by Raoul Berger

EDITOR’S NOTE: The following is an excerpt of the book (chapter 16) Government by Judiciary: The Transformation of the Fourteenth Amendment, Foreword by Forrest McDonald (2nd ed.) (Indianapolis: Liberty Fund, 1997).


It is a singular fact that the most significant single piece of evidence that the Framers excluded the judiciary from policymaking—rejection of their participation in a Council of Revision of legislation—went unnoticed by bench and bar until it was called to their attention by a political scientist, Benjamin F. Wright.1 Not the least remarkable aspect of judicial neglect of this history is that it should finally be invoked by Justices Black (1965)2 and Douglas (1968),3 oblivious to the shattering effect that it has on their own sweeping policymaking decisions.

Edmund Randolph proposed in the Convention that the President, “and a convenient number of the National Judiciary, ought to compose a council of revision” to examine every act of Congress and by its dissent to constitute a veto.4 When his fellow Virginian George Mason argued for judicial participation in the presidential veto, he recognized that judges already could declare an unconstitutional law void. But with regard to every law however unjust oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course. He wished further use to be made of the Judges, of giving aid in preventing every improper law.5

A similar differentiation was drawn by James Wilson:

Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet be not so unconstitutional as to justify the Judges in refusing to give them effect. Let them have a share in the Revisionary power [in order to “counteract” ] the improper views of the Legislature.6

Despite the fact that the proposal had the support of Madison, and, therefore, of perhaps the most influential trio in the Convention, it was rejected for reasons that unmistakably spell out the exclusion of the judiciary from even a share in policymaking. Nathaniel Gorham saw no “advantage of employing the Judges in this way. As Judges they are not to be presumed to possess any peculiar knowledge of the mere policy of public measures.” 7 Elbridge Gerry, one of the most vigorous advocates of judicial review, opposed judicial participation in the Council:

It was quite foreign from the nature of ye office to make them judges of the policy of public measures . . . It was making Statesmen of the Judges; and setting them up as the guardians of the Rights of the people. He relied for his part on the Representatives of the people as the guardians of their Rights and Interests. It was making the Expositors of the Laws, the Legislators which ought never to be done.8

Charles Pinckney also “opposed the interference of the Judges in the Legislative business.” 9 Rufus King joined in the opposition on the ground that as “the judges must interpret the Laws they ought not to be legislators.” 10 Roger Sherman “disapproved of Judges meddling in politics and parties.” 11 It is reasonable to infer that John Dickinson expressed a widely shared view in cautioning that “The Justiciary of Aragon . . . became by degrees the law-givers.” 12 Plainly the Framers refused to make the judiciary “law-givers,” even to the extent of allowing them to share in the legislative making of law, let alone finally to decide on policy, an exclusive legislative function.13 They drew a line between the judicial reviewing function, that is, policing grants of power to insure that there were no encroachments beyond the grants, and legislative policymaking within those bounds. “Dangerous” and “destructive” as such policies might be, they were yet to be the exclusive province of the legislature. That is the inescapable inference from the facts, and, as will appear, it is fortified by still other historical facts.

Justice Douglas therefore stood on solid ground in stating that “when the Court used substantive due process to determine the wisdom or reasonableness of legislation, it was indeed transforming itself into the Council of Revision which was rejected by the Constitutional Convention.” 14 In a remarkable example of compartmentalized thinking he went on to say, “we no longer exercise that kind of power,” just as he had earlier stated in Griswold v. Connecticut that the Court no longer acts as a “super legislature” —except in a case touching the “right of privacy.” 15

The history of the Council of Revision also serves to refute the view that judicial review is an expression of “distrust in popular government,” 16 or, in Corwin’s oft-quoted phrase, having bet on democracy, the Framers then “covered their bet.” 17 The “cover,” however, went no further than to prevent the legislature from “overleaping its bounds.” In fact the judiciary was excluded from halting “dangerous . . . destructive” legislation that was within those bounds. If the Framers “covered their bet,” they gave the last trump to Congress: judges who usurped power, for example, exercised a power withheld, said Hamilton, could be impeached. The Founders unequivocally rejected the judiciary as “guardians of the people”; they preferred, in Gerry’s words, to put their trust in “the Representatives of the people.” For judicial review was an innovation by no means universally admired; it was a departure from Blackstone’s “omnipotent parliament.” 18 Having “smarted” under the “omnipotent power of the British parliament,” said James Iredell, we should “have been guilty of . . . the grossest folly” had we “established a despotic power among ourselves.” 19 If this could be said of a legislature that could be turned out of office periodically, constitution-makers were even less ready to entrust unlimited power to an untried, unelected judiciary appointed for life.

The judicial role, it cannot be unduly emphasized, was limited to policing constitutional boundaries. James Wilson said it is necessary that Congress be “kept within prescribed bounds, by the interposition of the judicial department.” 20 The courts, said Oliver Ellsworth, were a “check” if Congress should “overleap their limits,” “make a law which the Constitution does not authorize.” 21 Judges, John Marshall stated in the Virginia Convention, could declare void “a law not warranted by any of the powers enumerated.” 22Hamilton stressed that the courts were to serve as “bulwarks of a limited Constitution against legislative encroachments.” 23 But “within those limits,” Madison said, there were “discretionary powers.” 24 The exercise of that discretion, as we have seen, is for the branch to whom it has been confided. No one, so far as my search of the several convention records uncovered, looked to the Court for “leadership” in resolving problems that Congress, the President, or the States failed to solve. That view is a product of post-Warren euphoria. The courts were expected to “negative” or set aside unauthorized action, to “check” legislative excesses, to “restrain” Congress within its prescribed “limits,” to prevent the “usurpation” of power. The Court, in other words, was to act as nay-sayer, not as initiator of policy. Justice Stephen Field, supreme activist of his time, stated upon his retirement in 1897 that “This negative power, the power of resistance, is the only safety of a popular government.” 25

When, therefore, James Bradley Thayer and Learned Hand insisted that the role of the Court was to police the boundaries of constitutional grants, not to interfere with the exercise of legislative or executive discretion within those boundaries,26 they rested firmly on the authority of Hamilton and the preponderant view of the Founders. For 150 years the Court was content with this policing function;27 even the headstrong laissez-faire Court merely acted as a nay-sayer. It fell to the Warren Court to initiate policy when the legislative and executive failed to act, to take the lead in deciding what national policy ought to be.28 But the failure of Congress to exercise legislative power does not vest it in the Court.

Judicial “Discretion” in 1787

A common historicist fallacy is to import our twentieth-century conceptions into the minds of the Founders. At the adoption of the Constitution the notion that judges, for example, could make law as an instrument of social change was altogether alien to colonial thinking. “Instrumentalism” was yet to come. In a valuable essay Morton J. Horwitz observed that “fear of judicial discretion had long been part of colonial political rhetoric” and described the prevalent jural conceptions that combined to circumscribe the judicial function in the eighteenth century.29 There was first the fact that the common law rules—that is, judicially enunciated rules in the field of contracts and the like— “were conceived of as ‘ founded in principles, that are permanent, uniform and universal.’ ” Consequently, judges “conceived their role as merely that of discovering and applying preexisting legal rules” and derived “the rule of strict precedent” from such “preexisting standards discoverable by judges.” It followed that “judicial innovation itself was regarded as an impermissible exercise of will.” 30 Horwitz cites the statement of Chief Justice Hutchinson of Massachusetts in 1767: “the Judge should never be the Legislator: Because then the Will of the Judge would be the Law: and this tends to a State of Slavery.” 31 Not long afterward Edward Gibbon wrote, “the discretion of the judge is the first engine of tyranny.” 32 Horwitz concluded that “In eighteenth century America, common law rules were not regarded as instruments of social change; whatever legal change took place generally was brought about through legislation . . . American judges . . . almost never self-consciously employed the common law as a creative instrument for directing men’s energies towards social change.” 33 Those who would rest an implied power of judges to act as such instruments of social change in the field of constitutional law have the burden of producing evidence that the Framers intended to depart from these norms. The exclusion of judges from the Council of Revision alone points to the contrary.

“Instrumentalism,” Horwitz shows, largely began to develop in the early nineteenth century—after the adoption of the Constitution; the examples he cites are all drawn from application of common law; not once is a judicial claim of power to alter a statute, let alone a constitution, asserted. To such negative implications may be added Hamilton’s statement in the very context of judicial review (Federalist No. 78), that the judicial role is one of “judgment” not “will,” that “to avoid arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” 34 What could be further from the current freewheeling conception of judicial review than these words by the foremost apologist for judicial review, designed to reassure opponents of ratification? Courts were not merely to be “bound down” by the “chains of the Constitution,” but by “strict rules and precedents” as well. Even when the tide began to turn toward instrumentalism, Judge William Cranch of the Circuit Court for the District of Columbia stated in his preface to 1 Cranch of the Supreme Court’s decisions (1803): “In a government which is emphatically stiled a government of laws, the least possible range ought to be left for the discretion of the judge.” 35

There are also contemporary judicial statements that display the circumspection with which the judges approached the novel task of judicial review. In one of the earliest State cases, Commonwealth v. Caton (1782), Edmund Pendleton, president of the highest Virginia court, stated: “how far this court . . . can go in declaring an act of the Legislature void, because it is repugnant to the Constitution, without exercising the Power of Legislation, from which they are restrained by the same Constitution? is a deep, important, and I will add, an awful question” 36 —which, he rejoiced, he had no occasion to decide. Subsequently, Pendleton served as the presiding officer of the Virginia Ratification Convention, and it is unlikely that he translated the examples furnished by his colleagues, all addressed to checking encroachments on reserved powers, into unlimited power of review. No one remotely intimated that there would be judicial power to rewrite the Constitution.37 Nothing could have been better calculated to defeat ratification than a claim of judicial power that would leave the States altogether at the mercy of the federal courts;38 and such State jealousy was met by the Judiciary Act of 1789 which withheld from the inferior federal courts jurisdiction of cases “arising under” the Constitution.

Even with respect to the policing function, Justice James Iredell, who had been one of the most cogent advocates of judicial review, stated in 1798 that the power to declare a legislative act “void is of a delicate and awful nature, [hence] the Court will never resort to that authority but in a clear and urgent case.” 39 In M’Culloch v. Maryland Chief Justice Marshall indicated that something like a “bold and plain usurpation to which the constitution gave no countenance” was required “to invoke the judicial power of annulment.” 40 And in 1824 he averred that “judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature.” 41 For Chief Judge Cardozo, Marshall’s statement was the expression “of an ideal,” which “Marshall’s own career” illustrates “is beyond the reach of human faculties to attain.” 42 It would be more accurate to say, as Charles L. Black pointed out, that it reflected the colonists’ conception that “ Law is a body of existing and determinate rules,” which “ is to be ascertained ” by the judge by consulting “statutes, precedents and the rest,” and that “the function of the judge was thus placed in sharpest antithesis to that of the legislator,” who alone was concerned “with what the law ought to be.” 43 So Marshall understood the judicial role: “Courts are mere instruments of the law and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law ” 44 —that is, by the legislators or the people gathered in Convention.

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Marshall, it needs always to be remembered, had fought on behalf of judicial review in the Virginia Ratification Convention and was well aware of the views entertained by the Founders. His 1824 statement confirms that among the presuppositions the Founders brought to the several conventions was a bias against judicial discretion and policymaking. There is no evidence whatsoever that these presuppositions were thrown overboard in the creation of the judiciary. To the contrary, the established presumption is that the Founders created a judiciary in familiar terms, except insofar as they envisaged its “policing” function. Judicial alteration of the fundamental law ran counter to their belief in a “fixed Constitution”; it was altogether outside their contemplation, as Hamilton made plain.45Justice Frankfurter, therefore, was close to the mark in stating that the Framers were on guard “against the self-will of the courts.” 46

Raoul Berger (1901 – 2000) is a widely read and widely debated authority on the United States Constitution. Mr. Berger’s interpretation of the framers’ intentions thrilled liberals when he castigated President Richard M. Nixon’s assertions of executive privilege in an effort to keep information from Congress in the Watergate case and appalled them when he wrote that the Supreme Court had overstepped its authority in ordering the racial desegregation of the public schools. He wrote seven books and more than 100 articles covering such topics as impeachment, executive privilege, judicial review and the death penalty, thrusting himself to the center of the incessant and tortuous national debate on constitutional interpretations. He did it with a style that inspired the author Garry Wills in 1974 to speak of his ”exuberance of pugnacious learning.”


[1.]Benjamin F. Wright, The Growth of American Constitutional Law 18–20 (1942); see also A. T. Mason, The Supreme Court: Palladium of Freedom 67–70 (1962).

[2.]Griswold v. Connecticut, 381 U.S. 479, 514 note 6 (1965).

[3.]Flast v. Cohen, 392 U.S. 83, 107 (1968); Justice Frankfurter had cited it in Board of Education v. Barnette, 319 U.S. 624, 650 (1943): the Framers “denied such legislative powers to the federal judiciary [and] chose instead to insulate the judiciary from the legislative function.”

[4.]1 Farrand 21.

[5.]2 Farrand 78 (emphasis added).

[6.]2 id. 73 (emphasis added).


[8.]1 Farrand 97–98; 2 Farrand 75 (emphasis added). Wright stated, “Gerry is not alone in this, for the same point of view is expressed by almost every man who says anything at all on this subject in the Convention and in the ratification controversy.” “The judiciary,” Wright concluded, “would not be concerned with the policy, the reasonableness or arbitrariness, the wisdom of legislation.” Supra note 1 at 18, 244; see also id. 19–20.

[9.]2 Farrand 298.

[10.]1 Farrand 108; cf. id. 98.

[11.]2 Farrand 300.

[12.]Id. 299.

[13.]Mason, The Supreme Court, supra note 1 at 70, 94, 117; 1 Julius Goebel, Antecedents and Beginnings to 1801, History of the Supreme Court of the United States 238 (1971).

[14.]Flast v. Cohen, 392 U.S. at 107. Through the due process clauses, A. T. Mason stated, the Court “became the final arbiter of public policy . . . the very authority the framers deliberately refused to confer under the proposed council of revision.” Mason, The Supreme Court, supra note 1 at 117. Yet Rodell could write that those who complain talk in “abstract phrases” — “judicial usurpation of legislative functions.” “The ‘Warren Court’ Stands Its Ground,” The New York Times Magazine, September 27, 1964, in Levy, Warren208, 211.

[15.]Supra Chapter 14 at note 74.

[16.]Wallace Mendelson, Justices Black and Frankfurter: Conflict in the Court 126 (1961).

[17.]Quoted in Mason, The Supreme Court, supra note 1 at 63: “Judicial review represents an attempt by American Democracy to cover its bet.”

[18.]Raoul Berger, Congress v. The Supreme Court 38–42, 29 (1969).

[19.]2 G. J. McRee, Life and Correspondence of James Iredell 145–146 (1857–1858).

[20.]2 Elliot 445.

[21.]Id. 196.

[22.]3 Elliot 553. For additional citations, see Berger, supra note 18 at 13–16.

[23.]Federalist No. 78 at 508. At another point he stated that the courts were an “excellent barrier to encroachments and oppressions of the representative body.” Id. 503.

[24.]1 Annals of Congress 438 (1789). “The Legislative powers,” Madison stated, “are vested in Congress, and are to be exercised by them uncontrolled by any of the Departments, except the Constitution has qualified it otherwise.” Id. 463.

[Story extolled the common law because it “controls the arbitrary discretion of judges, and puts the case beyond the reach of temporary feelings and prejudices.” James McClellan, Joseph Story and the American Constitution 98 (1971).

Madison stated in the Convention that “the collective interest and security were much more in the power belonging to the Executive than to the Judiciary department . . . in the adminstration of the former much greater latitude is left to opinion and discretion than in the administration of the latter.” 2 The Records of the Federal Convention of 1787 34 (Max Farrand ed. 1911).]

[25.]Letter to the Court, October 12, 1897, 168 U.S. 713, 717 (1897). Gouverneur Morris stated that it was the judicial function to reject a “direct violation of the Constitution.” 2 Farrand 299. The Court “gained its power as an agency trusted to establish and enforce constitutional limitations on the excessive use of governmental authority,” i.e., in excess of granted authority. Paul Murphy, The Constitution in Crisis Times,             1918–1969 154       (1972).

[26.]J. B. Thayer, “The Origin and Scope of the American Doctrine of Constitutional Law,” 7 Harv. L. Rev. 129, 135 (1893); Learned Hand, The Bill of Rights 66, 31 (1962). That control of executive discretion lies beyond the judicial function was held in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 169–170 (1803), and in Decatur v. Paulding, 39 U.S. (14 Pet.) 497, 515 (1840).

[27.]Cf. Murphy, supra note 25 at 154. Professor Kurland stated, “the Court would remain true to its function of preserving the original meaning of the Constitution if it were to act more aggressively to prevent the executive from overreaching his constitutionally limited function.” Politics, the Constitution and the Warren Court 17 (1970). “Throughout most of our history the form of the Supreme Court’s contributions to public policy was negative.” Archibald Cox, “The New Dimensions of Constitutional Adjudication,” 51 Wash. L. Rev. 791, 813 (1976).

[28.]“ [T]here were outrages in American life . . . no other arm of government was doing anything about them.” Anthony Lewis, “A Man Born to Act, Not to Muse,” The New York Times Magazine, June 30, 1968, in Levy, Warren 151, 159 (1968). See also Martin Shapiro, Law and Politics in the Supreme Court 247–248 (1964). In the words of Professor Lusky, the Court is “acting as a prime mover rather than a modulator of efforts at change initiated elsewhere . . . As a prime mover . . . it has demanded a number of changes which do not command majoritarian support.” Lusky 227. See also supra Chapter 14 note 136. For the transformation of the judicial function this has entailed, see Appendix B. See also infra Chapter 20 note 8.

[29.]“The Emergence of an Instrumental Conception of American Law, 1780–1820,” in 5 Perspectives in American History 287, 303 (1971).

[30.]Id. 296, 297, 298. Zephaniah Smith, Chief Justice of Connecticut, stated, “Judges have no power to frame laws—they can only expound them.” 1 Z. Smith, A System of Laws of the State of Connecticut 93–94 (1795–1796). Lord Mansfield’s reforming work “convinced Thomas Jefferson that a check need be established on the common law powers of judges.” Horwitz, supra note 29 at 310. This in the field of commercial, not constitutional, law.

[31.]Horwitz, id. 292. For additional materials illustrating the Founders’ aversion to judicial discretion, see Gordon Wood, The Creation of the American Republic 1776–1789 301–302 (1969). As one writer put it, if the judges “put such a construction on matters as they think most agreeable to the spirit and reason of the law . . . they assume what is in fact the prerogative of the legislature.” Wood, id. 302.

[32.]4 Edward Gibbon, The History of the Decline and Fall of the Roman Empire 518 (Nottingham Soc. undated). Blackstone had written, “law, without equity, though hard and disagreeable, is much more desirable for the public good than equity without law; which would make every judge a legislator, and introduce most infinite confusion.” 1 Blackstone, Commentaries on the Laws of England 62 (1765–1769). Wendell Phillips quoted Lord Camden: “The discretion of a Judge is the law of tyrants . . . In the best of times it is often times caprice—in the worst, it is every vice, folly and passion, to which human nature is liable.” Quoted in Robert Cover, Justice Accused: Antislavery and the Judicial Process 152 (1975).

[33.]Supra note 29 at 287.

[34.]Horwitz, supra note 29 at 309–326; Federalist No. 78 at 504, 510. Kent stated that without the common law, i.e., the precedents, “the courts would be left to a dangerous discretion to roam at large in the trackless field of their own imaginations.” 1 James Kent,Commentaries on American Law 373 (9th ed. 1858).

[35.]5 U.S. (1 Cranch) iii (1803). Cranch was a nephew of, and appointed by, President John Adams, and a classmate and esteemed friend of his cousin John Quincy Adams. Life in a New England Town: 1787, 1788. Diary of John Quincy Adams 21 note 2 (1903). Horwitz quotes an unpublished opinion on circuit by Justice William Johnson (1813) that to invite “judicial discretion” would “increase the oddity of the state of things” in that the judiciary “would be left at large to be governed by their own views on the Fitness of things.” Supra note 29 at 306–307.

[36.]Commonwealth v. Caton, published in 2 Letters and Papers of Edmund Pendleton 416, 422 (D. J. Mays ed. 1967).

[37.]For citations to Madison, Marshall, and Nicholas, see Berger, supra note 18 at 77, 140, 15.

[38.]Cf. id. 263.

[39.]Calder v. Bull, 3 U.S. (3 Dall.) 386, 399 (1798); Justice Chase said, “a very clear case.” Id. 395. Earlier, Iredell, rebutting criticism of judicial review by Richard Spaight (then a delegate to the Convention), had stressed that an Act “should be unconstitutional beyond dispute before it is pronounced such.” 2 McRee, supra note 19 at 175.

[40.]17 U.S. (4 Wheat.) 316, 402 (1819).

[41.]Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 866 (1824).

[42.]Benjamin N. Cardozo, The Nature of the Judicial Process 169–170 (1921). It is not merely an “ideal” but a requirement of the separation of powers, supra Chapter 15 at notes 27, 43–49. Marshall recognized judicial limits in his pseudonymous defense of M’Culloch v. Maryland, to meet stormy charges of judicial usurpation. See infra Chapter 21 at notes 12–19. Least of all can the judiciary say one thing and do another; it cannot afford conflicts between word and deed. Nor does Marshall’s disregard of constitutional bounds legitimate his displacement of the Framers’ “will” by his own.

[43.]Black, The People and the Court 160 (1960).

[44.]Osborn v. Bank, 22 U.S. at 866 (emphasis added).

[45.]The foregoing materials, to my mind, refute Bickel’s view that the Framers “certainly had no specific intent relating to the nature and range of the power” of judicial review. The Least Dangerous Branch 104 (1962).

[46.]National Ins Co. v. Tidewater Co., 337 U.S. 582, 647 (1949), dissenting opinion.

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