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The Corporate Origins of Judicial Review Author(s): Mary Sarah Bilder Source: The Yale Law Journal, Vol. 116, No. 3 (Dec., 2006), pp. 502-566 Published by: The Yale Law Journal Company, Inc. Stable URL: http://www.jstor.org/stable/20455730 Accessed: 14/09/2010 10:39
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MARY

SARAH

BILDER

Review The CorporateOrigins of Judicial

A B S T RA C T. This Article argues that the origins ofjudicial review lie in corporate law. Diverging from standard historical accounts that locate the origins in theories of fundamental law or in theAmerican structure of government, theArticle argues that judicial review was the continuation of a longstanding English practice of constraining corporate ordinances by requiring that they be not repugnant to the laws of the nation. This practice of limiting legislation under the standard of repugnancy to the laws of England became applicable to American colonial law. The history of this repugnancy practice explains why the Framers of the Constitution presumed that judges would void legislation repugnant to theConstitution -what is now referred to as judicial review. This history helps to resolve certain debates over the origins ofjudicial review and also explains why the answer to other controversies over judicial review may not be easily found in the history of the Founding era. The assumption that legislation must not be repugnant to the Constitution produced judicial review, but it did not resolve issues such as departmentalism or judicial supremacy that arose with the continuation of this repugnancy practice after the Constitution.

A U T HO R. Professor of Law, Boston College Law School. My thanks toBernard Bailyn, Alfred Brophy, Lawrence Cunningham, Michael Dorf, Richard Fallon, Elizabeth Foote, David Mackey, Catherine Patterson, David Seipp, Aviam Soifer, and the participants of theBoston College Faculty Colloquium, theHarvard Law School Legal History Colloquium, and theYale Legal History Workshop. I also thankMichael Fleming, Nicole Liguori, andMichael Smith for research assistance, and Katie Sosnoff for interlibrary loan assistance. I am grateful to theBoston College Law School Fund formaking possible some of this research.

502

ARTICLE

CONTENTS 504 513 515 518 526 535 535 541 545
555

INTRODUCTION I. REPUGNANCY AND CORPORATIONS A. Corporations C. Constitutional and Bylaws Limits on Corporate Bylaws

B. Limits on Bylaws

II. REPUGNANCY, COLONIAL LAW, AND THE CONSTITUTION A. The Colonial Constitution B. American Constitutions C. The United
111. THE PRACTICE

and Repugnancy and Repugnancy and Repugnancy

States Constitution
OF REPUGNANCY

CONCLUSION

564

503

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INTRODUCTION

This Article traces a new historical account of the origins of judicial review. It argues that judicial review arose from a longstanding English corporate practice under which a corporation's ordinances were reviewed for repugnancy to the laws of England. This English corporation law subsequently became a transatlantic constitution binding American colonial law by a similar standard of not being repugnant to the laws of England. After the Revolution, this practice of bounded legislation slid inexorably into a constitutional practice, as "the Constitution" replaced "the laws of England." With the Constitution understood to embody the supreme authority of the people, the judiciary would void ordinary legislation repugnant to this supreme law.Over a century later, this practice gained a new name: judicial review. The widespread acceptance of this name eventually obscured the degree towhich the origins of the practice lay in older practices regarding the delegated nature of corporate and colonial authorities, rather than in a new constitutional theory of judicial

power.
Only on rare occasions do we now think now about judicial review in terms of repugnancy. The word mainly appears in quotations of older court opinions. In 2005, Justice John Paul Stevens declared that "[b]ecause the statute itself is not repugnant to the Constitution . . . , the Court does not have the constitutional authority to invalidate it."'A recent opinion piece in the New York Times on judicial activism described judicial review as "an act 'of great delicacy, and only to be performed where the repugnancy is clear."'2 Despite the contemporary infrequency of the word, what we think of as "judicial review"was once routinely described in terms of repugnancy. Kent's Commentaries used the heading "Laws repugnant to the constitution void" to discuss judicial review.3 In 1889, almost a century of cases involving judicial review appeared in the U.S. Reports under the caption "Cases inWhich Statutes or Ordinances Have Been Held To Be Repugnant to the Constitution

i.

United

States

v. Booker,

543 U.S.

220,

283

(2005)

(Stevens,

J., dissenting)

(citing Marbury

v.Madison,
2. Paul Gewirtz

5U.S. (1Cranch) 137,177 (1803)).

& Chad Golder, So Who Are the Activists?, N.Y. Times, July 6, 2005, at A19

Wall.) (quoting Mayor v. Cooper, 73U.S. (6

3. 1 James 1832). Kent, Commentaries on American

247, 251 (1867)).

Law, at xvi, ^448 (N.Y., O. Halsted 2d ed.

504

THE

CORPORATE

ORIGINS

OF

JUDICIAL

REVIEW

or Laws of theUnited States."4 Before judicial review had a name, the practice was understood in terms of review under a repugnancy standard.' Explanations of the origins of judicial review have not paid much attention to the word or to the idea of repugnancy.6 In fundamental law accounts, judicial review is legitimized by English constitutional and common law, often Dr. Bonham's Case in particular, and codified as constitutional doctrine in Marbury v. Madison.7 In structuralist accounts, judicial review reflects the unique structures of American politics - for example, the invention of awritten constitution, responses to federalism, belief in the people's or popular

4. 5.

131U.S. Because

app.

at ccxxxv review

(1889).

to discuss terms have been used had no name, different judicial originally in the of judicial duty was used by supporters the practice. The concept such as Horace Gray and Adjudged in of Cases Argued mid-nineteenth Reports Josiah Quincy, Jr., century. the of the Province of Massachusetts of Judicature Superior Court Bay, Between 1761 and 1772 app. to declare a term used term. 1, at 521 (Boston, unconstitutional descriptively e.g., Popular Litde, Brown & Co. 1865) the (appendix end of the written by Horace

Gray, Jr.) (declaring "the principle of American Constitutional Law, that it is the duty of the
judiciary power," common statutes void"). in the Constitution Coxe, An By and as an early critique, on Judicial century, had "judicial a become and

See,

Brinton

Essay

Power

Unconstitutional
People Themselves:

Legislation

(photo, reprint 2005) (1893); Larry D. Kramer, The

Constitutionalism and Judicial Statutes Review 172 (2004) 5 Pol. Court and

(quotingWilliam
Elliott,

Jarvis's 1820 letter to Thomas Jefferson on "judicial power"); Charles B.

and the Courts: The Power To Declare Unconstitutional, The

The Legislatures label has

Sci. 0^224
this century the Fourteenth 6. For and previous

(1890). In 1909, Edward Corwin discussed "judicial review," and for the last
been Amendment, universally adopted. L. Rev. 7Mich. 643, Edward 660, 670 S. Corwin, (1909). Supreme

v. Madison Robert Lowry Marbury see, for example, Clinton, discussions, in arguing Review which discusses that 2, 22-24 (!989), repugnancy briefly a case of statutory For a critique is "simply construction." adjudication special see Dean as often based on the same evidence, of the judicial review Jr., scholarship Alfange, Judicial constitutional 1993 Sup. Ct. Rev. v. Madison, 5U.S. 329.

Marbury v. Madison and Original Understandings ofJudicial Review: In Defense of Traditional

Wisdom, 7. Marbury 646 137 (1803); Dr. Bonham's Case, (1 Cranch) (1610) 77 Eng. Rep. see, for 77 Eng. Rep. Case, 638 (C.P.). For such accounts, (K.B.); Dr. Bonham's (1608) Allen Dillard and Will": Coke and the Sir Edward Boyer, example, "Understanding, Authority, the Unwritten Rev. 843 Constitution: Philip Fundamental Hamburger, Law Law in American L. 30 Stan. Revolutionary Thought, L. Rev. 1, 12-23 72 Geo. Wash.

Elizabethan Origins ofJudicial Review, 39 B.C. L. Rev. 43 (1997); Thomas C. Grey, Origins of
(1978); and Judicial Duty,

(2003) [hereinafter Hamburger, Law and Judicial Duty] ; Philip A. Hamburger, Revolution and Judicial Review: Chief JusticeHolt's Opinion in City of London v.Wood, 94 Colum. L.
Rev. 2091 (1994); Suzanna Sherry, The Founders' Unwritten Constitution, 54 U. Chi. L. Rev.

1127 (1987); and Sylvia Snowiss, From Fundamental Law to the Supreme Law of theLand: A Reinterpretation of the Origins of Judicial Review, 2 Stud. Am. Pol. Dev. 1 (1987). For
emphasis on the English heritage, see J.M. Sosin, The Aristocracy of the Long Robe:

The Origins of Judicial Review

inAmerica

(1989).

505

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sovereignty, concerns about state legislative power, ideas about the separation of powers, distinctions of law and politics, the aspirations of an independent national judiciary, or even the post-Civil War power of the federal
government.8

Even when the word has been noticed, its genealogy has been of little interest. In a 2004 essay, Noah Feldman remarked on the fact that "repugnant" appears in both Dr. Bonham's Case andMarbury.9 He commented, "Ihope you will accept on faith, without demonstration, that the word 'repugnant' is a relatively rare word in legal discourse."'10 "Repugnant," however, was not word in legal discourse. The history of its recurrence in both cases always a rare provides the crucial clue to the origins of judicial review. This history resolves three central concerns in the scholarship surrounding the origins of judicial review. These three issues can be phrased as whether the Framing generation intended judicial review to be part of the constitutional scheme; why the Framing generation presumed that judicial review was to

8.

See, e.g., William Review 95-96 the nineteenth Christopher Interpretation

E. Nelson, (2000)

Marbury

v. Madison:

The

Origins

and

(suggesting from century The to Rise

a transformation a

in attitudes

toward to

Wolfe,

Judge-Made

strictly legal perspective of Modern Review: Judicial Law (1986) (suggesting

of Judicial review over judicial a more one); political Constitutional From Legacy a difference between

"traditional" and "modern" policymaking judicial review) William R. Casto, James Iredell ; and theAmerican Origins of Judicial Review, 27 Conn. L. Rev. 329 (1995) (discussing the people's sovereignty) ;Leslie Friedman Goldstein, Popular Sovereignty, theOrigins ofJudicial Review, and the Revival of Unwritten Law, 48 J. Pol. 51 (1986) (discussing popular
P. Harrington, Matthew 72 Geo. WASH. ; Judicial Review Before John Marshall, sovereignty) concerns over state L. Rev. ;Charles Hobson, 51 (2003) actions) John legislative (discussing a 16 St. John's Comment. Marshall: The Formation 315 (2002) J. Legal (discussing of Jurist, into the Judicial Breach, Once More the concept of an independent ;Jack N. Rakove, judiciary)

72 Geo. Wash.
Judicial Review:

L. Rev. 381 (2003) (discussing federalism); JackN. Rakove, The Origins of

A Plea for New &Lee L. Rev. 787 Contexts, 49 Stan. L. Rev. 1031 (1997) (same); Gordon S.

Wood,
Less, 9. Noah

The Origins ofJudicial Review Revisited, orHow the Marshall CourtMade More Out of
56Wash. (1999) (discussing multiple structural changes).

The Voidness Statutes: Another Look at theMeaning Feldman, ofMarbury, of Repugnant see at 177 all Soc'y 27, 31 (2004); 5U.S. 148 Proc. Am. Phil. (1 Cranch) Marbury, ("Certainly constitutions the fundamental those who them as forming have framed written contemplate and consequently law of the nation, the theory of every such government and paramount be, repugnant legislature, at 646, 652 ("[I]t appears Case, yj Eng. Rep. and law will... controul Acts of Parliament, an Act of Parliament to be performed, that an act of the to the constitution, in our books, that is void."); Dr. in many cases, the

must

Bonham's common void:

for when

impossible void...."). 10. Feldman,

sometimes them to be utterly adjudge common or or is against repugnant, right and reason, to be law will controul the common and adjudge such Act it,

supra note

9, at 31.

506

THE

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OF

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REVIEW

exist; and how the Framing generation thought judicial review should be

practiced.
Whether or not the Framers intended judicial review has been a longstanding debate. In the mid-nineteenth century, lawyers and historians began to investigate the precedents for judicial review. Since then the debate has been endless. William Crosskey famously argued that the Framers never intended judicial review." In the last few decades, although opinion has run in favor of some intent for judicial review, scholars have disagreed over the clarity of such intent. Saikrishna Prakash and John Yoo have argued for a clear intent to authorize judicial review,'2 while Larry Kramer has suggested that the practice of judicial reviewwas confused and contested.'3 This Article adopts a different stance by abandoning an intent-focused inquiry. Judicial review was neither created anew nor caught in a mist of confusion. Supporting scholarship by Maeva Marcus, William Treanor, and others who have demonstrated significant post-Revolutionary comfort with the practice of judicial review,14 this Article demonstrates that judicial review

h.

2 William United

Winslow States 1000

Crosskey, (1953);

Politics <f. Alexander

and M.

the

Constitution The Least

in the

History

of

the

Bickel,

Dangerous

Branch:

The Supreme Court at the Bar of Politics 1, 15 (YaleUniv. Press 2d ed. 1986) (1962) (arguing that although "the Framers of the Constitution specifically, if tacidy, expected that
the federal does courts would from assume [such] called, 12. not derive any explicit C. Yoo, a power," constitutional The Origins the "power of judicial review, as it is command"). of Judicial Review, 70 U. Chi. L. Rev.

See Saikrishna

B. Prakash

& John

887, 893-94 (2003) [hereinafter Prakash & Yoo, Origins] ; see also Saikrishna B. Prakash & John C. Yoo, Questionsfor theCritics ofJudicial Review, 72 Geo. Wash. L. Rev. 354 (2003)
[hereinafter Founders' Prakash & Yoo, of Questions] (arguing that the Constitution authorizes judicial

review). An earlier article by Prakash and Yoo interestingly adopted language describing the
review" and "natural See judicial presumption." The Puzzling Persistence Federalism of Process-Based L. Rev. that judicial review 1459, 1497, 1522 (2001) 79 Tex. Theories, (arguing developed in favor of such after 1776 and that the Constitution reflects the Founders' presumption intent Saikrishna B. Prakash & John "assuming C. Yoo, in terms

judicial review).
13. Kramer, Foreword: The Supreme 91-92; Court, 2000 Term supra note 5, at 77-78, Larry D. Kramer, L. Rev. We We the Court, the Court]; 5 (2001) 115 Harv. Kramer, [hereinafter L. Rev. 72 Geo. Wash. 387 (2003). Larry D. Kramer, When Lawyers Do History, See Maeva Republic": that the Marcus, Judicial The Federalist Framers and Review Era the in the Early Republic, in Launching "Extended & Peter J. Albert Hoffman eds., 1996) (arguing exercise that federal judicial judges would Treanor, L. Rev. Case of the Prisoners]

14.

Founders

25 (Ronald understood

; review) William Michael Treanor, The Case of the Prisoners and the Origins of Judicial
Review, 143 U. Pa. L. Rev. 491 (1994) [hereinafter 58 Stan. (arguing

that judicial review was uncontroversial

Treanor, Judicial Review Before Marbury,

in Virginia prior toMarbury) William Michael ;

455 (2005) [hereinafter Court Treanor,

Judicial Review Before Marbury]

before Marbury) ; see also Scott

(demonstrating the common practice of judicial review

Gerber, Introduction: The Supreme Before John

Douglas

507

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was initially taken for granted and presumed to exist. Many members of the Framing generation presumed that courts would void legislation that was repugnant or contrary to a constitution. Why judicial review was taken for granted has also remained a matter of controversy. As Marcus has written, the "mystery lies in why and how" the Founding generation "came to think" that the judiciary possessed this power."5 Fundamentalist accounts of the origins of judicial review attribute the idea to a belief in a fundamental, higher, or natural law that binds ordinary law- an argument that often relies heavily on Dr. Bonham's Case. Yet as Kramer concluded, there is "little evidence" to support the idea thatDr. Bonham's Case was important toAmerican judicial review.'6He dismissed alternative colonial precedents, however: "[I] t ismisleading to describe these antecedent [colonial and imperial] practices as a nascent or immature form of constitutional review ...."17 Others have shared this belief that colonial American practices are largely irrelevant because they were not "constitutional" - i.e., based on a written constitution.'8 This Article argues that the colonial American practice of bounded legislation under a repugnancy standard is causally responsible for the existence of American judicial review. This claim expands on suggestions made most recently by Barbara Black and Philip Hamburger about corporate practices'9 and bolsters contentions long found in the scholarship of theBritish

Marshall, Gerber 15. Marcus, 16. 17. 18. Kramer,

in Seriatim: ed., 1998)

The

Supreme that

Court

Before understood

(arguing 14, at 52. 5, at 23.

the Justices

John Marshall and advocated

i, n judicial

(Scott

Douglas

review).

supra note supra note

Id. at 23-24. See, Judicial & Paul Peterson, the American e.g., P. Allan Dionisopoulos Rediscovering Origins to the Views Stated 18 J.Marshall Review: A Rebuttal by Currie and Other Scholars, of L.

Rev. 49, 55-56 (1984) (discussing Privy Council

review but ultimately

rejecting it as

;Treanor, supra note 14, at 468 n.45 (commenting Judicial Review Before Marbury, precedent) was to the Constitution "not judicial since the that the colonial review, practice prior was not one of but of consistency with English law"). constitutionality question

19. See Barbara Aronstein Black, An Astonishing Political Innovation: The Origins of Judicial
Review, familiar 49 U. from Pitt. L. Rev. 691, 692-93 (1988); acts Hamburger, ? Law and Judicial Duty, supra

note 7, at 17 ("[T]he Privy Council and the colonial courts simply followed a practice
. . .most the acts of including closely, that "broader of law however, argued, Hamburger ultimately corporations."). conceptions not the review source and judicial of corporate "the primary of judicial acts, were duty," Law and Judicial Duty, review." Hamburger, supra note 7, at 13 n.41. For an earlier discussion see Gordon of the possible link between and judicial E. Sherman, review, corporate bylaws the review of various domestic The Case of John a more Chandler precise v. The genealogy of War, 14 Yale L.J. 431, Secretary of the transformation from corporate 447-50 (1905). to constitutional In

providing

5o8

THE

CORPORATE

ORIGINS

OF

JUDICIAL

REVIEW

empire about a possible link between imperial review practices and judicial review.20 The Founding generation presumed a practice of constitutional judicial review as an outgrowth of the experience of constraining corporate and colonial legislation by the laws of the nation. Continuity in the practice of constitutionally constraining legislation resulted in discontinuity in the relationship of legislature and judiciary. This claim is about past practices, not precedents. Conceptualized as an intellectual precedent, post-Revolutionary judicial review was not the same as colonial and corporate repugnancy review; understood as a practice, it was. Modern constitutional scholars have defined the search for the origins as a search for prior examples of coordinate review because they aremost troubled by Supreme Court review of congressional acts-that is, by one branch of government reviewing the acts of another coordinate branch. Such an inquiry asks a question about judicial review based on a belief that the emerging strict theory of separation of powers consistently motivated the decisions of the Framing generation.2" Experience, however, rather than logic, explains the history of judicial review. Coordinate judicial reviewwas presumed because of an earlier practice thatmost frequently involved hierarchical authorities. The new conception of separation of powers was a theoretical critique - and, of course, therewere a fewwho voiced it.Yet interestingly the practice of constraining legislation by a constitutional repugnancy standard was so well accepted that it initially blunted this potential concern. Over the nineteenth century this critique developed strength, until it became hard to think about judicial review in any other way. Nonetheless, the emergence of the critique should not obscure the causal explanation for the practice. Judicial review initially had no name because itwas not an intellectual invention.

this Article practices, of the Framers. See,

comports e.g., Akhil

with Reed

arguments Amar,

claiming

Of Sovereignty

in the minds "corporate analogy" and Federalism, 96 Yale L.J. 1425,

1432-36 (1987).
20. See, with e.g., Harold Especial D. Hazeltine, to Reference Appeals Rhode from Island Colonial 299-300 Courts (Washington, to the King in Council, Office Gov't Printing

1896) (1894) (suggesting a relationship between

doctrine an act of Beecher of American the legislature The Russell, jurisprudence as being Review

imperial practice and "the important

to the which the power of setting aside grants judiciary to the fundamental law of the land") ; Elmer repugnant in of American by the Colonial King Legislation

Council
precedent 21.

227 (photo, reprint 1981) (1915) (suggesting that the Privy Council practice was "a
and a preparation" for "judicial annulment"). in the 1780s, theory in the Making Creation of the see JACK the of the development Original Meanings: 276-77 1776-1787, of the separation of powers and Ideas Politics S. Wood, (1998). The

For discussion N. Rakove, Constitution

of

Republic,

and Gordon (1996); at 152,449,453,549, 604

American

509

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The shift in focus from a genealogy of judicial power to a history of constrained legislation implicitly emphasizes the importance of understandings of delegated authority in the development of judicial review. This delegation theme places the story of early American judicial review in closer alignment with the accounts of the development of judicial review in other postcolonial nations.22Throughout theBritish Empire, the practice of constraining colonial legislatures under a standard of repugnancy arose from "the constitutional relationship between the Imperial Parliament and the subordinate colonial The origins of judicial review inCanada andAustralia have been legislatures."23 thought to lie in this same imperial practice of a repugnancy standard.74The longer duration of the imperial relationship in these countries produced different patterns in the practice of judicial review.25 This question of how judicial review should be practiced motivates many 26ThsAtc investigations of its origins. This Article claims that because judicial review was a shifting cultural practice, not a new intellectual doctrine, the how question cannot be as convincingly answered based on the early history as the whether and why questions.27Many authors have pointed to the fact that the Framing generation thought about the practice of judicial review differently

22. See Loren P. Beth, The Judicial Committee of thePrivy Council and the Development ofJudicial
Review, example 23. D.B. British Judicial Procedure, 24. See 24 Am. J. Comp. L. 22,40-41 (1976) ("Judicial set than to the necessities by the Privy Council Imperial Towards Control Colonial of Colonial review may.. of federalism."). . owe much more to the

Swinfen, Policy Committee

Legislation, Powers 53 (1970) Empire

Legislative Court for supra note Council Federal 22

A Study 1813-1865: ; see Loren P. Beth, 7 Ga. J. Int'l

of The &

as Constitutional

the British

1833-I?71, from

Comp. L. 47 (1977); Loren P. Beth, The Judicial Committee: ItsDevelopment, Organisation and
1975 Pub. L. 219; Beth, Privy (discussing and the appeals Australian for dependencies). 10-11 The Goldring, John Edward McWhinney, (1996); B.L. 9-10 (1966); see B. Judicial Galligan, rather Constitution a Multi-National

Constitution-Making

World But

Strayer, Review

in Canada of Legislation Review 6 (1968). Judicial 10 in the Australian and Function, Federal System: Its Origin thanks to Keven Booker for assistance

Fed. L. Rev. 367, 368 (1979) (arguing that the origin for Australian judicial review isUnited
States with 25. The precedent this point. Colonial than imperial practices). My

Laws

Validity

Act

attempted

to

address

ambiguities

regarding

what

constituted repugnancy by providing that colonial laws could be declared void "on the
of ground Parliament. Viet., Swinfen, 26. See, and 27. c. 63, to the repugnancy An Act To Remove law to an act of of England" if they were repugnant only as to the of Colonial Laws, 1865, 28 & 29 Validity An Australian History Legal Castles, 405-12 (1982); Doubts

C. ? 3; see Alex supra note 23, at 167-86.

e.g., Clinton, the Rule of Law, Sarah

E. Nelson, William supra note 6, at 1; L. Rev. 71 Tenn. 217 (2004). Idea or Practice: manuscript,

Marbury

v. Madison,

Democracy,

See Mary (Aug.

Bilder, (unpublished

9, 2006)

A Brief Historiography on file with author).

of Judicial

Review

3-13

510

THE

CORPORATE

ORIGINS

OF

JUDICIAL

REVIEW

than we do today.28The corporate, colonial, and constitutional repugnancy practice suggests new boundaries with respect towhat history can tell us about how themodern practice of judicial review should operate. This account diminishes support for certainmodern claims about the scope of review. The practice presumed by the Founders emphasized the bounded nature of legislation limited by the laws of the nation. This history casts doubt on arguments that general "natural law"was regularly accepted as a legitimate basis for review.29There are strains of English and American legal thought that relate to a tradition regarding laws of nature (although the degree towhich this idea is identical to current "natural law" ideology might be questioned); however, these strains were not perceived as the dominant constraints on legislation. The laws of the realm, the laws of the nation, and the Constitution - not free-floating natural law- limited ordinary legislation.30 This history helps to explain the pattern of post-constitutional judicial review practice.31Courts embraced vertical review (federal review of state courts) relatively early because of its similarity to earlier hierarchical review.32 State courts practiced judicial review of state legislation in states that viewed their constitution, not their legislature, as the supreme authority.33Although horizontal federal review was assumed and initially practiced,34 the implications of such review were not well contemplated. The reasons for the

28. 29.

See, For

e.g., Kramer, critical

supra note of

5, at 62, 250-51; Nelson, law claim, "Unwritten"

supra note see Goldstein, Individual

8, at 3. supra note 8; and Helen L. Rev. K.

discussions

the natural

Michael, The Role ofNatural Law in Early American Constitutionalism: Did

Contemplate Judicial Enforcement of Rights?, 69 N.C.

the Founders
421

(1991).
30. Two cases in which the Court referred to fundamental law limits on legislation charters makes involved

Connecticut and Rhode Island.Wilkinson

Bull, new 3 U.S. (3 Dall.) state constitutions.

v. Leland, 27U.S.

(2 Pet.) 627 (1829); Calder v.

as operated these cases

In both the original colonial states, 386 (1798). The absence of written and ratified constitutions constitutional The (2004). of state 56Wash. legislation, &Lee L. Rev. see R. Kent Newmyer, (1999). Transatlantic principles. Constitution: Colonial

tricky precedents 31. See Mary and 32. On the Sarah Empire

for general Bilder, 193-96

Legal

Culture

the dominance ofHis

of review Times,

Chief Justice Marshall

in the Context 33. Rhode Island

841, 846-48

on state insisted legislature the state 1843; consequently, supremacy, court did not state statutes strike down until the mid-nineteenth See supreme century. W. Ruger, "A Question Which Convulses Bilder, supra note 31, at 279 n.11; see also Theodore a Nation": Greatest Debate About the Judicial Review Power, The Early Republic's L. 117 Harv. and the exception state did that supports this point. The a constitution not write until 826 (2004) through & Yoo, in the Kentucky's experiment (discussing the evisceration of state judicial review). Origins, supra note 12, at 900-02. 1820s of declared legislative

is an

Rev.

supremacy 34. See Prakash

511

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absence of the practice in the nineteenth century deserve more attention. The growing strength of the rhetorics of separation of powers and popular sovereignty, the changing views of the legitimacy of the Constitution as the will of the people, the dominance of admiralty issues on the early Supreme Court docket, and theways inwhich litigation and disputes over congressional legislation were framedmay have contributed to the apparent disappearance of the issue for decades. Equally importantly, this account suggests that other modern concerns about judicial review may be hard to resolve by looking to the history of the Founding era. The dominance of the "repugnancy" rubric helps to explain why early judicial review did not articulate a precise standard for review or define the appropriate level of scrutiny. While the commitment to avoiding repugnancies was clearly articulated, the conception of what represented a repugnancy was not. The simultaneous ambiguity and certainty of the phrase "repugnant to the Constitution" meant that judges did not initially have to confront whether they were engaged inwhat we would call narrow or broad constructions of the Constitution. Early casesmay- or may not - support both expansive and restrictive approaches to review.35 Similarly, because judicial review arose out of a prior practice rather than an idea about separation of powers, there may not have been a coherent or accepted understanding of whether the judiciary alone was the ultimate interpreter of the Constitution -the modern issues of judicial supremacy and departmentalism. 6 The practice of repugnancy made it easy to assume that the

35-

For

which

see Treanor, 14, at 557-61, discussion, supra note Judicial Review Before Marbury, to that courts used review power within argues judicial keep legislative appropriate state statutes and struck down the judiciary and juries boundaries institutional affecting recent they were not clearly unconstitutional. of a narrow was See also Clinton, ; Casto, supra note was unconstitutional supra note 8 (arguing beyond 6 that (arguing judicial

even when for

review

original limited

understanding to cases in which

review) the statute

the Politics Back into the Political Larry D. Kramer, of Putting Safeguards a limited were to possess L. Rev. Colum. that courts 215 (2000) only (arguing originally in unambiguous involves the types of rights that of review power cases). A related inquiry were review. See Nelson, that review supra note 26 (arguing by judicial protected judicial was 36. For meant discussion Kramer, to protect of not minority and rights but rather common rights).

dispute); 100 Federalism,

example, Alternatives:

supremacy supra note

in the post-1787 see, for questions departmental period, E. 5; David John Marshall's of Engdahl, "Jeffersonian" Concept 38 Wake Forest L. Rev. 415 ; John Harrison, The

Judicial Review, 42 Duke

An American

L.J. 279 (1992); Daniel A. F?rber, Judicial Review and Its

Tale, (2003)

Constitutional Origins and Implications ofJudicial Review, 84 Va. L. Rev. 333 (1998) ;Kramer,
We Mich. The the Court, L. Rev. Shadow supra 2706 note 13;Michael (2003) 101 Stokes The Irrepressible Myth Paulsen, of Marbury, and Judicial Deference: ; Jed Handelsman Shugerman, Marbury v. Polk and the L. 58 5 U. Pa. J. Const. Battle, Judiciary Maryland 20 Const. the Modern The Marbury and of 1803 Marbury,

of Whittington Snowiss,

(2002);

Sylvia

512

THE

CORPORATE

ORIGINS

OF

JUDICIAL

REVIEW

judiciary would have such power but said far less with respect to other conceivable constitutional arbiters. The belief in a constitutionally constrained legislative power coexisted with an aspiration to separation of powers. After the ratification of the Constitution, as separation of powers became increasingly accepted as the highest constitutional principle, these questions came into focus.While the Founding history can provide a guide to some concerns about judicial review, others we must wrestle with unaided.
1. REPUGNANCY AND CORPORATIONS

This history of judicial review begins with "repugnancy."Repugnant was a relatively common word in early English law. It appeared in the thirteenth century in Bracton,37 in the fourteenth and fifteenth centuries in the Year Books,38 and in the sixteenth century in the works of Edward Coke.39 The usage of theword did not carry themodern connotation of unpleasantness or repulsiveness. "Repugnant" meant "inconsistent" or "self-contradictory." It often appeared in conjunction or was used interchangeably with "contrary."40 Lord Ellesmere thus noted, "If the words of a statute be contraryant or repugnant, what is there then to be said?"'""Repugnant" frequently described

Comment.
Madison, 37. 2 Henry (SamuelE. 38. A search

231 (2003) ; and G. Edward White,

89 Va. L. Rev. On trans., Seipp's 1463 or 1463 the 1968) Year in which (2003). Laws and Customs

The Constitutional Journey ofMarbury v.

of England 80,168,170, 239, 319, 322

de Bracton, Thorne of David 1307 and

(c. 1220-1250). Book database 2006 in September produced in the commentary J. Seipp, Legal cases forty-six and paraphrase, The Year History:

between process

and pleading,

appeared "repugnant" notes sections. David language

Books, http://www.bu.edu/law/seipp/
2006). 39. A search of the English matching Institutes Reports

(select "Search Year Books") (last visited Sept. 3,

Coke's Part

Reports of the

cases in the Justis.com in database forty-three produced or See also 1Edward The First Coke, "repugnancy." "repugnant" of the Lawes of England ? 213, at 142 (photo, 1979) reprint 1628); 2 id. ? 334, at 2o6v; id. ? 362, at 224; id. ? 384, at 237;

Societie (London, id. ? 520, at 297. 40. See 13 The Oxford or

of Stationers

English

Dictionary to, inconsistent

"[cjontrary

contradictory

675-76 (2d ed. or incompatible

1989) with");

"repugnant" (defining Y.B. 2, fol. 14 Edw.

as 29,

reprinted in 86 Selden Society 190 (1969), available at pi. 60 (1321) (Seipp No. 1321.213SS), (search by "Seipp Number" for this http://www.bu.edu/phpbin/lawyearbooLs/search.php
and all such references below) (stating that franchises should not be "repugnant ne contrariant"). 41. S.E. Thorne, Dr. Case], Bonham's reprinted Case, in S.E. 1938 Law Thorne, 543, 549 Q^ Rev. in English Essays Thorne, [hereinafter Legal History 269, Dr. 275

Bonham's

(Hambledon Press 1985).

513

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a problematic relationship between texts, for example, provisions in statutes, grants, deeds, wills, writs, counts, and judgments. Francis Bacon discussed situations inwhich there was a "direct contrariety and repugnancy" between two statutes.42 "Repugnant" or "contrary" also came to designate the boundaries of proper hierarchical relationship between bodies of law.43 Under Henry VIII, this hierarchical use of "repugnancy" became increasingly prevalent and came to regulate the relationship between English law and ecclesiastical law,4 aswell as English law andWelsh law.45 "Repugnancy" also appeared in the law of corporations. Corporate treatises declared that corporate bylaws could not be repugnant to the laws of the nation. In 1659, the first English treatise on corporations discussed "What Ordinances aCorporation may make."46Ordinances were not to be "repugnant to the Lawes of the Nation, against the publick and common good of the people within or without the same City."47 The same rule appeared in later

42.

Francis 371

Bacon,

The Maxims 1996)

of the Law (James Spedding

(c. 1597), ed.,

in 7 The Works London, Longmans

of

Francis & Co. new

Bacon ed.

327, 1879)

(photo, 19).

reprint

(maxim 43. See Faith 659, 662,

Thompson, 669-70

Parliamentary (1933) (noting

Confirmations that Magna

38 Am. Hist. of the Great Charter, statutes Carta constrained certain

Rev. with

"contrary"). 44. See Act (requiring Realme"); of Act, Supremacy that ecclesiastical Act, Religion or contrariant 1558, 1 Eliz., laws be not 1540, to the 32 Hen. lawes c. 1; Canon Law to any Act, 1549, 3 & 4 Edw. comon Lawe or Statute 6, of c. 11

"cont[r]ary 8, c. 26 statutes of

this

Act,

of the Clergy Act, 1533, 25 Hen. 8, c. 19, pmbl., 8, c. 21, ? 3; Submission M. Derrett, Thomas More and the Legislation 5 of London, of the Corporation Huse Miscellany Guildhall Dunham, 175,175-80 Jr., Regal Power and the (1963); William Rule of Law: A Tudor Paradox, Stud., May 1964, at 24, 36. J. Brit. See Laws c. 26 Clause": Historical in Wales Act, 1535, 27 Hen. 8, 1542, 34 & 35 Hen. 8, c. 26, ? 26; Laws not to this act); P.R. Roberts, The ''Henry VIII "repugnaunt" and in Legal Record and the Tudor Principality of Wales, Delegated Legislation VIII Reality G. Watkin 37 (Thomas ed., Roberts, [hereinafter 1989) Henry in Wales Act, offices R. Roberts, 1543-1624, Wales in Law and England After and Government the Tudor Under uUnion": the Tudors Crown, Principality, 111 (Claire Cross

"repugnant 1533, 25 Hen. ?? 2, 7; J. Duncan

and

decrees and (forbidding this Realme"); Ecclesiastical

ordinances Licenses

45.

(mentioning

Peter Clause]; and Parliament, etal. 46. William Twyford, enactment Constitutional Clause, England supra eds.,

1988). Shepheard, T. Dring, or Of & and H. 81 (London, Guilds Fraternities, Corporations, an Plate indicated The word "ordinance" J. 1659). traditionally English See S.B. Chrimes, of the Crown rather than Parliament. in the at 39; Fifteenth see also 2001) F.W. Century Maitland, 269-77 (1936); Roberts, The Constitutional the differences Henry History VIII of statutes

regulation Ideas note 45,

186-90

(photo,

reprint

(1908)

(discussing

between

and ordinances). 47. Shepheard, supra note 46, at 81-82.

514

THE

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OF

JUDICIAL

REVIEW

treatises on corporations, with "contrary" at times replacing "repugnant." In 1712, a corporate treatise stated that it was "usual" to include a clause in a corporate charter that bylaws "be not repugnant to the Laws of theNation nor against the publick and common Good of the People."48 In 1765,William Blackstone explained that corporations had power to make bylaws "unless contrary to the laws of the land, and then they are void."49 In 1850, James Grant declared that courts could not uphold any bylaw "which is repugnant to, or inconsistent with, the laws of the land."50 A. CorporationsandBylaws This principle that corporate ordinances or bylaws were bounded by the laws of the nation had a long history arising from understandings of delegated jurisdictions. As late-eighteenth-century commentators noted, a similar rule was found in the Twelve Tables in Roman law.51 Within English law, under Edward I, such jurisdictions were conceptualized as instances in which the

48.

Laws noted [a]nd

Concerning

and Tradesmen 8 (Stafford, author Trade, J. Nutt 1712). The Eng., . . that a repugnancy clause was unnecessary because "the Law doth understand that. a are void such By-Laws made the very Common-Law." Id. at 9. by by Corporation Blackstone, Commentaries ^476; see also 2 Stewart Kyd, A Treatise on the

49.

1 William

Law of Corporations
general 50. James A Practical

109 (London, J. Butterworth 1794) ("If a bye-law be contrary to the

it is void_"). Treatise in the Law of Corporations 77 (photo, reprint

laws of the kingdom, Grant,

1993) (1850); see also Joseph K. Angell & Samuel Ames, A Treatise on the Law of Private Corporations Aggregate 183 (photo, reprint 1972) (1832) ("[A]ll by-laws of a
corporation, principle doctrine to the constitutional contrary is similar to, but not the same in the mid-nineteenth activities of the expressed Corporate law of the as, the be void."). land, must later ultra vires doctrine. a The The repugnancy ultra vires

developed the purposes and

and limited century in the charter. See Reuven A Historical

Transformations

Form:

to activities corporation's S. Avi-Yonah, The Cyclical on Social Corporate Perspective

Responsibility, 30 Del. J. Corp. L. 767, 800 (2005) ;Kent Greenfield, Ultra Vires Lives! A Stakeholder Analysis of Corporate Illegality (withNotes onHow Corporate Law Could Reinforce
Law Norms), 1279,1302-09 87 Va. L. Rev. (2001). The as ultra vires is interestingly often described review. See, toWritten: Unwritten in the British Common-Law Transformation review Transnat'lL. 51. The Twelve 863, Tables Chester to make 893-905 VIII.27 (2003). in Ancient trans., Roman Statutes 12 reprint (photo, members shall have International British version of judicial e.g., David Constitution, From Jenkins, 36 Vand. J.

2003) (Allan ... the power no part of

(c. 450 B.C.E.), et al. eds. & Johnson for themselves

B.C.E.), agreements).

the public in Ancient

law."); Roman

1961) ("These guild that they impair any rule that they may wish provided see also Decree on Guilds of the Senate of Greek Artists (112 at 48, certain Statutes, 48-49 supra, (voiding guild see 1 Blackstone, supra note 49, at ^476; and 2

For discussion

of the Tables,

Wilson, James Of Corporations (1791), in The Works Green McCloskey ed., 1967) (1804).

of James Wilson

570, 571 (Robert

515

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King had delegated liberties.52As a matter of history, not all delegated jurisdictions had arisen from actual acts of royal delegation; some had independent origins arising from the Conquest or other ancient practices. Gradually, however, these franchises or privileges came to be understood as "all exercises of the king's rights by private persons."53 Bracton explained, in As a "delegated jurisdiction," the "ordinances and edicts [must] be in accordance with the law and the approved customs and with the common welfare."54 Franchises were thus limited by national law, and failure to comply with the standard could bring a quo warranto suit and possible forfeiture of the

franchise.55
Corporations were a particular type of delegated jurisdiction within the "King's exclusive prerogative."56Most corporations arose when the Crown granted franchises, liberties, rights, powers, privileges, immunities, or property to a group by letters patent. A corporation thus held delegated authority as a body politic.57The specific meaning of "corporation" developed over centuries. The use of the term "corporate" in English law as referring towhat we would today call a corporate entity appeared by 1410 in theYear Books.58 Formal legal discussions of the capacities of the corporation, however, belonged to the late

52.

Donald

W. Sutherland, 1294, at 182 (1963).

Quo Warranto

Proceedings

in the

Reign

of Edward

1,1278

53. 54. 55.

Id. at 5. 2 Bracton, See Sutherland, if "a franchise supra note 37, at 306-07. (discussing common interference justice'"). On courts by the King's see franchise theory,

was

supra note 52, at 9; id. at 179 of such a form as to 'impede

Helen M. Cam, The Evolution of the Mediaeval English Franchise, 32 Speculum 427 (1957).
56. Janet McLean, The Transnational Corporation inHistory: Lessons for Today?, 79 Ind. L.J. 363,

364 (2004).
57. e.g., Shepheard, of the Law Learning Y.B. 11Hen. See, supra note 46, at title page Bodies-Poli touching tique"). (including as a subtitle of the treatise "The

58.

fuit History:

(C.P. 1410), eds., (J.H. Baker & S.F.C. Milsom 1986) (English cases as corporate Earlier later be understood that would also version). involving 11 Edw. exist. See, e.g., Y.B. fol. 30a, pi. 9 (1337) (Seipp No. cited in 3, Lib. Ass., i337.i36ass), 10 Edw. Robert La Graunde Abridgement Richard Tottell Brooke, 1573); Y.B. (London, Private Law to 1750, at 613 entities 3, Lib. Ass., early Law fol. 26a, of No. cited in BROOKE, supra. On the i336.225ass), pi. 13 (1336) (Seipp see 9 W.S. of English the corporation, A History Holdsworth, 1 Frederick Pollock & Frederic and William The Maitland, Law Before the Time of Edward Fitzherbert's 1486-511 discussed Graunde (Cambridge corporations Abridgement supra, Univ. under fol. Press the 180

21 (1410) 4, fol. 47a, Hil., pi. (Seipp see also Case of Gloucester School corporate");

No.

1410.021)

"un University (mentioning of English in Sources Legal

development 45-71 (1926); of English (2d ed.

History 1968) heading

1898). Anthony "Graunt." See 2 Anthony John Rastell & Wynkyn

abridgment La Fitzherbert,

(London,

de Worde

1516) ; 9 Holdsworth,

at 53 n.3.

516

THE

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ORIGINS

OF

JUDICIAL

REVIEW

sixteenth and early seventeenth centuries when incorporations increased.59 In 1573, Robert Broolke's published abridgment summarized cases under the heading "corporations & capacities."o A decade later, A Discourse of
Corporations listed the types: municipal companies. corporations (cities, Coke's boroughs, and

towns), ecclesiastical bodies, universities and colleges, guilds and fraternities,

and livery and trading In 1628, Edward Institutes discussed

the legal modes of establishment: royal letters patent, act of Parliament, or prescription.62 In 1659, this legal exploration culminated in William Shepheard's entire treatise on the corporation, a "Body Politick that indureth in perpetuall sucession."63 The authority to issue bylaws was understood as one of the five legal incidents of the corporation.64 The precise origins of bylaw authority are somewhat unclear. The roots likely lay inRoman law and early English law.65 Martin Weinbaum concluded that in the 1300s, "the privilege of issuing by laws . . . as an explicit point of a charter . . . remained to be secured for the mass of boroughs."66 By the sixteenth century, however, corporations and

59-

See ROBERT Political

TlTTLER, c.

THE

REFORMATION

AND

THE TOWNS (1998).

IN ENGLAND:

POLITICS

AND

Culture, supra note

1540-1640,

at 89,161-62,240

60. 61.

1Brooke, A Discourse Tawney John United

58, fols.

188-92. in 3 TudorEconomic Documents 265, 273 (R.H. see 1 Henry Merewether Alworth & Archibald 1924); and Municipal of the Boroughs of the Corporations xxxi (London, Stevens & Sons 1835).

of Corporations & Eileen Power The

(c. 1587-1589),

Stephens, Kingdom, supra note

eds., History

at xxviii-xxix, 39, ? 413, 46,

62. 63.

2 Coke, Shepheard,

at 250. at 1-2. 31 Yale ijth Centuries, L.J. 382, to sue and be sued, the power succession, perpetual to issue Martin the authority seal, and bylaws. seem Boroughs 18 (1937). The five characteristics Law in the 16th and

supra note

64. W.S. 390-91 the

Holdsworth, (1922). to hold The The

English Corporation five incidents were a common lands, of Incorporation

power

Weinbaum,

and in the minds of "lawyers "firmer of legal theorists" of later periods than in the minds in Tudor times." Tittler, officials 59, at 88. When supra note government "corporation" to remains supra note 46, at 53-54 vague. Compare Maitland, began imply all five incidents at 18 (same), with Tittler, the fifteenth and Weinbaum, supra, supra (suggesting century), a note 59, at 87-88 the mid-fourteenth there long remained century, (suggesting although "disconcerting 65. See Adolphus (1923) royal ("[The] borough, imprecision Ballard to the concept").

Corporation, at 12. 66. Weinbaum, 1370.070) Merchant

at lxxxvii British & James Tait, Borough Charters, 1216-1307, was made not to a charter grant of the right to make bye-laws only express to the mesne in 1263."); C.A. of Oswestry but Cooke, borough and Company Trust Tables VIII.27, 69 (1950); The Twelve supra note 51,

No. 3, fol. 18b, Trin., supra note 64, at 49; see Y.B. 44 Edw. pi. 13 (1370) (Seipp to the Richard II's 1390 letters "laws called patent by-laws"). (discussing to "make ordinances." Letters II Patent of Richard Tailors' gave power Company

517

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bylaw authority were synonymous. The corporation was the "unitinge of a Societie ... into one bodie by the Prince or Soueraigne, havinge aucthoritie to make lawes and ordinances."67 B. Limits onBylaws The bylaw authority of boroughs and town corporations appears to have been constrained by national law and the royal prerogative from a relatively early period. Weinbaum described a charter in 1263 in which powers were given to make ordinances and agreements, along with "a clause 'saving our prerogative."'68 FredericWilliam Maitland discussed a dispute over a London ordinance in the reign of Edward II prohibiting retail fish sales on thewharf in which the King's counsel argued that "it is not lawful" for an ordinance to be made "without consulting the king."69 In the fourteenth century, Richard II's charter to London authorized the city to alter its customs by ordinance if "such ordinance shall be profitable to us and our people and consonant with good William Holdsworth declared that even early bylaws "were faith and reason."70 always liable to be called in question before the king's courts."71The bylaw authority of the corporation of London was particularly controversial because

30, Qui. Merchant 1408), Sayle, 67.

in Frederick 1390), Company Taylors' supra,

Morris 13,14

Fry

supra,

in Fry & Sayle, at 19, 21.

(1937); at 15, 17; Letters

of the The Charters Sayle, see also Letters Patent IV (Aug. 2, of Henry Patent VI (Feb. 24,1439), in Fry & of Henry & R.T.D.

A Discourse to

supra note of Corporations, issue by-laws had long been right conveyed royal sanction incorporation

61, at 265; see Tittler, supra note 59, at 162-63 town governments, exercised de facto by many on the practice.").

("The but

68. Weinbaum, Bateson "natural 69.

Customs ; see also 2 Borough 59 (Mary omitted) supra note 64, at 22 (citation customs that referenced vol. Seiden 21, 1906) (discussing borough Soc'y "the laws of England," "the comon and "jura naturalia"). lawe of Kent," reason," ed.,

1 Pollock & Maitland, Maitland added, however, omitted). supra note 58, at 661 (citation of by-laws, and that "we obtain no jurisprudence that bylaws were almost never condemned no established tests for their Id. at 662. validity." Caroline 1200-1500, Documents ed. 1887)). supra note that a charter could Holdsworth that the 58, at 391; see also id. at 399-400. argued not to violate the common law was power give the corporation v. note 64, at 385; see also Lowestoft in the Middle See Holdsworth, supra Ages. the King's at 60, 61 in Select Cases Before Council, 1243-1482, (Ch. 1378), & J.F. Baldwin the eds., Seiden (I'S. Leadam Soc'y vol. 35, 1918) (discussing and its consistency with statutes). M. at Barron, 34 of the London in the The Later Middle Ages: Charters Birch Government and and People, rev.

70.

(2004) (quoting City of London

Historical

Constitutional Whiting & Co.

75 (W. de Gray

ed., London,

71.

2 Holdsworth, principle established Yarmouth

62, 66-69 charter of Yarmouth

518

THE

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OF

JUDICIAL

REVIEW

London long claimed that it arose in part from immemorial custom rather than newly delegated authority from the Crown.72 Incorporated guilds and livery companies, which took their name from the particular livery theirmembers were authorized towear, also held constrained bylaw authority. By the fifteenth century, twelve great London livery companies held letters patent from the Crown: the mercers, grocers, drapers, fishmongers, goldsmiths, skinners, merchant tailors, haberdashers, salters, ironmongers, vintners, and clothworkers.73 The companies "effectively controlled" London's economy throughout the sixteenth century74 by the middle of which, historian Steve Rappaport estimated, "approximately three quarters of London's men were citizens and members of livery companies."75 The companies' charters permitted them to govern particular trades.76They dominated political power because most important city officials were associated with a company.77 In addition, they served as a source of significant financial revenues for city and Crown, and they administered charitable trusts, schools, almshouses, churches, and relief for the poor.78 Since the early 1400s, these companies were "bodies corporate and politic" with the power to "make good and reasonable bye-laws and ordinances."79The ordinances regulated those within and without the company. Companies had the power to pass their own bylaws and were given the power of "search," the ability to enter and search for illegal goods and to fine the offenders.8' For example, the fishmongers had the "oversight and rejection of fish brought to

72.

See Derret?, Alexander Port

supra Pulling,

note The 43-50

44,

at Laws,

176-80; Customs, 1854); a

see also

1 Blackstone, supra and Regulations Usages, 21 Edw. 4, fol. 67a, Mich. statement that

note of

49, the

at

City

74-75; and

of London No.

(Seipp confirmed Lib. Ass., establish Edw. 73. See

(2d), pi. 50 (1481) London's customs, (reporting judge's though were on reason); Y.B. 49 Edw. "bad usage" and not founded 3, by Parliament, fol. 320b, pi. 8 (1375) (Seipp No. whether London could i375.048ass) (discussing to make and its power "statutes 49 powers [est?t]"); Y.B. corporate guilds with 1481.118) 3b, Hil., pi. 7 (1375) (Seipp No. 1375.007) of the (same). Twelve (1834); Great George Livery Unwin, Companies The Gilds of and

(2d ed.

cf. Y.B.

3, fol. 1 William

London, Companies 74. Steve

The History Herbert, at xiv-xv M. Kelley (Augustus of London Worlds (1908). Within Worlds

1968)

Rappaport,

:Structures

of Life

in Sixteenth-Century

London
75. 76. 77. 78. 79. 80. Id. at 53. See Barron, Barron, See Barron, 1 Herbert, Rappaport,

186 (1989).
supra note supra note 70, at 199-234; 1Herbert, supra note 73, at xiv-xv,

28,106-10.

70, at 139 ; Rappaport, 70, at 225-26, 73, at 102-03. 74, at 187. 232.

supra note

74, at 189.

supra note supra note supra note

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London."81 Companies regulated apprenticeship and forbade the disclosure of trade secrets.82The company courts also heard many disputes arising under their ordinances.83By the sixteenth century, "[n]early one hundred companies and other types of occupational associations regulated virtually all of London's crafts and trades . . . ,devising and enforcing ordinances which shaped the very nature of men's work."84 The bylaws and ordinances of these companies had been subject to constraints since the fourteenth century. In 1388,Richard II ordered theMayor of London to require the guilds and fraternities to deliver copies of their rules and ordinances or else lose their charters.8' The returns revealed awareness of bylaw constraints. The Gild of St. Christopher inNorwich barred ordinances in prejudice of the common law. The Peltiers' Gild stated that ordinances were not to be against the King's right or "his lawe." The Carpenters' Gild stated that ordinances were not to be against the "kyngis right ne the comoun lawe, ne no prejudice don to no maner man."86 In 1437, parliamentary legislation placed an enforceable limit on corporate bylaw authority. A petition to Henry VI had complained that guilds, fraternities, and other "companies incorporate" had made "unlawful and unreasonable ordinances" that diminished the King's prerogative and resulted in "common damage to the people." Companies should therefore "make [or] use no ordinance which shall be to the disherison or diminution of the King's franchises, or of other, nor against the common profit of the people."87 The resulting act limited corporate ordinances and placed greater control in municipal authorities. Company ordinances had to be "first discussed and approved" by the justices of the peace or the governors of cities; if found to be "not lawful or not reasonable," the ordinances were to be "revoked and

8i. 82. 83. 84.

iHerbert, Id. at 45-46. See

supra note

73, at 47.

id. at 201-14.

Id. at 25-26. Carew Hazlitt, & Co. The 1892); & Co. Livery Companies of the City of London (describing 49 Swan (London, to the requirement

85. W.

Sonnenschein

see Barron,

supra note

70, at 208

deliver rules and ordinances for inspection); English Gilds

London, 86. 87. English A N. Tr?bner 1870); 1 Herbert, supra note Gilds, supra note of Unlawful 85, at 23,30,39. Orders Made

128 (Joshua Toulmin Smith ed.,

73, at 28,36.

Masters of Guilds, and Other Fraternities, by at Large Statutes 215, 215-16 (Danby Pickering Companies, see 1 Herbert, 73, at 106-07; ed., Cambridge, supra note 1762); cf Joseph to submit ordinances note 74, at 184 the obligation for approval). Rappaport, supra (noting Restraint 1437,15 Hen. 6, c. 6, Bentham in 3 The

520

THE

CORPORATE

ORIGINS

OF

JUDICIAL

REVIEW

repealed" under penalty of the corporation's losing its authority under the letters patent and forfeiting a fine of ?1o per "contrary"ordinance.88 For the remainder of the fifteenth century, municipal authorities inLondon and York reviewed corporate ordinances. In 1439, the London tailors and saddlers had their ordinances reviewed as to "whether they were contrary to the city's liberties or not."89 In 1462, the court of aldermen told the fishmongers that they could not use their ordinances until they were submitted.90 In 1487, company officials were not to "makeOrdinances unless they are approved and ratified" by the mayor and aldermen. The companies thus "brought in theirBook of Ordinances, which, not being approved of, were cancelled, and the leaves on which they were written, torn out."91By the late fifteenth century, "at least sixteen crafts had their ordinances enrolled in the city's Letter Book" and approved.92 Under Henry VII, Crown control of company ordinances began to supplant municipal control. The Crown enforced limited bylaw authority through declarations in letters patent and review requirements. The Crown gave initial authority to a company through letters patent, a grant delegating privileges and authority (sometimes referred to colloquially as a charter). Early patents might include a reasonableness requirement;93 later patents began explicitly to limit delegated authority. In 1503, theMerchant Tailors' new letters patent authorized "statutes and ordinances" with the limitation that such laws be "not contrary to the laws and customs of our Realm of England or in prejudice of theMayor of the city of London."94

88.

15Hen. French

6, c. 6, translates

in The as

Statutes "disloyal and

at

Large, little

supra note 87, at 216. The reasonable." Id., in 2 Statutes

original phrase of the Realm

in law 295,

298-99 (photo, reprint 1993) (London, George Eyre & Andrew Strahan 1816) (describing
"disloialx 89. 90. Barron, See Helen & meins resonables ordenaunces"). supra note Miller, 70, at 210. and Parliament in the Reign ofHenry VIII, 35 Bull. Inst. Hist. Res.

London

128,133 (1962).
91. William the 92. 93. City Meade Williams, of London 9-10 supra note Annals (London, of W.H. the Worshipful Boosey & Co. Company 1867). of the Founders of

Barron, 2 Herbert,

70, at 211. 1462 see that and

1463, granting to the Charter ordinances governyng" 94. Letters Patent

the Goldsmith's of supra note 73, at 157 (reproducing patent Company's to "make the power and reasonable and ordinances"); by-laws good in id. at 623, 623 (requiring (Mar. 20, 1463), Ironmongers' Company statutes for holsom be "convenable and nede and rewle, guydyng,

of the freemen). supra note Englishmen Adventurers 66, at 33, 39; see also to the free passage "an by altering

Merchant

VII of Henry (Jan. 6, 1503), in Fry & Sayle, Adventurers 7, c. 6 (permitting Act, 1496,12 Hen. markets without exaction the Merchant Netherlands by

521

THE YALE LAW JOURNAL

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20o6

This limit coincided with an act passed in 1504 constraining corporations.95 Francis Bacon would later note that the desire was "to restrain the by-laws or ordinances of corporations, which many times were against the prerogative of the King, the common law of the realm, and the liberty of the subject, being fraternities in evil."96Guilds and fraternities could not make acts or ordinances "in disheritance or diminution of the prerogative of theKing, nor of others, nor against the common profit of the people."97 Ordinances were to be approved by the Chancellor, Treasurer, and Chief Justices or the justices of the assize.98 This review by Crown judicial officers was taken seriously. The Fishmongers' 1509 ordinances recited the Act, explained that the ordinances had been presented and subsequently reformed, and included the final certificate from Crown officers.99 Even minor companies had their ordinances approved.100By the l520S,London corporations were having ordinances "ripely examynd and perused and diligently correctid."10l In 1529, the Goldsmiths' Company stated that its ordinances were "approved and confirmed by the lord chancellor, lord treasurer, and two chief justices, according to the laws and Review continued into the seventeenth century. constitutions of the realm."'02 The Chancellor and Chief Justices approved theMusicians' ordinances in 16o6 The Haberdashers' 1675 and the Merchant Tailors' ordinances in 1613.103 ordinances were signed by the Lord Chancellor Finch, Chief Justice of King's

ordinance conscience 95. Ordinances

and ...

constitution" to the prejudice

that was "contrary of all Englishmen")

to

all

law,

reason,

charity,

right

and

(spelling

modernized).

"De privatis & called of Corporations 1504, 19 Hen. 7, c. 7 (alternatively Act, of Commerce A Treatise illicitis statutis non faciendis") ; see John Wheeler, 30 (George "under Burton craft guilds were Hotchkiss that until Henry VII, ed., 1931) (1601) (noting the control" of the Mayor of London). Francis Selected Bacon, Works History 1,181 in The History VII, of Henry Vickers ed., 1998). (Brian Act (spelling modernized). of Sovereignty the King's and Council Other in the Essays Star 207 (1921) of the Reign of Henry VII and

96.

97. 98.

Ordinances See

of Corporations

Harold id. ;

(discussing Commonly vol. 16,

J. Laski, The the Act) ; 1 Select the Court

Foundations Cases of Before

Chamber,

Called 1903) failed

Star

Chamber, ;Miller,

at cli-cliii

London's 99. 2 Herbert, ordinances). 100. Hazlitt, 101. Miller,

[hereinafter effort to obtain

Star

Chamber] a more liberal see also

supra "acte concernyng (discussing

ed., Seiden (I.S. Leadam Soc'y note 90, at 138-40 (discussing corporacions"). the Skinners' reformation of

supra note

73, at 32-33;

id. at 309

supra note supra note supra 90,

85, at 136 (discussing at 141-42. 73, at 148-49;

the 1508 Shearmen

ordinances).

102. 2 Herbert, ordinances). 103. Hazlitt,

note

see

id. at 654

(discussing

the

1531 Clothworkers'

supra note

85, at 569;

2 Herbert,

supra note

73, at 418.

522

THE

CORPORATE

ORIGINS

OF

JUDICIAL

REVIEW

Bench Matthew Hale, and Chief Justice of Common Pleas Sir Francis North.104 As late as 1712, a corporate treatise began the chapter on "the Nature and Doctrine of By-Laws" with a discussion of the 1504 Act and its review
requirement.'05

The constrained nature of corporate bylaws also arose sporadically in the context of ordinary litigation. Until the late sixteenth century, cases involving corporations arose in Star Chamber, which had "special oversight over the trades and other companies."'06A 1507 complaint about price fixing under the Founders Fellowship's ordinance noted the 1504Act that limited "statutes or A actes."'107 1516 case involved the Artificers' claim that their "good and reasonable ordinances" had been confirmed by the Crown, yet theMayor and Aldermen of Newcastle had barred them from free buying and selling.1o8The Chancellor sitting inExchequer also may have heard such cases. In 15o8, a case

104- 2 Herbert, 105. Laws 106. Cora Because initially of Star

supra note

73, at 539. and of Tradesmen, the Court of supra note Star 48, at 6-7. ; see also 50 (1900) the common Stuckey, Star Chamber The id. at 51-54. law courts Court as a of

Concerning L. Scofield,

Trade, A Study were cases 33-34,

Chamber prerogative, See Michael

corporations did not hear Chamber

delegations involving

of Crown ordinances.

High

judicial body. Henry VII. and cases 2 Star London of the discussing Chamber,

The 51 (1998). sixteenth-century in the Court of the See Proceedings Star Henry VIII. 15-16 (G. Bradford see Bakers ed.,

Chamber

operated in the Reigns

incorporated 511pm note 1500),

(Star Chamber "not phrase goods supra note

1911); Scofield, supra, at 26, 42. For v. towns, (Star Chamber 1534), in Knyght ofAndover v. 98, at 207, 215-16 (Seiden Soc'y vol. 25, 1911); and Hewyt in 1 Star Chamber, supra note 98, at 71, 78-79. For the usage regarding in 2 Star

transporting Chamber, 107. Butlond

or to a contrarye" relating proclamation see v. Danckerd to Calais, (Star Chamber 1544), Smythe 98, at 277, 281 (Seiden Soc'y vol. 25,1911). repugnant

(Star Chamber 1507), in 1 Star Chamber, supra note 98, at 262, 262-71; tried by the City of Chamber, supra note 98, at cliii. The case had first been to sell to him at a An official of the company other members London. had required allegedly v. his actions based on an "acte" of the Company. See also Excestre fixed price; he justified see also 1 Star Stoden that 1477), (Star Chamber and Wardens the Master to the old v. Artificers libertees in 1 Star of Tailors customes Chamber, under and 2 a claim supra note 98, at 1, (presenting color of the King's letters patent had acted laufull vsages" of Exeter).

v. Austen

"contrarie 108. Newcastle 106

1516), in 2 Star Chamber, supra note 98, at 75, 79, 81, see also 2 Star Chamber, (Seiden supra note Soc'y vol. 25,1911) (spelling modernized); The exemplification stated that the burgesses and 98, at xcvii-ci (Seiden Soc'y vol. 25,1911). of Newcasde had and contemptuously offended the king's inhabitants grace "grievously and against his peace[,] and statutes." Newcastle, in 2 Star Chamber, laws[,] supra contrary (Star Chamber 98, that was heard at 116 (Seiden around and rules In a case vol. 25,1911) Bristol involving (spelling modernized). to make & power the Mayor stated that the town had "authority 1518, v. for the good politic of the town. Sheriff of Brystowe governance" Soc'y c. 1518), in 2 Star Chamber, supra note 98, at 142, 148

note

ordinances Mayor

of Brystowe

(Star Chamber

(Seiden Soc'y vol. 25,1911) (spelling modernized).

523

THE YALE LAW JOURNAL

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explained that the Founders had "made an Acte contrary to the P'lement" and hoped that the Chancellor would correct "ouerActs and Rules" so that "the Crafte myte be harmless agenst theKyng our Soveryng Lord."'09 The language used to describe this limit slowly changed during the sixteenth century in favor of a consistent limit framed in terms of "repugnancy" to national laws. Similar to early limits described above, statutes approved in 1530 and 1536 regulating apprentices contained language that guilds and fraternities could not make acts or ordinances "in disinheritance or diminution of the prerogative of the King, nor of other, nor against the common profit of the people.""'0The Hospitals for the Poor Act (1597) abandoned such broad language: "rules, statutes, and ordinances" of "bodies politique or corporate" should not be "repugnant or contrary to the laws and statutes of this realm."'i" The principle of constrained bylaw authority under this more precise "repugnancy" standard also appeared in the patents of the new trading corporations and the new charters of the livery companies. The 1505 charter of theMerchant Adventurers of Calais had limited the company's lawmaking power by the requirement that an "Act or Statute" thatwas "contrary" to the "Crowne, Honor, Dignity Royall or Prerogative or to the deminution of the The 1564 charter Commonweale of our Realme" was "of no force or effect.""'2 of theMerchant Adventurers stated the limit as "not hurtful to any [of] the Rights of the Crowne, honour, dignity, Royall . . . prerogative or the [diminution] of theCommon Weale of this our Realme or contrary to any [ofl

log. Williams, no. Apprentices' (employing also Leases founder majority m.

supra note

91, at 13. 22 Hen. These 8, c. 4; see abo Apprentices Act, to the same acts were also subject 8, c. 5 1536, 28 Hen. structure. review See

Fees Act, 1530, similar language).

a acts or orders void 1541, 33 Hen. 8, c. 27 (making Act, by Corporations by a to veto a grant authorized the that permitted of a corporation single person by to the form, order, and course of the common law"). "contrary

c. 5; see Shepheard, for the Poor Act, 1597, 39 Eliz., supra note 46, at 31 (noting Hospitals see c. 57, which etc. Act, the statute). For later examples, 1715, 1 Geo., Coaches, Hackney so as to make commissioners the power and ordinances orders, granted bylaws long they to the Laws of this Realm"; did not contain 1710, 9 Ann., Stamps Act, anything "repugnant c. 23, ? 16; and c. 22. See also etc. Act, & M., Coaches, 1694, 5 & 6W. Hackney Stourbridge Canal. Act, 3, c. 28, ? 46; East India Company 1772,13 Geo. 3, c. 63, ? 36; Act, 1776,16 Geo. Isle of Man Harbours Act, 1771,11 Geo. the Merchant The Early 2002) 3, c. 52. Adventurers Chartered (London, E. at Calais Companies Arnold (Sept. 28, 1505), in GEORGE II, at

i?.

Patent Cawston 249,

to of Henry VII & A.H. Keane,

252-53

companies

(photo, reprint and the Merchant

(A.D. 1296-1858) app. On the London 1896). The

Development of the Merchant Organization Rev. Mediaeval Hist. 4 Econ. 147 (1933). See also Franklin Records, and Political Origins 33 HofstraL. of the Corporate Board ofDirectors,

Adventurers, Adventurers'

see E.M.

Carus-Wilson, in London

livery and Early Origins as Shown in Their Own

A. Gevurtz, The Historical Rev. 89,125-26 (2004).

524

THE CORPORATE ORIGINS OF JUDICIAL REVIEW

our Lawes & Statutes.""'3By 1579, the charter of the Eastland Merchants provided that the governor could make such "good statutes lawes constitutcyons and ordinaunces for the good government and rule" of the fellowship as was thought "mete and convenyente" as long as they were "not repugnante or derogatorie to the lawes and statutes of this Realme of The 16oo Levant Company charter Englande" or contrary to any treaty."l4 required that "the said laws . . . be reasonable and not contrary or repugnant.""' The 1607 charter of the Drapers' Company similarly stated that "laws, statutes, ordinances, constitutions, imprisonments, fines, and amerciaments shall be reasonable, and shall not be contrary or repugnant to the laws, statutes, customs, or rights of our kingdom of England."",,6 A contemporary publication of the Worshipful Company of Shipwrights included the Company's 1612 charter, which contained a repugnancy clause; the Company's acts and ordinances; and the confirmation by Thomas Ellesmere, Thomas Fleming, and Edward Coke that the ordinances had been

113. Charter 254,268. 114. The Acts

of Queen

Elizabeth

(July

18,1564),

in Cawston

& Keane,

supra note

112, app.

II, at

and Ordinances to the Levant Companies, to Them

of the

Eastland Rolls, at 30,34

Company

145 (Maud

Sellers

ed.,

1906). Charters of

115. Charter Trading 116. Of

Company, A.D. 1530-1707, and Their

Patent

in Select 43 Eliz., pt. v (1600), T. Carr ed., 1913). (Cecil

a Grant

1607), (noting to Them

in 1 Herbert, that the

of the City of London for the Drapers (Jan. 19, see 2 Herbert, 73, at 485, 490; 73, at 317 supra supra note in some Skinners' limited charter was and respects by reasonableness note Successors patent did not (Oct. 6, 1559), in id. at 116, 117 that (noting or statutes the Mystery the in

Successors

repugnancy) ;Charter to theMen of theMystery of Fishmongers of the City of London,

and Their letters Fishmongers' prejudice of Grocers in the give the power a Grant to Them to make "any ordinances and Their Successors for supra note 73, at 368,

Of of us or our people"); in 1Herbert, of London 15, 1639), (Apr. Grocers' charter the that statutes, "laws, not be contrary of England"); of the Masters and

and shall reasonable, of our kingdom rights the

nor repugnant see also Williams, and Wardens for of the

constitutions [and] to the laws, statutes, of supra note the Mystery 91, of

372 (providing . . . shall be customs, or

1613 authorization Founders "to make orders so as not they be Other

ordenances lawes

repugnant

to the

the good government of the freedom land, nor against

(describing the Company of the said Mysterie, and liberties

at 23

of this Citty"); Charter of Maidstone

and Documents Relating to

William (1603), in
the King's Town

Roberts
and

James, The Charters

of Maidstone in

Parish

the County

of Kent 72 (London, Joseph Butterworth & Son 1825) (requiring that "laws,
imprisonments, to the laws, fines, statutes, and amerciaments or rights be customs reasonable, of our kingdom and of

ordinances, constitutions, nor contrary not repugnant England").

525

THE YALE LAW JOURNAL

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reviewed and were lawful.'17Repugnancy to the laws of the realm, the kingdom, eventually the nation, had become the standard. C. ConstitutionalLimits on Corporate Bylaws At the end of the sixteenth century, the common law courts began an extensive discussion of the limits on corporate bylaw authority."8 At least six reported cases can be found addressing the issue: The Chamberlain ofLondon's Case (1590); Doggerell v. Pokes (1595); Bab v. Clerk (1595);Wilford v.Masham (1595); Clark's Case (1596); and Davenant v.Hurdis (1599)."9 These cases were followed by others, including Dr. Bonham's Case (1608)."20A clear principle arose from the cases: corporate bylaws could not be repugnant to the "Lawes of the Nation."'' Although the principle was not explicitly labeled as constitutional, in substance it appeared to be. The granting authority could not authorize a bylaw or charter provision in violation of the limits.'22

117.

[Charter

to

Shipwrights

Company] (search

21, 44-71 for

(London,

T. Dawson Company").

c. 1612),

available

at

http://eebo.chadwyck.com/search 118. Jurisdiction jurisdiction, L.J. 1321,1340 over

"Shipwrights

in On the change and corporations from Star Chamber. passed companies see Barbara Malament, The "Economic Liberalism" Coke, 76 Yale of Sir Edward (1967). (1599) 72 Eng. Rep. 769 (K.B.); Clark's Case, (1596) jj Eng. Rep. 152

119. Davenant

v. Hurdis,

(C.P.);Wilford v. Masham, (1595) 72 Eng. Rep. 657 (K.B.); Bab v. Clerk, (1595) 72 Eng. Rep. 663 (K.B.); Doggerell v. Pokes, (1595) 72 Eng. Rep. 663 (K.B.); The Chamberlain of
London's corporate 120. (1608) Case, bylaws, jj Eng. (1590) jj Eng. Rep. see v. Hays Harding, 638 (C.P.) 46, 150 (K.B.). (1656) For 145 Eng. unpublished Rep. Case, 376, cases 378 addressing limits on (Exch.). Rep. 646 (K.B.).

Rep.

; see also Dr.

Bonham's

(1610)

77 Eng.

121. Shepheard,

supra note

at 82.

122. See Norris v. Staps, (1616) 80 Eng. Rep. 357, 358 (K.B.) ("And if the King in his letters
patent same of rule Incorporation of law . . . in these do make ordinances himself. note supra ."); Shepheard, Charters that are unlawfull . . are also to the yet they subject are some at 43 ("There often 46, things . . . cannot Lo. Pro. ."); id. at 51 ("[T]he

inserted extend

things or make such help a violation authorize charters (discussing question. might ancient made be One had been

it to prejudice that could not

. . interest. 73, 76-80 any other man's ."); id. at 68-69, (discussing . . . can in the Charter in a charter); be done id. at 84 ("No Clause an Ordinance issue The of whether Parliament could good."). was given not by Later however, expressly Parliament. corporate in which discussed See by also Shepheard, did supra not Shepheard, treatise writers because likely note at 7-8, 46, address explicitly few 105 the

Parliament). instance, of capable customs. On

treatises later

against

otherwise void bylaws authorizing a 1712 corporate treatise the one hand, ... of the People the Liberty and Freedom supra prescription note at 48, in London 10. On and

that Parliament suggested area of involved the problematic declared are void." the other that "all By-Laws Laws Concerning it added might permit . . .

and Trade, immemorial

Tradesmen, custom and

hand,

that a

other

corporations

526

THE

CORPORATE

ORIGINS

OF

JUDICIAL

REVIEW

In 16o5, Edward Coke's new volume of Reports included five reports under the heading "Cases of By-Laws and Ordinances."'123Colke's interest in corporations and bylaws was not surprising. He had served as a recorder for Coventry (1585),Norwich (1586), and London (1592),"4handling litigation for towns and serving "as the officer principally charged with knowing, He had a lengthy interpreting, and applying the law of the land."'125 relationship with the Drapers' Company. He also had represented and investigated other London guilds, towns, and trading corporations. As Chief Justice, he had ratified ordinances for various guilds, including theMerchant Tailors.126 Coke's section on bylaws played a crucial role in restating and publicizing The first case, The Chamberlain constitutional limits on corporate ordinances.127

corporation

to

"justify

the doing

of

some

Things

against

common

Right."

Id. at 12. The

only example involved regulating the sale of goods by a foreigner within the city. Cities that had been incorporated within the time of memory could only gain such a privilege by
Parliament. 20. Because precise written and Id. These modern technical customary constitutional manner privileges, however, thinks were about limited theory from distinctions arising to conclude it is difficult whether term. Part of the Reports Co. of Sr. Edward of Stationers History, Coke Knight, the Kings "Cases de "constitutional" developed this limitation in scope. See id. at 19 limitations in a after was the creation of

constitutions, sense in the modern Coke, & The

"constitutional"

ofthat Fift fols.

123. Edward Attorney Bilawes

Generall ordinances"); 1552-1952, Address

Coke, (Mar. 17,1952), in English at 3, 10-12 (1957), in Essays Legal History, Coke, 1552-1952, reprinted note 41, at 223, 230-32. The cases were The Chamberlain of London's Case, 77 Eng. Rep.

(London, see S.E. Thorne, Prof, to the Seiden Society

62v-68v

of Legal

1612) (describing Harvard Sir Edward Univ., in S.E. Thorne, SirEdward

supra at 150;

Clark's Case, 77 Eng. Rep. at 152;Jeffrey's Case, (1589) 77 Eng. Rep.

concerned whether a person who owned land

153 (C.P.), which

in a parish but lived elsewhere had to pay as a on the same 155 (K.B.), Case, (1589) 77 Eng. Rep. parishioner; Jeffrey's topic; and The Lord which concerned wills. 158 (Ct. Wards), Cheyney's Case, (1591) 77 Eng. Rep. 124. 1 John Campbell, The Lives of the Chief Justices of England 252 (Jersey City, Fred. D.

Linn & Co. 1881) (1849).

125. Tittler, 126. See Allen Lyon supra note D. 59, at 227. Coke Coke: Sir and the Elizabethan of Coke (1979). the Law and Age 46 (2003); Hastings 1992) the Sir Edward Boyer, & Herman Edward Block, D. White, Stephen (1929); 1621-1628 Lord

Oracle

Edward

57-58 (photo, reprint of "The Grievances

Commonwealth," 127. Sir Thomas Case, Dr. Egerton, Bonham's

app. B, at 284-88 Ellesmere,

corporations.

of Clark's Case, Darcy's that Coke's reports argued Case weakened the authority of and the Tailors Case, of Ipswich's in Jacobean The Tracts England: Law and Politics See Louis A. Knafla,

of
309.

Lord

Chancellor
upon

Ellesmere
Cookes

148-54 (1977); The

Reportes (1615)

Lord Chancellor
Ellesmere],

Egertons

Observacions

ye Lord

[hereinafter

in id. at 297,

527

THE

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of London's Case (1590), described the "contrary and repugnant" limit.128 The case addressed whether London could "make laws and ordinances" that required all cloth sold inLondon to be brought first to Blackwell-hall and a fee paid. The Chamberlain had sued certain defendants in debt for the penalties. The King's Bench approved of the ordinance. Coke's report noted that "[i]t appears by many precedents" that London had been given the power to "make ordinances and constitutions for the good order and government of the citizens, &c. consonant to law and reason." All "ordinances, constitutions, or by-laws" that "arecontrary or repugnant to the laws or statutes of the realm are void and of no effect."1129 The principle that corporate bylaws were constrained by the laws of the realmwas reinforced and expanded in the brief case that followed. Clark's Case (1596) involved one Clark, who was imprisoned under a bylaw of St. Albans, a town incorporated under a Crown patent. The bylaw required that inhabitants be taxed to support the courts and provided that they could be imprisoned for The court decided that the ordinance was against chapter 29 refusing to pay.130 of Magna Carta."3'While a corporate town could impose a "reasonable penalty" - for example, an action of debt or distress - imprisonment violated Magna Carta. Such a bylaw was, in essence, void. 132

128. jj Eng. 129. Id. 130. Clark's 468

Rep.

at 151. This

author

has not

examined

Coke's

original

notes

of the case.

Case, (K.B.)

(1596)

against 658, pain

corporation, the Statute 667 [of]

to make because power upon by-laws pain of imprisonment; The Case of the City of London, of Magna Charta"); (1610) 77 Eng. Rep. on cannot be made that "a constitution (K.B.) (citing Clark's Case for the principle Ellesmere criticized the report: imprisonment"). have lain silent than to have seen

(citing who have

see 77 Eng. Rep. 152 (C.P.); Case, (1642) 82 Eng. Rep. Langham's cannot that "a constitution be made Clark's Case for the principle

465, by a it is

to it were fitter such a judgment assessment in advancement light; for the being in furtherance and the ordinance therof, being as to protect meant such obstinate persons erection of the Court of Justice. If there were Ellesmere, 1621 debate 127, at 309 (spelling modernized). supra note over the power. corporate imprisonment

of the general justice the Statute of Magna should refuse to set

of the realm, never Charta forward the

Coke See 3 The

later addressed Selected

this

issue of

in a Sir

Writings

Edward

Coke

1211 (Steve Sheppard ed., 2003)

(quoting a speech given by Coke

in

Parliament). ? Carta of 1225 131. Chapter 29 of the Magna 39 of the 1215 charter?stated: chapter . . . ... man or in any way shall be taken or imprisoned except destroyed of his peers or by the law of the land." J.H. Baker, An Introduction judgment

by

free "[N]o the lawful to English

Legal History
132. Clark's Case,

537 (3d ed. 1990).

Rep. at 152.

jj Eng.

528

THE

CORPORATE

ORIGINS

OF

JUDICIAL

REVIEW

The bylaw cases not reported by Coke reflect similar constitutional constraints. In Doggerell v. Pokes (1595), a London bylaw made the bonds and covenants of an apprentice void if he was the son of an alien; the court concluded that the bylaw could not void the covenant but could only impose a fine.'33Bab v. Clerk (1595) involved imprisonment under the bylaw of an incorporated town. Once again, the court found the imprisonment unjustified and the bylaw unlawful.'34 In Wilford v. Masham (1595), a London bylaw barred apothecaries from selling unwholesome drugs on pain of forfeit; the court concluded in favor of the bylaws and customs.135 Bylaws could penalize by fine or debt, but not by imprisonment. Another case unreported in Coke's 1605 Reports, Davenant v. Hurdis (1599),136confirmed the principle of limited bylaws; Francis Moore included the case in his reports under the heading "By lawes de Corporations."'137 The Merchant Tailors had the power to make ordinances "for their good governance" provided theywere "not contrary to the laws and constitutions of the king, nor in prejudice to the majority of citizens of London."''8 The ordinance requiredMerchant Tailors to use another member of theMerchant Tailors inworking half of the cloth, and Davenant refused either to comply or

133- (i595) 72 Eng. Rep. 663 (K.B.) (law French) William ;

English, of the Cases Reported by Sr. Francis

Hughes, An Exact Abridgement

Kt. 118 (London, John Starkey,

in

More

Thomas Basset & Samuel Speed 1665) (English version). For an early bylaw case, see Scarling v. Criett, (1565) 72 Eng. Rep. 451 (K.B.), which required that the major portion of
inhabitants participate in bylaws.

134.Bab v. Clerk, (1595) 72 Eng. Rep. 663 (K.B.) (law French); Hughes, supra note 133, at 118 (English version). The court suggested that disenfranchisement would have been
permissible. Lawful appears as "loyal" in Francis Moore's report. Bab, 72 Eng. Rep. at 663.

135. (1595) 72 Eng. Rep. 657 (K.B.) (law French); Hughes,

version). 136. (1599) 72 Eng. Moore, discussed Rep. 769 Cases with (K.B.). Collect respect to & Report monopolies. 576 See, (London,

supra note 133, at 113 (English

137. Francis usually Harris England,

Sacks, The Countervailing of Benefits: Monopoly, in Tudor Political Culture 272 (Dale Hoak Tradition 31 Emory L. Rev. 43, Under L.J. 51-54

G. Paulet is 1688). Davenant 118; David e.g., Malament, supra note in Elizabethan Liberty, and Benevolence ed., 1995); Donald O. Wagner, The

Common Law and Free Enterprise:An Early Case of Monopoly, 7 Econ. Hist. Rev. 217 (1937) ;
see also Michael Conant, Antimonopoly Cases Re-Examined, Slaughter-House 6 Chap. Liberties, Protecting Economic theNinth 785, 794-95 and Fourteenth (1982) Amendments: H. Siegan, ;Bernard

(2003). The Merchant Justices. Id. My Tailors' thanks ordinances to David had Seipp

at 770 (author's 138. Davenant, 72 Eng. Rep. translation). and the two Chief been confirmed by the Treasurer for assistance with the translation.

529

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to pay the fine. The company sent Hurdis to enter Davenant's house and seize the cloth.139 The later English abridger,William Hughes, commented that the "Case As was very long and very Learnedly argued."''40 counsel for Davenant, Coke contended that the ordinance was unreasonable and void. Itwas amonopoly and "against common right, and against the nature of a bylaw, because a bylaw ought to be made in furtherance of the public good and the better execution of the laws, and not in utter prejudice of subjects or for private gain."'14Coke cited several other cases inwhich corporate ordinances were judged against the common good or Magna Carta.142Defending Hurdis, Moore accepted that bylaws against law and "common equity" were unreasonable; however, he insisted that reasonable customs for particular places should be upheld because the "same reasoning that appoints general laws to govern kingdoms ought to Moore pointed out that allow particular laws to govern particular societies."143 regional inheritance customs (borough English and gavelkind) were permitted by reasons of the place and people, although against the common law (which required primogeniture).'4 The court sided with Davenant. The bylaw created In amonopoly and was "against law."'145 a later case, Coke described Davenant as demonstrating that the ordinances had to be "consonant to law and reason" and not "against the common law, because it was against the liberty of the
subject."146

139- Id. at 769-70. 140. Hughes, 141. Davenant, common supra note 133, at 164. at 771 (author's le nature dun est encount in the original translation) (stating "que car del publick by-law doit estrefait by-law: enfurtherace des leys, et nemy en ouster p[rejjudice des subjects ou pur private gain"). 137, at 580. (stating kingdomes in the original "dont ensuist que doit allower particular leys pur

72 Eng. Rep. droit, & encount execution

bone et lemelior

142. Id. at 771-72; Moore, 143. Davenant, m[eme] governer

supra note

at 773 (author's 72 Eng. Rep. translation) le reason que appoint general leys de governer particular societies").

144. Id. at 776; Moore, however, Davenant, divergences Eng. Rep. he

appeared

72 Eng. based

was that the ordinance 137, at 588. Coke argued supra note "repugnant"; to be rather than See contrariness. inconsistency emphasizing at 771; Moore, about 137, at 578. For a similar argument supra note Rep. on custom, see Wardens v. Brown, & in London (1601) 78 Corp. ofWeavers

1031 (Q3.). at 778; Moore, 137, at 591; see also Hughes, supra note as the ordinance the Common Law, because "against supra note it was against

145. Davenant, 72 Eng. Rep. 133, at 164 (describing

the Liberty of the Subject").

146. The grant as a Case by of Monopolies, letters patent that the 77 Eng. Rep. 1260, 1263, 1266 (K.B.) (1602) (reporting to of an exclusive cards was found void right import and sell playing the common of the case did not emphasize reports law"). Other against

"monopoly

530

THE

CORPORATE

ORIGINS

OF

JUDICIAL

REVIEW

In the decade following his published discussion of bylaws, Coke continued to emphasize the legal limitations on corporate ordinances. In this context, he decided Dr. Bonham's Case (16o8),'47which made increasingly apparent the constitutional nature of the limit. The College of Physicians had imprisoned Thomas Bonham, aDoctor of Physic from theUniversity of Cambridge, after concluding that he had continued to practice medicine in London despite having not been admitted to the College and having been found "less sufficient and unskilful to administer physic."'48 The College defended its actions as justified by the charter of incorporation and by statutes confirming the charter and discussing imprisonment. 149 Chief Justice Coke, a Cambridge graduate, disagreed.'50The College could not imprison Bonham. The case was thus about corporate authority. Sir Thomas Egerton, Lord Ellesmere, declared asmuch when he commented that Coke's report struck "in sunder the Barrs of Governement" of the corporation."5'The decision flowed from Clark's Case, although it involved the complication of the confirmatory parliamentary statute instead of simply the original letters patent.'52Coke was not much more sympathetic to a corporation claiming imprisonment authority under confirmatory parliamentary statute than he was to one claiming such

Davenant. Rep. 830

Darcy (K.B.).

v. Allin, 74 Eng. Rep. 1131 (K.B.); (1602) See Jacob I. Corre, The Argument, generally

v. Allen, 72 Eng. (1602) v. and Reports Decision, of Darcy Darcy

Allen, 45 Emory L.J. 1261 (1996) (discussing Darcy); D. Seaborne Davies, Further Light on theCase ofMonopolies, 48 LawQ^Rev. 394 (1932) (same). 147. (1608) 77 Eng. Rep. 638 (C.P.); seealsoDr. Bonham's Case, (1610) 77 Eng. Rep. 646 (K.B.).
148. Dr. Bonham's 149. The Physicians Act, committed Case, Act jj Eng. Rep. at 642. charter of incorporation VIII. from Henry original act discussed for whenever the 8, c. 5. A second procedures to but did not appear imprisonment interestingly newly of Physicians 2d sess., c. 9, ? 4; see Dr. Act, 1553, 1 Mary, (discussing Royal this point). of Physicians oft-cited law as comment of London on Dr. from 212 (1964). Bonham's the Case the confirmed 15Hen. to persons

Physicians College authorize Bonham's 150. 1George 151. Ellesmere, criticized Parliament. focused while face." Legal on Coke

1523,14 &

imprisonment. Case, jj Eng. Clark,

Rep.

College at 656

A History

of the

College

more 127, at 317. Ellesmere's supra note statement about Coke's the common Id.

of power derogating at 306-07. Thome's Samuel of the Ellesmere-Coke debate interpretation or direct with Ellesmere for "impossibilities repugnancy, arguing repugnances," not on the statute's indirect "that is, contradictions contemplated repugnancies, Dr. Bonham's supra note Case, supra 41, at 278. note 41, at 552, reprinted in Essays in English

Thorne, History,

152. See Harold Thomas

Common and Reason: The College Versus Dr. J. Cook, Against Right of Physicians out that the Hist. 29 Am. J. Legal 301, 303-04 Bonham, (1985) College (pointing was to the "Act of 14 H. 8" but "an odd corporation Coke's referred decision juridically"). on the clauses in the original in the focused that letters patent reproduced appeared to the Act. at els. 13-14; see Dr. Bonham's Case, jj Eng. Rep. Act, pmbl., Physicians preamble 655-56.

531

THE YALE LAW JOURNAL

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authority pursuant solely to royal letters patent. As Harold Cook wrote, "Coke's view of the case stemmed from a sense that an injustice had been done in creating a corporation with powers such as the College."'53Although the opinion never confronted theways inwhich parliamentary confirmation might alter corporate authority to imprison, Coke's opinion offered a variety of alternative arguments to reach the same result achieved in his earlier corporate Indeed, his statement that the common law controlled when an act of cases.154 Parliament was against "common right and reason, or repugnant, or impossible to be performed" was notably similar to the language he had used in his 16o0 reports describing limits on corporate ordinances.155 His inclination to doubt that corporate authority could permit imprisonment reappeared in his observations for the "better direction" of the college inwhich he emphasized fines over imprisonment. 16 Coke's decisions continued to uphold national constraints on corporate lawmaking. In 161o, Coke stated that a "constitution" or ordinance "cannot be made on pain o[f] imprisonment"; it had to be on "a reasonable pecuniary In pain, or not at all."9157 1612, Coke described the incidents of a corporation as including the power to "make ordinances; that is requisite for the good order and government."'158That same year, he declared that a bylaw could not

153- Cook, 154. On

supra note Coke's

152, at 319.

as to for unauthorized between imprisonment practice opposed causa that the iudex in propria had its id. at 316. For the suggestion principle malpractice, ? to the in short, in "keeping subordinate of judicature" that it origins judges proprieties D.C.E. in the proper Iudex involved ideas about Yale, scope of delegated authority?see 33 Cambridge Excursus, L.J. 80, 83, 95-96 (1974). Propia Causa: An Historical distinction see similarity that between acts appears "if there Coke's also to approach v. Mason, in Rowles limits on corporate ordinances and

155. The

parliamentary which held

892, 895 (C.P.), in statute; in custom, the repugnancy common case." See also Thorne, law disallows and rejects it, as it appears by Doctor Bonham's in English Legal History, Dr. Bonham's in Essays Case, supra note 41, at 549-50, reprinted the use of repugnancy in statutory and in supra note 41, at 275-76 interpretation (discussing be

123 Eng. Rep. (1612) or unreasonableness

Rowles). 156. Dr. 157. The Bonham's Case Case, 77 Eng. Rep. at 657. (1610) 77 Eng. Rep. 658, 667 (K.B.). A later commentator

of the City that a bye-law the power supra note

of London, cannot

noted that "although the law has been broadly laid down by Sir Edward Coke and other
judges, granting Grant, 158. The Case v. yet the crown at all periods imprison, not to to but its charters only municipal 50, at 86 (footnote omitted). in 77 Eng. 1055 Rep. 937, 971 . . . was trade[] in the habit corporations." of

of Sutton's Tooley,

also R common

(1612) Hospital, (1613) 80 Eng. Rep. Carta).

(K.B.)

(discussing

law, and Magna Sutton's constituting Hospital to the Lawes not Repugnant

Shepheard

gave authority in force." Shepheard,

emphasized to "make Ordinances supra note

see (citation (K.B.) omitted); the custom the of London, the act of Parliament that for Government at 25. thereof,

46,

532

THE

CORPORATE

ORIGINS

OF

JUDICIAL

REVIEW

abridge or restrain the liberty of the subject.'59 In 1614, Coke addressed the consequence of approval under the 1504 corporate review act, an issue that had not previously arisen. He concluded that review under the statute did not insulate the bylaws from judicial review. The ordinances were still to "be affirmed as good, or disaffirmed as unlawful by the law. ,16o The ordinance at issue was "against the common law, and the commonwealth."''6' The courts seemed the ultimate decision-makers of legal corporate authority. In 1616, over twenty-five years after the courts had begun to describe corporate limits, Chief Justice Hobart affirmed these principles as inherent in the very nature of the English corporation. Norris v. Staps (1616) addressed the patent of theWeavers of Newbury.162 They had power to "make laws and ordinances agreeable to reason, and not in anywise contrary and repugnant to the laws and statutes of the realm."'163 Hobart declared thatwhile the "power to make laws"was inherent in incorporations because "the body corporate must have laws as a politick reason to govern it," the corporation's laws were also inherently "ever ... subject to the general law of the realm as subordinate to The principle of corporate limitation thus arose from national law. it."''64 Hobart noted that if therewere "no proviso for that purpose, the law [would] suppl[y] it." Corporate lawmaking authority was necessarily constrained by the laws of the realm.165

159-See Gravesend Case, (1612) 123Eng. Rep. 883, 885 (C.P.) (involving certain bylaws and
concluding that the that the "custom, and the patent without are repugnant") or ; see also James and Bagg's Case, that the

(1615) 77 Eng. Rep.

"removal 160. The 161. Id. 162. Case

1271, 1279-80 (K.B.) (addressing disenfranchisement

notice hearing

and concluding

had proceeded corporation is against justice and right"). of the Tailors, &c. of Ipswich,

therefore

(1614)

77 Eng.

Rep.

1218,1220

(K.B.).

v. see also Norris 80 Eng. Rep. 357 (K.B.); 123 Eng. Rep. (1616) Stapes, an as to the that the court did not deliver (C.P.) (stating "principal point opinion & Trussel's such a restraining Norris Case, 123 Eng. Rep. ordinance"); (1616) reWeavers a claim was that the "constitution of law") ; In (concerning against (1616) (n.d.) Hughes, 72 Eng. Rep. supra note Rep. 962, 962 133, at 260. at 1060; (K.B.) (reporting that "le by-law fuit encounter

1060,

1061

of making 657 (C.P.)

Newbery, reason");

163. Norris, 123 Eng. The ordinance

see Shepheard, Norris). supra note 46, at 98-104 (discussing as an as a weaver. before The Weavers required serving apprentice to their ordinances in the review had under the 1504 Act. sought refuge approval given was Hobart declared that the ordinance "absurd" due to its exclusion of apprentices raised in at 358. 80 Eng. Rep. the town. Norris, service 80 Eng. Rep. at 358.

164. Norris, 165. Id.

533

THE YALE LAW JOURNAL

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Shepheard's 1659 treatise codified these principles. The section "What Ordinances a Corporation May Make" stated that they were not to be "repugnant to the Lawes of theNation, against the publick and common good A of the people within or without the same City."'166 suggested form was "to make Lawes, Orders, Ordinances, and Constitutions ... as to them shall seeme necessary, and convenient (not repugnant to the prerogative of Us or our Successors, or to any of the Statutes, or other [ofl the Lawes of England) .''67 The clause "they may not make Ordinances repugnant to the Lawes, &c.," however, did not need to be in the charter or act of incorporation; itwas "idle, and to no purpose," because "such By-lawes made by a Corporation, are void by the very Common-Law."''68 Case after case demonstrated "unlawfull" and "void" corporate ordinances169: imprisoning people; requiring the forfeiture of goods; restraining the liberty of trade or the common liberty of the subject; creating justices of the peace or criminal courts; pardoning felons; and enrolling deeds.'70 By the time that English corporations began to settle North America, English law had developed a well-established practice of voiding corporate ordinances that were repugnant to the laws of the nation. The principle of repugnancy was mediated in certain instances by permitting contrary corporate bylaws when they rested on immemorial custom.17'Corporate ordinances were to be reviewed in advance by judges but could be challenged in the courts. "As between the particular privileges of towns and companies and the interests of thewhole realm in trade legal opinion went against the exclusive privileges of

i66.

doing 167. The Chief

or that "Custome noted Shepheard, supra note 46, at 82. Shepheard Prescription common in London. of some things against Id. at 86. Right" Formes Matters and Presidents That Are of Usually Charters; Contained Concerning in Them Corporations. (London,

justifie

the

With J. Streater

the 1659),

reprinted note 46, repugnant 168. Shepheard, of

in Shepheard, in Shepheard, supra supra note 46, at 131, 147; see abo id., reprinted . . . and not at 178 charter with another the phrase "reasonable (reproducing to the Laws, Liberties, and Statutes of England"). Customs, Rights, not stated that bylaws the prerogative supra note 46, at 82. Shepheard against . . . Confirmation" or Protector of the people were "without any profit good certain Id. at 83. Confirmation could make not, 1504 Act. however, good void. See id. at 83-84. that were otherwise

the Lord the

under

ordinances

169. Id. at 43, 78-79. 170. Id. at 43, 71-73, that 78-79, the College had their License, without such power, 171. COOKE, it had Case as a corporate treated Dr. Bonham's case, resolving 84. Shepheard to "no power those who by Fine and Imprisonment, punish practice ? but those practisers who mis-administer or, if it did have Physick" pursued it according to the Statute and Patent." Id. at 104-05.

"not

supra note

65, at 64.

534

THE CORPORATE ORIGINS OF JUDICIAL REVIEW

172 the corporation." Repugnancy, together with the principle of limited corporate lawmaking, did not lie in the particularwords of a Crown grant but was inherent in the essence of legitimate English government. Itwas, in short, a constitutional principle.
II. REPUGNANCY, COLONIAL LAW, AND THE CONSTITUTION

This corporate practice became the American practice later known as judicial review. During the colonial period, the limit on corporate bylaws became a limit on colonial legislatures enforced by colonial courts and the Privy Council. Between 1776 and 1787, state constitutions and state judicial practice continued to assume that legislation could not be repugnant to new written constitutions. The Framers of the U.S. Constitution, Federalists and Anti Federalists, federal judges, and Supreme Court Justices made the same
assumption.

A. The Colonial Constitution andRepugnancy English colonization efforts absorbed the idea of constrained corporate bylaws. The Crown delegated governance authority over settlements through letters patent.173 The nature of the political entity thatwould hold the authority changed over the course of early English settlement. Initial settlements in Virginia and Massachusetts Bay, among others, were structured as corporations. The use of the corporate form is not surprising given the overlap between members of London companies and colonial ventures. Indeed, a number of London aldermen and merchants had significant involvement in domestic and foreign trading corporations.174 Members of the London livery companies and trading companies were major participants in the new North

of England The Economic History 172. Id; see 3 E. Lipson, 348-50 (6th ed. 1956) (describing to the courts' hostility and privileges). The of Monopolies, 1624 Statute monopolies barring an increase certain grants of monopoly, and thus produced charters in corporate exempted incorporations. City and the See Statute Court, of Monopolies, 1624, 21 Jac, c. 3, ?? 1, 9; Robert at 118 (1979); Cooke, supra note 65, at 55. Ashton, The

1603-1643,

Sarah Bilder, English and Local Governance, in The Cambridge Settlement 173. See Mary OF Law in America & Michael L. Tomlins eds., forthcoming (Christopher Grossberg 174. See Ashton, Commercial at 92-112 supra Change, (1993) note 172, at 34-42; Political the company Robert and merchants' Brenner, London's Merchants Overseas and

History 2007).

Revolution:

Conflict,

(discussing

relationship

Traders, 1550-1653, to colonial development).

535

THE YALE LAW JOURNAL

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American settlement ventures; Edward Coke, for example, was involved in the Virginia Company.175 The constraints on settlement governance authority were clarified as domestic corporate bylaw constraints became more apparent in the late sixteenth century. The letters patent given to John Cabot in 1496 and toBristol merchants in 1501 granted governance authority but contained no explicit limits.176By 1569, however, the company formed by Humphrey Gilbert to create English settlements inMunster, Ireland, adopted corporate governance practices and limits. Gilbert requested that the head of his company hold the In power tomake "laws and ordinances, not contrary to the laws of Ireland."'177 later patents in the 1570S to Gilbert and to his half-brother Walter Raleigh, lawmaking authority was constrained by the requirement that it "be as neere as conveniently may, agreeable to the forme of the lawes& pollicy of England.''178 In the wake of the common law court decisions regarding the repugnancy principle for domestic corporations, letters patent for settlement corporations began to use the terms "contrary"or "repugnant"with regard to the laws of England. The 1611 Virginia charter required that the laws "be not contrary.'79 The 1620New England charter conferred the power tomake laws "so always as the same be not contrary" and declared that such laws should be "as near as

175- Thorne, 176. Letters Francisco Discovery:

supra note Patent

123, reprinted

in Essays

in English

Legal

History,

supra note

41, at 225.

for Richarde

Warde,

Thomas

Asshehurst, 19, (Mar. America 1501),

Am. World

of North 104, 105 (David B. Quinn ed., New to John Cabot Letters Patent Granted and His Sons (Mar. 5,1496), 1,1979); from Concept to Discovery, to Sir Walter in America supra, at 94, 95; see also Charter and and Federal in 1 The State Colonial Constitutions, Charters, (1584), Raleigh and Colonies or Heretofore Laws of the States, Now Organic Other Territories, vol. Forming the ed., United States of America Federal and 53, 55 (photo, reprint State Constitutions]; and Francisco at 111,111. Sir Humphrey Gilbert 493 (David Beers 1993) Fernandes (Francis Newton to Letters Patent (Dec. 9, 1502),

and Jo?o Fernandes, Early Exploration

Gonsalves

Jo?o Fernandes, John Thomas, from to in America Concept

[hereinafter 1909) Thorpe Asshehurst, Jo?o Gonsalves, Hugh Elyot, Thomas to Discovery, from Concept in America supra, 177. 2 The Quinn 178. Letters Voyages and Colonising Soc'y to Enterprises

of

ed., Hakluyt Patent

2d ser. 84,1940). and State

Constitutions, 179. The Third

Sir Humfrey in 1 Federal 11, 1578), (June Gylberte (1578 Newfoundland supra note 176, at 49,51 patent).

in 7 Federaland of Virginia State Charter Constitutions, (1611-1612), supra to individual stated that the laws were 176, at 3802, 3806. Some early grants proprietors to be "as near as may be" to the laws of See Bilder, supra note 31, at 214 agreeable England. as n.16 the 1609 Virginia the 1621 Virginia the 1629 charter, Ordinances, (listing examples Mason and the 1622 Gorges and Mason in Maine); Henry Grant, Smith, Joseph grant to the Privy Council from the American Appeals Plantations 465,468-69 (1950). note

536

THE CORPORATE ORIGINS OF JUDICIAL REVIEW

The 1629Massachusetts Bay charter stated conveniently may be, agreeable. "18o that the laws must "be not contrarie or repugnant.'''81The 1662 and 1663 corporate charters of Connecticut and Rhode Island included contrary or repugnant limits.182 The language was not mere verbiage; early New England governments struggled with the degree towhich theywere bound by English corporate law.'8, The repugnancy language soon became disengaged from corporate status. It appeared in Crown grants to individual proprietors. The 1629 patent to Robert Heath for Carolina stated that the laws "be consonant to Reason and not repugnant or contrary but (as conveniently as may be done) consonant to the lawes, statutes, customes & rights of our Realme of England."''84 The 1632 Maryland grant to Lord Baltimore provided that the laws "be consonant to Reason, and be not repugnant or contrary, but (so far as conveniently may be) The 1639Maine grant to Ferdinando Gorges required laws to be agreeable."'185 "reasonable and not repugnant or contrary but as neere as may bee The 1664 letters patent from the King to his brother, James, agreeable.`'186 Duke of York, for New York required that the laws not be "contrary" to the laws of England.187 Most remarkably, even self-authorizing settlements began to absorb the repugnancy rhetoric. In 1641, the Piscataqua River settlers, in

i8o. The

Charter

of New

England

(1620),

in 3 Federaland

State

Constitutions,

supra note

176, at 1827,1832,1833. 181. The note Charter of Massachusetts see also (1662), Bay (1629), id. at 1857-58. in 1 Federaland in 3 Federal and State Constitutions, supra

176, at 1846,1853; of Connecticut

182. Charter

State

Constitutions,

supra note

176, at

529> 5335Charter of Rhode

State 183. See, Constitutions, Sarah e.g., Mary 64 (1997). Their arisen from concern Heath's

Island and Providence Plantations (1663), in 6 Federal and

176, at 3211,3215. of the Appeal to imprison of Clark's Case ist (Oct. in America, and 48 Hastings L.J. 913, 961 may have impose penal measures and Dr. Bonham's Case applied. 1629), in 1 Federal and State

supra note

The Origin Bilder, over the power anxiety that the reasoning

184. Sir Robert Constitutions, 185. The Charter

Patent

supra note of Maryland

5 Charles 176, at 69,71.

30,

(1632),

in 3 Federal

and

State

Constitutions,

supra note

176, at

1677,1680. 186. Grant of the Province of Maine (1639), in 3 Federaland State Constitutions, supra note

176, at 1625,1630. 187. Grant of the Province of Maine see also Daniel of (1664), in 3 Federaland in the in the charter). State Constitutions, Empire: World, New supra note and York at 44

176, at 1637,1638; the Transformation (2005) (discussing

J. Hulsebosch, clause

Constituting Atlantic

Constitutionalism

1664-1830,

the repugnancy

537

THE YALE LAW JOURNAL

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what would become New Hampshire, bound their own laws by the standard of being "not repugnant" to the laws of England. 88 The repugnancy principle limited colonial law. The 1691 Massachusetts Bay charter required that the laws "be not repugnant or contrary" to the laws of England.'89 By the Revolution, every American colony was similarly bound. The most important English statute affecting the colonies used the limit: Laws By-lawes Usages or Customes . . . in any of the said Plantations which are in any wise repugnant to the before mentioned Lawes ... or which are wayes repugnant to this present Act or to any other Law hereafter to bee made . . . soe farr as such Law shall relate to and mention the said Plantations are illegall null and void....190 Under this standard, the third branch of colonial government, the Privy Council, reviewed over 85oo colonial acts from colonial legislatures19' and around 250 appeals from colonial courts192that had themselves struggled over the relationship between colonial law and the laws of England.'93 The thousands of pages of legislation sent from the colonies to England testify to the pervasive reality of this practice.194By the end of the seventeenth century, repugnancy to the laws of England as a limit on English corporations had become transformed into a limit on colonial law-what I have called elsewhere

i88. The

Combination State

of the Inhabitants Constitutions,

upon

Federaland

supra note

River the Piscataqua for Government 176, at 2445,2445.

(1641),

in 4

in 3 Federaland State of Massachusetts Constitutions, 189. The Charter supra (1691), Bay 1 see An Abstract of Some of the Printed note 176, at 1870,1882; Laws of New-England or not to the Laws of laws that "are either contrary, 1689) agreeable (criticizing (n.p. England"). 190. An Act for Preventing Act), 1695, Abuses in the Plantation Trade and Regulating (Plantation Assurance and London 3, c. 22, ? 8; see also Royal Exchange c. 18 ("[T]he sole Right and Prerogative of granting Charters 1719, 6 Geo., to any Law or Statute doth of this Realm) such as are repugnant (not being Frauds 7& 8Will.

Trade

Act, Corporation of Incorporation belong 191. Elmer

to your Majesty."). Beecher Russell, The Review of American Colonial Legislation by the King in

Council 221 (photo, reprint 1981) (1915). See generally id. at 139-73 (discussing conformity to the laws of England).
192. See Smith, precise A more See generally id. at 523-653 179, at 667-71. supra note (discussing appeals). to count must of of await Sharon O'Connor's guide completion appeals to the Council Before American documentation, Privy Appeals Independence. supra note M. Andrews, 31, at 91-114 List (discussing Rhode Island cases) ;Bilder, supra note 173. of the Office,

193. See Bilder, 194. See Charles Thirteen London,

Original in 1Ann.

and Colonies, Rep. Am. Hist.

and Acts of the Journals in America, the Floridas, Ass'n for the Year

and Assemblies of the Councils Preserved in the Public Record 1908 app. D, at 399 (1909).

538

THE

CORPORATE

ORIGINS

OF

JUDICIAL

REVIEW

a "transatlantic constitution."'195 This constitution structured colonial law by absorbing the repugnancy principle and, in particular, the emphasis on Magna Carta as a meaningful constraint on lawmaking authority. Colonial law also absorbed the corporate argument that ordinances could diverge for reasons of immemorial custom relating to the particular people or place.196 Awareness of this transformation appears in 1701 in the comment of the anonymous author of An Essay upon theGovernment of theEnglish Plantations on theContinent of America. Did colonial legislatures have the power to pass "Acts or Ordinances in the nature of by-Laws only" ?197 as he asked, were they something more: Or, far [is] the Legislative Authority ... in theAssemblies of the several "[H]ow

?198 Colonies"
Throughout the eighteenth century, on both sides of the Atlantic, lawmakers and legal observers understood the repugnancy limit. A few examples must suffice.199 Barbados's Attorney General described the Governor's commission as requiring that "no laws shall be passed, that are repugnant to the laws of England."200 In 1729, dissenting Rhode Island judges argued that the practice of interpreting "jointly" to permit descent to heirs was

195- Bilder, 196. On United Swinfen, 197. An Essay these

supra note

31, at 1. and Empire Center: and the see

Constitutional

see id. at 3, 139; and Jack P. Greene, Peripheries arguments, in the Extended of the British Development Polities at 19-42 1607-1788, supra note 23, at 66-69. the Government (1986). On the Empire's use

States,

of the same

language,

upon

of

the

English

Plantations

on

the

Continent

of

America
colonial disposing

23 (Louis B.Wright
assemblies of Titles could to Lands

ed., Huntingdon

Library 1945) (1701) (asking also whether

such Acts requires, make even tho' in some Particulars, 198. Id. Additional powers whether examples of "Illegitimating "they may make of Sec." Id. examples,

or of Attainder, for "make Acts Naturalization, set[t]ling . . . , and other and where Necessity things of the like Nature; as best suit the Circumstances and Constitution of the Country, they plainly differ from the Laws of England"). to

of

the included power authority bylaw legislative of Heirs" and "cutting off Intails." Id. at 40. The author also asked to the Laws of Laws disagre[e]able in such Cases, where England, are vastly different, as concerning Plantations, Waste, the

in contrast

the Circumstances Church, 199. For 200. The

the Places

further Opinion

see Greene,

supra note

196, at 19-42.

Creating Various

on the Act of the Attorney-General of Barbadoes, of Assembly, Rawlin, on of Eminent in 2 George Opinions Chalmers, Lawyers, (n.d.), Paper Money of English Points Reed & Hunter 27,29 Jurisprudence 1814); see also (London, an act for to id. at 30 (criticizing and the statutes, Carta, contrary Magna being English or reason, or is repugnant, common that is against that an act of parliament, "maxim, right, or in itself, is void"). impossible,

539

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"contrary and repugnant" to the laws of England regarding joint tenancy."' In 1730, the English Attorney General and Solicitor General explained that Connecticut had the power of making bylaws and laws affecting property but that any laws "repugnant to the laws of England" were "absolutely null and void."202In 1738,New York's Lieutenant Governor stated that the "constitution of the Government is such ... whereby the Governour with the Council and Assembly are empowered to pass laws not repugnant to the laws of England."203 In the years preceding the Revolution, awareness of the repugnancy constraint continued. In 1760, the Chief Justice of the South Carolina Court of A Common Pleas discussed the meaning of "repugnancy."204 member of the Inner Temple wrote that the colonists did have "'aRight to make Laws ... provided' that they were 'not repugnant to the Laws of their Mother Country."'205 James Wilson noted that the King had a "negative on the different legislatures throughout his dominions, so that he can prevent any repugnancy in their different laws."206 This constitutional limit on colonial law was familiar to the legal commentators of the early nineteenth century. Joseph Story declared that the

2oi. Bilder, colony's colonial 202. The

supra

note

practices statute. See

31, at 109. Cases or customs rather id. at 110-11.

in Rhode than the

Island direct

often

involved

repugnancy

over the arguments a raised by particular

Opinion

Assembly

Murray (discussing to the laws of shall not be contrary there "always is a restriction, that [the colonial laws] on the Question, an Whether The Opinion of the Attorney-General Murray, England." a on the into a Colony in 1 Can of Convicts (1755), Duty Assembly Impose Importation Chalmers, supra note 200, at 344,347. 203. Mr. Clarke's to Answers the Colonial to Queries History & Co. of Empire of Board of the of Trade State (June 2, of New-York 1738), 120 in 6 Documents (E.B. O'Callaghan in Imperio: Imperia Rev. 319, 320

of the Attorney and Solicitor-General, and Talbot, Yorke, Laws To Make in 1 Chalmers, of Connecticut (1730), supra a Connecticut In 1755, Attorney General William charter).

on note

the Power 200,

of the

at 353, 354 that stated

Relative ed., Albany, The Multiple

Parsons Weed, Constitutions

1855), quoted in Daniel J. Hulsebosch, 16 Law in New 1750-1777, York,

& Hist.

(1998).
204. Michie PI. 1760), South (S.C. Ct. Com. ofWatson act to intestate administration that a colony relating and he suggested that in any case only the Privy the laws of England, could void a repugnant colonial law. See Smith, court, supra note concluded supra note 22, at 41-42 could exercise judicial supra note (emphasizing review). (quoting on a pamphlet published and Extent in 1766). the Legislative Authority of supra note 51, at 721,745. of the that the defendant's In Williams v. Executors Carolina was not Chief Justice to repugnant not a colonial

Beth, court 205. Greene,

Council, see also 179, at 586-91; the colonial counsel thought

196, at 97 Considerations (1774),

206. 2 James Wilson, British Parliament

the Nature of

in The Works

James Wilson,

54O

THE

CORPORATE

ORIGINS

OF

JUDICIAL

REVIEW

colonial "assemblies had the power of maling local laws and ordinances, not repugnant to the laws of England, but as near as may be agreeable thereto, subject to the ratification and disapproval of the crown."207Throughout the lengthy 200-page discussion of the "charters, constitutional history, and ante revolutionary jurisprudence of the Colonies," Story repeatedly noted instances inwhich lawmaking power had been limited by theword "repugnant."2o8 He declared that "all their laws were required to be not repugnant unto, but, as near asmight be, agreeable to the laws and statutes of England."209The Crown had a "negative" on the laws and a right of revision through appeal.210Story explained that the repugnancy condition was "a limitation upon the legislative power contained in an express clause of all the charters; and could not be transcended without a clear breach of their fundamental conditions."211The colonies had only a delegated, constrained legislative authority. B. American Constitutions andRepugnancy The Revolution did not end the use of the repugnancy principle as a limitation upon legislative power. The years leading up to the Revolution had seen an extensive debate over the nature of parliamentary and legislative

207.

i Joseph

Story,

Commentaries

on

the

Constitution

of the

United

States

? 159, at 144

National (Boston, Hilliard, Gray & Co. 1833) ;see also Thomas Sergeant, A Brief Sketch of the Judiciary Powers Exercised in theUnited States, from theFirst Settlement of the Colonies to the Time of the Adoption of the Present Federal Constitution, in Peter S. Du Ponceau, A
Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the

United
"general "colonial 208. 1 Story,

States

135,141 (photo, reprint 1993) (Phila., Abraham Small 1824) (describing the
power by way of appeal" of the Privy Council over the decisions of

superintending tribunals"). supra note 207,

at 2; see id. ? 56, at 40

(Plymouth);

id. ? 71, at 55 (Massachusetts);

id. ? 80, at 67 (New Hampshire); id. ? 82, at 69 (Maine); id. ? 96, at 83 (Rhode Island); id. ? 104, at 93 (Maryland); id. ? 119, at 108 (New Jersey); id. ? 122, at 110 (Pennsylvania); id.
in the Plantation the word Trade Act, ; id. ? 164, at 148 (noting 1695, case of v. to the 1727 Connecticut id. ? 181, at 167 (referring Winthrop an address of the Massachusetts in 1761); Court id. ? 188, at 174 (quoting General Lechmere); are see also id. ? 156, at 139 "no laws shall be made, that under the charters, which (stating to the laws of shall conform to, but as near as may be conveniently, repugnant England"). 7& 209. Id. ? 163, at 147. 210. Id. ? 210, at 196 (noting the repugnancy limitation). ? 143, at 129 (Georgia) 8Will. 3, c. 22);

211. Id. ? 163, at 147. Still, he noted of this clause seems, however, that a "very liberal exposition to have Id. and to have been acquiesced in, if not adopted always by the crown." prevailed,

541

THE YALE LAW JOURNAL

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power.212 The conclusion to be drawn about legislative power was ambiguous.213 English legal and political thought claimed Parliament was supreme; American legal and political thought attempted to constrain parliamentary power over the colonies.4 The idea of legislative supremacy could be supported by the English parliamentary claim and the dominance of the colonial legislatures. The commitment to constrained legislative power received equally strong support from the need to limit Parliament and from the colonial transatlantic constitution. The post-Revolutionary process of writing state constitutions reinforced the belief that the legislature held delegated constitutional authority. The "constitution" replaced theCrown or Parliament as the delegator of governance authority. As Samuel Adams wrote in 1768, "[T]he Constitution is fixd; & as the supreme Legislative derives its Power & Authority from the Constitution, it In cannot overleap theBounds of itwithout destroying its own foundation."'215 1776, an anonymous author argued that the English had no constitution, "their legislative power being unlimited without either condition or controul, except in the single instance of trial by Juries."A constitution "says to the legislative In powers, 'Thus far shalt thou go, and no farther. ,,216 certain new state constitutions, repugnancy served explicitly to constrain state legislation.217In

212. See Bernard (rev. Wilson, 213. For ed.

Bailyn,

The

Ideological supra note

Origins 21. For

of

the

American discussion,

Revolution see, for

200-29 example,

1992); Wood, supra note 206. of the

contemporary

discussion

relationship 64 N.Y.U.

between

these

competing

ideas

and

judicial

review,

see

John Phillip Reid, Another Origin ofJudicial Review: The Constitutional Crisis of 1776 and the
Need for 214. For a Dernier Judge, L. Rev. see, for 963 (1989). Paxton's Daniel Colonies Case 1761), (Mass. Considerations in Quincy, on the discussions, contemporary supra note 5, at 51, 55 (argument of Imposing Propriety Taxes of the American example,

of James Otis); in the British Revolution,

Dulany,

Pamphlets [hereinafter and Proved 215. The House

Pamphlets] (Boston, Edes

; and James Otis, & Gill 1764), reprinted

1750-1776, The Rights

in 1 1765), reprinted (Annapolis, at 598 (Bernard ed., 1965) Bailyn of the British Colonies Asserted supra, at 408. of Representatives Cushing ed., 1904);

in 1 Pamphlets,

to the of Representatives of Mass, of Other Houses Speakers 1 of Samuel in Writings Adams 184,185 (Feb. 11,1768), (Harry Alonzo see also Wood, supra note 21, at 266-67 (quoting Adams). IV, in Four Letters on Interesting and Other Subjects Writings (Phila., Steiner

216. Letter

& Cist

in Thomas (following 217. Bilder, was not

Common Paine, A. Owen Aldridge's supra new. note

Sense

attribution

of the pamphlet

74, 75 (Gordon to Paine).

1776), reprinted Wood ed., 2003)

substitution of "constitution" for the "laws of England" Term Constitution: the Stourzh, Changing Meanings of the from to the Late and the in Conceptual Seventeenth Change Early Century, Eighteenth Constitution Ball & J.G.A. Pocock seventeenth 35, 43 (Terence eds., 1988) (quoting was to the effect North that "constitution" "more century lawyer Roger frequently such as 'the laws of this Kingdom, his Majesty's older expressions Laws, [or] supplanting See Gerald

31, at 187. The

542

THE

CORPORATE

ORIGINS

OF

JUDICIAL

REVIEW

1786, James Iredell summarized the continuation of a practice of limiting legislative power. In reference to the writing of the North Carolina state constitution, he explained, "Wewere not ignorant of the theory of the necessity of the legislaturebeing absolute in all cases,because itwas the great ground of the British pretensions. But this was a mere speculative principle, which men at ease and leisure thought proper to assume." Because the state constitution rejected such a theory, he declared, "I have therefore no doubt, but that the power of theAssembly is limited and defined by the constitution.''218 In a series of well-studied cases, state judges repeatedly affirmed that legislation could not be repugnant to the state constitution, often using the specific language of repugnancy.219 In New Jersey in 1780, state court judges
found a legislatively authorized six-man jury contrary to the new state

constitution.220 In Virginia in 1782, judges heard arguments that a legislative act pardoning prisoners was "contrary to the plain declaration of the

the Laws

of

"repugnant" Gaspar Brown,

the Land'"). to American British

On state Statutes

the

related

issue and

common

of reception constitutional Law, 1776-1836

of law,

the see (1964).

laws

generally

not of England Elizabeth

in American

218.An Elector [James Iredell], To The Public (Aug. 17,1786), in 2Griffith

Correspondence Iredell, Law Instructions of James to Chowan Iredell 145,146 (N.Y., D. Appleton (Sept. & Co. 1783), County Representatives

J.McRee, Life and

1858); see also James of in 2 The Papers

James Iredell 446, 449 (Don Higginbotham

ed., 1976) (describing "aRepublic where the

even to the

to any or all the Individuals, is superior and the Constitution is superior are the and of which the Judges and protectors"). Legislature, guardians examination 219. Scholarly note 5, app. supra 19 Am. Constitution, of

in the nineteenth these cases began See, e.g., Quincy, century. to the M. Meigs, the Judiciary The Relation 529 n.32; Wm. of L. Rev. see, for example, 175, 178-83 discussion, (1885). F?r rnodern v. The 1 Louis Raoul Congress Supreme Court B. Boudin, Berger, 36-46 (1969); by Judiciary 2 Government 51-72 (photo, Clinton, 1993) (1932); supra note 6; reprint of the Supreme Court 11, at 938-75; Crosskey, Goebel, Jr., 1History Julius supra note 1, at of the United States: Antecedents Doctrine and Law not of the the Grove The Haines, Levy, Original Review and Article of American Intent the does to 1801, at 125-42 (1971) ;Charles Supremacy Judicial (2d ed. 1932); Leonard Framers' Constitution Sylvia Snowiss, (1988); Constitution ; and Wood, (1990) supra note 21, at Beginnings of 1778) because Blackstone's Young Birch of and

W.

Judicial

453-63. This the absence Commentaries

discuss extant

significant app. note

D,

The Josiah Philips Case (Va. Gen. Ct. See 1 St. George materials. Tucker, at 293 (Phila., William 1996) reprint (photo,

&

Abraham Small 1803) William Romaine Tyree, The Case ofJosiah Phillips, 16Va. L. Reg. ;
v. the reasoning in Rutgers 648 (1911). Although (N.Y. Waddington on the it focused similar of repugancy, of a statute theory relationship 1 The Law of Alexander Practice of nations. See Hamilton: Commentary 220. Austin Scott, 392-419 Holmes (Julius Goebel, Jr. ed., The New 1964). on a based 1784) was to a treaty or the law and Documents

Holmes (discussing State Constitutions, 427 (1802). Acts

Rev. 4 Am. Hist. 456 (1899) Jersey Precedent, see N.J. Const, of 1776, art. 22, in 5 Federaland (N.J. 1780)); v. Parkhurst, 9 N.J.L. supra note 176, at 2594, 2598; State (4 Halst.) in 1775 and 1778 authorized the jury. Scott, supra, at 457-58. v.Walton

vs. Walton:

543

THE YALE LAW JOURNAL

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Discussion arose over whether a court constitution; and therefore void."'221 could "declare an Act of the Legislature void because itwas repugnant" to the constitution.222Most of the judges believed "that the court had power to declare" a legislative act "unconstitutional and void."223 In Rhode Island in 1786, attorneys argued that a statute denying a jury trialwas "unconstitutional, and repugnant to the Law of the Land."24 The legislature could only "make[] laws not repugnant to the constitution"; the judiciary could not execute an act thatwas "against the constitution."225Judge David Howell justified the court's refusal to take cognizance of the case as required by the law by describing the law as "repugnant and unconstitutional.,226 In New Hampshire in 1786, an inferior court heard cases questioning whether an act effectively denying a jury trialwas "Against the Express Letter & Spirit of said Constitution & Against the Law of the Land."227 The state constitution provided that legislation must not be "repugnant, or contrary to this constitution. "228 The court concluded that the act was "Manifestly Contrary to the Constitution of this State."229 In North Carolina in 1787, an act denying jury trialwas allegedly unconstitutional and void. The court considering the act concluded that the constitution was the "fundamental law of the land," and the actwas therefore abrogated.230 These judges did not intend to create judicial review; they simply continued to assume that legislation could not be repugnant towhat was now termed a constitution. The colonial limit of repugnancy was being transformed into an American principle of written constitutionalism. Corporations had held delegated bylaw authority from the Crown; colonies had held delegated

221. Commonwealth 222. Pendleton's in 2 The Mays note 223. Caton,

v. Cat?n, Account of"The and

8 Va.

(4 Call.)

5, 7 (1782). v. Commonwealth) (Oct. 29,1782), at 416,417 1734-1803, (David John see Treanor, Case of the Prisoners, supra

Case of

Letters

Papers

(Caton of the Prisoners" Edmund Pendleton, 8,1967);

14 (discussing 8 Va.

ed., Va. Historical Soc'y the case). (4 Call.)

Documents

at 20. Pendleton

declined (R.I.) Gazette

to reach

the issue. J., Sept. 30, 1786, at 2; see

224. Providence, Bilder, 225. James M.

Sept. 30, Providence supra note 31, at 188-90. Varnum, The Case,

& Country

Trevett

Against

Weeden

1, 27

(Providence,

John

Carter

Weeden (R.1.1786)). 1787) (recording proceedings in Trevett v.

226. 2 Crosskey, 227. Ten Pound Pound (2002). 228. N.H. Const, of 1784, Act Cases, Singleton, in 4 Federaland in Lambert, 1N.C. State Constitutions,supra 227, at 45. (Super. Ct. Law&Eq. 1787). note 176, at 2453,2458. Act" supra note Act Cases 11, at 966 Inferior (quoting Ct. a 1786 newspaper Com. Pi. report). Lambert, 43 N.H. The B.J. "Ten 37, 41 in Richard M. 1786), in New Review Hampshire,

Cases

(N.H. and the Origins

of Judicial

229. Ten Pound 230. Bayard v.

supra note 48

5, 7,1 Mart.

544

THE CORPORATE ORIGINS OF JUDICIAL REVIEW

legislative power from the Crown and Parliament. The state legislatures, in turn, held delegated authority from the people. This understanding explicitly appeared in several of these cases. Rhode Island attorneys argued that the "powers of legislation" are "derived from the people at large" and are therefore "subordinate" ;231legislation was thus constrained by the charter and constitution.232A New Hampshire attorney argued that the legislature could not "exercise a Power which is not deriv'd from the constitution" and that the courts were the "constitutional Barriers between the Power of the Legislature and the liberty of the People."233The report of theNorth Carolina court stated that the legislature could not repeal or alter the Constitution without "destroy[ing] their own existence as a A Legislature."234 practice that had involved delegated legislative power from the Crown slid easily into one now described as arising from delegated legislative power of the people.235 C. The United States Constitution andRepugnancy At the national level, repugnancy continued to prove relevant. Under the Articles of Confederation, therewas little occasion to consider the implications of "repugnancy"with regard to congressional acts. The Continental Congress, however, used repugnancy to regulate the similar relationship of state statutes to a treaty.Congress was concerned that certain state actswere "repugnant" to the 1783peace treaty, and in the spring of 1787, it recommended that the states pass legislation providing "such acts and parts of acts repugnant to the treaty of peace . . . shall be and thereby are repealed." Courts were to "decide and adjudge" according to the act.236 The proposed revision of theArticles of Confederation raised the relevance of repugnancy to a new government structure. An editorial in a New York

231. Varnum, supra laws "is derived 232. Id. at 22-26; 233. Lambert,

note from

225, at 21; see id. at 26 (stating is subordinate the constitution,

that

the

legislature's

power

of making

to it").

see id. at 35. 227, at 44. a reporter's account of observations of the Superior Court of

supra note

1N.C. at 7 234. Bayard, (providing Law and Equity). 235. For the argument that this

idea

of delegation

did

not

give

rise

to

judicial

review,

see

Crosskey, 236. 32 Journals eds.,

supra note of the

11, at 938-75. Continental Congress, at 125 1774-1789, (Worthington see id. at 177-84 (explaining conflicting legislation. See, e.g., C. Ford the et al.

resolutions); 1936) repugnancy (discussing states In response, for the resolution). repealed id. at 353 n.i (Connecticut). (Massachusetts);

rationale

id. at 303 n.i

545

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paper in June 1787 argued that the corporate bylaw practice should serve as a model. The "West-Chester Farmer" suggested that the states "should still retain the subordinate power of legislation" under any new government.237 They should be permitted tomake "local ordinances, not repugnant to the laws of the supreme power. "23i They would have the power tomake bylaws under constitutions that should provide "that all laws, by laws, usages and customs, repugnant to any law or ordinance made, or to be made, by the supreme As power, shall be utterly void and of none effect."239 the author noted, "[I]n other words, they are to be in the nature of civil corporations."'4 Although this state-as-corporation model was not adopted,41 almost every one of the occasional comments made at the Convention regarding judicial review betrayed the preexisting assumption that legislation would be limited by the Constitution and that judges would therefore necessarily declare laws contrary to the Constitution void.742 These comments mostly occurred in

237- West-Chester The Documentary

Farmer, & Gaspare

To

the Citizens of the eds.,

History J. Saladino

ofAmerica, Ratification 1981)

N.Y.

Daily

Advertiser, Constitution

June

8,1787,

in 13 P.

of the

128,129

(John

Kaminski 238. Id.

[hereinafter

DHRC].

239. Id. at 129-30. 240. Id. at 129. On the conceptualization Essays 123-24 of Limited of states as see Frederic William corporations, and Eric Enlow, The Corporate Conception of the 1 (2001). 6Wash. U. J.L. & Pol'y Government,

Maitland, State 241. The and

Selected the Origins

(1936); Constitutional

was to which to the states could be analogized degree occasionally corporations on the nature of Gouverneur mentioned the Convention. Morris commented during original more than the Revolution the colonial the states before had been "nothing relationship: 1 The Records of 1787, at 552 (Max of the Federal colonial Convention corporations." of the Federal Farrand Records ed., rev. ed. 1966) Convention] [hereinafter (July 7). James Madison allegedly of making and by-laws, Id. at471 confederation." of Yates's notes with the power "only great corporations, having to the if they are not contradictory general on the accuracy later cast doubt (June 29) (Yates's notes). Madison toW.C. to this comment. Rives See Letter from James Madison respect described these are effectual only the states as

as to reduce the also recorded Hamilton (Oct. 21, 1833), in 3 id. at 521, 521-22. Yates desiring of states to Extracts Secret Proceedings, in 3 Records from Yates's "simple corporations." the Federal "How did later write Convention, supra, at 410, 413. Madison Jefferson, long is yet fixed has it taken to fix, and how the legislative of corporations, power imperfectly Letter is subordinate in the most manner?" that power from James though compleat Madison Rakove 242. The Beard, to Thomas ed., sources The 1999). for this debate Court have and little changed the Constitution A. last century. See, e.g., Charles (1912) ;Berger, supra note 219, at 47 supra note 219, at 183-85; Prakash & Yoo, Origins, on 12. Most of those supra note commenting Alexander Bedford, John Dickinson, Gunning the and James Wilson. See Framers of over Jefferson (Oct. 24, 1787), in James Madison, Writings 148 (Jack

Supreme supra note 12; Prakash had Rufus

supra

81; Kramer, note judicial

5, at 78-92; Meigs, & Yoo, Questions,

review

studied

Hamilton,

King,

law, including Luther Martin, John Mercer,

546

THE

CORPORATE

ORIGINS

OF

JUDICIAL

REVIEW

discussions relating to the negativing power (usually over state legislation), an executive-judicial Council of Revision, and an executive veto (usually over federal legislation). 4 Concerns about explicitly mixing executive and judicial powers and anxiety over the evisceration of the states sunk these proposals. Not one, however, was rejected because of disagreement over judges' duty to void laws contrary to the Constitution; in fact, the presumed continuation of the practice may have served in some minds as a rationale for the rejections. The delegates who seemed to disagree with judicial review used theword "ought," signaling an aspiration rather than present reality or future later expectations. In June, Gunning Bedford declared (as Madison summarized) that the representatives of the people "ought to be under no external control whatever."244 In August, in a discussion over the executive veto, FrancisMercer stated that that he "disapproved of the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be uncontroulable."'45 Mercer's reference to "Doctrine" emphasized the prior existence of the practice. John Dickenson was "strongly impressed" byMercer's

the Those

Constitution speaking

George Mason, law. See id. at 172,179. 243. Madison proposing exercised (Apr. and others

125-26,139,155,163,177,181, the subject who did not and Elbridge Gerry. Madison on

et al. eds., 1986). (James H. Charleton train as lawyers were James Madison, explicitly both read extensively and Mason, in however,

210

that by

of the practice for a continuation argued to the national enjoy the power negative legislature Letter the Kingly from James Madison prerogative." in Writings, supra note that been

of

reviewing legislation, state laws "as heretofore

16, 1787),

Convention, Madison's and would

to George Washington note 241, at 80, 81; see also 1 Records of the Federal supra statement that the 241, at 164 (June 8) (presenting Pinckney's

"negative of the Crown had been found beneficial");

statement not have it had been

id. at 168 (June 8) (presenting

before the Revolution the or for rejected plan to the Constitution contrary of the Federal Convention,

"the practice in Royal Colonies Alexander Hamilton's inconvenient").

for "[a] 11 laws of the particular States government provided 1 Records to be States laws of the United void." utterly supra note 241, at 293 (June 18). 244. 1 Records debate over of the Federal Convention, of Revision and Bedford's "opinion

the Council

(Yates's notes) (discussing Bedford's notes) (discussing was even more statement the Council of Revision

ambiguous and an executive

the supra note 241, at 101 (June 4) (presenting see also id. at 106 (June 4) the executive veto); to the executive ; id. at 109 (Pierce's veto) opposition on a The that no check was necessary Legislature"). as itwas aimed at rejecting in context, both seemingly veto. Bedford emphasized that he opposed "every

check on the Legislative" and "thought it would

Constitution two Houses 245. 2 id. at 298 & Yoo, the boundaries of Congress) (Aug. would

be sufficient to mark out

in the
(i.e., the

to the because the two branches Authority" Legislative check themselves. Id. at 100-01 (June 4). to for show judicial that the comments of federal

Dickinson Prakash

"might

actually

effort 15). For another advance the case supra note 12, at 943.

of Mercer legislation,"

and see

review

Origins,

547

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comment and noted that he "thought no such power ought to exist." However, Dickenson concluded that he "was at the same time at a losswhat expedient to substitute.",46 Richard Spaight's famous letter to James Iredell similarly commented that "no judiciary ought ever to possess" the power to negative legislation.747 Not one of these delegates further argued the point. In contrast, other comments assumed a continuing practice. In debates over the Council of Revision, Rufus King assumed that judges would "no doubt stop the operation of such [statutes] as shall appear repugnant to the constitution."248 Elbridge Gerry noted that in some states, with "general approbation," the "Judges had <actually> set aside laws as being agst. the

246. 2 Records Morris should

of

the

Federal "He could

equivocated: to say that a direct be bound have its inconveniences. the legislature might from Richard 169 to James Spaight that "it would have had the power no judiciary the deserve

Convention, not agree

241, at 299 supra note 15). Gouverneur (Aug. was part of the Executive, the Judiciary which was over violation of the Constitution law. A controul that But view the danger on the other side." Id.

247. Letter 168, world,"

Iredell been

(Aug.

(adding if the judges

absurd, as "an absolute to operate ought ever to possess");

in 2McRee, 12,1787), to the and contrary

supra note 218, at of all the practice the proceedings P. Whichard,

of the Legislature,

which

on negative see also Willis

Justice

James Iredell
repeated Convention,

13-14 (2000)
views

(discussing Spaight's letter to Iredell). Despite

of Spaight, a North weight. 33 Carolina See Coxe,

of century Constitutional

citation,

less precedential

to the delegate note 5, at 385 supra

86 (reprinting Spaight's letter to Iredell and being among the first to call attention to the
219, at Snowiss, supra note correspondence); of judicial-review unidentified group opponents). at the Convention. comment More importantly, not He worlds practice, practice. prior American Scotland. He was educated until 1778. John H. Wheeler, Carolina 9 (Bait., William between difference England 2 (Aug. 26, 1787), in McRee, of the Legislature the powers is held to be) Great Britain as emblematic of an Spaight never made of course, the Spaight, to follow America wanted the Spaight (citing

had lived for much of his young life in at the University to the colonies of Glasgow and did not return of North of the Life of Richard Sketch Dobbs Spaight K. Boyle Iredell's 1880). and America. See Letter supra note would undoubtedly see also 1The ...."); the response emphasized interestingly to Richard from James Iredell Spaight an express Constitution 218, at 172, 172 ("Without have Papers been of absolute Iredell, in (as the Parliament supra note 218, at

James

xxxvii (noting that Iredell moved from England to North Carolina in 1768 at the age of
Whichard, seventeen); comment-"it Iredell's Constitution into effect" Spaight, ? was at xv, supra, ever been has 3-4 my (discussing opinion, Iredell's that with Letter The an colonial act legal inconsistent could Iredell education). with the not carry it to Richard

echoed

supra, in the remark of apparent to hear cases Court arising corporations de Montmorin 248. 1Records rather (Oct. of the

and that the judges, void; consistently his own American legal education. at 172; see Whichard, supra, at 3-8.

their duties, from James

French the principal diplomat meant the Constitution under

was also European perspective of the Supreme that the power that the states "will resemble Otto to Comte

Letter from Louis Guillaume than Sovereign assemblies." in 13DHRC, 20,1787), supra note 237, at 422,424-25. Convention, supra note 241, at 109 (Pierce's

Federal

notes).

548

THE

CORPORATE

ORIGINS

OF

JUDICIAL

REVIEW

Constitution."'49 JamesWilson worried that without the ability to negative state laws in advance of promulgation, laws that "may be unjust, may be unwise, may be dangerous, may be destructive," might not "be so unconstitutional as to justify the Judges in refusing to give them effect."250 Luther Martin stated that "as to the Constitutionality of laws, that point will George Mason come before the Judges in their proper official character."25' referred toMartin's comment to the effect that judges, in their "expository capacity," could "declare an unconstitutional law void."252 James Madison stated, "A law violating a constitution established by the people themselves, would be considered by the Judges as null & void."253 This assumption that state and federal legislation would be bound by the that the judiciary would enforce this limit-explains the Constitution-and parallel addition, near the end of the Convention, of "the Constitution" to the Supremacy Clause and the Supreme Court's jurisdiction. On August 23, John Rutledge moved to clarify that state legislation would be bound by the Constitution.254 On August 27, Samuel Johnson moved to add "this Constitution" to the jurisdictional grant for the Court.255Johnson wanted the

249- Id. at 97 (June 4) (alteration in original) (noting that the judiciary "will have a sufficient
check on their own agst. encroachments department a on their involved of deciding power Constitutionality"). id. at 73 (July 21) (stating that "[j]udges, as by their exposition of the laws, which

250. 2

expositors

of

the Laws

would

have

an

opportunity of defending their constitutional rights," but that the power did not "go far
see also id. at 391 enough"); to prevent It will be better passed."). 251. Id. at 76 (July 21) (noting that in "this character they have a negative on the laws"). of Judges (Aug. 23) ("The firmness of an the passage law, improper is not than of itself to declare sufficient.... it void when

to every law however "But with 252. Id. at 78 (July 21). He continued, unjust regard oppressive or which did not come plainly under this description, be under the they would pernicious, as a to Id. necessity Judges give it free course." 253. Id. at 93 (July 23); see id. at 440 Madison's 28) (Aug. (presenting to declare the Judges of ex post facto laws "will oblige such prohibition a similar comment ; see also id. at 376 (quoting void") by Hugh Williamson). comment interferences that the

null &

254. The of

version of Detail's of the Supremacy Clause "The Acts Committee (art. VIII) provided: in pursuance the Legislature of the United States made of this Constitution, and all . . . shall be the . . . and the law of the several States treaties made in the supreme judges shall be bound in their decisions Id. at 183 (Aug. 6). The motion ...." several States thereby it to: "This Constitution the supreme and the Laws several of the United States States made thereof. . . shall be shall be bound law of the . . . and the Judges (Aug. 23); in pursuance in the several see also id. at

altered

States

thereby

in their decisions

. ..."

Id. at 381-82

389 (presenting Rudedge's motion). 255.Article XI, section 3 of the Committee of Detail draft provided: "The Jurisdiction of the
to all cases Court shall extend Supreme arising under . . . ." Id. at 186 States United (Aug. 6). The motion, laws passed along with of the by the Legislature one another by Rutledge,

549

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two clauses to be conformable.256Both amendments passed unanimously.257 No one argued that the judiciary should not enforce constitutional constraints The Constitution now appeared to have textual authorization on legislation.258 for judicial enforcement of constitutional constraints on state and federal

legislation.
At the state ratifying conventions, the limited nature of legislative power and the judiciary's concomitant role was repeatedly presumed. In Pennsylvania, James Wilson stated that "under this Constitution, the legislature may be restrained, and kept within its prescribed bounds, by the

resulted cases (Aug. clause

in the

clause

arising 27).

under In the

"The stating: the Constitution, textual R. 91, for

of the Supreme Jurisdiction States the laws of the United Coxe

Court ...."

shall

extend

to all

Id. at 423-24,430-32

late nineteenth

represented explicit see also Bradford at 336-39; 71 Geo. "express authority); 256. See 2 Records a Wash. textual Prakash of continuing L. Rev. basis

Brinton century, for authorization The

Supremacy that (2003) (arguing review of federal judicial 91 supra note Convention,

Clark,

judicial Clause

that the "arising under" argued review. See Coxe, supra note 5, as a Constraint on Federal Power, an the Supremacy Clause provides to exceed statutes" claimed federal (making 241, a similar at 430-31. argument). Like others who

& Yoo, the

Origins,

12, at 907 supra

Federal practice,

note

and Johnson had studied law; indeed, Rutledge they may law. about colonial under English have been particularly repugnancy practice knowledgeable was a Doctor at the Middle and Johnson received of the 1760s, Rutledge During Temple assumed Laws (1913) Council from Oxford University. Johnson); briefs with notes See Max Framers Farrand, of the The Framing of the supra Connecticut Constitution note 242, &c. at 33 198 Constitution,

(discussing

(discussing Rutledge).
appeals

The Columbia Law School Library holds a collection of Privy

believed to be by Johnson. Cases, (c. 1771)

William (on file with the

School). 257. See 2 Records of the

Samuel Johnson Collection, Diamond Law Library, Columbia Law

Federal Draft Convention, 241, at 430-31; Amended supra note to the Committee of Style 10, 1787), in 1DHRC, supra note (Sept. ed., it was 1976). not

Constitution 237, at 270, 258. Madison

Submitted 281 (Merrill

Jensen

too far to extend the jurisdiction of the Court going to not to be limited to cases & whether it ought the Constitution, arising Under generally cases of a the Constitution in cases not of this Nature. The right of expounding Judiciary 2 Records of the to that not to be Federal nature given Department." ought was motion 241, at 430 Convention, 27). Johnson's supra note unanimously (Aug. to Madison's it was self-referential comment, because, according "generally approved was to cases limited of a Judiciary that the jurisdiction given constructively supposed seems to have meant that the grant should not be read to extend Id. Madison nature." likely "doubted whether was not the This conversation power. only 1 id. at 63, 67 (June 1) (statement of James Madison) "judiciary or as "to execute not in their executive such powers, power legislative judiciary (defining see also The Federalist on in 2 The Debate No. 48 (James Madison), nature"); reprinted the Constitution in therefore ed., 1993) 136, 136 (Bernard ("After discriminating Bailyn the jurisdiction of appearance into the legislative nature." See theory, judiciary, against the several the next the invasion classes and most as in their nature of power, they may some difficult task is to provide be legislative, or executive, for each or executive

practical

security

of the others.").

550

THE

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ORIGINS

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JUDICIAL

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interposition of the judicial department."259 In Connecticut, Oliver Ellsworth declared: If the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a lawwhich the Constitution does not authorize, it is void; and the judicial power, the national judges, who to secure their impartiality are to be made independent, will declare it to be void.260 InMassachusetts, Samuel Adams explained, "if any lawmade by the federal government shall be extended beyond the power granted by the proposed Constitution, and inconsistent with the Constitution of this State, itwill be an errour, and adjudged by the courts of law to be void.'1261 Despite the lengthy debates in theVirginia convention over the boundaries between state and national authority and the independent spirit of the judiciary, opposing delegates repeatedly agreed that legislation contrary to the Constitution had to be declared void by judges.262Edmund Pendleton noted that the state judiciary had "prevented the operation of some unconstitutional acts. "263Patrick Henry commented, "I take it as the highest encomium on this

259- 2 DHRC,

237, at 450 (Merrill supra note was of the Constitution power paramount . Constitution... when [T]he legislature, assigned their to it... ;but when it comes

1, 1787); see id. ("[T]he ed., 1976) Jensen (Dec. to the power of the legislature, that acting under in that capacity, may the bounds transgress acting to be discussed before the judges?when they consider

its principles and find it to be incompatible with the superior power of the Constitution,
duty the people."); to pronounce id. at 492 it void.");

it is

; see also legislation) Kramer, supra note 260. 3 DHRC, that

id. at 453 ("[T]he is in and retained supreme power by federal (Dec. 4, 1787); id. at 517 (Dec. 7, 1787) (explicitly discussing a newspaper id. at 524-25 (presenting ofWilson's ; summary statements) toWilson). the response 5, at 284 n.48 (discussing

Ellsworth added ed., 1978) (Jan. 7,1788). supra note 237, at 535, 553 (Merrill Jensen a law which if they make "if the states go beyond is an usurpation their limits, the upon the law is void; and upright, it to be declare government, general independent judges will so." Id.

261. 6 DHRC, 262. See,

supra note

237, at 1395 (2000) supra note

(Feb.

1,1788). (June 9, 1788) (Patrick Henry); at cf. id.

e.g., 9 DHRC,

237, at 1070

(1990)

1080 (Henry Lee) (discussing delegated powers); id. at 1141 (June 10,1788) (JamesMonroe) (discussing the "propriety of [the] judiciary to judge on laws in contradistinction to [the]
legislature"). 263. 10 DHRC, the district Charles n.2 Lee supra courts to note 237, at 1197 (1993) (June of 12, 1788). In May 1788, Pendleton, Letter 237, at 797, as

President of theVirginia Court of Appeals, had written the Assembly that a bill relating to
was "contrary Washington to the Spirit (May the George 14,1788), [Virginia] in 9 DHRC, Constitution." supra note from 798

(1990).

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country, that the acts of the Legislature, if unconstitutional, are liable to be opposed by the Judiciary."264George Nicholas declared that "in all well regulated communities," if the legislature exceeds its powers, "the Judiciary will declare it void."265George Mason read the Constitution as giving "an to the Federal Court, to tale cognizance of such express power... controversies, and to declare null all ex post facto laws. "266 John Marshall proclaimed that, ifCongress went beyond its delegated enumerated powers, "it would be considered by the Judges as an infringement of the Constitution which they are to guard: -They would not consider such a law as coming under their jurisdiction. - They would declare it void. ,,267 Supporters and opponents of the Constitution in newspaper editorials made the same assumption. InMaryland, "Aristides" stated that every state or federal judge "will have a right to reject any act, handed to him as a law,which he may conceive repugnant to the constitution. "268 In Virginia, Alexander to exercise any powers which are White wrote that, "should Congress attempt not expressly delegated to them, their acts would be considered as void, and disregarded. ,,269 In Pennsylvania, "Centinel" stated that if "Congress be disposed to violate" the Constitution, "they would be prevented" by "the supreme court . . . whose province it would be to determine the constitutionality of any law."270In New York, a "Republican" worried that certain laws by the legislature might "come under the description of ex post facto laws, and as repugnant to the constitution, be nugatory and void."'271

264.

?o DHRC, Congress independent 20,1788).

237, at supra note a constitutional altered men, would declare

1219-20

if also noted 12, 1788). Henry that, (1993) (June if they spoke the sentiments "the Federal of clause, Judges, their prohibition Id. at 1420-21 and void." (June nugatory

265. Id. at 1327 (June 266. Id. at 1361 (June

16,1788). 17,1788). see also id. at 1432 ("To what quarter will you if you will not give the power stating cannot abridge that make nor look for protection to the Judiciary?"). a law make against are to

267. Id. at 1431 (June 20,1788); on from an infringement William Grayson the Constitution, it," and echoed I

the Constitution, Marshall,

defend 268. Aristides reprinted 269. Alexander reprinted 270. Centinel 26,1788,

"[t]hey

they apprehend can neither Cont?e supra note

cannot "[i]f the Congress a law to it," for "[t]he Judges abridge it." Id. at 1448 (June 21,1788). extend on the Proposed Plan

[Alexander in 15DHRC,

Remarks Hanson], 237, at 522, 531 (1984). Gazette (1988).

(1788),

To the Citizens White, of Virginia, in 8 DHRC, supra note 237, at 438,438 XVI [Samuel Bryan], in 16 DHRC, reprinted N.Y. J., Dec. To the People

(Winchester,

Va.),

Feb.

29,

1788,

supra note

of Pennsylvania, 237, at 217, 219-20 in 19 DHRC,

Phila. (1986). supra note

Indep.

Gazetteer,

Feb.

271. A Republican,

27,1787,

reprinted

237, at 473,474

(2003).

552

THE CORPORATE ORIGINS OF JUDICIAL REVIEW

Even the critic of judicial review, the Anti-Federalist writer "Brutus," assumed that the practice would continue under the Constitution.272 In Number 11, he noted that the "legislatures must be controuled by the In constitution, and not the constitution by them."273 Number 12, he explained that "the supreme court has the power . .. to determine all questions thatmay arise in the course of legal discussion, on themeaning and construction of the constitution."274 The Court would "take no notice" of laws which, "in the judgment of the court," are repugnant to the Constitution; to do otherwise In would be to "make a superior law give way to an inferior."275 Number 15,he that if "the legislature pass any laws, inconsistent with the sense the explained judges put upon the constitution, they will declare it void."276 Brutus nonetheless criticized the Constitution for the practice.277As he famously wrote, the judges would be "independent of the people, of the legislature, and He of every power under heaven."278 wished "construction of the constitution" Yet Brutus was surprisingly reticent had been placed with the legislature.279 about an alternate solution and seemed ultimately to think impeachment a

272. Brutus XI through XVI address the judicial power. Robert Yates is thought to be a possible
author. 273. Brutus note 274. Brutus See 2 The Debate on the 31, 1788, Constitution, reprinted supra note in 2 The Debate 258, at 1111 n.40.2. on the Constitution, supra XI, N.Y. J., Jan. 258, at 129,132.

XII, N.Y. J., Feb. 7 & supra note 258, at 171,171-72.

14, 1788,

reprinted

in 2 The

Debate

on

the

Constitution,

in 2 The Debate 275. Id., reprinted that courts "are vested with

the Constitution, supra note 258, at 172. He also wrote to determine, and uncontroulable in all supreme power, cases that come before execute a the constitution means; therefore, them, what they cannot, can suppose can in their judgment, the constitution, unless we law, which, opposes they a to an inferior." make Brutus was worried law give way that the courts would superior the interpret reprinted in 2 The 1788, proper the legislative in 2 The Debate Debate on the in 2 The thus power broadly, on the Constitution, Constitution, on Debate power... the expanding supra note Id., government. 258, at 172; see also id., reprinted 258, at 177; Brutus XIII, N.Y. J., Feb. 21, supra note 258, at 222, 222 ("The what is the law of the land."). on the Constitution, supra the national

on

supra note

reprinted province XV, N.Y.

of the judicial J., Mar.

Constitution, is ... to declare in 2 The

276. Brutus note 277. Id.,

20,1788,

reprinted

Debate

258, at 372, 376.

on the Constitution, in 2 The Debate 258, at 372 (comparing supra note reprinted to the is "superior where where the power of the judges with England, America, legislature," assume to set aside an act of under the the judges "in no instance the authority parliament with idea that it is inconsistent their constitution"). in 2 The in 2 The Debate Debate on on the the Constitution, Constitution, supra note supra note 258, at 373. 258, at 377.

278. Id., reprinted 279. Id., reprinted

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sufficient check because it gave the legislature "judicial powers in the last
resort.,,28o

This context illuminates themost famous discussion of judicial review by "Publius"-Alexander Hamilton-in The Federalist No. 78. Prior to the appearance of theBrutus editorials, Hamilton had assumed judicial review: the judges "would pronounce the resolutions" of a factious legislative majority "to be contrary to the supreme law of the land, unconstitutional and void.''2'8 Brutus's comments led Hamilton to explain that judicial review was an unavoidable consequence of limited legislative power. Hamilton repeated that the "duty" of courts of justice "must be to declare all acts contrary to the manifest tenor of the constitution void.,,2,2He referred to this standard as one He explained that this "right" to pronounce contrary about "repugnancy."283

280. Brutus

Kaminski

in 20 DHRC, 10,1788, supra note 237, at 907, 911 (John P. reprinted see also The Federalist No. 81 (Alexander eds., 2004); Hamilton), supra note 258, on the Constitution, in 2 The Debate supra note 258, at 483, 486-87 reprinted as a constitutional in cases of "a check on the judiciary the impeachment power (reading on the A recommended series of deliberate of the legislature"). usurpations authority XVI, N.Y. J., Apr. et al. amendment

a commission to correct to nominate review the President and permitted Court Poughkeepsie Amendments, (N.Y.) Country Recommendatory judgments. see Letter in 18 DHRC, from 12, 1788, reprinted J., Aug. supra note 237, at 301, 305 (1995); to Comte Ducher de la Luzerne in 18 DHRC, Amand supra (Aug. 25,1788), Gaspard Joseph note For a similar of Brutus's of judicial 237, at 345, 349 (1995). reading understanding see Hulsebosch, review, supra note 187, at 250. Supreme 281. The the that Federalist Constitution, the "want on 16 (Alexander in 1The Debate supra note 258, reprinted Hamilton), 22, Hamilton supra note 258, at 451, 455. In The Federalist No. explained of a judiciary the Articles of Confederation, because "[l]aws power" marred No. No. to courts and define their true meaning and operation." expound 22 (Alexander on in 1The Debate supra note 258, reprinted Hamilton), note 258, at 507, 513. supra

are a dead The the 282. The the

letter without

Federalist Constitution, Federalist

on in 2 The Debate 78 (Alexander supra note 258, reprinted Hamilton), see also The Federalist note 258, at 467,469; No. 80 (Alexander Constitution, supra on the Constitution, in 2 The Debate supra note 258, reprinted supra note 258, Hamilton), at 476, 476-77 to over-rule" state in the federal the reason for "authority courts, (discussing No. The Federalist No. 81 of the articles of Union"); on the Constitution, in 2 The Debate 258, reprinted a limited meant that "the constitution" that theory of (stating general to be the standard of construction that the "the constitution for the laws" and ought to the "to set bounds Constitution discretion"). attempted legislative laws in "manifest contravention supra (Alexander supra note Hamilton), 258, at 484 note

283. The the

on in 2 The Debate supra note 258, reprinted out that the criticism that "courts on (pointing to the constitutional the pretence of a repugnancy, substitute their own may pleasure or any case of statutory to of the legislature" intentions would statutes" "contradictory apply see also Bilder, use of Hamilton's 31, at 192 (discussing supra note interpretation); in The Federalist Nos. and "repugnancy" 32 and 78) ;Hulsebosch, supra note "repugnant" use of the concept Hamilton's in The Federalist No. 78). 187, at 247-48 (discussing Federalist No. Constitution, (Alexander Hamilton), supra note 258, at 471 78

554

THE CORPORATE ORIGINS OF JUDICIAL REVIEW

legislative acts void did not "suppose a superiority of the judicial to the legislative power."284Rather, it was that "every act of a delegated authority, contrary to the tenor of' its commission, "is void."285 American constitutionalism was merely a new version of an old practice involving delegated authorities. Here, "the power of the people" is superior to both legislative and judicial power; judges were to be governed by the will of the "people . . .declared in the Constitution," and "[n]o legislative act, therefore, contrary to the Constitution, can be valid. ,286 Hamilton, in short, judicial For reviewwas inescapable.
III. THE PRACTICE OF REPUGNANCY

The American practice of judicial review was based on repugnancy and constitutional contraints on delegated legislative authority. Seventeenth century statements about fundamental law did not create the practice. Late eighteenth-century concerns over a separation of powers did not shake it. Early-nineteenth-century desires for popular legislative sovereignty had surprisingly little impact on its existence. After ratification, "repugnancy" and judicial review continued.287 "Repugnancy" explicitly governed federal review of state legislation. Section 25 of the JudiciaryAct of 1789 gave the Supreme Court jurisdiction when a state court upheld a state statute or authority against the claim that it was "repugnant to the constitution, treaties or laws of the United States."28 As Luther Martin described, "If the constitution admits of any construction necessarily repugnant to the laws of the state, it is a repeal of them," for "[a]ll

284. The Federalist the Constitution, 285. Id., reprinted 286. Id., reprinted 287. The

No.

(Alexander Hamilton), supra note 258, at 467-68. Debate Debate on on also the the Constitution, Constitution,

78

supra note

258, reprinted

in 2 The

Debate

on

in 2 The in 2 The

supra note supra note

258, at 467. 258, at 467-68. guise when state to the courts state

repugnancy reviewed claims

constitution.

principle that the bylaws of municipal 1 Yeates v. Baker, See Carlisle act to the 493, that gave laws 497

continued

to appear

in its original were corporations 473

repugnant

Philadelphia incorporation same shall not be repugnant Respublica v. Duquet,

the 1789 (Pa. 1795) (discussing for "laws and ordinances, the authority 'provided and constitution of this commonwealth'") ; see also 471, (Pa. 1799); Zylstra v. Corp. of Charleston, 1 S.C.L.

2 Yeates

(1Bay) 382 (Ct. Com. Pi. 1794).

288. Ch. 20, ? 25,1 Stat. 73, 85-86; seeWallace Mendelson, The Judiciary Act of1789: The Formal

Origin ofFederal Judicial Review, 76 Judicature

48.

133 (1992); Newmyer, supra note 32, at 846

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acts inconsistent with the constitution are null and void."289 "Repugnancy" also seemed to govern federal review of federal legislation. JamesWilson's Lectures on Law (1790-1791) posited "that the legislature should pass an act, manifestly repugnant to some part of the constitution . . . and that the operation and validity" of the act came before a court. The answer to "[w]hat is Wilson explained that the the law of the land?"was a "very easy one."290 The congressional actwould be "void" because itwas a "subordinate power. "291 judicial department was not made "superiour," but rather was given "in particular instances, and for particular purposes, the power of declaring and supreme law of the enforcing the superiour power of the constitution-the 292 land. In state courts, judges echoed the familiar rhetoric, repeatedly embracing "repugnancy" as the standard.293In 1793, in theVirginia General Court, Judge Roane explained that the legislaturewas "not sovereign but subordinate" to the state constitution.294 The "judiciary may and ought to adjudge a law

289. State

v.

repealed

2 H. Sluby, state revenue

(considering the federal

the Constitution whether 481 480, 1790) (Md. (deciding v. Morris, 3 H. & McH. 535, 565 (Md. 1797) laws) ; see also Campbell was a state law to attachment to the 4th article of whether "repugnant relating v. the Privileges and Immunities constitution" ;Donaldson Clause) by violating & McH.

that the the plaintiffs 12, 14 (Md. 3 H. & McH. argument 1790) Harvey, (presenting was to it" in a case is repugnant Constitution law... and the act of [the] assembly "supreme a state law to antecedent the Constitution whether debts). relating concerning repealed

290. 1James Wilson,

(1790), 291. Id. at 330.

Comparison of theConstitution of theUnited States, with That ofGreat Britain

of James Wilson, supra note 51, at 309,329-30.

in The Works

of James Wilson, in The Works 292. Id. ; see 1 James Wilson, (1790), Of Government to a is subject that the legislative 51, at 284, 300 (arguing power "given degree are in fact whenever the laws, the judiciary though department, passed, to the constitution"). contradictory 293. Discussion app. note of these

supra note of control by to be found

1, at 528 n.29, 30, Connecticut their See Bilder,

cases dates to the nineteenth 5, See, e.g., Quincy, supra note century. note 219, at 185-88. As discussed 529 n.31, 530 n.33; Meigs, supra supra as state constitutions, charters Island retained their colonial and Rhode of note supremacy, legislative 31, at 191, 279 n.11 and (noting did not embrace that Rhode judicial Island did review not as

continued readily.

doctrines supra

accept

state judicial review until approximately 1856) ; 1Zephaniah Swift, A System of the Laws of the State of Connecticut 50-54 (1795) (arguing against judicial review in his
discussion of the "laws of Connecticut"). v. Hawkins, court in Kamper 294. Kamper 20, 36 (1793) 3 Va. (Roane, J.). The (1 Va. Cas.) an act of the to district court interference considered assembly relating judges. The possible the Constitution of 1776 had because with the state legislature stronger Virginia appeared a ratification never thus looked and like ordinary gone process through suspiciously to the that a "law contrary in 1788, the court of appeals had decided Previously, legislation. constitution" was void. Id. at 23 (Nelson, J.). Several judges reiterated their basic

556

THE

CORPORATE

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JUDICIAL

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unconstitutional and void, if it be plainly repugnant to the letter of the Constitution, or the fundamental principles thereof."295In North Carolina in 1794, JudgeWilliams declared that judges "are to administer the constitutional laws, not such as are repugnant to the constitution. ,296 In South Carolina in 1796, JudgeWaites concluded that "[i]f an act of the legislature is held void, it is not because the judges have any control over the legislative power, but because the act is forbidden by the constitution."297 In Pennsylvania in 1799, the supreme court considered whether acts were "repugnant to the constitution."298 In Vermont, the supreme court heard arguments as to whether a state actwas "unconstitutional, and therefore void; being manifestly repugnant to" a clause in the "general Constitution."299 InNew Jersey in 1802,

understanding an act of the over

of constrained legislature E.g.,

the legislature."

in the wake of Brutus's that "declaring argument legislation or claims a to be no law, assumes authority, legislative superiority id. at 30.

not to refuse 295. Id. at 40 (Roane, J.); see also id. at 35-36 ("[T]he judiciary may and ought only a law to execute to the Constitution; but also one which is, by a plain repugnant expressly to the fundamental and natural in opposition construction, thereof."). principles Judge manner assume not to he would "in an extra-judicial noted that while the right Tyler a law," he would not shrink from the question "how far the law be a violation of negative

the constitution." Id. at 61 (Tyler, J.). Judge Tucker simply cited at length from The
Federalist to add it "so full, so apposite, and so conclusive" that itwas "unnecessary the subject." Id. at 84 (Tucker, did not see "any J.). Judge Roane the power of in, or fundamental of, the constitution, express provision principle restricting was on the in this respect." Id. at 44-45 the legislature (Roane, J.). Judge Henry oblique was in which "Parliament that the English model and their issue but did note omnipotent, No. any thing 78, finding farther on beyond control" had not been followed. had had "no bounds 28, 29 Id. at 48 to their authority J.). He (Henry, but the negative of the Univ. also noted that the Id. (2 of the crown." v. Foy, 3 N.C.

powers colonial 296. State v.

legislature [ ], 2 N.C. of the Lessee

(1 Hayw.)

(1794); to the

see also Trs.

Hayw.)
every act Vanhorne's 2 N.C. repugnant 297. Lindsay (noting Middleton, right and 298. Ex parte

310, 316 (1804) (argument of plaintiffs counsel) ("[T]here can be no doubt, that
legislature, v. Dorrance, repugnant 2 U.S. constitution, 304, 308 an (2 Dall.) void." is absolutely (quoting Pa. 1795))); Jones v. Jones, statement that acts "not attorney's (C.C.D.

491 488, (1 Hayw.) to that constitution, v. Comm'rs, also that 1 S.C.L. reason 2 S.C.L. the act was

(1797) (presenting must be enforced"). (2 Bay) 38, 61-62

(1 Bay) as well as

"repugnant" 252, 254 (Ct. Com. magna

Ct. App. 1796); see id. at 62 (Constitutional see also Bowman v. to the constitution); an act as common Pi. 1792) (voiding "against

against

charta"). 502, 505 must (Pa. be 1799) evident should ; see also Respublica v. Duquet, 2

Blair M'Clenachan, of ... ... the law with

2 Yeates

Yeates 493, 501 (Pa. 1799) ("[A] breach of the constitution by the legislature, and the
clashing law void our 299. Doe duty the constitution, such law is void."). ;yet of saying if a violation of the constitution . . . indeed, before declaring] ... we shall think ... be made a it

v. Smith, 1 to laws); see Tyl. 38, 38, 40 (Vt. 1801) (relating retrospective v. Plumb, 1 a state law courts also Kinne 20, 22 (Vt. 1801) (discussing county Tyl. permitting or laws of the State"). to the constitution to make rules so long as they are not "repugnant ex dem. Forbes

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the supreme court stated that "[t]he legislature act[s] by delegated and circumscribed authority."300The court noted the "uniform course of decision" in the states and the United States Supreme Court that courts could declare unconstitutional laws void.301That same year, theMaryland General Court noted that two arguments-that "an act of assembly repugnant to the constitution is void" and that the court had a right to so determine-had not been controverted in the case at hand or in any case before the court.302 Supreme Court Justices on circuit accepted the practice. In 1791, in a series of actions that led toHayburn's Case, the Justices refused to carry into effect the federal statute designating circuit courts to report on pension cases of disabled officers and soldiers.303 Although the objections included the rationale that the duty was "not of a judicial nature," each letter implied that the act was unconstitutional if construed to require judges as an official matter to consider the cases.304In 1795 inVanhorne's Lessee v.Dorrance, Justice Paterson on circuit stated that legislatures are "[c]reatures of the Constitution; they owe their existence to the Constitution: they derive their powers from the Constitution: He ... all their acts must be conformable to it, or else they will be void."305

300. State

v. Parkhurst,

9 N.J.L. stated was Id. 1H.

(4 Halst.) that

427,443

(1802). whether of it could has control been legislation considerably contrary agitated to in

301. Id. at 444. The court the state constitution these United 302. Whittington the limited States." v. Polk, nature of

the question a which "question

late years

& J. 236,

242

brought 303. 2 U.S. and 304. See

before

legislative it. Id. at 242-45

power (Chase,

(Md. Gen. Ct. and the court's

1802).

Chief

obligation

Judge Chase cases to decide

explained judicially

C.J.). General Attorney and Sitgreaves). Randolph's argument

409, 412-13 n.t (1792) (2 Dall.) (reproducing the North circuit court letter of Iredell Carolina the New that York "neither circuit

id. at 410 n.t (reproducing and Cushing and Judge Duane constitutionally the Pennsylvania

duties nonjudicial assign" circuit court's description as to "be to act contrary, to the obvious directions of Blair and Judge Peters either obliged or to a constitutional in our judgment ; id. at 412-13 obvious") Congress, equally principle, cannot n.t circuit "courts be the North court's that Carolina explanation (providing ... ... for the exercise warranted virtue ofthat of the Constitution of which any act part by . . . or . . . not of the legislature is provided for upon the terms the Constitution provided requires"). 305. 2 U.S. (2 Dall.) 304, had

statement court's Justices Jay by Circuit can nor the Executive the Legislative branches, to the id. at 412 n.t judicial branch); (providing and of the problem Justices Wilson by Circuit

Pennsylvania claims between claimants United rises the who States above judicial

act void). Pa. 1795) (declaring the Pennsylvania (C.C.D. confirming a to settle act" in 1787 that sought land passed "confirming long-disputed to compensate and Connecticut and Pennsylvania settlers Pennsylvania a distinction drew between the lost land. Id. at 313, 316. Paterson thereby 308 and by law,

controul,"

runs without where of the Parliament "the authority limits, England, cannot be drawn into question "the validity of an act of Parliament no fundamental "no written and there was constitution, department," and

558

THE

CORPORATE

ORIGINS

OF

JUDICIAL

REVIEW

declared, "Whatevermay be the case in other countries, yet in this there can be no doubt, that every act of the Legislature, repugnant to the Constitution, is absolutely void."I06 In such a case, "itwill be the duty of theCourt to adhere to theConstitution, and to declare the act null and void."307 On the Supreme Court, the Justices continued to repeat the rhetoric. In Justice Iredell stated that if "any act of Congress" or a 1798, in Calder v. Bu11,305 state legislature violates provisions of the federal Constitution, "it is unquestionably void."309 Justice Chase noted that if he "ever exercise[d] the jurisdiction" to declare a law void under the Ex Post Facto Clause, he would "not decide any law to be void, but in a very clear case."310 18oo, the Court In considered in Cooper v. Telfair the proposition that if "the law is contrary to the constitution, the law is void; and the judiciary authority ... may pronounce it to be so."311In his opinion in Cooper, Chase emphasized that, although the

nothing Paterson

visible, noted

a statute certain, real, nothing nothing by which that "[i]n America the case iswidely different." Id.

can be

tested."

Id. at 308.

act oppugns that if a legislative 306. Id. at 308; see also id. at 309 ("I take it to be a clear position; on must the former constitutional and be rejected the score principle, give way, repugnance."). 307. Id. at 309.

a of

308. 3 U.S.

(3 Dall.) 386 (1798). The Connecticut

involved because the application Connecticut

legislature had granted a new hearing in a

of post-1787 constitutional retained its colonial charter ideas to colonial as a constitution

case. The case probate constitutional practices for arguing Twining, stated that the Supreme Court Exercise: Debating

and its legislature had long sat as the highest judicial power. In August
judicial Court review in a moot at Connecticut's Litchfield had decided

1797, Stephen

Law School, the question. F. Melhorn, See Donald Jr., A Moot v. Madison, to 12 Const. Prior Review Comment. Judicial Marbury v. is Chandler 327, 340-41 (1995). One possible (U.S. 1794) (no precedent Secretary ofWar extant is discussed See Sherman, inMarbury. supra note 19. report), which at 399 (Iredell, to declare that "as the authority it void (3 Dall.) J.). He added and awful nature, resort to that the Court will never but in a clear authority, case." Id. He noted that the Court could not, however, it void declare "merely judgment, contrary to the principles Chase of natural had earlier justice." Id. that he was that any Id. at 392

309. Calder, 3 U.S. is of a delicate

and urgent it is, in their because

310. Id. at 395 (Chase, J.) (emphasis not at this "an opinion, giving law made contrary by Congress, (emphasis 311. 4 U.S. intent omitted).

omitted). Justice this Court has jurisdiction time, whether to the Constitution of the United States,

commented

to decide is void."

a state law claimed to be to the true 14, 16 (1800) (4 Dall.) (concerning "repugnant and meaning" of the state constitution). to declare The Court found grounds the law

void, though the Justices differed on the standard to apply in voiding repugnant legislation.
a id. at 18 (Washington, of validity and asking whether J.) (favoring Compare presumption to any constitutional as to be the act was "so repugnant from the regulation, excepted a necessary and id. at 19 (Paterson, that jurisdiction, J.) (arguing legislative by implication"), a "clear and not a doubtful breach of the constitution, and argumentative unequivocal was with id. at 18 (Chase, that the "general principles" J.) (arguing implication," required),

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Supreme Court had never actually adjudicated the question, the "general opinion," "all this bar," and "some of the Judges . . . individually, in the Circuits" had so decided.312 In 1803, Chief Justice JohnMarshall correctly acknowledged that "long and well established" principles addressed "the question, whether an act, repugnant to the constitution, can become the law of the land."'313 was equally right He that the question was "happily, not of an intricacy proportioned to its The question had not been addressed in Charles Lee's argument interest."'314 before the Court and was perhaps occasioned by Chase's comment that the Court had never explicitly decided the question. Marshall's opinion patched together the familiar phrases, repeatedly emphasizing repugnancy.315 "The powers of the legislature are defined, and limited"; thus, itwas a "proposition too plain to be contested, that the constitution controls any legislative act An repugnant to it."316 act of the legislature, repugnant to the Constitution, could not "bind the courts, and oblige them to give it effect."'317 Marshall concluded that "a law repugnant to the constitution is void; and that courts ... are bound by that instrument.''318 Accepting the well-established and long practiced idea of limited legislative authority, American constitutional law recommitted itself to a practice over four centuries old. Despite the repeated criticisms ofMarbury voiced by those such as Thomas Jefferson, for most of the nineteenth century the explanation for the practice

matter

were as rules to fetter and controul; state constitution "not to be regarded but as to have The and directory"). defendant's argument appears merely declaratory a state's to contrast with the limited bylaw of corporations. sovereignty authority attempted over the differences states and corporations occurs Id. at 17. A similar between in struggle 2 U.S. v. in Chisholm Iredell's 419, 446-48 argument (2 Dall.) Justice (1793) (Iredell, Georgia, of the

JO
a belief at 19 (Chase, 312. Cooper, 4 U.S. (4 Dall.) J.); see abo id. at 20 (Cushing, J.) (expressing note "to declare the law void") that the Supreme Court had the power ;Gerber, 14, at supra 11 that the "pre-Marshall Court understood the concept of judicial review, (arguing justices for it, and that they practiced of the presumption that they argued of it"). For a discussion

judicial review in United States v. SchoonerPeggy, 5U.S.

Graber, Establishing Judicial Review? Schooner Peggy

(1Cranch) 103 (1803), seeMark A.

the Early Marshall Court, 51 Pol.

and

1^.0^221(1998).
313. Marbury James M. 314. Marbury, v. Madison, O'Fallon, 5U.S. 5 U.S. Marbury, (1 Cranch) 137, (1 Cranch) L. Rev. 44 Stan. at 176. 176 219 (1803). (1992). On the surrounding politics, see

315. Id. at 176-77,180. 316. Id. at 176, controlled 317. Id. at 177. 318. Id. at 180. 177. Marshall legislation pointed or it did not. out there was "no middle ground"; the Constitution either

Id. at 177.

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THE

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ORIGINS

OF

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REVIEW

and the use of "repugnant" initially remained unchanged.319 As Chancellor Kent noted in his treatise, if "the Constitution does not control any legislative act repugnant to it, then the legislature may alter the Constitution by an ordinary act." The theory of government based on awritten constitution must be "that an act of the legislature repugnant to theConstitution is void" and the judiciary must so declare it.320Other nineteenth-century commentators In repeated the constrained legislation theory.321 1889, J.C. Bancroft Davis, the Supreme Court reporter, could listmore than 200 cases inwhich "Statutes or Ordinances Have Been Held To Be Repugnant to the Constitution or Laws of theUnited States."322 The late nineteenth century brought an end to the ease with which the practice could be justified by repeating the repugnancy rhetoric. Supreme Court decisions striking down an increased number of congressional acts brought new critics.323In 1893, Harvard law professor James Bradley Thayer

319. On

the

Marbury, mosdy

Jefferson 57 Ark. focusing

see Robert & Mark J. Reinstein critique, L. Rev. For discussion 729, 755 n.135 (2005). on "technical" to points relating jurisdiction 57 Ala. 3, at 453; the theory Cooley, & Co. L. Rev. see also 1041,1043-44 3 Story,

C. Rahdert, Reconstructing of early citations of Marbury or mandamus, see David E.

Marion, Judicial Faithfulness or Wandering Indulgence?Original Intentions and theHistory of

Marbury 320. 1 Kent, judicial 321. See, Rest v. Madison, supra review note under M. (2006). supra note 207, ? 1570, at 428-35 constrained legislation). the Constitutional of the Limitations American Union Law: States, & T. Johnson (justifying

of constitutionally A Treatise Power of on the

e.g., Thomas upon the

Which 159-88 a Being and of 2d ed.

Legislative Brown

States

Little, (Boston, of the View Constitutional

Practice Points

Sergeant, 1868); Thomas and of Jurisdiction Decided 306, 308, 332 (Phila., the law of a state ... it is void be ....

Constitutional the P.H. United Nicklin

1830) (discussing instances inwhich

Constitution); the constitution of declaring case."). 322. 131 U.S. app. 181 cases 177 in id. at 403 of ("[I]f the United States

state legislation was "repugnant" to Article I of the

repugnant It seems, will to, or however, be exercised with incompatible that this power in a clear only

an act of Congress

or a law unconstitutional,

and

were

constitution"

cases statutes federal twenty concerning Coxe that there app. at ccxxxv-cclxiii. concerning argued all. See Coxe, for "repugnant search 5, at 22. A Westlaw /s supra note in the "set" database the following of cases: 7 (1793-1809); number produced (1889). state The list included statutes. Id.

at ccxxxv

11 (1810-1819); 18 (1820-1829); 22 (1830-1839); 32 (1840-1849); 29 (1850-1859); 36 (1860 1869); 71 (1870-1879); and 81 (1880-1889). (Results have not been examined for
overinclusiveness.) writ of certiorari on in question States." United 323. See, United e.g., The States 28 U.S.C. often appeared because for a ? 1257(a) provides "Repugnant" to state supreme courts when "the validity of a statute of any State is drawn to the Constitution, or laws of the of its being the ground treaties, repugnant 28 U.S.C. ? 1257(a) (2000). Rights Cases, 92 U.S. 109 U.S. 3 (1883); United United States v. Harris, 84 U.S. 106 U.S. 629

Civil

(1883); Trade-Mark Cases, 100 U.S. 82 (1879); United States v. Fox, 95 U.S. 670 (1878);
v. Reese, 214 (1876); States v. R.R., (17Wall.) 322

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summarized the conventional explanation for the Court's voiding acts as repugnant to the Constitution, stating that the "legislature had only a delegated and limited authority under the constitutions; that these restraints .. .must be regarded as so much law; and, as being law, that they must be He then mocked this reasoning, interpreted and applied by the court."324 calling it a "severe line of argument" that treated the Constitution as if itwere "aprivate letter of attorney."325 Thayer declared that the practice had been "put as a mere matter of course" and repeatedly condemned the underlying theory
as 4isimple."P6

Permanently transforming the discussion from its focus on legislative He subtly and power, Thayer focused on the "clear limits of judicial power."327 implicitly rejected the longstanding claim that judicial review was justified because legislative power was delegated and constrained by the Constitution. Thayer argued that courts were not advancing "merely their own judgment as to constitutionality, but their conclusion as towhat judgment is permissible to another department which the constitution has charged with the duty of He making it."328 embraced the "great range of possible harm and evil" that was and must be left open to the legislatures and rejected the belief that the "power of courts" could "save a people from ruin."329 Thayer, however, could not abandon years of practice of constrained legislative power. He suggested a compromise - a "rule of administration."330

Wall.) 128 (1872); Collector v. Day, 78 U.S. (11 (1873); United States v. Klein, 80 U.S. (13 v. Griswold, 75U.S. (8 Wall.) 603 (1870); Justices v. Murray, 76 Wall.) 113 (1871);Hepburn
U.S. U.S. statutes Davis (9Wall.) app. at of see also 131 States v. Dewitt, 41 (1869); 274 (1869); United 76 U.S. (9Wall.) cases in which the Supreme Court held ccxxxvi-ccxxxvii additional (listing or laws of the United to the Constitution States the United States). repugnant that The seven list statutes cases to 1869 had held Id. app. at void. federal prior v. Toda in the U.S. Reports States included United 1794), (U.S. v. Ferreira, Case, 2 40, 52 (1851), and Hayburn's 54 U.S. (13 How.)

claimed

ccxxxv-ccxxxvi. reported in United

States

U.S.

(2 Dall.) 409 (1792), and did not include Scott v. Sandford {fired Scott), 60 U.S.
For a War. of see Coxe, also discussed 5, at 8-23. Coxe supra note critique, " to the case as ? v. Secretary Id. at 14-17 (referring War"). of and Scope of theAmerican Doctrine of Constitutional Law, 7 Harv.

(19

393 (1857). How.) v. Chandler Secretary 324. James L.Rev. B. Thayer, 129,138

The Origin (1893).

325. Id. at 139. 326. Id. at "simple 138-39; see id. (using such terms as "very simple ground," "simple and narrow," or

precepts").

327. Id. at 156. 328. Id. at 144. 329. Id. at 156. 330. Id. at 140.

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THE CORPORATE

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REVIEW

He read the early cases for comments about what might now be seen as the concerns of scope and departmentalism. Thayer focused on the language in which judges had referred to "clear," "plain," or "manifest" violations and invalidities so "obviously repugnant" that "allmen of sense and reflection in He the community may perceive the repugnancy."331 pointed to earlier judicial comments regarding deference, respect, and presumptions in favor of the legislative branch.332 Thayer converted these discussions into a test based on whether a reasonable legislature could have thought the law constitutional what modern constitutional law has come to describe as a rational basis, reasonableness, orminimalist test.333 Repugnancy began to vanish. By the twentieth century, Princeton professor Edward S. Corwin's studies of what he termed "judicial review" continued to shift the discussion away from legislative constraint and toward judicial The reasons for repugnancy's demise lie outside thisArticle. Perhaps power.334 "repugnant" began to carry its colloquial connotation of value-laden offensiveness or repulsiveness, not inconsistency or contradiction. Perhaps a court deciding repugnancy seemed like a court deciding its personal social preferences. Whatever the reasons, although the Court continued to use the phrase "repugnant to the Constitution" into the 1920S, the lines over the The debate judiciary's declaration of unconstitutional acts had been redrawn.335 over judicial review has continued to focus less on constraints on legislative power than on the legitimacy or illegitimacy of judicial power and the

331. Id. at 140-42. 332. Id. at 142,145. 333. Id. at 148-49. Review: The earlier letter For a discussion Centennial of Thayer's article test, see One Hundred 1 (1993). U. L. Rev. of "personal that questions and test, the reference The Precise did Years of Judicial in an Although the right under not in reappear a Court, for

Constitution" the article.

Thayer Symposium, in The Nation, had hinted Thayer fall outside of his reasonableness might James B. Thayer, Constitutionality

88 Nw.

of Legislation:

Question

38Nation
334. Edward Instrument Judicial Corwin,

314 (1884).
over as A Study of Judicial Review S. Corwin, Court Constitution: of Popular Edward The Doctrine Government S. Corwin, (1938); and Historical Review: Its Legal Basis and Other Essays (1914); Edward The Establishment of Judicial Review (pts. 1& 2), 9 Mich. L. Rev. 102, 283 an of S.

(1910

1911);Edward S. Corwin, The "HigherLaw" Background ofAmerican Constitutional Law (pts.

1& 2), 42 Harv. L. Rev. 149,365 (1928-1929); Corwin, after supra note 1920. A Wesdaw number 5. search of for cases: "repugnant 81 (1880 of "repugnancy" fell dramatically 335. Appearances in the "set" database /s constitution" produced

the following

1889); 130 (1890-1899);

have not been examined

164 (1900-1909);
for overinclusiveness.)

171 (1910-1919); and 65 (1920-1929). (Results

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appropriate standard. "Repugnancy" has nearly disappeared from Supreme Court opinions.336
CONCLUSION

The lost faith in the standard of "repugnancy" need not necessarily be regretted. Two centuries of further practice have limited our ability to accept on faith that the Constitution always and necessarily represents thewill of the people, that the legislature's lawmaking authority should be narrowly limited by the text of a Constitution notoriously difficult to change, and that judges can simply declare when legislation is repugnant to the Constitution. Nonetheless, modern discussions of judicial review often may dwell too exclusively on the idea of judicial review as imposed by judges on democratic politics. 'While today we may better appreciate the difficulties with the repugnancy practice, we might do well to recall the power of this belief in the legislatively constrained nature of a delegated authority. As Daniel Farber and Suzanna Sherry have recentlywritten, much of the angst among modern constitutional scholars comes from "a sense of innate conflict between democracy and judicial review."337 But, as amatter of history, not everyone has seen the problem this way. The presumption that legislative power was necessarily constrained by constitutions and that judicial action was simply responding to this constraint originally overwhelmed alternative ways of understanding the relationship of legislatures, courts, and constitutions. This approach was neither disingenuous nor cursory; those who advanced itwere not incapable of understanding the difficulties with judicial action. They simply believed deeply that American constitutionalism was based, first and foremost, on constraining legislation by the laws of the nation and, most importantly, the Constitution. This history can remind us that both legislative and judicial power are legitimated by the belief that the Constitution delegates the power of the people -an entity that exists over time- and thus may reinforce the belief in the bounded, yet changing, nature of theConstitution. This history of the repugnancy practice also presents a challenge to originalism and suggests one possible approach to the relevance of the history

336. A Wesdaw

search

for

"repugnant

/s

constitution"

in

the

"set"

database

produced

the

following number of cases: 65 (1920-1929); 66 (1930-1939); 29 (1940-1949); 15 (1950 !959); 24 (1960-1969); 26 (1970-1979); 43 (1980-1989); 11 (1990-1999); and 5 (2000
2006). 337. Daniel Quest (Results A. F?rber for have not been examined Sherry, Foundations for overinclusiveness.) Desperately 140 (2002). Seeking Certainty: The Misguided & Suzanna

Constitutional

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THE

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ORIGINS

OF

JUDICIAL

REVIEW

of the Framing for liberal constitutionalism. ,8Originalism, whether phrased as an active verb of the intentof some person or persons or the passive noun of the meaning of constitutional text, assumes that the constitutional word, concept, or structure at issue is capable of being interpreted in a fixed sense in the initial constitutional moment and that this fixed intent or meaning iswhat binds constitutional interpretation.339 Originalism as practiced thus tends to limit the range of legitimate constitutional interpretations to issues that had been orwere being explicitly confronted.340 In this history of judicial review, however, what we find instead are assumptions. The courts' ability to void repugnant legislation was simply assumed because of past corporate and colonial practices that limited legislation by the laws of the nation. Original intent fails to capture this history: judicial review was not the product of any intent by the Framing generation to create it, yet neither was it unintended, deliberately omitted, or rejected. The original meaning approach is seemingly more sympathetic to the problem of historical assumptions. Yet as applied, original meaning interpretations tend to convert particular assumptions into intent by concluding that the Founders intended to confine legitimate interpretations

338. For discussion of other difficulties, including the question whether originalists are bound by
originalist Conventions, question, For the understandings 70 U. Chi. see generally as a see Caleb Nelson, of originalism, Originalism L. Rev. For the originalism debate 519 (2003). 21, at 219; Rakove, Levy, supra note supra note see Dennis generally over Originalism Textual Meaning, and as Interpretive a historical and H.

339-65;

Jefferson Powell, The Original Understanding ofOriginal Intent, 98 Harv. L. Rev. 885 (1985).
debate American Whittington, Constitution philosophical and the question, Debate J. Goldford, Keith (2005); Original The E.

Constitutional

Interpretation:

Intent,

and

Judicial

Review
Originalism,

(1999);

and Christopher

Wolfe,

How
and

To

Read

the

Constitution:

Constitutional

Interpretation,

Judicial

Power

(1996).
339. See Randy Liberty E. Barnett, Restoring [hereinafter the Lost Constitution: Restoring the The Lost Presumption of Constitution] on based instead of "original originalism "original meaning" E. Barnett, An Originalism 611 (1999). 45 LOY. L. Rev. intent"); Randy for Nonoriginalists, For a suggestion that the "practical differences between and original intent original meaning see a be negligible," G. Smith, Does the Constitution may Douglas Embody "Presumption of (arguing Liberty"?, Constitution, 2005 U. III. L. Rev. 319, See also Nelson, Barnett, (reviewing supra note 338, at 556-60 see Rakove, supra note 325 Restoring (discussing 21, at xiii, the Lost the difficulty 87-117 (2004) for "moderate" Barnett,

supra). and

of distinguishing
"meaning," 340. See Robert Constitution," understanding "intent," N.

between original meaning

"understanding,"

and original intent). For a discussion

7-8. Legal Realism, (constructing and the Interpretation a flowchart for when

of

Clinton, 72 IowaL.

Original Understanding, Rev. 1177,1267 (1987) is possible). interpretation

of "This original

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solely to those assumptions.341 Neither originalist approach persuasively addresses the contextual contingency inherent in the existence of constitutional
assumptions.342

History matters -not because it tells us what we should think about the Constitution, but because it suggests howwe might think about it.The practice of voiding statutes under a repugnancy standard was presumed to be part of the original constitutional structure. The nature of this practice, however, was only partially reconceptualized in the language and ideologies of new American constitutionalism. While a Constitution of the people was understood as the supreme authority binding both legislature and judiciary,which laws suffered from repugnancy and when the coordinate branch of the judiciary should exercise its authority were problems not decisively answered in 1787. We can care about constitutional history without being constitutional originalists. Ifwe replace the originalist searchwith a historical appreciation of assumptions,we might better articulate how certain structures and ideaswere assumed to be part of the constitutional framework but were not fully articulated or conceived. We might come to accept that, while history can go far in assisting in the interpretation of constitutional questions, there are inherent limits to the inquiry. Rather than desire to know with unattainable certainty the Framing generation's intent, we would perhaps do better to seek to understand themore attainable boundaries of their assumptions.

341. See Barnett, "assumption" assumption 342. Cf. Edward

Restoring that could A. judges not have

the

Lost could

Constitution,

been

nullify intended

for an supra note 339, at 131-47 (arguing unconstitutional laws and the that therefore "judicial supremacy"). Federalism: a similar Some point Shifting about

to include

Parameters, originalist

Purcell, 50 N.Y.L.

Jr., Evolving Sch. L. Rev.

Understandings 697-98 federalism).

of American (2006)

interpretations

635, of constitutional

(making

566