Expansion of Judicial Review

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Expansion of Judicial Review


Constitutionality of Legislation. The power of courts to invalidate unconstitutional legislation is often regarded as one of the hallmarks of the American system of government, but judges had struck down laws very rarely and in narrowly defined situations prior to 1850. Only once in American history, in Marbury v. Madison (1803), had the U.S. Supreme Court declared an act of Congress unconstitutional, and the law involved in that case was a jurisdictional technicality. State courts had not been much more exacting. The New York Court of Appeals, the highest court in the state, invalidated only three statutes

before 1820 and only three more in each of the next two decades. The U.S. Supreme Court under Chief Justice John Marshall (18011835) had ruled that various state laws violated the federal constitution, but this exercise of judicial review had focused primarily on preventing state infringements on national authority. In the period from 1850 to 1877, coordinate review emerged as an important element of federal and state governance, and federal review of state laws expanded. At times the new judicial activism sparked vehement protest, but the trend nevertheless continued and set the stage for more intense confrontations in the years ahead.

Substantive Due Process. The more assertive stance of the judiciary first became apparent in the state courts. New York courts struck down fourteen statutes in the 1840s and twenty-five in the 1850s. The dominant force behind this trend was the determination to protect property rights from adverse legislation. In Wynehamer v. People (1856), for example, the New York Court of Appeals invalidated a state law prohibiting the sale of alcohol. Judge George F. Comstock declared that theories of public good or public necessity may be plausible or even so truthful as to command public majorities. But whether truthful or plausible merely, and by whatever numbers they are assented to, there are some absolute private rights beyond their reach, and among these the constitution places the rights of property. This protection for what Comstock called absolute private rights of property was an early application of the concept known as substantive due process. In contrast to an analysis of the procedural steps required of government in order to deprive a person of liberty or property, the doctrine of substantive due process identified fundamental rightsin Wynehamer v. People, the right to sell liquorthat courts would safeguard from any infringement, no matter what procedure the government followed. Wynehamer v. People notwithstanding, state courts rarely invalidated prohibition statutes, which most analysts regarded as examples of state police power to regulate health, safety, and morals. Nonetheless, the concept of substantive due process began to develop into one of the most important ideas in constitutional law.

The Dred Scott Case. A hint of the explosive potential of substantive due process appeared in Dred Scott v. Sandford (1857), one of the most notorious decision in American legal history. Dred Scott was a Missouri slave whose owner, an army surgeon, had taken him first to the free state of Illinois and subsequently to Fort Snelling in what is now Minnesota and was then part of the Louisiana Purchase Territory, in which the Missouri Compromise prohibited slavery above the 36° 30 latitude. Scott filed suit in federal court claiming that he was entitled to freedom as a result of his residence in a free state and a free territory. Chief Justice Roger B. Taneys opinion for the Supreme Court made two momentous rulings: first, the federal court did not have authority to hear the case because blacks, whether free or slave, were not citizens of the United States; and second, Dred Scotts residence in the Louisiana Purchase Territory did not entitle him to freedom because the Missouri Compromise ban on slavery was unconstitutional. The latter ruling was only the second time in which the Supreme Court found an act of Congress unconstitutional. Unlike Marbury v. Madison, however, the statute invalidated in Dred Scott v. Sandford was a crucial piece of federal legislation. In finding that Congress did not have power to bar slavery from the Louisiana Purchase Territory, Chief Justice Taney mostly relied upon his reading of the constitutional grant of authority to regulate the federal territories. But part of the opinion invoked the protection of substantive due process for property interests in slaves. Taney wrote that an act of Congress which deprives a citizen of the United States of his liberty or property, who had committed no offence against the laws, could hardly be dignified with the name of due process of law.

Property Interests. During and after the Civil War, judicial review developed most significantly in cases involving state and local railroad investments that had turned sour. In Gelpcke v. Dubuque (1864) the U.S. Supreme Court required a city to honor the railroad bonds it had issued even though the Iowa Supreme Court had found that the bonds were issued in violation of state law. But the courts, paralleling the stricter definition of public purpose emerging in eminent domain cases, also helped to close the door to municipal investments in railroads. Thomas M. Cooleys opinion for the Michigan Supreme Court in People v. Salem (1870) rejected a long line of precedents approving the use of taxation powers to fund railroad construction. To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law and is called taxation, the U.S. Supreme Court agreed in Loan Association v. Topeka (1874). Typical was the situation of Quincy, Illinois, which approved a $500,000 bond by a vote of 1,949 to 185 one year before the 1870 Illinois constitution barred such investments. One resident declared that an excited and howling mob, which may call itself a city railroad election, hardly amounts to the dignity of deliberation. Its acts should never be held by the courts as affording a sufficient foundation for the creation of a lien against the private property of any man. Another area of special judicial attention was the property interest in pursuing a particular trade or profession. Two related cases in the U.S. Supreme CourtCummings v. Missouri (1866) and Ex Parte Garland (1867)reviewed a loyalty oath prescribed by the Missouri Constitution that barred former Confederates from obtaining a preaching license and a loyalty oath prescribed by a federal statute that prohibited former Confederates from practicing law. The Supreme Court struck down both of the requirements, marking the first time that it had declared that part of a state constitution violated the federal constitution and only the fifth time that the Court had invalidated an act of Congress.

Popular Response. As at other points in American history, controversy often broke out over judicial invalidation of laws passed by elected representatives. Horace Greeley, editor of the New York Tribune, wrote that the Supreme Court decision in Dred Scott v. Sandford was entitled to just so much moral weight as would be the judgment of a majority of those congregated in any Washington bar-room. Abraham Lincoln spoke for Republicans everywhere when he called on members of Congress to pass legislation barring slavery from the territories despite the Courts ruling that the Congress had no power to enact such a ban. Cummings v. Missouri and Ex Parte Garland, which had been brought by individuals wishing to limit Reconstruction in the South, similarly angered Republicans who believed that the Supreme Court was interfering with legislative responsibilities. The most forceful response was reserved for the Courts decision in Hepburn v. Griswold (1870), which threatened to overturn the financial system of the country. During the Civil War, the federal government, under Treasury Secretary Salmon P. Chase, had expanded the supply of money by issuing $450 million of paper currency (greenbacks) that was not redeemable in gold or silver. In Hepburn v. Griswold the Supreme Court ruled in an opinion by Chase, now chief justice, that the so-called greenback laws were unconstitutional. President Ulysses S. Grant immediately appointed two new justices to the Court who were known to support the constitutionality of the greenback laws, and in the Legal Tender cases (1871) the Court reversed the 1870 decision. A later chief justice, Charles Evans Hughes, would call Dred Scott v. Sandford and Hepburn v. Griswold two of the most grievous self-inflicted wounds in the history of the Supreme Court.

Challenges to Regulation. The increasing state efforts to regulate factory work and railroad rates prompted complaints that the legislatures had violated the rights of businesses. In addressing these cases, state and federal courts searched for a test that would determine whether a particular regulation was a valid exercise of the police power. In Munn v. Illinois (1877) the U.S. Supreme Court addressed the issue in ruling on the validity of laws that set maximum rates for the storage of grain. The Supreme Court found that the state legislature was authorized to set maximum rates because warehouse owners had devoted their property to a use that affects the community at large and therefore had to submit to be controlled by the public for the common good. In dissent, however, Justice Stephen Field argued that the public had less interest in the use of buildings for the storage of grain than in the use of buildings for the residence of families. If a legislature could set rates for grain warehouses, it could set rents for apartments or sale prices for home. If this be sound law, Field declared, all property and all business in the State are held at the mercy of a majority of its legislature.

Common Law. The terms of the debate in Munn v. Illinois identified a test by which courts might measure legislation for validity. In basing its decision on the finding that the warehousing was an activity that affects the community at large, the majority was applying the maxim of sic utere that courts had traditionally invoked to resolve disputes between neighboring landowners. In using common-law concepts to uphold state regulatory power, the Court was following the reasoning of Lemuel Shaw in Commonwealth v. Alger. For the next several decades, however, the most important constitutional cases would center on the converse principle: private conduct that did not violate common-law rules was protected by the Constitution from legislative interference. Most notably, because the law of contracts did not judge the fairness of a bargain or regulate agreements to redress unequal market power, the Court concluded that so-called liberty of contract barred legislatures from mandating fair bargains between railroads and shippers or regulating agreements between employers and employees to redress unequal market power. Under this version of the doctrine of substantive due process, the Supreme Court would invalidate more than 150 statutes until a revolution in constitutional law took place in the 1930s.


Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics (New York: Oxford University Press, 1978);

Harold M. Hyman and William M. Wiecek, Equal Justice Under the Law: Constitutional Development, 18351875 (New York: Harper & Row, 1982).