Thayer, James Bradley (1831–1902)

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American jurist, Harvard law professor, and author of a masterful treatise on evidence. Thayer is important in constitutional studies for his powerful advocacy of judicial self-restraint, or deference to legislation challenged as unconstitutional. He influenced Justices louis d. brandeis, felix frankfurter, and oliver wendell holmes, and Judge learned hand.

Thayer invoked a supposedly established judicial rule which, recognizing that the Constitution admitted of different interpretations and allowed legislatures a vast range of permissible choice, required that all rational legislative choices be adjudged constitutional. Properly holding legislation unconstitutional only in cases clear beyond reasonable doubt, courts should not consider their own views on unconstitutionality, but should consider instead whether the legislature could reasonably have thought its actions constitutional. (See rational basis.)

Thayer regarded judicial review as a legitimate outgrowth of American experience and as a valuable conservative admixture in popular government. But he warned that this "outside" corrective threatened to curtail the people's political education. His strictures against judicial activism were published just as the Supreme Court was embarking on a course of active defense of freedom of contract against economic regulation. In a later era, when the Court's activism turned to personal liberties of another kind, Thayer's rule came under criticism: it was not an "established rule," but a policy preference; its reasonable doubt standard either would enfeeble judicial review or would be too flexible to restrain courts effectively; its applicability in Supreme Court review of state legislation was unclear; it was particularly inappropriate for legislation affecting specific bill of rights guarantees. Regrettably, Thayer himself had not adequately explored either the strengths and weaknesses of his rule or the broader underlying problem—how to square judicial review and democracy.

Howard E. Dean


Thayer, James Bradley 1893 The Origin and Scope of the American Doctrine of Constitutional Law. Harvard Law Review 7:129–156.