Judicial Review Without a Constitution I. Introduction

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Judicial Review Without a Constitution
I. Introduction

This article traces the emergence of judicial review in the United States. Beginning with the principal antecedent in English law, I will consider the historical, theoretical and doctrinal development of judicial review in early American case law and constitutional theory. My goal is to show that the current understanding of judicial review as derivative of or dependent upon a written constitution misconceives the doctrine as it developed in colonial America during the formative period of American constitutional thought. I will argue that, prior to and after the ratification of the United States Constitution, American state courts and the Supreme Court engaged in a form of judicial review based on common law principles rather than a constitutional text. As a corollary to this argument, I will explain that prominent colonial lawyers and judges recognized a doctrinal and theoretical distinction between common law and natural law as bodies of principle and bases for judicial decision. It is the influence of common law rather than natural law as a foundation for extra-constitutional judicial review that provides a basis in Anglo-American legal sources for the exercise of review as a legal (rather than extra-legal) power of the common law judiciary.

I should mention at the outset that I will focus on carefully chosen phrases from certain judicial opinions as support for my argument that the judges I discuss based their reasoning and decisionmaking on the common law. It might initially seem that this emphasis on particular phraseology is somewhat facile and haphazard, particularly in reference to cases decided two centuries ago. But as Forrest McDonald explains, the chosen terms and phrases of the time in which these decisions were written are especially important to an historically accurate understanding of these judicial writings, because these repeated and related terms and phrases were often then, and should now be, associated “with particular ideologies or bodies of thought.” (McDonald 1985, xi). Following McDonald, then, I intend to show that the phrases I highlight were and should be associated with an intellectual orientation that favored the common law as the basis for legal reasoning and judicial decisionmaking.

The focus of this essay on the language of particular early American state and federal court decisions also helps to distinguish it from the work of others. For example, James Stoner and Paul Carrese have made important contributions to the study of the common law for constitutional and political theory. (Carrese, 2003; Stoner 2003; Stoner 1992). But the scope of Stoner’s first book ends just before the period I study and his second book addresses more contemporary cases. Moreover, in Common Law and Liberal Theory, Stoner’s interest in the common law is more as an historical tradition and a theoretical perspective against which to understand the institutions and practices of American government. His task is not to address the sources within American law that inform a common law exercise of judicial review. Somewhat similarly, Carrese’s study of the common law and his use of case law are directed more toward amplifying his theoretical analysis and, where American cases are concerned, primarily involves decisions of the Supreme Court.

I choose to focus on the specific language of judicial opinions and the particular arguments advanced by lawyers in court, because I am interested in studying the legal sources and legal reasoning employed by lawyers and judges in making what I want to be a legal argument. I believe, as many lawyers now do and as many lawyers did in the eighteenth and nineteenth centuries, that authoritative legal sources play a uniquely important role in legal reasoning. To some extent, the failure to recognize the importance of legal sources for legal reasoning has, I think, led certain writers to confuse natural law and common law in their discussions of the cases I will examine.

The mention of authoritative legal sources in the previous paragraph leads to another point. Although an extended discussion of the character of authoritative legal sources is beyond the scope of this essay, there is some question about what, precisely, the Constitution contains as a legal source. (Murphy, Fleming, Barber and Macedo 2003). Is the constitution the text alone, or the text supplemented (or supplanted) by judicial interpretations of it, or the text as constructed by considerations of historical, social and institutional context and moral justification? For purposes of this article, my claim is only the (I hope) uncontroversial assertion that the language of the Constitution maintains a unique and inescapable role in formulating constitutional doctrine. And the constitutional text, however expansively or restrictively construed, is a source of law distinct from other sources of “unwritten” law, even if certain unwritten legal sources may possess a constitutional dimension. More specifically, as a matter of historical detail, legal theory and constitutional law, the fact that the United States Constitution and various state constitutions were written was and is thought to differentiate constitutional documents from the common law. (Whittington 1999, 48-53). Evidence of this differentiation may be found in the cases I will discuss, because judges repeatedly referred to the common law and constitutional charters as independent sources of fundamental law.

I have three principal goals for this article. First, I hope to sharpen and clarify the doctrinal analysis of some early American case law about which scholars continue to disagree. The article offers an historically grounded and theoretically integrated account of certain important decisions that helped to shape institutional relationships in the United States for centuries to come. Second, the article provides an account of judicial review that might help theorists better evaluate the genuine legal and historical meaning of American constitutionalism, in terms of the nature of our written Constitution and its implications for legislative authority, judicial autonomy and individual rights. Third, the article traces the distinctive contours of different sources of “unwritten” fundamental law. In particular, I draw attention at certain points to distinctions between common law and natural law as bodies of legal principle to which lawyers and judges appealed for support when arguing and deciding cases. Some scholars today believe that American lawyers in the late eighteenth and early nineteenth centuries drew no distinctions among these various sources of unwritten law. Others accept that some Americans drew these distinctions, but read the cases I discuss as providing a natural law underpinning for exercises of judicial review during this period. (Sherry 1987, 1172-1173; Sherry 1992, 171-172, 214-215; Snowiss 1990, 68-69, 126-127; McCloskey 2000, 32-33, 48). Indeed, the natural law reading of these early cases is so widely accepted that people rarely pause to consider the matter. As I will explain, I believe both of these views are mistaken. Instead, I argue that the common law was the principal source of fundamental law upon which several influential early American jurists relied as legal authority for judicial review. The distinction between common law and natural law and its implications are significant for a proper understanding of this case law, the authentic conceptual origins of judicial review and constitutionalism, and methods of legal reasoning and judicial decisionmaking. In this article, I touch on some aspects of this distinction’s salience, but I cannot comprehensively explore the full import of the distinction for American constitutional law and theory here. I should also mention that I do not argue that common law and natural law were (or are) entirely irreconcilable or mutually exclusive bodies of principle. On the contrary, certain common law principles were understood as reflective of natural law precepts. My case analysis is intended to demonstrate, however, that the more general relationships between common law and natural law did not necessarily filter down to their reception by courts as authoritative sources of legal doctrine. In deciding cases, certain American judges distinguished common law and natural law as sources of law, and this is where the distinction matters for my purposes – as a theoretical and doctrinal foundation for the exercise of judicial review.

With all of this in mind, I should explain how I define and distinguish common law and natural law. Natural law refers to the view that certain rights or values are inherent in or universally cognizable by virtue of human reason or human nature (or to the derived rights or values themselves). Natural law theory is characterized also by a meta-ethical commitment to moral realism. (Moore 1992, 189-190).2 In this way, whether something falls within the domain of the concept “law” is, for a natural lawyer, at least partially or nominally determined by reference to an extra-legal standard or norm. Common law is the legal tradition where certain rights or values are legally cognizable by virtue of judicial recognition or articulation. By legally cognizable, I mean capable of assertion by individuals through participation or representation in the legal process. Whether something falls within the domain of the common law is determined by legal standards and norms – the particular methods and sources of that legal tradition. Unlike natural law, the common law itself has no necessary meta-ethical or extra-legal preconceptions.3 This conceptual distinction, in one form or another, is at the heart of Edward Coke’s famous statement that the common law was the perfection of artificial reason gained by training, education and experience as opposed to every person’s “natural reason.” (Coke 2003, 701). As James Stoner puts it, “the law Coke is concerned with is English law, especially English common law, not universal law . . .” (Stoner 1992, 19). This pointed distinction of common law from other forms of law was well-known to certain early American lawyers and judges. I do not mean to suggest that all American judges always carefully observed this conceptual distinction.4 But some did. And it is worth seeing the coherent expression of this intellectual orientation in these early American cases.

John Phillip Reid is quite dismissive of the influence of natural law on the recognition of specific rights during the colonial and post-revolutionary period. In fact, he states that “natural law was never the dominant source of law, and perhaps not even a significant one.” (Reid 1988, 128). It is fair and accurate to say, as Reid and McDonald do, that natural law was disfavored by some lawyers and politicians of the time, because it was perceived to be too amorphous and evanescent a foundation on which to ground law or rights. (Reid 1991, 74; McDonald 1985, 57-59). But it is also true, as Reid sometimes concedes, that natural law did serve as authority for legal claims and rights in judicial decisions, legislative acts and legal pronouncements. (Reid 1986, 90-91).

It seems to me that the frequent references to natural law in judicial opinions and elsewhere cannot be dismissed entirely as mere rhetorical flourishes (Reid 1986, 88, 91, 92), given the doctrine of precedent and the nature of legal sources in the common law tradition. It seems unavailing and unnecessary to deny that some colonial lawyers and judges treated natural law as a source of principles available to judges in the recognition of legal rights and the assessment of legislative enactments. Indeed, this is the reason that I focus so carefully on the cases I have chosen and the language I have cited. The crucial point, I think, is to see that certain early American lawyers and judges carefully distinguished natural law from common law and referred preeminently to the latter as the basis for legal argument and judicial decision.

To several important American lawyers and judges reared in the English legal tradition, the common law did not suffer from the specific conceptual and legal weaknesses that undermine natural law. While natural law was perceived by some as too tenuous a legal basis for grounding concrete rights and governmental limitations, the common law represented a body of historically and legally established concepts and doctrines (such as due process, jury trials, liberty and property rights) that defined the institutional position of the judiciary and its obligation to preserve individual rights. Moreover, given their perspective as common lawyers, many early American jurists believed that until fundamental rights were recognized by courts, or by some other authoritative source in a common law system, they could not confidently be claimed as legal rights. Whatever its moral force might be, natural law was not a recognized legal source (as common law was). (Riggs 1990, 984-985). In the cases I discuss, which I believe are indicative of an important and distinct perspective in American legal thought, the common law appears as singularly authoritative. This is entirely sensible, considering that in the period on which I focus, American judges were beginning to assert an institutional authority and autonomy grounded in English legal tradition, which was nevertheless unfamiliar to English constitutional structure and orthodoxy (at least as it was then and is now commonly understood). (Reid 1991, 302). Reconsidering these cases will, I hope, help to reorient the study of early American judicial review and clarify the distinctive evolution of public law in the United States.
II. Dr. Bonham’s Case

Tracing the development of judicial review in the United States to its roots in English law, a thorough, historically-grounded discussion begins with Edward Coke’s decision in Dr. Bonham’s Case, 8 Co. Rep. 107a, 77 Eng. Rep. 638 (1610). Thomas Bonham received his medical degree from Cambridge University and practiced medicine in London without the approval of the Royal College of Physicians. According to a decree of Henry VIII, which was later reaffirmed by parliamentary enactment, the Royal College was authorized to grant licenses and oversee medical practice in London and was empowered to adjudicate violations of its regulations and to impose sanctions including fines and imprisonment. Any fines the College collected were shared equally with the crown. The College tried Dr. Bonham for the unauthorized practice of medicine, fined and imprisoned him. Upon his release, he sued the College for unlawful imprisonment.

Determining that the College’s charter and its subsequent parliamentary reaffirmation violated the common law principle that no one can act as judge in his own case, Lord Coke ruled in favor of Dr. Bonham and wrote these famous words:

And it appears in our books, that in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void . . .1

There is considerable academic debate about what, precisely, Coke meant by this passage. In particular, scholars disagree about whether Coke should be understood as advancing a theory of judicial review or a theory of statutory construction.2 I prescind from these issues for purposes of this article primarily because the American judges and lawyers I will go on to discuss generally accepted this language in Bonham as a statement of a doctrine of judicial review. And if they were mistaken in this reading of Bonham, then I accept, for now, Raoul Berger’s observation that the question of what Coke actually meant is less important to our understanding of early American judicial review than the fact that colonists frequently read Coke this way. (Berger 1969, 26-27, 349).3

Americans today think of judicial review as the process by which judges review legislation to ensure compliance with the United States Constitution and on occasion invalidate laws determined to violate the Constitution. The locus classicus for this authority is Chief Justice John Marshall’s decision in Marbury.4 But “well before Marbury v. Madison, there were instances of state court judges announcing the power of courts to annul unconstitutional legislation.” (Howard 1968, 280). Many of these state court decisions do not base judicial review on any canonical text; instead, they base the authority of judges to review legislation upon common law principles. In this respect, these state court cases are the direct descendants of Coke’s decision in Bonham. Indeed, Bonham is cited in some of these cases as legal authority for the result reached. These state court cases are indispensable to a complete understanding of the development of judicial review in the United States.

III. The State Court Cases

My argument is, as I mentioned, an attempt to broaden current understandings of judicial review so that they accurately reflect the historical development of the doctrine. To do this, I must distinguish the current conception of judicial review from the alternative version that coexisted with it in eighteenth and early nineteenth century America. I will refer to the version of judicial review established by Marbury as “constitutional review.”5

This term is intended to refer only to review of legislative action to ensure compliance with the dictates of the United States Constitution. I will refer to the review of legislative action to ensure compliance with the principles of the common law as “common law review.” As with constitutional review, I choose the term common law review to emphasize the body of legal principles against which legislative action is evaluated. I will continue to use the term judicial review to refer generically to judicial authority to review legislative action without reference to the underlying body of law invoked in the evaluative process.

Early American judges were not, of course, the only important legal thinkers of the time who stressed the importance of an independent judiciary whose obligation to protect legal rights against abuses of public power was neither created nor circumscribed by a written Constitution. Certain framers of the Constitution indicated that judicial review should not be limited by the document they drafted. For example, here is Hamilton in a less-frequently quoted passage from Federalist 78:

[I]t is not with a view to infractions of the constitution only, that the independence of the judges may be an essential safe-guard against the effects of occasional ill humours in the society. These sometimes extend no farther than to the injury of private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them . . . (Hamilton, Jay and Madison 2001, 406).

As I will explain, this robust conception of judicial obligation is entirely consistent with the tradition of English common law thought that animated Coke’s beliefs and informed his decision in Bonham (Pollock 1929, 265-266) as well as the American cases that drew (explicitly or implicitly) from this view of judicial authority and independence.

There is a longstanding and ongoing debate among American scholars of constitutional law, theory and history about the authentic legal, theoretical and historical basis for judicial review in the United States. For example, Larry Kramer claimed recently that neither the Founders, the Constitution nor Marbury meant to grant the judiciary unique authority to review the acts of coordinate governmental branches for conformity with the Constitution. (Kramer 2001, 43-50, 86-87, 89-91, 97-100). The purpose of this article is to demonstrate that there is a legal, theoretical and historical basis for judicial review in the United States that does not depend on the written Constitution or on the perceived defects of natural law, and which still provides a unique but limited authority for common law courts to preserve the rule of law in America. In other words, a complete understanding of the origins of judicial review and American constitutionalism requires an examination of more than constitutional review alone. Even if Kramer is correct – even if the Constitution, its Framers, and Marbury did not genuinely envision or authorize judicial review – it may still be true that there is another basis for judicial authority to review legislative action for conformity with legal principle. Similarly, my argument diverges from those made by, for example, William Treanor. Treanor argues very persuasively that there is important historical evidence to support an expansive, antiliteralist (to use his term) conception of judicial review during the Founding period. (Treanor 1994, 553-556). Treanor’s interest lies in examining attitudes toward constitutional review during the late eighteenth century. As with Kramer, then, Treanor’s arguments are tangential, or perhaps parallel, to my own. I am interested in studying early doctrinal support for judicial review during the period following the Revolution, but unlike Treanor and Kramer I will focus on the doctrinal foundations for this authority aside from (but sometimes alongside) constitutional review.

I should add two further clarifications. First, in the previous paragraphs I refer to judicial review of legislative action. While this is my principal interest, constitutional review is understood in the United States to extend to review by the judiciary of actions of the executive, as well as the legislative, branch of government,6 and I intend my discussion of common law review to extend similarly. Second, I also intend my discussion of common law review to encompass review by the judiciary of prior judicial decisions.

The earliest prominent citation of Bonham as legal authority by an American lawyer occurred in Paxton’s Case of the Writ of Assistance in 1761. (Quincy 1865, 51-57). James Otis resigned as Advocate General of Admiralty so that he could challenge the writs. (Pitler 1996, 23). Otis argued for a power of judicial review grounded specifically on Coke’s decision in Bonham:

As early as 24 February 1761 he [Otis] attacked the Writs of Assistance as being ‘against the fundamental principles of law’ . . . ‘and if an Act of Parliament should be made in the very words of this petition it would be void. The executive Courts must pass such acts into disuse.’ Here was an explicit espousal of the doctrine of judicial review, and Otis based it on Coke, for he added: ‘8 Rep. 118 from Viner. Reason of the common law to control an Act of Parliament.’ (Gough 1955, 192).

Although the Massachusetts court ruled against Otis, the flame his argument ignited would blaze far beyond the expectations of anyone sitting in the courtroom that day. One of the spectators who sat listening to Otis was future President of the United States John Adams, who later suggested that Otis’s argument was the dawning of the Colonists’ resistance to the legal and political impositions of Great Britain. (Corwin 1910, 106).7 Otis’s reliance on Bonham in Paxton would have an important and discernable influence on the development of judicial review by state courts in the period following the Revolution. (Nelson 2000, 36).

The next three decades of American legal history saw the increasing influence of Bonham on state courts that based their power of judicial review on the common law, rather than on a written constitution. (Plucknett 1927, 61-68; Corwin 1910, 105-107, 114-115). In the thirty years following Otis’s argument in Paxton, state courts would assert, in several cases, a common law authority to invalidate statutory enactments. In reviewing these state court decisions, I restrict myself to cases where state courts refer explicitly to the common law as the legal standard for reviewing legislative action to draw particular attention to the invocation of the common law as a basis for judicial review independent from either natural law or a written constitution. There are several other eighteenth century state court cases in which Bonham and Coke are explicitly cited by the court or counsel as the basis for judicial review of legislation without scrupulously differentiating review for violations of common law, natural law or a constitution.8

Gordon Wood recognized the influence of Coke’s notions of common law constitutionalism on post-revolutionary conceptions of judicial review and the legal restraints on legislative will. Unfortunately, however, the case Wood cites most prominently as the clearest expression of “this Cokean conception” is Rutgers v. Waddington. In addition to Rutgers, Wood mentions Trevett v. Weeden and Bayard v. Singleton9 as developing the account of judicial review authority advocated by Otis, and others. (Wood 1969, 457-461). As Wood himself acknowledges, Rutgers rests, at least in part, on a possible violation of the New York state constitution. To be sure, the court also seems to consider the conflict between the state legislation and the common law, but it is never clear precisely which body of legal principle the court deems controlling. In addition, and perhaps most importantly, the court explicitly disclaims any authority to reject the clearly expressed will of the legislature (as Wood also acknowledges). Trevett primarily involved appeals to natural law along with Coke and “common right and reason,” while Bayard stands solely upon a determination of unconstitutionality. Wood’s reliance on these cases reinforces the importance of distinguishing carefully among the cases cited as support for different modes of early American legal thought and doctrine. These details of the opinions Wood cites leave me in the position of agreeing with his conclusion, while suggesting that the doctrinal support for that conclusion can be better found in the cases I examine here rather than in the cases Wood selected.

Ham v. M’Claws10 was the first case in which a state court appealed to Bonham as legal authority for the proposition that legislation contrary to common law principles was void. Refusing to enforce the forfeiture statute at issue and incorporating arguments of counsel, the South Carolina court, consisting of Judges Grimke, Waties and Drayton, cited and relied specifically on Bonham:

It was, therefore, the duty of the court, in such case, to square its decision with the rules of common right and justice. For there were certain fixed and established rules, founded on the reason and fitness of things, which were paramount to all statutes; and if laws are made against those principles, they are null and void. For instance, statutes made against common right and reason, are void. 8 [Co.] Rep. 118 . . . It is clear, that statutes passed against the plain and obvious principles of common right, and common reason, are absolutely null and void, as far as they are calculated to operate against those principles.11

Even without the overt citation to Bonham, the influence of Coke’s decision is manifest in Ham. The South Carolina court’s emphatic, verbatim incorporation of Coke’s language confirms the importance of Bonham to the court’s ruling.

Three years later, in 1792, the influence of Bonham was equally evident in another South Carolina case, Bowman v. Middleton, which was decided by Judges Grimke and Bay.12 Bowman involved a 1712 statute that transferred property ownership from one party to another. The plaintiffs inherited the land from the beneficiary of the 1712 enactment. Middleton had agreed to purchase the land from the plaintiffs. Middleton later refused to consummate the purchase, claiming that a portion of the property still belonged to the heirs of the original owner and not to the plaintiffs. The plaintiffs asserted complete ownership rights as derived from the 1712 act. Despite the passage of eighty years since the putative transfer of ownership rights pursuant to the statute, the court ruled for Middleton and voided the 1712 statute as violative of common law principles:

[T]he plaintiffs could claim no title under the act in question, as it was against common right, as well as against Magna Charta, to take away the freehold of one man and vest it in another, and that, too, to the prejudice of third persons, without any compensation, or even a trial by the jury of the country, to determine the right in question. That the act was, therefore, ipso facto void. That no length of time could give it validity, being originally founded on erroneous principles.13

As with Ham, the Bowman court’s reliance on Bonham is unmistakable. And as with Ham, the court in Bowman tracks Coke’s own language. Although Coke used the phrase “common right and reason” in Bonham and the Bowman court used the truncated term “common right,” Coke himself sometimes used the abbreviated term as a reference to the common law:

[T]he common law of England sometimes is called right, sometimes common right, and sometimes communis justitia. In the grand charter the common law is called right . . . And all the commissions and charters for execution of justice are, facturi quod ad justitiam pertinet secundum legem et consuetudinem Angliae. So as in truth justice is the daughter of the law, for the law bringeth her forth. And in this sense being largely taken, as well the statutes and customs of the realm, as that which is properly [called] the common law, is included within common right. (Coke 1832, Sect. 213 (emphasis in original) (spelling updated)).14

Bowman was decided after the ratification of the United States Constitution and the federal Bill of Rights. Nevertheless, the Bowman court chose common law principles rather than the federal Constitution as the basis for invalidating the South Carolina statute.

The South Carolina court reiterated the importance of the common law as a basis for judicial review in the case of Lindsay v. Commissioners,15 which involved a takings issue. Specifically, the court was asked to determine whether property owners whose unimproved land was appropriated by the state for public use in constructing a street were entitled to compensation. After unanimously acknowledging the authority of the state to acquire the property, the court divided 2-2 on the compensation question. Two aspects of the case are especially noteworthy for my argument. First, even though the judges disagreed about the proper disposition of the case, they all relied on common law principles as the legal basis for their reasoning and resolution. For example, Judge Thomas Waties concluded, along with Judge Aedanus Burke, that the legislation should be overridden and compensation should be provided to the owners by the state. Judge Waties explained the legal basis for his conclusion in this passage:

He [Judge Waties] admitted the right of the state to take the property of an individual . . . but in exercising this power, it was essential to its validity, that a full compensation should be provided at the time, for every injury that the individual might suffer . . . The common law of England, which has also recognized this power, does it always with the same restriction . . . The rights of our citizens are not less valuable than those of the people of England: we have besides a constitution, which limits and controls the power of the legislature, the 9th article of which, declares, that no freeman shall be divested of his property, but by the judgment of his peers, or the law of the land. On a former occasion, . . . he said, he had gone into a long investigation of the technical import of the words lex terrae, and therefore should only state here, that they meant the common law . . . He said he understood, therefore, the constitution to mean, that no freeman shall be deprived of his property, but by such means as are authorized by the ancient common law of the land . . . In what way, then, does the common law authorize the power of taking private property for public uses? “by providing,” says Mr. Blackstone, “a full indemnification for it.” This is the condition on which the valid exercise of this power depends.16

Judges John Grimke and Elihu Bay, who disagreed with Judge Waties about the compensation question, nevertheless agreed with him that the common law was the legal source against which the subject legislation should be evaluated as well as the legal limitation upon the state’s legislative power. As they put it:

They considered the act in question as authorized by the fundamental principles of society . . . [T]he legislature of South Carolina, had exercised this power and authority [to make and maintain public thoroughfares], from the first establishment of civil government in it, to the present day. They therefore considered it, as much a part of the common law of South Carolina, as any other part of that great and valuable system.17

Judges Grimke and Bay agreed with Judge Waties not only about the common law’s dispositive authority for the legal question at issue. Their second, and more subtle, point of agreement concerned the relationship between the common law and the South Carolina constitution. On this point, Judges Grimke and Bay wrote:

That it was neither against magna charta, nor the state constitution, but part of the lex terrae, which both meant to defend and protect. The so much celebrated magna charta of Great Britain . . . was therefore only declaratory of the well known and established laws of the kingdom. So, in like manner, the 2d section of the 9th article of our state constitution, confirms all the before-mentioned principles. It was not declaratory of any new law, but confirmed all the ancient rights and principles, which had been in use in the state . . .18

With their explicit statement that the South Carolina constitution “was not declaratory of any new law,” Judges Grimke and Bay indicate their adherence to the view of many colonial American lawyers and judges that written constitutions reaffirmed the rights and principles of the common law. (Reid 1986, 69-70). Moreover, this common law foundation of written constitutions informed the judges’ interpretations of these constitutions, as is evident in the extract from Judge Waties’s opinion quoted above. Lindsay demonstrates that these South Carolina judges viewed written constitutions as derivative of the common law, and even though they might mention both as independent legal sources against which legislative acts could be measured, this independence was never considered, at least by these judges, as ordinal or hierarchical. In other words, both the common law and the written constitution might be used concurrently to evaluate legislation, but judges did not consider the constitution to be “higher” or more fundamental than the common law. Indeed, as Lindsay makes clear, these judges recognized the written document simply as expressive of previously established common law principles.

In her discussion of Lindsay, Sylvia Snowiss begins by stating that the case represents an amalgam of natural law and positive law. But she then goes on to emphasize that judges on both sides of the legal outcome based their reasoning on common law as well as Judge Grimke’s acknowledgement that the state constitution reaffirmed preexisting legal rights and principles rather than creating new ones. (Snowiss 1990, 68-69). She concludes by noting, correctly it seems to me, that the Lindsay court evaluated the subject legislation in light of both the South Carolina constitution and common law principles, suggesting that these served as independent bases of review for the court. (Snowiss 1990, 69-70). Given the prominence of the common law in her analysis of Lindsay, Snowiss’s initial reference to natural and positive law might just be a seemingly minor linguistic slip, but as I explain in this article, this sort of imprecision may allow us to miss subtleties in the thought and language of certain eighteenth and nineteenth century American judges concerning the sources of judicial authority and the development of American constitutionalism.

Another example of a state court discussing common law review and constitutional review side by side occurs in Jones v. The Commonwealth.19 Jones involved the attempt to impose joint fines upon several defendants who had been convicted of assault. In negating the fines, Judge Carrington noted their inconsistency with the common law principle that one person “ought not to suffer for the fault of another.” Judge Carrington then concluded:

Therefore, whether I consider the case upon . . . the doctrines of the common law, or the spirit of the Bill of Rights and the act of Assembly, I am equally clear in my opinion, that the District Court should have required the jury to discriminate; and, having failed to do so, that their judgment is erroneous, and must be reversed.20

In Jones, which was decided after the ratification of the federal Bill of Rights and before Marbury, we find the Virginia Supreme Court of Appeals articulating parallel doctrines of common law review and constitutional review.

Some scholars who recognize the early legal and conceptual distinctions between common law and written constitutions assume that these sources of law were ranked hierarchically in the minds of American lawyers and judges. That is to say, these scholars assume that common law principles existed on a plane below statutory law and the constitution. (Whittington 1999, 57; Moore 1990, 353). This is a natural assumption for contemporary readers of dated legal materials to make, but I believe it inaccurately renders the legal thought of the period. For example, Wayne Moore points out that, in perhaps the first example of judicial review in American legal history, a state court articulated parallel doctrines of common law review and constitutional review. In Holmes v. Walton, the New Jersey Supreme Court apparently invalidated state legislation providing for trials in certain cases before six-person juries rather than twelve-person juries. The New Jersey court stated that the six-person jury provision in the statute was contrary to “the Law,” “the constitution of New Jersey,” and “the Constitution, practices and Laws of the Land.” As Moore indicates, the court’s reference to the “Law” seems to be a reference to common law and statute law,21 as distinct from the court’s separate reference to New Jersey’s written constitution. (Moore 1990, 352).

Moore goes on to explain that, as he sees it, the constitution of New Jersey established “a tri-partite hierarchy” in which common law and then-existing statutory law were at the bottom, statutory law enacted subsequent to the New Jersey constitution’s ratification was in the middle, and the state constitution was at the top. The difficulty in Holmes was that the New Jersey constitution did not stipulate a specific number of jurors and “the judges could not rely on the common law to invalidate a trial by six jurors, but had to rely on the constitutional text or other (unwritten) norms of higher authority than ordinary legislation.” (Moore 1990, 353).

There are two problems with Moore’s analysis. First, I do not believe that early American lawyers and judges drew sharp or categorical distinctions between common law and constitutional law. (Stoner 1992, 6-7; Anastaplo 1989, 145-146). As I mentioned in my discussion of Lindsay, the common law provided the substantive and procedural bases for American federal and state constitutions. (Stoner 2003, 16-21; Anastaplo 1995, 23, 26, 75, 87-88; Reid 1991, 6; Anastaplo 1989, 4, 134-135, 227; Reid 1986, 69-70; Wood 1969, 10; Cooley 1868, 37, 59-61, 175, 416-417). Lawyers and judges of the time recognized the political importance of committing to writing their fundamental charters of government, but they did not believe that these charters were, by virtue of being written, necessarily exhaustive or transformative expressions of legal rights. (Stoner 2003, 15). Second, where a fundamental common law right was concerned, such as trial by jury in Holmes, the common law could continue to function as, in Moore’s words, an unwritten norm of higher authority than ordinary legislation. That is to say, not all common law rights were created equal. There is no doubt that a legislature could alter certain existing common law rights (in the law of contract, for example). But it is another thing altogether to say that the legislature could statutorily alter (or abrogate) more cherished and fundamental common law rights, such as the right to a jury trial or the ownership of private property. Put differently, the recognition of the judiciary as a co-equal branch of government in America – in reaction to the English tradition of absolute parliamentary sovereignty – meant that the courts were charged with the constitutional responsibility to preserve fundamental rights (such as the right to a jury trial) and to ensure that the legislature acted in accordance with fundamental law (common law or constitutional text).

I believe that scholars who assume the common law was ranked below statutory or constitutional law in the minds of early American lawyers and judges miss the perceived, intrinsic differences among common law rights. Some common law rights, such as the right to trial by jury, were frequently mentioned explicitly in constitutional texts. But this was primarily an effort to reaffirm a political and legal commitment to this right. When called upon to determine the qualities and contours of the right, as the New Jersey court was in Holmes, it is unsurprising that the court would mention the common law and the state constitution as separate, independent, equally meaningful foundations for that right. The common law did not cease to exist as a basis for grounding the existence of the right to a jury trial or as a basis for determining the specific procedural requirements of that right, simply because the importance of that right was emphasized by the drafters of the New Jersey constitution. (Anastaplo 1995, 78). As George Anastaplo puts it, fundamental common law rights “were always considered by early Americans to be constitutionally available to them, independent of what any document might say from time to time.” (Anastaplo 1989, 69). The twelve-person jury was a cherished, ancient common law right. (Stoner 2003, 12). When confronted with legislation that conflicted with this right, the New Jersey court was not deterred by the state constitution’s silence or the legislation’s recent enactment. The Holmes court cited common law and constitutional law as parallel bases for judicial review precisely because both sources of law remained operative in locating and defining fundamental rights.

Today, Americans assume judicial review is synonymous with constitutional review. (Carter 1990, 375 n.57; Siegel 1998, 542-543). But this inaccurately portrays the development of judicial review in early American legal history. Judicial review and constitutional review are not coextensive. As Ham, Bowman, Lindsay and Jones demonstrate, common law review existed alongside constitutional review during the early days of the republic. American state courts drew explicitly and implicitly on Coke’s decision in Bonham to institute a doctrine of judicial review founded not solely on a constitutional text, but also on the common law. As we will see in the next section, during this same period, the Supreme Court of the United States and Chief Justice John Marshall himself continued to refer to common law principles as a basis for evaluating legislative action independent of and parallel to the text of the Constitution, even after Marshall established constitutional review through his famous decision in Marbury.22

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