Many of the nation’s most influential constitutional law scholars have argued recently that judicial review should be sharply limited or eliminated altogether. The list includes such notable thinkers as Larry D. Kramer, Cass R. Sunstein, William M. Treanor, and Mark V. Tushnet.

Mary Sarah Bilder’s article is a powerful corrective to this mounting opposition to the doctrine made famous by Chief Justice John Marshall in Marbury v. Madison . Professor Bilder concludes that judicial review is an integral part of the American constitutional order with deep historical roots. I agree. However, Professor Bilder and I disagree on the nature of those roots. She traces the origins of judicial review to corporate law, whereas I locate them in political theory.

Professor Bilder marshals considerable historical evidence in support of her provocative thesis that “judicial review was the continuation of a longstanding English practice of constraining corporate ordinances by requiring that they not be repugnant to the laws of the nation.” Unfortunately, she misses the mark when she claims that judicial review was a shifting “cultural practice” rather than a new “intellectual doctrine.” After all, the Founders of the American regime were steeped in the history of ideas, and the Constitution they created expressed their commitment to the power of ideas.

John Adams was the American Founding’s most sophisticated political theorist and when he modified Montesquieu’s conception of the separation of powers by developing what can be fairly termed the political architecture of an independent judiciary, he articulated an idea that helped make judicial review possible. In fact, Adams’s contribution to political theory is arguably as significant as that of the French baron whose work inspired him and the other American Founders.

It is well known that Montesquieu’s seminal contribution to the history of ideas is that political power should be divided among the legislative, executive, and judicial branches of government so as to ensure the people’s liberty. What is largely overlooked, however, is that Montesquieu’s characterization of the judicial power differs dramatically from the American view: the preferred scheme of checks and balances Montesquieu describes in The Spirit of the Laws is not the three famous powers but the established English scheme of king, lords, and commons. “Among the three powers of which we have spoken,” he writes, “that of judging is in some fashion, null.” He maintains that “only two” powers truly matter—the legislative and the executive—and that the “part of the legislative body composed of the nobles is quite appropriate” for checking legislative abuse.

Likewise overlooked is that Montesquieu associates the judicial power with petit juries, rather than with a judge in a robe. “In England,” Montesquieu proclaims in a much-neglected passage, “the jury decides whether the accused is guilty or not of the deed brought before it; and, if he is declared guilty, the judge pronounces the penalty imposed by law for this deed; and he needs only his eyes for that.”

It would be left to John Adams to suggest that judges, and not simply temporary juries, need to be independent from the executive and legislative branches of government. Adams had been writing about the need for an independent judiciary since at least January and February of 1773, when he engaged in a series of exchanges on the matter in the Boston press with William Brattle. Brattle, a Tory, insisted that the proposed payment of judicial salaries by the Crown should not concern the people of Massachusetts Bay, as the judges of the colony’s superior court, like their brethren in England, enjoyed life tenure so long as they behaved well. Adams, after conducting an extensive historical review of the subject, countered that Brattle was wrong to claim that judges in England, let alone in America, held their offices during good behavior. Consequently, the proposed control by the Crown over judicial salaries was perceived by Adams as an additional threat to the independence of the Massachusetts judiciary.

Adams revisited the matter of an independent judiciary in Thoughts on Government, published in 1776. The pamphlet—a clarion call for the separation of powers written in response to Thomas Paine’s recommendation in Common Sense that all government power be vested in a unicameral legislature—explains in no uncertain terms how important an independent judiciary is to any form of government dedicated to the preservation of liberty. Adams writes,

Adams argues in his pamphlet for more than merely making the judiciary a separate branch of government. He also calls for stable judicial compensation and tenure so long as judges maintain good behavior: “they should hold estates for life in their offices; or, in other words, their commissions should be during good behavior, and their salaries ascertained and established by law.” Judges who misuse their offices should be impeached by the “house of representatives . . . before the governor and council” and, “if convicted, should be removed.”

The Federal Constitution of 1787 excluded the executive from participating in the impeachment process, but otherwise contained principles identical to Adams’s proposal. As David McCullough put it in his biography of Adams, “[l]ittle that Adams ever wrote had such effect as his Thoughts on Government.”

Judicialreview fits into the political theory of an independent judiciary in at least two ways. First, judicial review is a core component of the Constitution’s system of checks and balances, a system in which each branch of the federal government is endowed with, in the words of The Federalist No. 48, “a constitutional control over the others.” The President has, among other checks, a veto over congressional bills and the power to nominate federal judges. Congress has, among other checks, the power to override presidential vetoes and to control the size and jurisdiction of the federal courts, as well as the power to impeach all federal officials. Without the power of judicial review, what check—what “constitutional control”—would the federal judiciary have on the President or Congress? The answer is none. As a consequence, judicial review is an inevitable component of the Constitution’s commitment to checks and balances.

Judicial review also fits into the political theory of an independent judiciary in another, equally straightforward, fashion: judicial review is the ultimate expression of judicial independence, because without judicial independence no court could safely void an act of a coordinate political branch. Bluntly stated, the risk to a judge who exercises judicial review when he or she is not independent of the executive and the legislature is either removal from the bench or a reduction in salary. John Adams knew this, and so did the Framers who met in Philadelphia during the summer of 1787 when they wrote Adams’s theory of judicial independence into Article III of the Constitution.

What all of this means for Professor Bilder’s project is this: it suggests that she errs by emphasizing as much as she does what might be called the “vertical” origins of judicial review—the notion that there exists a hierarchy of laws, and that when a court finds an inferior law is repugnant to a superior law, the court ought to invalidate the inferior law. An investigation into the origins of judicial review that concludes that habituation to vertical review by the Privy Council and colonial judiciaries was sufficient to give rise to judicial review by the federal judiciary turns a blind eye to the Founders’ political theory—a political theory that suggests that the origins of judicial review are more accurately traced to the “horizontal” idea of separation of powers.

Of course it is difficult to fault Professor Bilder too much for her emphasis on the implications of hierarchies of law in the origins of judicial review. Chief Justice Marshall evinced a similar emphasis when he declared in Marbury itself that a statute that is inconsistent with the Constitution is void. However, the absence from Professor Bilder’s article of any discussion of the role political theory played in the origins of judicial review has the unfortunate consequence of causing her to sidestep the most important question of all: how judicial review should be exercised. Because Professor Bilder locates the origins of judicial review in corporate law, and because corporate law is agnostic on the “how” question, she can only say that “the how question cannot be as convincingly answered based on early history as the whether and why questions.”

An examination of the origins of judicial review that takes political theory seriously reveals that the raison d’etre for judicial review is to protect individual rights from overreaching by the political process. The pre-Marbury state precedents that Professor Bilder discusses—Holmes v. Walton, Commonwealth v. Caton, Trevett v. Weeden, the Ten Pound Act Cases, and Bayard v. Singleton—make it clear beyond cavil how early American judges thought the doctrine should be exercised: to protect individual rights. Holmes v. Walton, Trevett v. Weeden, the Ten Pound Act Cases, and Bayard v. Singleton involved securing the individual right of trial by jury. Commonwealth v. Caton concerned the most sacred right of all: the right not to be executed without the benefit of appropriate structural safeguards.

Revealingly, Judge George Wythe opens his opinion in Caton in a fashion that illustrates that the judges in these cases were well versed in political theory generally and in separation of powers theory specifically:

Judge Wythe, who was John Marshall’s law teacher, also indicates that it is a judge’s responsibility to check overreaching by the political branches. He writes,

After reading these excerpts from Judge Wythe’s opinion, it should come as no surprise to learn that the Virginia Constitution of 1776 was the first of the early state constitutions to establish an independent judiciary in the federal conception of the institution and that John Adams’s Thoughts on Government provided the blueprint for doing so. In fact, George Mason, who is generally credited with being the principal author of Virginia’s initial state constitution, borrowed heavily from Adams’s pamphlet, and Patrick Henry was so taken with it that he wrote Adams a letter that said “Would to God you and your Sam Adams were here!”

Professor Bilder has made a major contribution to constitutional law scholarship with The Corporate Origins of Judicial Review. Her intriguing thesis that judicial review developed from a heretofore neglected corner of the English legal tradition demonstrates it is still possible to bring fresh insights to a subject about which scholars have been opining for generations. But any discussion of the origins of judicial review that declines to resolve how judicial review should be practiced overlooks why we have a constitution in the first place. To borrow a famous phrase from the Declaration of Independence—the document that announces the official statement of the political theory of the American regime—“to secure these rights, Governments are instituted among Men.”

Scott D. Gerber is an associate professor at Ohio Northern University College of Law and a senior research scholar in law and politics at the Social Philosophy and Policy Center. He is currently writing a book on The Origins of an Independent Judiciary: A Study in Early American Constitutional Development, 1606-1787 from which this Response draws. His debut legal thriller, The Law Clerk, is in press. His e-mail address is s-gerber@onu.edu.

Preferred Citation: Scott D. Gerber, The Political Theory of an Independent Judiciary, 116 Yale L.J. Pocket Part 223 (2007), http://yalelawjournal.org/forum/the-political-theory-of-an-independent-judiciary.

Related Content:

• Essay: Mary Sarah Bilder, Why We Have Judicial Review, 116 Yale L.J. Pocket Part 215 (2007), http://thepocketpart.org/2007/01/09/bilder.html (adapted from Mary Sarah Bilder, The Corporate Origins of Judicial Review , 116 Yale L.J. 502 (2006)).
• Response: William Michael Treanor, Original Understanding and the Whether, Why, and How of Judicial Review, 116 Yale L.J. Pocket Part 218 (2007), http://thepocketpart.org/2007/01/09/treanor.html.