I asked myself a question that I couldn't answer.
Has anybody ever calculated the value of Judicial Review to the nation?
So I asked a Conlawprof colleague whom I respect whether there was a study of this. What I had in mind was something I'd read in Jean Edward Smith's biography of Chief Justice John Marshall.
Commenting on Gibbon v. Ogden, the Steamboat case in which the Court declared unconstititional New York State's creation of Hudson River steamboat franchises, monopolies, on the basis that the federally issued Coasting License had supremacy on navigable waters, Smith observed that Marshall's breakup of these monopolies, using the power of judicial review, resulted in many more steamboat companies going into business right away, increasing commerce and lowering prices through the new competition. This was an economic effect of considerable value to the development of the nation.
Commenting on Marshall's decision in the Dartmouth College case, where the Court declared a state issued charitable corporation charter establishing a college to be a contract protected by the constitutional provision prohibiting the impairment of contracts, Smith observed that following this decision, the corporate form of business took on new life. Previously, there were few business corporations. Banks, charitable foundations (Sailors Snug Harbor, Staten Island, N.Y., charter drafted by lawyer Alexander Hamilton), colonies, the East India Company of London, and a few other examples, used the corporate form.
But after Dartmouth, corporations in the U.S. had constitutional protection against attempts to interfere with the way they were constituted. As a result, instead of sole proprietorships and partnerships, the usual form of doing business, corporations became the preferred form. Corporations enabled the pooling of capital AND spread, meaning reduced, individual risk. The corporate form MADE Wall Street what it is today, the financial powerhouse of the nation and the world.
The lawyer who argued the Dartmouth College case before the Supreme Court was Daniel Webster, the great orator and defender of the Union long before the Civil War. He was a Dartmouth alumnus. He famously ended his summation before the Court by saying, "It is but a small college, but there are those who love it." He also argued McCulloch v. Maryland, the famous 2d Bank of the U.S. case. He was known also as the greatest corporation lawyer of his day, perhaps any day, as a result.
So, Gibbon and Dartmouth created commerce as we know it today, all because we have this great power of judicial review, I thought.
On further reflection, I think I've got it exactly backwards. But I wouldn't have realized that had I not gone through the exercise of thinking through something that I thought I had right. That happens sometimes.
What had I done wrong?
I'd put the cart before the horse.
The nation is the cart.
Judicial review is the horse.
Someone has to tell it where to go.
Judicial review, John Marshall's Big Axe, to change the metaphor, requires a Paul Bunyan to decide which forest to clear, then pick up the tool.
So I emailed my respected colleague, whose name I won't use because he wasn't writing for publication, and he very kindly provided the following guidance::
1. "McCloskey [Prof. Robert G.; "The American Supreme Court"], of course, argued that the Court's basic role was relatively marginal, that it was likely to get bitten if it tried to move too far ahead (or remain too far behind) general public opinion as manifested in legislation.
2. I suspect that judicial review is far less important than most law professors believe and, perhaps, marginally more important than most political scientists would say."
That coincided with some further thinking I'd been doing on the issue of the alleged wonderful effect that I'd thought this doctrine of judicial review had on the development of the country, so I emailed back the following.
Thank you very much, ...,I appreciate the help.
As I think about judicial review, trying to see the use of this tool from a different angle than the usual case-by-case method of classroom routine, it seems clear that JR has no effect unless and until it is wielded in one direction or another by contending parties who are spearheading broad competing interersts, social, economic, and political, which are now, by the litigation, seeking to crystallize their views into constitutional law.
The credit for the direction the country takes should go not to John Marshall's Big Axe, but to the Paul Bunyans who decide which forests to try to clear with it. That, I think, is consistent with your suspicion about the tool assuming the perhaps overlarge importance it seems to take in the minds of many law professors. A bit of academic parochialism, no doubt.
The way I find myself trending with this question is to consider not so much that the power was used to move the country in a particular direction (for that raises every case in the book), but how the competing visions led the country, using all the tools available, including judicial review in the process, to achieve a consensus where it counts. JR as tool, is the horse, not the cart.
We can thus chart the progress of the country historically and see how this tool, or this pony, was used to advance in directions that we continue to endorse, by-and-large, versus tracks that proved to be dead-ends or worse, such as Dred Scott, Plessy, Bowers, and the ever controversial Lochner-era experience.
I don't see how it is possible to put a price tag on a particular decision such as Gibbon or Dartmouth simply because they opened doors through which the country rushed. Can you imagine putting a dollar value on a case like Brown v. Board? Some things we don't calculate in dollar terms and the effort would demean the example.
Thanks again, .....
I'll keep dealing with this...there seems to be a lot there.
* * *
Here's my original email query to the good professor:
"Subject: EFFECT OF JUDICIAL REVIEW ON THE 'PROGRESS' OF THE NATION
Dear ....,
I 'd like to ask you whether you can provide me with a bit of direction.
The question arises out of the controversy over whether Sen. Arlen Specter will be elected to the chairmanship of the SJC. Sen. Schumer of
N.Y. promises to filibuster any nominees who seem likely to want to turn the clock back to "the 1890s or 1930s."
I did a long historical riff on what he meant by that for students andreaders of my blawg, located at the URL below.
In it I suggest that it would be a good idea to have a study of the effects of the use of the power of judicial review over the life of the nation. Jean Edward Smith, for example, in his bio of John Marshall, observes that the de-monopolization of state steamboat charters in Gibbon, and the encouragement given to the corporate business form in Dartmouth College, increased the commerce of the nation many fold, to what it is today, in effect.
The Lochner Era represented a constriction of the development of individual rights vis-a-vis rampant capitalism.
The Footnote-4 era, especially following Griswold, represents a broadening of individual and group liberty.
Many of us call this, except for the Lochner era, essential progress.
We can contrast good uses and bad, economically, legally, socially, or overall, politically.
Are you aware of any single account that treats of the use of Judicial Review as an essentially dumb tool except as it is used to accomplish one person's political goals versus another's? And likewise as to strict construction versus some other kind?
It seems to me that the current debate is going to be awfully hard to follow without a scorecard, and there are few enough of us who aren't teaching Con-Law or History and the like, who are in a position to have the overview necessary to flesh out the debate. There's just so much history and so little (I think) popular memory for youngsters and civilians today to be conversant with.
If you can spare the several minutes necessary to take a look, I'd appreciate knowing whether there's a modern, hopefully short, study of the effect of Judicial Review, 'properly' applied, on the progress, one hopes, of the nation.
* * *
My colleague responded to the reference query by saying, "I'd take a look at Steve Griffin's little book on American Constitutional Theory."
-end-
* * *
I hope, naturally, that you, dear Reader, will find this little thought problem to be of interest as Con-Law students, which is what we all are. The error was in trying to isolate one legal doctrine in order to measure its economic effect. In retrospect, this is a bit like trying to measure the economic effect of the Evidence Code or the Code of Civil Procedure, or the legal system as a whole.
The fact that we have the legal system that we do has had a huge economic effect. Russia, following the collapse of the Soviet Union, is hamstrung for lack of a legal system in which outside business can confidently invest. China, which has turned into an economic powerhouse, still lacks investor safeguards allowing recourse against politically powerful robber-barons, judging from things I've read in the news over the years.
Still, the exercise was useful.
It produced this.
Con-Law is all around you, remember.
Just pick up a newspaper or turn on the TV, and you'll be busy for a week... :)
Yup, I think the credit for the development of the nation has to go to the people who wielded all the tools that were available, not just the legal tools, such as judicial review, themselves.
It was nice of Chief Justice John Marshall, Toolmaker, to have crafted this tool, judicial review, don't you agree?
Would you care to use it someday?
Toward what end?
What is YOUR vision of the direction in which the country should go?
C'mon, Paul Bunyan, answer up!
"Giddyap, pony, this-a-way, not that-a-way!"
There, now I think I've got it as to JR.
What's your take?
* * *
Who are these Paul Bunyans, who pick up John Marshall's Big Axe, and clear forests?
Thurgood Marshall was certainly one. As a lawyer heading the NAACP's "Inc." Fund, he brought the many cases that culminated in Brown v. Board (and four companion cases) and the putting of teeth into equal protection in public education. That was a BIG forest, still not cleared. Richard Kluger's "Simple Justice," is the leading book that tells this story.
John Marshall was another. His vision of a strong national government with a strong business and corporate component was in direct competetion with Thomas Jefferson's decentralized vision of direct democracy.
Marshall's views were shared and promoted by the Federalist Party, begun by Alexander Hamilton during Washington's first administration with his report on manufactures, public debt, and the First Bank of the United States in Philadelphia.
Jeffersons party was called the Democratic - Republicans at firsts, the Republicans for short ('republican' means 'anti-monarchist,' which they thought Hamilton and Adams were, monarchists), not to be confused with today's GOP.
Today's GOP, as the party of Lincoln, grew out of the ashes of the Whigs, an anti-monarchist party that grew in opposition to 'King Andrew' Jackson, arising out of the ashes of the Federalist party (John Marshall's and Daniel Webster's) which not only lost its base but went off, McCarthy-era-like, to enact and enforce the dreaded Alien & Sedition Acts in 1798 under John Adams.
These were roughly comparable to today's Patriot Act in terms of comporting with the spirit of the Constitution as some of us see it, a bastion of liberty. But not a suicide pact, they would argue.
Daniel Webster.
John Quincy Adams who, after his presidency, represented Massachusets as a congressman and waged a nearly twenty-year battle opposing slavery long before the Civil War by insisting on the constitutional right of women and blacks to have petitions opposing slavery considered by the southern dominated Congress which in its blind fury had imposed a gag-order on him for his tenacious, clever advocacy.
He argued the Amistad case, made into a movie by Stephen Spielberg. Quincy Adams was played by Anthony Hopkins. Associate Justice Blackmun (ret.) played Justice Story, who delivered the opinion of the Court in the old chamber, which you can visit today, as my son Rick and I did as part of his family-graduation-history trip from Boston to D.C. with plenty of stops in between.
Chief Justice Earl Warren, for leading the Warren Court, a bastion of liberty during segregation and McCarthyism.
William O. Douglas, who struck many a blow for individual liberty as opposed to government control over mind and body, Griswold being a prime example, guranteeing the beginnings of privacy.
Michael Newdow is trying to be, with "Under God."
The Jehovah's Witnesses, for pressing the right to practice their religion, and by extension all of our religions, against popular prejudice.
The Amish, for Yoder v. Wisconsin, the right of parents to refuse to send their high school age children to public high schools in order to avoid the watering down of their own carefully inculcated culture and values by the influences of the general culture.
Anthony Kennedy, for Lawrence.
Lewis Powell, for his opinion in Bakke, trying to cut the affirmative action vs. reverse discrimination in half while retaining a narrow slice in the middle to rectify a grave wrong and promote a new idea called diversity, resulting in the U. Michigan cases of Gratz and Grutter (2003).
In fact, one could go through the Constitutional Law Casebook and cherry pick one's favorite best and worst cases.
Pick the ones that strike a blow for liberty, and compile a list of "Judicial Review as Beneficial" cases.
One could also compile a competing list of "Judicial Review as Terrible" cases, starting with Dred Scott (1857) where the Court upholds slavery and denounces the possibility of rights for blacks. And the the Lochner-era cases stepping on the laboring man, woman, and child, in the name of "Laissez-Faire" capitalism.
If each of us compiled such a list of good and bad twins, what would we wind up with?
A snapshot of our political attitudes. A Rohrshach Test of our beliefs. As I've just done, above.
Members of the Federalist Society and members of the American Constitution Society might come up with the same double-list, but the names at the top of the columns would be reversed.
You can look back and guess where you might have stood.
You can crystal-ball gaze and guess where you might wish to be in the future, or where you would like the country to be.
And you can look at today's issues: abortion, physician assisted suicide, detentions of 'enemy combatants,' stem-cell research, school vouchers, political gerrymandering, campaign fundraising and spending limits in the name of campaign reform, voting rights for persons convicted of a felony, death penalty, and on-and-on.
Looking back is easy. Read the case, find out the answer, and decide you want to be with the good guys who say slavery and Jim Crow, for example is bad. Blocking reforms protecting the laboring man and woman is good. Preventing child labor abuses is good.
Those are the easy cases today, because the game is over and we know who won.
Crystal-ball gazing is also easy. No one is going to blame you for guessing wrong on a 5:4 decision twenty years from now.
But dealing with today's issues, as in Bush v. Gore (2000), for example, now there's a challenge. Should the Court take the case up? What should they do with it?
How about Mr. Newdow's 'under God' case?
How about political gerrymandering? Find a legal solution or leave it to the pols?
It's a lot tougher to deal with real-world, today issues than playing academic games of look-back and look-forward.
Because the decision on today's issues pulls the country in one direction as opposed to another and that's the way matters will stand legally, backed up by cops with guns, for the next two decades, at least, more or less, usually. See Bowers and Lawrence.
Some day you will strike a blow for liberty.
That's why you're in law school, right?
Pick up that Axe, Paul Bunyan, and act like you know how to use it.