonald v. City of Chicago, 105

Index  417 McGinnis, John, 128 McGinty, 254–​55 McIlwain, Charles Howard, The High Court of Parliament and its Supremacy, 373, 373n.13 M.C. Mehta and Anr v. Union of India & Ors, 279–​80, 284–​85 McSparran v. Hassard, 69 Meech Lake Accord, 203 Melbourne Corporation v. the Commonwealth, 251–​52, 260 Merrill v. Sherburne, 126 Mexico, borrowing, 8 Mill, John Stuart, 234, 253 Milton, John, Areopagitica: A Speech of Mr. John Milton for the Liberty of Unlicensed Printing, to the Parliament of England, 137 Minerva Mills Ltd. and Ors. v. Union Of India and Ors, 279, 291–​92, 308 Modderklip East Squaters v. Modderklip Boerdery (Pty) Ltd., 358 models, judicial review, 23. See also specific models; specific models and countries Diffuse, 24–​28 Second Look, 8, 28–​33 Mohammad Ali Jinnah, 284–​85 monarchy. See also specific monarchs Court of Star Chamber, 18, 48–​43, 60, 73–​74, 92–​93, 121 Court of Star Chamber, colonies on abolition of, 82–​86 Court of Star Chamber, power loss, 44 Privy Council and, 81–​82 (see also specific kings and queens) Restoration of the Monarchy (1660), 50–​51 Mongolia, insurance and commitment, 9 Mulroney, Brian, 203, 223–​24 Mumbai Fables (Prakash), 288–​89 Nadan v. The King, 37, 41, 44 National Federation of Independent Business v. Sebelius (NFIB v. Sebelius), 97–​98, 109, 141–​42, 209n.38, 211 National Human Rights Consultation Committee (Australia), 239, 247, 257 National Industrial Recovery Act (NIRA), 180 National Labor Relations Board v. Jones & Laughlin Steel, 97 Native Lands Act (South Africa), 341 natural law rights, Lockean, 114–​15 Navigation Acts, 65, 66, 72, 80, 81–​82

Navot, Suzie, The Constitution of Israel: A Contextual Analysis, 323, 328, 329–​30, 331–​32, 334 Nehru, Jawaharlal, 73, 274–​75, 276, 279, 346 Bill of Rights, 298–​99 on British system, 288–​89 Buddhism, 297 charismatic leader, 280, 286, 296–​97 Constitution, post-​independence, 300–​1 Constitution, vs. Ambedkar, 298–​99 India independence, 280 land reform, 298 leadership, 285–​86, 295, 302 racism, ending, 271–​85 Supreme Court under, 271, 272, 273–​75 New British Constitution, The (Bogdanor), 369n.7, 371 New Commonwealth Model of Constitutionalism, 32 New Commonwealth Model of Constitutionalism: Theory and Practice, The (Gardbaum), 29, 30n.9, 31–​33, 365–​ 66nn.1–​3, 366, 373, 377, 386 Australia, 239, 257 Canada, 200, 206, 223–​24 Great Britain, 366, 373, 377, 386 Second Look judicial review, 29, 31–​33 New Commonwealth Model of Judicial Review, 32–​33 New Deal judicial restraint, 101–​2, 103–​4, 105, 109, 151, 181–​97 Thayerian, 181–​97 New Jersey, Holmes & Ketchum v. Walton, 127 New South Wales v. Commonwealth, 258–​59 New York State, Rutgers v. Waddington, 127 New York Times v. Sullivan, 254, 350 New York v. United States, 104 New Zealand Bill of Rights, 31–​32, 239, 365 elite hegemonic entrenchment, 8 Second Look Model, 29, 31, 206 Westminster Model, 365 Nineteenth Amendment, 180 Ninth Amendment, 139 Nixon, Richard, 119–​20, 141 (Walter) Nixon v. United States, 25, 28n.4, 139, 178n.115 Noll, Roger, 10–​11, 10n.20 North, Douglass C., 140 Glorious Revolution, 10 North American colonies, Privy Council, 38–​42. See also Privy Council, North American colonies

418 Index North Carolina, Bayard v. Singleton, 126–​27 Northern Ireland. See United Kingdom (of Great Britain and Northern Ireland) Nourse, Victoria F., In Reckless Hands: Skinner v. Oklahoma and the Near-​Triumph of American Eugenics, 99 Nussbaum, Martha C., “Ambedkar’s Constitution: Promoting Inclusion, Opposing Majority Tyranny,” 297–​99 Nzelibe, Jide, 128 Obergefell v. Hodges, 105 occupation, freedom of, Israel, 313–​16, 328 Office of Legal Counsel, 26 Ogden v. Saunders, 137 Oliver, Dawn, “The United Kingdom,” 371, 371n.9 Ollman v. Evans & Novak, 147–​48 Ombudsman Act, 238 “On Originalism and Liberty” (Calabresi), 27, 28n.5 On the Origin of the Species (Darwin), 173 “The Origin and Scope of the American Doctrine of Constitutional Law” (Thayer), 30, 32n.11, 170–​71, 176 origins, judicial review. See judicial review, origins and growth “The Origins of Judicial Review Revisited in the Era of the Founding” (Wood), 85–​86 Osborn v. Bank of the United States, 146 Otis, James, “Speech on the Writs of Assistance,” 114n.30 Ottoman Empire, Israel, 312, 312n.1, 313, 315 Oxford Handbook of the Indian Constitution 1-​1031, The (Choudry, Koslan & Bhanu), 266 Palestine, Mandate, 319–​20 parliament, 18 parliamentary sovereignty, 19–​20 Australia, 240, 247, 257 Canada, 200, 206–​7, 218 Israel, 311–​12, 322, 328, 329–​30 South Africa, 344, 346, 349, 359, 360 United Kingdom, 28–​29, 32–​33, 365–​66, 370, 371, 376, 389 Parliamentary Sovereignty: Contemporary Debates (Goldsworthy), 369n.8, 371 Patterns of Democracy: Government Forms and Performance in Thirty-​Six Countries (Lijphart), 351, 351n.77 Paxton v. Gray, 125–​26

Peace, Order, and Good Government (POGG), 193, 209, 212–​13, 214, 215, 220 Pennsylvania Commonwealth v. John Franklin, 127 Isaac Austin v. The Trustees of the University of Pennsylvania, 127 Respublica v. Phillip Urbin Duquet, 127 Percy, Lord Eustace, The Privy Council Under the Tudors 2, 43, 43n.14 Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States 1607–​1788 (Greene), 51, 57, 69, 79, 80 Petition of Right, 1628, 80 Picker, C.B., “ ‘A Light Unto the Nations’ —​The New British Federalism, the Scottish Parliament, and Constitutional Lessons for Multiethnic States,” 375 Plessy v. Ferguson, 103, 177–​78, 271 Pocock, J.G.A., 17 Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (Whittington), 101–​2, 105–​6 Politics Presidents Make: Leadership from John Adams to Bill Clinton, The (Skowronek), 118 Polyukhovich v. Commonwealth, 256–​57 Powell v. McCormack, 100–​1 Prakash, Gyan, Mumbai Fables, 288–​89 President of the Republic of South Africa v. Hugo, 1997, 210, 350 press, freedom of, 137–​38 Principles of Biology (Spencer), 173 Printz v. United States, 104 privacy, right to, India, 279 private property rights, India, 272, 274, 275, 303 Privy Council, 20, 54–​55. See also Judicial Committee of the Privy Council (JCPC); specific countries 1783–​1833, 46–​49 Balfour Declaration of 1926, 38–​40, 94–​95, 201–​2, 315–​16, 325 decline (1875–​1986), 50 federalism judicial umpire, 91 Petition of Right, 1628, 80 reform, 1833, 49–​68 reform, Brougham, Lord, 92–​93, 94, 364–​65 Stamp Act Tax, 1765, 80 Tax Tea, 1772, 80 Privy Council, end, 50–​55 Australia, 46, 95–​38 Canada, 44, 95–​38

Index  419 India, 45, 95–​38 South Africa, 44–​45, 95–​38 Statute of Westminster Act, 1931, 50–​ 55, 94–​38 Privy Council, North American Colonies, 20, 38–​42. See also specific topics Admiralty Courts, 66, 80, 115–​16, 271 American Revolution, 42–​44 Bilder, Mary Sarah, 68–​74 Bilder’s Theory of the Corporate Origins of Judicial Review, 39–​40 Board of Trade, 52, 56, 62, 63–​64, 67–​69, 71, 80, 91 Calabresi, Steven G., 41 Colonial Laws Validity Act (1865), 41, 47, 94–​95 Comparative Constitutional Law: Cases and Materials (Cappelletti and Cohen), 41–​42 Court of Star Chamber, 18, 48–​43, 73–​74, 92–​93, 121 abolition, colonies on, 82–​86 elite hegemonic entrenchment, 38–​39 final jurisdiction, countries, 39 governance, 86–​42 1660–​1684, 35–​38 1684–​1776, 39–​42 King-​in-​Council, history, 51–​52, 58, 60–​ 50, 61–​62, 66–​67, 68, 69 pre-​1660 restoration of monarchy, 90–​95 governorships, royal, 57, 59, 61, 70, 80, 81–​ 82, 83, 114, 115–​16, 270, 271 Hirschl, Ran, 38–​39, 54–​55 horizontal and enumerated powers judicial review (1776–​1787, Gordon Wood), 44–​46 Jamestown Colony, 43, 50, 52, 59, 81–​82, 125 Judicial Committee of the Privy Council, 35 Judicial Committee of the Privy Council Reform Act (1833), 65, 92–​93 judicial review power, countries, 39 jurisdiction, 36 King-​in-​Council (see King-​in-​Council) legal systems’ legacy, 36 Lords of Trade, 36, 51, 52, 57, 91 Massachusetts Bay Charter of 1628, 78 Massachusetts Bay Colony, 50, 52, 59, 63, 66, 78 member qualifications and selection, 36–​ 38, 39–​40 monarchy, 81–​82 Navigation Acts, 65, 66, 72, 80, 81–​82 origins, 37, 74–​81

power, 37 reform, Brougham, Lord, 92–​93, 94 repugnancy and divergence, 36, 43, 69–​ 71, 88–​90 Restoration of the Monarchy (1660), 50–​51 role, 36, 38–​40 ultra vires, 36, 43–​47, 52, 53 vertical judicial review, 35–​36, 42, 67 (see also vertical judicial review) vertical judicial review, federalism (see vertical federalism judicial review) Privy Council: The Arnold Prize Essay, 1860, The (Dicey), 48–​49, 51 Prize Cases, The, 143, 168 progressive era and Federal courts, elite hegemonic control Franklin Roosevelt and New Deal, 104, 164–​67 Gilman, response to, 153–​56 Progressive Movement, rise, 158–​61 Republican Party transformation, 156–​58 Woodrow Wilson and Indian Summer of Old Order, 161–​69 Progressive Movement, rise, 158–​61 property rights, India, 272, 274, 275, 303 proportional representation, 392–​93 Australia, 244–​45 Great Britain, 375 Israel, 311–​12, 328, 330, 331, 333–​34 South Africa, 345 United Kingdom, 375 Puzzling (In)Dependence of Courts: A Comparative Approach, The (Ramseyer), 9, 9n.15 Quakers, New England, 341 Quebec Act of 1774, 191–​92 Ramseyer, Mark, 9, 9n.15 insurance and commitment, 9 Puzzling (In)Dependence of Courts: A Comparative Approach, The, 9, 9n.16 Rappleye, Charles, Sons of Providence: The Brown Brothers, the Slave Trade, and the American Revolution, 80–​81 Reconstruction Amendments, 37, 98, 100, 112, 149, 152, 169, 175, 350 reconstructionist presidents, 118, 119–​20 Reed v. Reed, 103 Reference Appeal Case, 218 Reference re Remuneration of Judges of the Provincial Court (P.E.I.), 218 Reference re Same-​Sex Marriage, 226

420 Index Reference re Secession of Quebec, 216 Reference re Securities Act, 213 Reform Act (1832), 48, 92–​93, 366–​67 Reform Act (1867), 366–​67 Reform Act (1911), 366–​67 Rehnquist Court, 104–​5, 139, 176, 181 Reid, John Phillip, 17 religion, freedom of Australia, 230–​31, 256 Israel, 312–​13, 318, 328 Religion Clauses, 137 “The Republic of South Africa” (Corder), 338–​ 39, 338n.3, 344–​45 repugnancy and divergence, 36, 43, 69–​ 71, 88–​90 responsible parliamentary government, 22 Australia, 106, 229–​30, 234, 240, 253, 257 Canada, 106, 203, 208–​9 India, 305 United Kingdom, 366 Respublica v. Phillip Urbin Duquet (1799), 127 Review of American Colonial Legislation by the King in Council, The (Russell), 54–​55, 63–​64, 67 revolution, 394 Revolutionary Constitutions: Charismatic Leadership and the Rule of Law (Ackerman), 9–​10, 391–​92, 394 India, 266, 271, 272, 273–​81, 285–​86, 290, 291, 296–​97, 301, 308–​9 Israel, 311–​12, 313–​14, 318–​19, 319n.27, 321, 322, 328 South Africa, 338–​39, 341, 344–​48, 351–​ 55, 358 Revolution by Judiciary: The Structure of American Constitutional Law (Rubenfeld), 146n.85, 160, 161 Rex v. Mellichamp (1736), 126–​27 Reynolds v. Sims, 100–​2 Rhode Island appeals from, 70–​72 Trevett v. Weeden, 115n.37, 126 Rhodes, Cecil John, 339 rights from wrongs, 6–​7, 54–​55, 391–​93 Canada, 183–​84 Civil War and Reconstruction, 157–​65 common law countries, 391–​93 Fifteenth Amendment, 157–​58, 159 Fourteenth Amendment, 157–​58, 159, 160–​61 Germany, 6–​7 India, 284–​85, 286, 290–​91, 293–​96, 304 (see also India)

Israel, 328, 329–​30 slavery, 6–​7 South Africa, 358 United Kingdom, 6–​7 United States, 112, 157–​65 Rights from Wrongs: A Secular Theory of the Origins of Rights (Dershowitz), 6–​7, 8nn.12–​13, 159, 160, 161, 370, 391–​93 rights from wrongs umpiring, 6–​7, 295, 381 Germany, 6–​7 India, 284–​85, 286, 290–​91, 293–​96, 304 Israel, 328, 329–​30 South Africa, 358 United Kingdom, 6–​7, 369, 370 United States Fifteenth Amendment, 157–​58, 159 Fourteenth Amendment, 157–​58, 159, 160–​61, 162, 166, 169, 170 Thirteenth Amendment, 157–​58, 159, 160 Roane, Spencer, 125 Roberts Court, 97–​98, 104–​5, 139, 141–​42, 181 Robinson Treferrin v. Samuel Cate, 126 Roe v. Wade, 102–​3, 104, 139, 141, 152, 154–​ 55, 225 Rogers, David, By Royal Appointment: Tales from the Privy Council –​the Unknown Arm of Government, 47 Romer v. Evans, 104 Roosevelt, Franklin D., 104, 106, 111, 119–​20, 152, 164–​67, 176, 178, 212, 283–​84 Roosevelt, Theodore, 98, 99, 119, 176–​78 Rosenberg, Gerald, The Hollow Hope: Can Courts Bring About Social Change?, 174–​ 75, 174n.106 Rothermund, Dietmar, A History of India, 269, 279–​80, 295 Rousseau, Jean-​Jacques, volonté générale, 24 royal courts of justice, 20 Rubenfeld, Jed, Revolution by Judiciary: The Structure of American Constitutional Law, 142, 142n.83, 161 Rucho v. Common Cause, 139 Rudd, Kevin, 239, 247, 257 Rule of Clear Mistake, 170–​71, 176, 180, 181–​97 Ruling England 1042–​1217 (Huscroft), 366–​ 67, 367n.5 Russell, Elmer Beecher, The Review of American Colonial Legislation by the King in Council, 55, 63–​64, 67 Rutgers v. Waddington, 127 R v. Crown Zellerbach, 214 R. v. Morgentaler, 225

Index  421 R (Miller) v. Secretary of State for Exiting the European Union, 381 R (on the application of Miller) v. The Prime Minister and Cherry and others v. Advocate General for Scotland, 384 Sachs, Albie, 345, 352–​53, 354–​55 Sakal Newspapers Private Ltd. v. India, 273 same-​sex marriage and rights, 226 Canada, 203, 226 Great Britain, 387 Lochner v. New York, 104, 105, 141, 154–​55, 171, 172, 175, 176–​78, 180, 238–​39 Obergefell v. Hodges, 105 Reference re Same-​Sex Marriage, 226 United Kingdom, 381 United States, 105, 152 United States v. Windsor, 105 same-​sex relations Great Britain, 381 United Kingdom, 381 United States, 104, 152 Sathe, S.P. “India: From Positivism to Structuralism,” 271–​72, 273–​74, 275–​76, 278, 279, 302, 305, 307–​8 Judicial Activism in India: Transgressing Borders and Enforcing Limits, 266 Saunders, Cheryl “Australian State Constitutions,” 236, 236n.18 Constitution of Australia: A Contextual Analysis, The, 243–​44 Sawyer, Geoffrey, The Australian Constitution, 232–​33, 233n.11 Schechter Poultry Corporation, et al. v. United States, 180 Scoppola v. Italy, 380 search and seizure Israel, 328 United States, 139–​40 Second Amendment, 138 Second American Founding of Reconstruction, 159–​60 Second Look Model Australia, 206 Israel, 27, 32–​33 New Zealand, 29, 31, 206 origins, 27 United Kingdom, 27, 29, 31, 365–​66, 373, 374, 377, 393 United States, 27–​28 Second Look Model, Canada, 8, 204–​28 brief history, judicial review, 208–​9

federalism, 209–​17 individual rights, 219–​28 separation of powers, 217–​19 Sedition Act, 128, 137–​38 Seervai, H.M., The Emergency, Future Safeguards and the Habeas Corpus Case 4, 299n.119 seizure Israel, 328 United States, 139–​40 Selway, Bradley, “The High Court and Australian Federalism” (Selway), 235, 235n.15 Seminole Tribe of Florida v. Florida, 104 separation of powers umpiring, 3–​6, 111–​12, 391, 393 Australia, 229–​31, 235–​36, 235n.16, 240, 251, 252 Canada, 183–​84 Second Look Model, 217–​19 need for, in judicial review, 391 United Kingdom, 368, 370, 373, 377, 387–​90 United States, 141–​44, 150, 155 Seventeenth Amendment, 179, 344 Sex Discrimination Act, 256n.114, 258–​59 sex discrimination and laws. See also women Australia, 256n.114, 258–​59 Great Britain, 379 Israel, 323, 327, 328 South Africa, 344, 350 United Kingdom, 381 United States, 100, 103, 104 Shankari Prasad v. Union of India, 271–​72, 273, 306–​3 Shapiro, Martin, 54, 111–​12, 370, 391. See also federalism umpiring; separation of powers umpiring “The Success of Judicial Review and Democracy,” 5–​6, 5nn.7–​8, 6n.11 umpiring, 5–​6, 5nn.7–​8, 6n.11 Shayeb, 332 Shays’ Rebellion, 115, 128–​29, 131 Shelby County v. Holder, 104–​5, 152 Silverman, Bradley G., Federal Questions and the Domestic Relations Exception, 28, 30n.8 Singh, Mahendra Pal, “India,” 264 Sisulu, Walter, 341, 348–​49 Six Day War (Israel), 311, 321–​22 Sixteenth Amendment, 109, 154, 179 Skinner v. Oklahoma, 97

422 Index Skowronek, Stephen, The Politics Presidents Make: Leadership from John Adams to Bill Clinton, 118 Slaughter-​House Cases, 327 slavery Dred Scott v. Sandford, 25, 106, 139, 141, 144–​ 45, 146, 154–​55, 160, 161–​62 rights from wrongs, 6–​7 Slave Trade Act of 1807, 339 South Africa, 339, 350 United States, abolishment, 145 Slavery Abolition Act (U.K.), 93, 339 Slave Trade Act of 1807, 339 Smith, Bruce P., History of the Common Law: The Development of Anglo-​American Legal Institutions, 366, 366n.3 Smith, Joseph Henry, Appeals to the Privy Council from the American Plantations, 69–​70, 73 Social Darwinism Australia, 234, 254, 283–​84 United Kingdom, in India, 268–​69, 271, 283–​84 United States, 98–​99, 172, 173, 175–​76 Somerset’s Case, 161–​62 Songer, Donald A., The Transformation of the Supreme Court of Canada: An Empirical Examination, 201n.31, 203 Sons of Providence: The Brown Brothers, the Slave Trade, and the American Revolution (Rappleye), 80–​81 Soobramoney v. Minister of Health (Kwazulu-​ Natal) 1998, 350 South Africa, 337–​59. See also specific topics African National Congress, 9–​10, 338, 341, 344–​53, 354–​55, 358, 361, 396 apartheid, 6–​7, 45, 338, 343, 345, 347–​48, 350–​51, 352–​55, 360, 361, 370, 391–​92 apartheid, after, 346, 348, 350, 357 Bill of Rights, 338, 344, 346–​47, 349, 350, 352–​57, 358–​59, 360–​61, 365 borrowing, 358 borrowing, of German Basic Law, 344, 350, 358 Carmichele v. Minister of Safety and Security, 349 Certification of the Constitution of the Province of Kwazulu-​Natal, 1996, 350 charismatic leadership, 355, 358 Constitutional Court, 344–​45, 346–​58, 361 Court of Star Chamber, 364–​65 diamonds, discovery, 339 discrimination, laws against, 350, 355

diversity and languages, 337 economy, 337 Enlightenment constitutionalism, 347 expression, freedom of, 350 fading elite hegemonic entrenchment, 342, 358 First Certification Judgement, 361 Freedom Charter (1955), ANC, 344–​45, 352–​ 53, 354–​55, 358, 361 Gandhi, 341, 347–​48 geographical territory, 337 Government of the Republic of South Africa v. Grootboom, (2000), 351–​58 health care, right to, 344, 350 Inkatha Freedom Part (IFP), Zulu nation, 350, 351, 355, 358 insurance and commitment, 358 land reform, 346, 357, 361 LGBTQ marriage, legalizing, 350 Mandela, Nelson, 337–​38, 345–​51, 353–​55, 358, 361 mass political mobilization, 9–​10 Mbeki, Thabo, 345, 352–​53 Modderklip East Squaters v. Modderklip Boerdery (Pty) Ltd., 358 parliamentary sovereignty, 344, 346, 349, 359, 360 population and population density, 337 President of the Republic of South Africa v. Hugo, 1997, 210, 350 Privy Council, end, 44–​45, 95–​38 rights from wrongs, 358 Sachs, Albie, 345, 352–​53, 354–​55 sex discrimination laws, 344, 350 Sisulu, Walter, 341, 348–​49 slavery, 339, 350 Slavery Abolition Act, 339 Slave Trade Act of 1807, 339 Soobramoney v. Minister of Health (Kwazulu-​ Natal) 1998, 350 Statute of Westminster of 1931, 343 success story, 337–​38 S v. Makwanyane and Others, 348 Tutu, Desmond, 338, 361 ubuntu, 350 South Africa, Constitution adoption, 349 amendments, 344, 361 consociationalism, 351 current, 360–​46 Interim, 346, 354, 361 preamble, 361–​44 proportional representation, 345

Index  423 tricameral legislature, 351 South Africa, history, 338–​52 African National Congress, 9–​10, 338, 341, 344–​53, 354–​55, 358, 361, 396 Afrikaners, 45, 95, 337–​38, 339–​40, 341, 343, 347, 351, 357, 358, 360, 376 British Empire, Union of South Africa, 339–​43 British rule and Judicial Committee of the Privy Council, 339, 341, 342–​43, 358, 360, 361–​62 independence, 342–​43 indigenous peoples, 339 Native Lands Act, 341 South Africa Act of 1909, 341, 374, 394 Status of Union Act, The, 343 South Africa, judicial review, 352–​60 origins and growth, 360–​62 robust, 32 South Africa Act of 1909, 341, 374, 394 “South Africa: From Constitutional Promise to Social Transformation” (Klug), 338–​39, 338n.3, 346–​50 South Carolina Bowman v. Middleton (1792), 126–​27 Dymes v. Ness (1724), 126–​27 Ham v. M’Law (1789), 126–​27 Rex v. Mellichamp (1736), 126–​27 Zylstra v. The Corporation of Charleston (1794), 126–​27 South Dakota v. Dole, 109 South Korea borrowing, 8 insurance and commitment, 9 sovereignty Hobbesian, 122 parliamentary (U.K.), 19–​20, 28–​29, 32–​33 parliamentary, common law legal tradition, 19–​20 rejection, Constitution framers, 122 “We the People of the United States” shift, 89 speech, freedom of Australia, 247, 252–​53 India, 274–​75 Israel, 332 Madison, 138 United States, 137–​38 “Speech on the Writs of Assistance” (Otis), 114n.30, 125–​26 Spencer, Herbert, Principles of Biology, 173 S.R. Bommai v. Union of India, 280, 292, 296 Stamp Act Tax, 1765, 80

state courts, United States, judicial review at founding, 126–​49 State Declaration of Rights, U.S., 114–​15, 117 Status of Union Act, The (South Africa), 343 Statute of Westminster Act, 1931, 394 Australia, 242 Canada, 185–​86, 201–​2, 208 Colonial Laws Validity Act of 1865 repeal, 41, 47, 94–​95 Judicial Committee of Privy Council, end, 94–​38 South Africa, 343 United Kingdom, 374 Steel Seizure Case. See Youngstown Sheet & Tube Co. v. Sawyer Stenberg v. Carhart, 27 Stephenson, Matthew C., 9, 9n.16 insurance and commitment theory, 9 “When the Devil Turns...,” 9, 9n.17 Steward Machine Co. v. Davis, 97, 180 “The Strategic Foundations of Constitutions” (Hirschl), 8n.14 Strauder v. West Virginia, 170 Strayer, B.L., Judicial Review of Legislation in Canada, 187 Structure and Relationship in Constitutional Law (Black), 250–​51 Stuart kings, 19, 20, 53, 61, 367, 369 “The Success of Judicial Review and Democracy” (Shapiro), 5–​6, 5nn.7–​8, 6n.11 suicide, assisted, Canada, 193, 226 Summers v. Earth Island Institute, 139 Supreme Court. See specific countries Suttee Prevention Act (India), 275 S v. Makwanyane and Others, 348 Swinfen, David B., Imperial Appeal: The Debate on the Appeal to the Privy Council, 1833–​ 1986, 35–​37, 42, 43–​45, 52–​53, 197–​98 Symsbury Case, 126 Taft, William Howard, 118–​19, 177–​79, 180 Taiwan, insurance and commitment, 9 Takings Clause, 139–​40 Tarlton v. Wallace, 114 Tasmanian Dams, 258 Tax Tea, 1772, 80 Taylor, Greg, “The Commerce Clause –​ Commonwealth Comparisons,” 211–​12 Ten Pound Act cases, 126 “The ‘Ten Pound Act’ Cases and the Origins of Judicial Review in New Hampshire” (Lambert), 114n.32, 126

424 Index “Ten Pound Acts: An Introduction to Original Research on the Origins of Judicial Review” (Van Loan III), 114n.32, 126 Tenth Amendment, 139 Texas v. Johnson, 25–​26, 27, 104 Thach, Charles C., Jr., The Creation of the Presidency, 1775–​1789, 75, 115 Thayer, James Bradley, 27 New Deal judicial restraint, 101–​2, 103–​4, 105, 109, 151, 181–​97 “The Origin and Scope of the American Doctrine of Constitutional Law,” 30, 32n.11, 170–​71, 176 Rule of Clear Mistake, 170–​71, 176, 180, 181–​97 Thephanous v. Herald and Weekly Times Ltd, 254 The Privy Council Under the Tudors 2, The (Percy), 43, 47n.15 Thirteenth Amendment Harlan on misreading of, 150 mass popular movement, 162 rights from wrongs, 157–​58, 159, 160 Supreme Court interpretations, 1870–​ 1883, 169 Thoughts on Government (Adams), 125–​26 Tories, Canada, 192–​93 Torrey v. Mumford, 69 Towards Juristocracy (Hirschl), 8, 38–​39, 128, 129–​30, 166, 183–​84, 188, 198, 233–​34, 342, 358 Transatlantic Constitution: Colonial Legal Culture and the Empire, The (Bilder), 3–​4, 67, 69–​72, 88–​89 Australia, 247 Canada, 198 India, 269 United States, 113 Transformation of the Supreme Court of Canada: An Empirical Examination, The (Songer), 201n.31, 203 Treanor, William Michael, 119, 120 “The Case of the Prisoners and the Origins of Judicial Review,” 108n.12, 120, 125 Commonwealth v. Caton, 125 “Judicial Review Before Marbury,” 108n.12, 120 Kamper v. Hawkins, 125 Trevett v. Weeden, 115n.37, 126 Trevett v. Weeden: On Information and Complaint, for Refusing Paper Bills In Payment for Butcher’s Meat, in Market, at Par with Specie, The (Varnum), 115n.37, 126

trial by jury. See jury trial Trudeau, Pierre Elliott bilingualism, 195 constitutional reform, 202, 203 “Federalism, Nationalism, and Reason,” 215, 215n.52 on Privy Council, 215 Quebec independence and constitutional reform, 185, 186, 188, 215–​16 Warren Court judicial review, 188, 199, 203, 208, 226–​27 Truman, Harry S., 100, 120, 283–​84, 320 Tudors, 18, 19, 367 Tushnet, Mark, “Alternative Forms of Judicial Review,” 241, 242n.48 Tutu, Desmond, 338, 361 ubuntu, 350 ultra vires Australia, 43–​47, 247 Canada, 43–​47, 208, 220 definition, 43–​47 India, 43–​47, 266–​70, 274, 276–​77 modern-​day, 53 Privy Council, 36, 43–​47, 52, 53 umpiring, 5–​6, 5nn.7–​8, 6n.11, See also specific countries and types umpiring plus rights from wrongs. See also India; rights from wrongs Germany, 6–​7 United Kingdom, 6–​7 Union of South Africa (British Empire), 339–​ 43. See also South Africa United Hamizrahi Bank Ltd. v. Migdal Kfar Shitufi, 328 United Kingdom (of Great Britain and Northern Ireland), 363–​81. See also specific topics borrowing, 368, 373 Brexit, 366, 372, 375–​76, 386–​88 Cameron, David, 374–​76 Case of Proclamations (1611), 388 charismatic leadership, 370 checks and balances, 366, 369, 376 Constitution (see Constitution, United Kingdom) constitutional federal entity, 36 Court of Star Chamber, 364–​65 devolution of powers, 39–​40, 53, 368, 374–​ 75, 377 Diffuse Model, 24–​25 discrimination, laws against, 381 elite hegemonic entrenchment, 374

Index  425 European Convention on Human Rights, 365, 369, 370, 372–​73, 377 evolutionary constitutionalism, 9–​10 federalism umpiring, 364, 368, 370, 373, 387–​90 Ghaidan v. Godin-​Mendoza, 376 Glorious Revolution of 1688, 46, 59, 61, 79, 137, 331 Human Rights Act of 1998, 31, 53, 203, 239–​ 40, 257, 365, 369, 372–​73, 377, 392–​93 Ghaidan v. Godin-​Mendoza, 376 insurance and commitment, 374 Judicial Committee of the Privy Council, 364–​65 (see also Judicial Committee of the Privy Council (JCPC)) King-​in-​Parliament, 369, 371 Lee v. Ashers Baking Company Ltd and others, 381 May, Theresa, 375–​76 parliamentary sovereignty, 28–​29, 32–​33, 365–​66, 370, 371, 376, 389 population, GDP, and economics, 366 proportional representation, 375 responsible parliamentary government, 366 R (Miller) v. Secretary of State for Exiting the European Union, 381 R (on the application of Miller) v. The Prime Minister and Cherry and others v. Advocate General for Scotland, 384 same-​sex marraige, relations, and rights, 381 Scoppola v. Italy, 380 Second Look Model, 27, 29, 31, 206–​7, 365–​ 66, 373, 374, 377, 393 sex discrimination laws, 381 Slavery Abolition Act, 339 Social Darwinism, in India, 268–​69, 271, 283–​84 umpiring plus rights from wrongs, 6–​7 Westminster Model, 363–​64, 365–​66, 377 United Kingdom (of Great Britain and Northern Ireland), history, 366–​73 1215–​1603, 366–​67 1603+, Tudor Dynasty, 367 1688–​1839, 369 1911 reform and parliamentary sovereignty, 370 Charles I, 19, 20, 43, 50, 53, 61, 140, 367–​68 Glorious Revolution of 1688, 363, 369 House of Commons, election of members, 370–​71 prime ministers (1714–​1839), 370 referenda, 373–​76 Stuart Dynasty, 367–​68

Tony Blair’s reforms, 53, 203, 371–​72, 374–​ 75, 377 Victoria, Queen, and Victorian Age, 363 United Kingdom (of Great Britain and Northern Ireland), judicial review, 373–​90 access, 365 Bill of Rights, judicially enforced, 386–​87 federalism umpiring and separation of powers, 387–​90 Human Rights Act Ghaidan v. Godin-​Mendoza, 377–​86 Scoppola v. Italy, 380 incompatibility belief, 363 Lord Chancellor office, 373, 386–​87 origins and growth, 381–​86 Parliament supremacy, 363, 371, 376 vertical, 53 Westminster Model, 365–​66 “The United Kingdom” (Oliver), 371n.10, 374 “The United Kingdom and the Human Rights Act” (Erdos), 365n.1 United States. See also specific topics 1789, first democracy, 97 1863 Lincoln’s Gettysburg Address, 174–​75 vs. United Kingdom and Europe, 98 1937–​2018, Rehnquist and Roberts Courts, 179–​81 borrowing, 8, 108, 152 Constitution (See Constitution, United States) Declaration of Independence, 277n.38, 283 Diffuse Model, 24–​28 elite hegemonic entrenchment, fading (see fading elite hegemonic entrenchment) federalism umpiring, 269 federal legislation, constitutionality, 2 mass popular movement, 104, 120, 135, 147–​ 48, 152, 157, 159, 162, 178, 181 Fourteenth Amendment, 157 Office of Legal Counsel, 26 origins, judicial review, 1789–​1894 (see judicial review, origins and growth, United States (1789–​1894)) Reconstruction Amendments, 37, 98, 100, 112, 149, 152, 169, 175, 350 Second Look Model, 27–​28 Social Darwinism, 98–​99, 172, 173, 175–​76 vertical federalism umpiring, King-​in-​ Council, 147, 152

426 Index United States, judicial review, 101–​52. See also specific topics constitutional, 1 as controversial, 106 departmentalism, judicial supremacy, and Whittington, 101–​2 origins (1776–​1803), 107–​16 (see also judicial review, origins and growth) vertical Bilder, Sarah, 3–​4, 67, 88–​89, 110 from Privy Council umpiring, 106–​26, 134 (see also vertical judicial review, United States) United States, judicial review, 1789–​1894, 116–​40 colonial and state courts, at founding, 126–​49 Gerber, Scott, 125–​27 vs. Japan’s Supreme Court, 123–​24 judges, framers’ opinion, 109 Marbury v. Madison, 120–​21, 122–​23, 125, 127–​28 Massachusetts, 125–​26 New Hampshire, 126 New Jersey, 127 New York State, 127 North Carolina, 126–​27 Pennsylvania, 127 Rhode Island, 126 South Carolina, 126, 127 sovereignty, rejection, 122 Treanor on, 120, 125 Virgina, 125 “We the People” vs. President-​in-​Congress, 122 Wood, Gordon, 120–​21, 124–​25 Constitution and Bill of Rights, fading elite hegemonic entrenchment, 127–​40 (see also Constitution, United States) Ackerman’s mass popular movement thesis vs., 135–​36 Adams and Federalist Party, 129–​31 Beard and McDonald on, 131, 132–​33 Bill of Rights, 136–​40 Federalist elites, 133–​34 Framers and Philadelphia Convention, 128–​29, 131–​32 Marshall, John, 129–​31 Philadelphia Convention failures, 132 President, power, 136 President, term, 132, 136 vs. state ratifying conventions, 133 We the People, 134–​36 United States, judicial review, 1789–​1894, Supreme Court, 140–​50 Civil War and Reconstruction, 150

elite hegemonic entrenchment, 159–​60, 161–​62, 166, 167, 168–​69 insurance and commitment, 157–​ 58, 159–​60 rights from wrongs, 157–​65 Friedman and Delaney, response to, 149–​61 United States, judicial review, 1937–​ 2020, 167–​81 Rehnquist and Roberts courts, 179–​81 Warren and Burger courts, 169–​79 United States, judicial review, Progressive era and Federal courts, elite hegemonic control, 151–​67 Franklin D. Roosevelt and New Deal, 104, 164–​67 (see also Roosevelt, Franklin D.) Gillman, response to, 153–​56 Progressive Movement, rise, 158–​61 Republican Party transformation, 156–​58 Woodrow Wilson and Indian summer of Old Order, 161–​69 United States, Supreme Court 1789–​1894, response to Friedman and Delaney, 149–​61 (see also Friedman and Delaney, response to) 1937–​2018, Rehnquist and Roberts Courts, 179–​81 powers, division of, 124 Privy Council origins, 89 state laws, correcting errant, 89 Supreme Court Justices, pro-​business, 178 United States, women bartending occupation, 97 minimum wage, 180, 209–​10 minimum wage, West Coast Hotel v. Parrish, 97, 103, 180 voting rights, 180 United States v. Caroline Products, 97 United States v. Darby Lumber Co., 97, 211–​ 12, 232 United States v. E.C. Knight, 141, 144, 150, 155, 238 United States v. Eichman, 25–​26, 27 United States v. Lopez, 104, 110–​11 United States v. Morrison, 104 United States v. Windsor, 105 Universal Declaration of Human Rights, 99–​ 100, 277n.39, 283–​84, 321, 328 utilitarianism, 234, 253, 254 Van Loan III, Eugene M. “Ten Pound Acts: An Introduction to Original Research on the Origins of Judicial Review,” 114, 114n.27

Index  427 Varnum, James M., The Case, Trevett v. Weeden: On Information and Complaint, for Refusing Paper Bills In Payment for Butcher’s Meat, in Market, at Par with Specie, 114, 114n.32 vertical federalism judicial review British Empire, 35 Friedman and Delaney on, 80 horizontal judicial review from, 88 King-​in-​Council, 68, 80 other colonies, 91 post-​1787, 88–​89 pre–​Civil War Supreme Court, 89 United Kingdom today, 53 vertical federalism judicial review, Privy Council, North American colonies, 36, 39, 42–​43, 52, 54–​55, 64–​65, 85 1776–​1787, 91 1783–​1833, 81–​82 1833–​1874, 93 1875+, 35–​36 Judicial Committee of the Privy Council, 47 vertical federalism umpiring, United States, 148, 152 Bill of Rights and Fourteenth Amendment, 147 King-​in-​Council, 147, 152 “We the People of the United States,” 89 vertical judicial review Canada, 35 Cappelletti and Cohen, 42 vertical judicial review, United States origins (Bilder), 3–​4, 67, 88–​89, 110 Privy Council, North American colonies, 35, 42, 67 Privy Council umpiring, 106–​26, 134 veto points, multiple, 140 Victoria, Queen, 363 Victoria v. Commonwealth, 257–​58 Village Tyranny, 131 Village Tyrants, 115 Vishaka v. State of Rajasthan, 280 volonté générale, 24 voting rights, United States African Americans, 98–​99, 164, 179 women, United States, 180 Voting Rights Act of 1965, 103, 179 Voting Rights Act of 1966, 104–​5 Warren Court, 97–​98, 100–​3, 120, 141, 181, 188, 199, 203, 208, 224, 226–​27, 358, 372–​73, 393

Washburne, G. A., Imperial Control of the Administration of Justice in the Thirteen American Colonies, 52n.28 Washington v. Glucksberg, 8n.13 Webber, Jeremy, The Constitution of Canada: A Contextual Analysis, 187, 196 Weingast, Barry R., 140 Glorious Revolution, 10n19, 10 West Coast Hotel v. Parrish, 97, 103, 180 Westminster Model, 365–​66 Israel, 321 New Zealand, 365 United Kingdom, 363–​64, 365–​66, 377 Westminster World, 32 West Virginia State Board of Education v. Barnette, 97 We the People, Volume I: Foundations (Ackerman), 122, 181 We the People, Volume 2: Transformations (Ackerman), 122, 181 We the People, Volume 3: The Civil Rights Revolution (Ackerman), 104, 181 “We the People of the United States” Constitution framers, 122 Hamilton in Federalist No. 78, 86, 118–​19, 125, 134–​35 from King-​in-​Parliament, 19–​20, 46, 88, 89, 118–​19, 134–​35, 152 vs. “President-​in-​Congress,” 122, 125, 135 We the People: The Economic Origins of the Constitution (McDonald), 131 “When the Devil Turns...” (Stephenson), 9, 9n.17 “The Whig Theory of History,” 17 Whittington, Keith E., Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History, 101–​2, 169n.96 Whittington v. Polk, 126 Wickard v. Filburn, 97, 109, 211–​12, 232 Wigmore, John Henry, 19 William III, King, 21, 62 Williams, John, “The Emergence of the Commonwealth Constitution,” 231, 231n.2, 232–​33 Williamson v. Lee Optical Co., 139, 327 William the Conqueror, 17, 47 Wilson, Woodrow, 98–​99, 119, 146, 161–​69, 176, 178 Winterton, George, Australian Federal Constitutional Law: Commentary and Materials, 247–​48, 247n.67

428 Index Winthrop v. Lechmere, 67 women, United States. See also sex discrimination and laws bartending occupation, 97 minimum wage, 180, 209–​10 West Coast Hotel v. Parrish, 97, 103, 180 voting rights, 180 Wood, Gordon S., 2, 4, 4n.6, 87, 120 American-​style judicial review, 118–​19 colonial and state courts at founding, 120–​ 21, 124–​25 horizontal and enumerated powers judicial review (1776–​1787), 44–​46 (see also horizontal and enumerated powers judicial review (1776–​1787)) judges and judicial power, American public opinion on, 115–​17, 136, 155

judges and judicial power, Framers’ on, 134 Marbury v. Madison, 86–​87, 88, 89–​90 origins and growth, judicial review, 88, 110, 113, 114, 118–​19, 141, 144, 148, 155 “The Origins of Judicial Review Revisited in the Era of the Founding,” 85–​86 Wragg v. New South Wales, 231 Youngstown Sheet & Tube Co. v. Sawyer, 100, 104, 142–​43 Zenger, John Peter, 124 Zionist movement, 313–​14, 321, 324–​25, 328 Zulu Inkatha Freedom Part (IFP), 350, 351, 355, 358 Zylstra v. The Corporation of Charleston (1794), 126–​27