Professor Stewart Jay's Installation and Lecture

Constitutional Mischief: The Promise and Perils of Judicial Review

February 27, 2013

March 6, 2013

Dean Kellye Testy

Good afternoon everyone. I am very pleased to welcome you today. I am Kellye Testy the Dean of the University of Washington School of law. And I am so glad that you can join us at the installation of Prof. Stewart Jay as the Pendleton Miller chair in law. I love these gatherings. It's a chance for us to celebrate faculty excellence, to celebrate our faculty as the intellectual leaders of our law school and so I want to say that I am particularly pleased that you are all here today to share this happy occasion with us.
And I especially want to welcome my colleague and president professor and president Michael Young is here with us today. He and Stewart Jay were classmates. So if you could join me in paying special welcome to president young.
I have the honor now of introducing Jeffrey Ravel to you who is from our class of 1972. And he is going to share some thoughts about this professorship and the Pendleton and Elizabeth Miller foundation. He is a board member, actually connected with two boards that are without foundation. Jeff is a partner at stall reads in the Seattle office. And he is someone who practices in the area of business law both domestically and internationally. He has been there since 1995. And prior to that he was deputy prosecuting attorney for King County. He was also a founder and shareholder of Ravel and Hawkins and then the chief operating officer of Attachmate Corporation. So very deep and broad experience in his career. I noted that Jeff was in 1972 grad of our law school. One of the interesting facts is that his father and also his daughter are likewise graduates of this terrific law school. So, Jeff I really appreciate you being here with us today and I want to invite you to the podium to share some remarks about the history of the Pendleton and Elizabeth Miller foundation.

Jeffrey Ravel

Thank you Dean Testy it's a pleasure to be here on behalf of them Miller charitable foundation and the Miller botanical Garden trust as well as the Miller family. It's also a pleasure to be with colleagues that I've known for many years. Dean Hjorth was a professor of mine in law school. My first year was his first year as a full professor.
Pendleton Miller actually was my godfather. He and my dad were very close friends, best friends actually. And they went to law school together and graduated in 1935. They went off to war together a few years later and came back my dad in one firm and Pen was a founder of Lane Powell Moss and Miller. He was Miller of the firm. An interesting factoid about that is that the family wealth had been earned and I'll tell you a little bit about that in a minute, back in the mid-late 1800s. And so he never really had to work. He went to Andover which was rare for somebody from here, Yale rare for somebody from here. He got me into Yale and didn't speak to me for five years when I didn't go. When he went to Lane Powell he worked for them for many, many years was named partner, he never took a dime out of the firm. Never took a draw never took a paycheck. I wish I had partners like that but I haven't been able to work that out. Sunday was basically doing a lot of work for big companies because he knew all these people from his background traveling really and very wealthy circles. And he represented Arco, a bunch of oil companies, bunch of big companies in town and begin it all went to his partners in the firm and he just there for fun.
The money came from (and this is what my dad tells me, my dad was a judge in so he could make things up if you wanted to from the bench but I think this was correct) basically Pen's grandfather was a postmaster in Olympia or thereabouts whatever the outpost was then in territorial days and one of his jobs as postmaster was to post foreclosure notices. And during some particularly tough time and under no it was the 1870s or 80s somewhere in there, there was a lot of foreclosures and so he would conspicuously post the foreclosure notice on a tree in the middle of the woods on the property. And then he would conspicuously be the only better because not a lot of people were in the forest looking for foreclosure postings. And so by the time he was finished (and again this is from my father I have no idea this was all true) but by the time he was finished, and I know this parts true, he had accumulated probably about a third of the central Washington and that to this day remains, a lot of it has been sold off, but that to this day remains the foundation for the Miller estate in the Miller foundations. Part of the money when they sold things off, the Unico properties tracked of the U, a lot of that was donated by the Miller's as well as money that was used to found the Center for urban horticulture was basically funded by the Miller's, the Miller library was named there. Other things named for the Miller's Winlock was the grandfather's name and Winlock Washington is named after him. There are all sorts of Miller high schools and parks particularly in central Washington that were donated land and schools that were donated land and funded by the Miller's and so the family is a whole lot of good things over 100+ years. The garden, auto some of you may be familiar with the Elizabeth Miller Garden which is a botanical Garden trust twitches their old house in the Highlands that is a world renowned garden for rare plants that will grow in this climate that are not invasive. Betty Miller was a leader at the Arboretum and she actually is responsible for all of the plantings that you see in the freeways where we've got all these trees in the middle of the medians and on the side. She was behind the design of all of that and the impetus to get all of that done when that highway system was built so that we have something to look at other than concrete. And she at the garden, the garden is still very active. It's a public charity but you can only have 500 people year because it's in the middle of the Highlands and so we have restrictions. There is an outreach program called great Plant picks which if you go to a website you can see which basically is a selection by noted horticulturalists of all kinds of plants that really grow well in this climate and they are selected by this group. So there is a lot of good things that are still going on from the Miller foundation. Not the least of which is this chair.
I am really pleased that Prof. Jay will join a long line of really distinguished folks to hold this position. And the family and the foundation are very pleased that he was selected and we have been very pleased to support the University and it over the years.
With that I will turn it over to my old professor Hjorth and I will avoid telling some stories about him but I remember the days when we were in law school and he was a little younger I was a little younger and they used to have a house on Lake Washington that they rented and so my classmates and I would go over there and have a couple of beers and have a good time with our professor and those are still fond memories for all of us these days and professor Hjorth was easily one of the top two or three professors in the law school for many, many years and certainly when I was there everybody took his class. And I can't think of anything much more boring to me than tax but I loved the class and we had fun with professor Hjorth and trying to avoid getting called on and trying to pass the test was another story. But anyway it's my pleasure to introduce Dean Hjorth.

Dean Hjorth

Thank you very much Jeff. Those were the days when our hearts were young and gay and I miss them a lot. Well I am honored to introduce Stewart JAY as the next holder of the Pendleton Miller chair of law. My wife Mary who read both the short biography of Stewart printed in the brochure you have received and a draft of my remarks advised me not to repeat what was in the brochure. She admonished me that I should "help stamp out and abolish redundancy". Stewart, by the way was the person who identified and then introduced the first holder of the Pendleton Miller chair, Eric Schnapper. Eric occupied that chair with great distinction for more than 20 years. During his time in that chair, in addition to his teaching and scholarship, Eric has probably participated in more United States Supreme Court cases than any other academic lawyer, and possibly more than any lawyer with the possible exception of a long standing solicitor general if we had one. So in any case, Stewart has big shoes to fill and I know he'll do that. We have one other endowed chair in this law school, the William L Dwyer chair in law which Stewart occupied with considerable distinction from 2002 until last year.
So, who is Stewart Jay? He was born in Montana and raised in Texas. And then reversing Horace Greeley's advice the young man went east to Georgetown and Harvard. In high school and college Stewart was a nationally recognized debater. Debating was his passion. He is still very good at it. I realize this to my chagrin, every time I engage in a friendly discussion which turns into a debate with Stewart and by the end of that I wish I had never started the argument. But on the other hand, I very much appreciated having Stewart on my side when other important matters were at issue in this law school. He is an able advocate for higher standards in higher education. As many of you know Stewart often speaks on constitutional law issues on National Public Radio and its local affiliate KUOW. Stewart's rhetorical skills always come through in these interviews. What also comes through is his mellifluous radio voice. He could have been a radio announcer. In fact, Stewart was an announcer, an engineer at Georgetown radio station W GTB FM. He was an announcer and engineer. I can understand his having been an announcer. I could understand his being a radio commentator. His being an engineer however baffles me a little bit, and artist probably an engineer unlikely, unlikely. And actually Stewart is known for the quality and volume of his scholarship in Constitution no law. Here at the law school students probably know Stewart better as one of the finest teachers on the faculty.
In the years that I was Dean I reviewed the student evaluations of every professor for every course. So I can tell you with assurance that Stewart is one of the most highly regarded teachers and the school. I wish I could tell you that my assessment of Stewart is also based on my taking one or more of his classes but I cannot do that. But if Stewart let me end I will do that when I'm fully retired. I will probably need to see all your credits. But I will also attend if I can because my wife Mary audited his class on equal protection and due process of law. She views him as one of the best professor she ever encountered. She said he had total mastery of the material and great skill in presenting it. But most important in her mind was that he treated every student with utmost respect. Because of that, she thinks all students felt their viewpoints mattered and most wanted to participate in the discussions at hand. She thought the level of preparation was extraordinary because the students wanted to live up to the level of respect that Stewart had for them.
Stewart has also been active in service to the law school and the greater University. He has also been an active participant in shaping the state's position on some of the most important and controversial issues of the day. He was a principal drafter of the Washington State Reproductive Privacy Act codifying the Roe V Wade decision and making that decision to low income solicitors. He was a principal drafter of the Washington Handgun Safety Act, which was defeated but was approved by 42% of voters. He remains active in movements to promote firearm safety. He continues to advocate civil liberties through his active membership in the ACLU of Washington. But of course most importantly we recognize Stewart for the mature scholarship and thoughtful publication that advanced the orderly development of the law. His publications have been voluminous. Reading his work would be well worth your time but be prepared to take a long time. His books and articles are not short. I recall year in which some self-appointed ratings group ranked law schools by computing the number of pages in articles published by faculty members and what that group considered to be the top 10 law reviews in the United States. University of Pennsylvania law review was in that group and Stewart published two articles there in one year totaling 214 pages. I that ranking Stewart accounted for over half the pages published by our faculty in that so-called select group of law journals. If we had all done what Stewart would have done we would have probably been the top-rated law school in the country by that group. I try to read all faculty publications when I was Dean. Stewart's writings took a lot of my time, a lot of my reading time but it was time well spent. I recall particularly a book Stewart wrote entitled most humble service: the advisory role of early judges. I remember particularly his thesis about the role of Supreme Court justices in the development of constitutional law. This is what he wrote, "certainly logic and abstract theory play a part in constitutional change but far greater significance however are the actual political circumstances behind the issue including personal outlooks and interests of those figures who are in a position to influence the developments. These elements blend together much as paint on an artist's canvas to produce a picture whose distinctive appearance nonetheless bears the traces of disparate elements. In a manner of speaking there always must be an explanation deeper than the official version that appears in legal opinions aren't public statements of political figures and details to be told about this deeper aspects of constitutional changes are rich in force and meaning". That book was a finalist in the Association of American Law school scribes award for most significant published during the year. Stewart's writing since that time has been noted for its maturity and residents. I am delighted Stewart is continuing in what is almost a lifetime project on the history of the Supreme Court. I look forward to reading his next mortal words volume on the history of the U.S. Constitution up to World War II it will be published this year. I intend to retire about the time the book is published so I will have plenty of time to read it. I am told Stewart is already at work on the last volume in this series and God willing I will be able to read that as well.
Finally, I want to acknowledge the excellence of our younger scholars. They are our best hope for leading this law school to a new level of excellence. We expect that many will develop into mature and wise teachers and scholars who will make the kind of contributions Stewart has made to this institution and to the legal community. It is now my pleasure to invite Dean Testy to come to the podium to install Stewart Jay as the next Pendleton Miller chair.

Dean Kellye Testy

So this is the fun part when I get to give out medals. Stewart I wanted to ask you to please join me here and as you come forward I want to let you know how much that I appreciate the contributions you have made to this law school over the course of your career. I really particularly as all of you in this room know, especially appreciate when our colleagues are dedicated to both teaching and scholarship and service to the institution. And also take their expertise out into the world to really make a difference in so many ways and you have really done that remarkably. I also often say and our president has heard me say this, great universities always have great law schools and I also think that great law schools also have great strength of constitutional law and so you having been not for us and being that for us I want to let you know that I and all my colleagues admire what you do and appreciate what you do and look forward to many more years of college ship with you and so it's my great honor to install you as a Pendleton Miller chair in law.

Stewart Jay

Thank you Dean Testy and thanks Dean Hjorth. Ron of course you are welcome to always take my classes I will just remind you there is an exam at the end of the quarter however.
Ladies and gentlemen, friends and colleagues I would like to say a special welcome to my friends from bash on island would come here today. And my daughter Chloe is here in the front row as well. And I would also like to thank Pres. Young for coming today. Mike and I were not only classmates at Harvard Law School we were on the law review together and we clerked together, not quite together at the US supreme court. He was with Justice Rehnquist and I was with the Chief Justice, although they were very similar in many ways.
Today I am going to talk about the subject of judicial review. Which for the nonlawyers in the crowd means the power of courts to declare acts of other branches of government whether they be federal or state unconstitutional. This is not a question that I have just thought about the last few weeks. I think the first time that it occurred to me was when I was sophomore in college and I took my first course and cause situational law. I was also a major in political. Philosophies one of the great topics that we would debate usually over beer was the very subject of whether a court should be able to declare laws unconstitutional. I remember being skeptical at the time about that power. I thought it seemed a tad bit undemocratic but then I went to law school, became a law clerk and by that time I think I had decided that it was the finest thing going to declare laws unconstitutional. And I remember as a law clerk, I think I could save this is true of all the law clerks in the building, we wanted nothing more than to be able to work on an opinion in which we got to write as the bottom line something about overruling an act of Congress or an act of the state at least. Alas it never happened. I got to do other things that were interesting that year but only got to do her work on opinions which upheld acts of Congress and I thought that was terribly unfair.
But I have now been a professor for 35 years or will be 35 years in this type of work at the end of this year. Most of those years I have been here at the University of Washington and for most of that time I have taught constitutional law. One thing that has occurred to me in the last few years especially thinking back to those early days when I was discussing this with friends in college or even at law school and for that matter even if the Supreme Court how woefully ignorant I was of all of this material at the time. It has really taken a study of three decades to reach the point where I can feel bold enough to say some of the things that I'm going to say today. The main point that I'm going to be making is that I am not so hot about judicial review anymore. And I am not sure that is an institution that should remain in the form that it currently is. I remind you that today for example the Supreme Court took up the question of whether preclearance provisions of the Voting Rights Act of 1965 should be declared unconstitutional. There is a quite excellent chance the Supreme Court will in fact find that Congress has no authority to enact that provision which I think would be a tremendous mistake not the least of which because that act was passed out of the blood of the people who marched across the Edmund at this bridge on bloody Sunday and were beaten to a pulp by the police. One of those was John Lewis now a congressman. He was practically killed that day. And I hope these Supreme Court justices recognized him in the chamber today watching the argument.
As I will tell you more as we go on my big problem is this is an issue of whether Congress has the authority which is vested in it under the 14th amendment to enact laws to enforce the 14th amendment. It should be Congress's responsibility as far as I am concerned; the Supreme Court should not even be hearing the case today. It is literally none of the justices business. And frankly it seems to me that Congress has prepared a more than adequate record for upholding the act. But judging from what I heard of the arguments today I won't be surprised if in June we find out that he preclearance provisions are gone and I very much fear for the future of voting rights especially in the South.
But let's turn back to the subject of judicial review generally. As lawyers and law professors know this is one of the principal structural features of the U.S. Constitution. Indeed we are so thoroughly familiar with this process of courts reviewing laws of constitutionality that really no one except maybe some academics and a few political eccentrics even question the legitimacy of the process. By the way, sometimes political eccentrics and academics are one and the same. That doesn't of course apply to me but… For example last year when the Supreme Court came within a hair of declaring the Affordable Care Act unconstitutional there was lots of discussion about whether it was constitutional but I don't recall anybody or at least anybody of any prominence questioning whether the Supreme Court has the final word on the point. And once a rule what do we say? We say it's the law of the land.
So especially for the nonlawyers, you will be forgiven for thinking that the power to declare laws unconstitutional is actually written in the Constitution. It's not. There is no such power given to any court in the Constitution to declare laws unconstitutional. Indeed if you go back to the beginning of the country either in the 1780s leading up to the Constitutional convention in 1787 or the debates of the constitutional convention in the summer of 1787 or during the ratification period in the next year or for that matter even in the entire period of the 1790s when the Bill of Rights is enacted and many of the most important pieces of early legislation are enacted by Congress. There is very little discussion of judicial review and I think you can best say that the power was controversial and it was unresolved in that period. To give you a bit of a history lesson if you want to know about say the foundation of American law in the 18th century it was British law almost entirely. Our law was based on the common law of England. The common law of England did not count on its judges declaring laws unconstitutional. It would have been absurd to even suggest it. Now that's not to say that Americans didn't have a view that loss could be unconstitutional. During the revolutionary war one of the most frequently asserted claims by the revolting Americans was that the British were acting unconstitutionally. And also by the way, in violation of colonial charters which were in effect I note the constitutions of the colonies in question. Indeed a couple of the states didn't even adopt constitutions after their independence. They just used their charter because it was an adequate substitute. So Americans frequently told the British you are acting unconstitutional. It never occurred to anyone to bring a case in court, certainly not a court in England, to try to enforce a claim. Quantity Americans do? They took up arms. That's how they enforce their constitutional rights.
After independence there was a handful of courts that literally in seven states and most of the decisions were made by just trial judges. And these are decisions in which the judges did in fact refused to enforce laws of their states because they thought they conflicted with the state Constitution or some higher law like the law of nations. There is just a scrap of these opinions of these cases and almost all of them involve the right of jury trial. Only one involved what you might think of as a substantive right when a legislator tried to redraw the boundaries of the town in violation of the original land grant. There might have been seven cases. There might have been seven courts that thought that they had the power at least to refuse to enforce laws that they thought were unconstitutional. But those rulings produced very substantial public opposition. In Rhode Island for example the judges decided that a law could not be enforced if it did not provide a jury trial for people accused of violating a certain act. The judges were called before the state legislature and the legislature demanded to know what in the world were they doing declaring one of their acts to be unconstitutional? The judges replied that they were accountable only to God and their own consciences. Well that's great but God did not appoint them. The legislature appointed them. And the next year all but one of the judges found himself without a job. That tells you something about the practice of judicial review as it was perceived at the time. It wasn't a well-accepted practice.
At the constitutional convention and then again during the ratification process they're really only were a very few people who would even discuss the question. While you might save that there were a number of prominent voices, people whose names you recognize like James Madison for example who thought that judicial review would occur and would be proper, there were plenty of people on the other side who thought that it would be an atrocity, that it would be a violation of Republican theory for judges to interfere with the acts of popularly elected legislatures. Only the most prominent person to defend judicial review was Alexander Hamilton who wrote in Federalist number 78 a defense of the practice. What Hamilton said was that it would be inevitable that courts would have to decide between say a statute and the constitutional provision that conflicted with the statute. And therefore since the judges had to choose they would have to choose a superior law. In the superior law would be the Constitution. Hamilton's theory was that the reason judges could appropriately do that was that they were an intermediate body between the legislature and the people themselves. He saw the Constitution of the word is the embodiment of the people in the judges would be this intermediate body. Well the problem with that theory is that it doesn't make a whole lot of sense to think about it for a minute because it might be in some way theoretically true, the Constitution is the embodiment of the people who ratified it in 1787 to 1788, but that was a long time ago. It's very hard to say that the Constitution today is the embodiment of the American people rather the Constitution means what the Supreme Court says the Constitution means. They may be an intermediate body in some theoretical sense but I would say that they are exercising political power. They gained this power, they claimed the power over the course of 200 years with a gradual increase in the number of times when they had interfered with the other branches of government. Hamilton also said that there was a danger that judges would substitute their own pleasure to the constitutional intentions of the legislature. He didn't give any way that that could be cured however and that's my great problem is that judges can do precisely that. I'll talk more later on about when I think it's appropriate for judges to interfere with acts of legislatures but at the very least you have to think about the entire Republican aspect of that. The fact that you really are interfering with what the people's representatives have tried to put into place.
But in any event Hamilton's essay which is now by the way one of the standard explanations for quite judicial review is appropriate it had no effect on ratification. Eight states had already ratified the Constitution by the time he wrote the essay in a New York newspaper. And then there were another three modifications within a month. It is very unlikely that most of the delegates even knew about the essay. But his essay became the template for the US Supreme Court's first decision upholding the judicial review which is Marbury versus Madison in 1803. Essentially Marshal copied Federalist 78 without acknowledging that he was doing so, of course. I'll tell you a little bit more about that decision in a few minutes. My point though is that even Madison who said during the convention and then in the Federalist papers that judges would consider unconstitutional laws null and void. After the Constitution was written and before ratification though he wrote to his friend Thomas Jefferson who still was enjoying himself in Paris as the US representative that if it became the case the judges in reviewing statutes and considering them in light of the Constitution prefer the Constitution and then if they put their final stamp on it well that would be entirely improper Madison said. He said this was never intended and it can never be proper.
You see judicial review was a new question for Americans at the beginning of the country. In the first place there was no experience except for this handful of cases in the 1780s with courts overturning statutes on constitutional grounds. Secondly, written constitutions were a brand-new thing. They were in some ways the logical corollaries to the charters that colonies had existed under but constitutions were written under entirely different premises than the British system. They were based on Republican theories. They were based on the idea that it was the people who were sovereign. It wasn't the King and Parliament who were sovereign. Well this cut both ways as far as judicial review went. On the one hand since constitutions were perceived to be the original acts of the people it was easy to see in fact it was kind of a short step to say that therefore they are superior to ordinary legislation and they have to be treated as such. But on the other hand there were voices like that of Richard spate of North Carolina who was a delegate to the Constitutional convention and he was offended by the anti-Republican aspects of judicial review. He wrote to James Iredale who became a US Supreme Court justice in the 1790s that the power was as he said, "absurd and contrary to the practice of the world". Nonetheless there are many historians who have claimed or at least implied that during the 1780s the tide had turned decisively in favor of the practice of judicial review. I have got to say though after reviewing this information at great length that the evidence for this is extremely slight. And furthermore, the evidence all comes from elite Americans-the people who were educated and had access to presses to express themselves. And we are literally talking about a handful of people or a couple handfuls of people. We have no idea what the average person thought about the subject of judicial review. What we do know is that the elites of America of the 1780s were highly offended by what state legislatures were doing in enacting with a regarding what they called populists legislation that was pernicious. This is legislation for example that relieved debts because the people the 1780s were suffering from a tremendous economic pressure that occurred after independence. But this hardly proves that there was consensus in the public about judicial review. That is the fact that these elites were upset by populist legislation they thought was in violation of natural rights. After all it was the people themselves who had elected the representatives who enacted these supposedly nefarious laws.
Furthermore, the idea that there was a sudden appreciation for judges or lawyers, that's wishful thinking. The complaints against the legal profession at this time were many and they were frequently vicious. A lot of it had to do with the low state of legal training. There were no law schools back then. You might read law for a certain period of time with a lawyer. Alexander Hamilton for example studied with the lawyer for six weeks and then pass the bar exam which was oral back in those days. In fact, most judges were not legally trained in the 18th century America. So you have to wonder then about this claim that Americans suddenly thought that judges should be trusted with the interpretation of the Constitution. I mean to the contrary, judges are regarded historically as really instruments of the crown and that's the way they had been perceived during the colonial period. People really were not at all happy about this.
Furthermore, there were obvious alternatives to the people who were alive at that time to judicial review. The most obvious was regular elections to turn out the representatives who had voted for unconstitutional laws treated a second possibility was the practice that indeed was common across the country and that was judges did not have the final word as to what the law meant. In an ordinary case for example that would go to a jury, and most cases went to juries, it was the jury that claims the power to decide both the law and the facts in the case. The judges could give the juries their opinions about what they thought the law was but the juries were free to ignore them. And they did is a very famous cases. So the idea that the judges were going to be in control of all of this, that doesn't jive with what we know about the attitudes of Americans back then.
And then, as I told you previously the most obvious thing you would do if something was going on that was terribly unconstitutional is you would take it to the streets. That was the great tradition of Americans and English people before that. When you got mad at the government you riot. You would burn stuff down. The Lt. Gov. of Massachusetts for example during the Stamp Act crisis he had his mansion burned down by a mob and he wasn't the only one. There were other ways to enforce your constitutional rights than to go to a court. I'm not suggesting this is the alternative for today but it gives you something to think about.
Now even if you assumed what we don't know that most Americans thought that judicial review was an acceptable practice or at least an inevitable practice it doesn't tell us very much about how they expected the power to be exercised. The Constitution did not come with an instruction manual explaining how it was supposed to be interpreted nor did it specify how the government was actually supposed to operate. And in fact a series of constitutional questions occurred in the 1790s and thereafter. It became really obvious that the Constitution did not have definite answers to many of those questions.
Now as to the issues that were left open let's just consider a few. First of all there was the scope of judicial review. Just exactly what when wasn't going to apply? Well today we are used to judges reaching out and declaring acts of legislatures, acts of Congress, acts of the executive to be unconstitutional. Parties can go to a court and argue they are being harmed in some way by unconstitutional actions. Judges can strike down laws, they can issue injunctions against the laws. They can award damages, all those kinds of things. Was that what they contemplated back in the 18th century? Well literally no one said anything about any of that. The most anybody said was that if the judge was presented with a law, has to enforce the law and if the judge thought the law was unconstitutional the judge just wouldn't enforce it. That's the most anybody believed. Indeed that was what occurred in Marbury versus Madison. You probably know at least something about this case. I hope even if you're not a lawyer you have studied this a little bit in school. This is the famous case in which John Adams who had been defeated by Thomas Jefferson was the lame duck and at the last minute he was busy appointing his Federalist friends to judgeships in fact the judgeships in question were newly created ones for the District of Columbia. But Adams was working I guess so late that he didn't get around to or he was taking a while that he was signing all these things. And then there was another step you had to have the secretary of state seal the document and then had to be delivered of course to the judge. Well there was one judge William Marbury or I should say supposed I'd whose commission was assigned by Adams but it never got the seal of the secretary of state and it was never delivered to him. And so Thomas Jefferson when he became president and his Secretary of State James Madison, they had no intention of the liver Marbury's commission or the commission of anybody else who was appointed by John Adams. So what is Marbury do? He goes directly to the US Supreme Court and says I want you to issue an order to the Secretary of State demanding the Secretary of State give me my commission said Chief Justice Marshall writes what is regarded as a very clever opinion. He says while you do have a right to your commission. It should be delivered to you. The secretary of state should be ordered to give you the commission. Unfortunately, we don't have jurisdiction. Why don't we have jurisdiction? Because the acts of Congress that purports to give his jurisdiction is unconstitutional. That is it exceeds the powers that we have under article 3 of the Constitution so we can't accept the power. Now all that meant was that the court is being asked to do something that it regarded as in violation of their article 3 powers. It just wasn't going to cooperate. Thomas Jefferson was furious that decision. But it's interesting what he is furious about. He was furious about the fact that the court even suggested that it would be proper for a court to send in order to the executive telling the executive to do something. Jefferson was not adverse to acting on the view that an action of Congress was unconstitutional after all, he was the one who thought the sedition act of 1798 was unconstitutional. And he pardoned all of those who had been convicted during the Adams administration for violating it and he remitted their fines as well. When he was challenged by none other than Abigail Adams who he corresponded with as to how in the world or why in the world he had done that since after all the federal judges had all upheld the Sedition Act in lower court cases? Jefferson replied look the way it works is each of the branches gets to decide if they have power to do something so the Supreme Court gets to decide that or the judges get to decide that the Sedition Act is constitutional. Congress obviously thought it was constitutional when they passed it but I am the president and I don't think it's constitutional so I am not going to respect it. Hence I am going to pardon everybody and I'm going to remit the fines. In so if you think about that that's a very simple model. Each of the branches has its own autonomous powers and none can tell each other what to do. That was at least Jefferson's theory about things. We don't really know in other words what the scope of judicial review was supposed to be because really nobody thought about the scope beyond that simple fact pattern of a court being asked to do something the court thought was beyond its powers.
Second question is how much deference should a court give to a legislature in making these determinations? If there was a dispute over the constitutionality of the statute should you give the benefit of the doubt for example to Congress or to a state legislature? Well today like I say it really depends on the kind of case but in many situations very little deference is given to the elected branches of the government. Back in the day though the more typical view was what Hamilton said that the only time a court could set aside and act of the legislature would be if it was contrary to what he called the manifest tenor of the Constitution. Other judges said that the only time they could declare laws unconstitutional was when they were plainly unconstitutional. In James Iredale who supported judicial review said that in all doubtful cases a law should be upheld. And by the way declarations like that continued until the early 20th century by courts. I would say today judges have forgotten all that. And they don't take it upon themselves seriously to only strike down laws that are plainly unconstitutional.
Now third and finally in this list of things that were kind of left open in the 18th century if there is a dispute over the meaning of the constitutional provision what sources of authority are relevant? Do you take into account for example the views of the framers of the Constitution or the views of those people who ratify the Constitution? Do you take into account this paper essays and things like that? Do you take into account what was happening in society at that point? Well most people today don't know that as far as 18th century lawyers were concerned there was really only one thing you were supposed to look at when you are interpreting a document and that was the text of the document. You did not ask about legislative history. It was irrelevant. It made no difference what the framers of the Constitution or the ratifiers stopped. Which by the way is why Madison famously did not publish his notes that he took at the constitutional convention until many, many years after the Constitution went into effect because he didn't want anybody to be distracted by those notes because he thought that they were irrelevant. Indeed they were irrelevant as a matter of 18th-century constitutional theory or legal theory. Now it was the case though that sometimes you would have an ambiguous statute. And the Constitution is very ambiguous in many places. So what would a judge do under the circumstances? The standard thing that judges did was to harmonize the law to try to figure out a way to interpret the law so that the law would be constitutional and would make sense as a whole and they would does sometimes narrow the law saying in effect to the legislature we think this is what you meant because you couldn't possibly have meant to what you seem to have said ambiguously because that would be unconstitutional. And so this is what we think you meant. Now that in theory at least gave the legislature a second chance at it. And they could come back and say no, no we were right the first time. We knew what we were saying and you are wrong. Well that's what judges did is rather than overtly strike down laws unconstitutional they would try to rewrite the statute in some sense.
Now in retrospect looking back over 200 and some years you can see how those three questions were answered. And you can see how to judicial review develops gradually over time. It's really a matter of what Hamilton said famously in the Federalist papers that what would happen in constitutional development would be that ambition would be played off against ambition meaning that the real way constitutional law would work and the real way that the government would develop and progress would be that you would give political actors in Congress the executive and also the courts their own separate power bases and then they would work it out over time. They would clash with each other. Political wills would clash and that's how the process would work in the future. You really couldn't tell what was going to happen.
Now as I said Marbury was decided in 1803. It was not until 53 years later when the court struck down another act of Congress. It wasn't exactly a wildly popular process obviously. What was dedication? That occasion was Dred Scott versus Sanford. In my opinion the worst decision the Supreme Court has ever made. It struck down the Missouri compromise as unconstitutional. It essentially held that it didn't matter where a master to slave anywhere in the country even if was a free territory or a free state the slave didn't go free because the slave was property and take away the property of the master would be in violation of the due process rights of that master. Chief Justice tanning actually thought that the decision would prevent the Civil War in a sense that this would be the law of the land. Everybody would then come to the conclusion that there was nothing more to fight about because this is what the Constitution meant. Of course he was wildly incorrect about that. Dred Scott may not have caused the Civil War but it hardly improved matters because indeed it part of the positions really on both sides. Now during the 53 year gap between Marbury and Dred Scott the Supreme Court however found 26 state or local laws or judicial actions to violate the Constitution or violate a treaty. By the end of the 19th century it had struck down 22 acts of Congress. In the same period It had invalidated 157 state and local laws or judicial actions. As a last term of the Supreme Court the court had voided about 170 acts of Congress.
Now today I am going to focus my few remaining minutes primarily on cases that invalidate acts of Congress. For simplicity I am going to divide them into several categories. First there are decisions that find that Congress has exceeded its powers under article 1 of the Constitution or the powers that are given to it under the 13th 14th 15th amendments. The second group of cases which are similar or are actually related to the first are instances in which the court finds that Congress has violated states rights protected by the 10th amendment. A third category would be ones that involve when the court decides that Congress has violated the principle of separation of powers. Then there is a fourth line of cases that relate to when the court finds that Congress has violated the Bill of Rights or Reconstruction amendments. And then finally there are cases in which the court finds that the Constitution protected other individual liberties such as those protected by the habeas corpus clause and the ex post facto clause.
Today I'm not going to be talking about the last couple of categories, the provisions about the Bill of Rights and individual rights. I would say by and large those cases can be defended. If I had more time I would tell you though that the courts work in pretty much all of those instances with maybe the exception of the first amendment does not show a great deal of zeal and protecting the individual rights. My major complaint is about the courts use of judicial review when it strikes down acts of Congress because they exceed Congress's powers under article 1 or under the Reconstruction amendments. Indeed if you were to go through a series of cases in which the court has ruled on these grounds, striking down of acts of Congress you would come across some of the worst decisions to sit preen court has ever decided. I don't think a single one was correctly decided or should have been decided the way that it was. In addition to Dred Scott after the Civil War was over Congress passed the great Reconstruction amendments which authorize Congress to pass all sorts of legislation we thought or they thought to enforce the amendments the Supreme Court systematically gutted much of Congress's work by among other things finding that Congress had no authority to do anything about private acts of discrimination and so they struck down the Civil Rights Act of 1875 which would've banned racial discrimination in public accommodations which is hotels and restaurants and theaters. That decision has never been overturned. It was not until 1964 that much the same act was passed as the Civil Rights Act of 1964. It was upheld as Congress acting under the commerce clause of the Constitution. Indeed the court's attitude after the Civil War was to think that private discrimination was something that the amendments reach would be is one justice said, "beating the slavery argument into the ground".
There are other cases that I could talk about. It was in 1895 When the Court decided the Sherman Antitrust Act could not be applied to the American sugar refining Company which had just bought a rival and they now control of 98% of the sugar refining business in the United States. And the court found that Congress had no authority to reach that because it didn't directly concern the regulation of interstate Congress. It struck down in the early 20th century the child labor act and the child labor tax act as exceeding Congress's powers. The future trading act was shut down. And then during the New Deal period when people literally were starving and fast economic dislocation the court gutted the heart of the new deal legislation in 13 cases during that very brief period of time including striking down the agricultural adjustment act, the attempt by Congress to abrogate the gold clause in government obligations, the national industrial recovery act which indeed was the centerpiece of the first term of Roosevelt, the homeowner's loan act, the railroad retirement act and on and on. Now I'm not say that those laws were very good laws. Indeed, I think most economic historians regard them as rather inept and they themselves didn't have really much to do with ending the Depression. Rather, it was World War II that accomplished that. But still it was the court that did not allow Congress even to try with that path breaking legislation.
Now it's true after that, there was something of a retrenchment and that's because so many New Dealers were appointed to the Supreme Court by Roosevelt. I mean literally the court entirely changes in the 1940's. And then in the 40's and the 50's you don't find the court aggressively striking down acts of congress except in very few cases that deal with individual liberties. Rather, you have people like Felix Frankfurter on the court who had been a New Dealer and Hugo Black and they wanted nothing to do with courts interfering with acts of Congress because they knew what would actually happen. They had seen it happen. They wanted no part in it whatsoever.
But it's come back again, it's come back again. In 1976, the court declared the Fair Labor Standards Act as it applied to state and local governments to exceed congress's powers because it violated the 10th amendment they said. That decision was overruled in 1985. It went on to strike down the one-house veto which was one of the most innovative ways to deal with the problem of agency discretion. It struck down the Graham, Rudman, Hollings Budget Act, which was an attempt to stop the run-away spending which seems to still infect our national policy. It struck down the Low-level Radioactive Waste Policy Act in 1992 which was a compact among states to try to agree on the problem of dealing with low-level radioactive waste and indeed New York which was a state that was complaining had actually been part of the original group that was demanding that this compact go forward. Well, New York didn't like the consequences of it and they won at the Supreme Court, convincing the Supreme Court that this violated their rights under the 10th amendment. The court struck down the Violence Against Women Act or the civil action provisions of it in 2000. Last term when the Affordable Care Act came up, I wrote one of my typically lengthy law review articles arguing the law was constitutional. I was much more pithy in the press when essentially I said to the attorney general of our state who had signed on to the lawsuit that the lawsuit was close to frivolous. Well I'm gratified that the Supreme Court didn't declare it unconstitutional, but they came awfully close to do so. Including that there was no basis under the commerce clause to support the legislation and they thus based 9it under the taxing clause of Congress which if anything was the more preposterous of the two arguments I thought. Frankly, to be completely blunt, they made it up. The law they relied on didn't exist prior to that decision. They decided for example that the commerce clause could not support the mandate that individuals have health insurance because as Chief Justice Robert's reason that would be regulating something that didn't exist yet, regulating inactivity as he says. Huh, health care expenses account for 1/6 of the economy. It inherently involves interstate commerce. It's the gravest economic crisis we have today and this can't be regulated under the commerce clause? Frankly the idea is astonishing. And then there was the issue of the Medicaid expansion. As you know, what the court finally decided was, well it was okay to expand Medicaid but you could not use the carrot and stick approach of saying to the states we'll give you a whole bunch of new dollars for Medicaid expansion to cover up to 133% of the poverty line but you have got to sign on and eventually you will have to match 10% of our money. Well states like Florida file this lawsuit and they say, we can't afford this. And our own attorney general said that by the way. Well it's gratifying I suppose that the Governor of Florida who initiated this legislation has recently had to eat crow and decide that in fact the state can't afford not ot take the money and of course our own governor had reached the same conclusion, as are governors in other states. The other states were Republican states. They are reaching exactly the same conclusion. But the point I'm making is there is nothing in constitutional jurisprudence that supported the idea that states could somehow insist on staying exactly where they are with their Medicaid funding and not be given what is usually very, very common: you want federal money, you accept the conditions that go with that.
So what I would hold is that if the issue is merely whether Congress has exceeded it powers to legislate under the Constitution or has violated state's rights under the 10th amendment, the short court should not interfere. Maybe you could have some kind of an exception for a situation of extraordinary nature like the people back in the 18th century said where a law was manifestly against the text of the Constitution but I'm not even convinced by that as a matter of fact. No I'm not Pollyannaish. Congress is a mess. They're scarcely to be relied upon to make any kind of decisions about most anything, but at least they are elected. At least we can turn them out of office if we don't like what they do like things like the Affordable Care Act. And by the way, if you think about that, it's just preposterous. You elect presidents and you elect representatives demanding they do things like take care of the crisis of healthcare in the country, Congress tries to do something about that and then a bunch of unelected bureaucrats decide that they are wrong about that, or could decide that they are wrong about that work could decide that they are wrong about that. There is something very wrong with that process, it seems to me. It's inherently undemocratic. This is not a question in other words of violating the Bill of Rights. It's not a question of violating some right is enshrined in the Constitution. It is simply a matter of whether Congress has the political authority to do something under the Constitution. And we the people are capable of checking that process.
I want to conclude with this statement by Justice Oliver Wendell Holmes who once said, "I do not think the United States would come to an end if we lost our power to declare an act of Congress void. I do think the Union would be in peril if we could not make that declaration as the laws of the several states." As John Hart Ely once commented in his famous book democracy and distrust, "Holmes had been wounded at Antietam". Actually Holmes had been wounded three times seriously during the Civil War and it certainly had an impact on him and what he meant was that if you want to avoid something like the Civil War there has to be some civil authority that can keep the union together. Now on another occasion I might talk about whether the Supreme Court's the proper body to do that but what Holmes says strikes me as accurate in regard to we also says and that is that there is no way the union is going to be in peril if the Supreme Court decides that really the ought not to interfere with acts of Congress just because the court thinks the Congress doesn't have the authority to do so. In my mind that is undemocratic. That is the entire Republican. That is not what the framers of the Constitution meant as James Madison so well put it. It was not on anybody's mind that this power would develop the way that it has in this country. Now do I think the Supreme Court is going to listen to what I have to say? Not a chance. Not a chance. But the reason we academics write what we do and try to persuade people about our positions is not because we expect there's going to be any immediate change as a consequence but we scholars who study the Constitution and study other aspects of the law we hope that our work in the long haul will have some kind of an effect on the way things occur in our society at least that's what we hope. And in the event it's a terrific amount of fine just study and teach people about it and it has been my great honor to be associated with the University of Washington for more than three decades now. My only regret is that at the end of this 30 years as opposed to the beginning. To go back to something that Dean Hjorth said a few minutes ago we have at the present time a magnificent faculty especially the young people on the faculty. I have no doubt that the next 10 to 20 years the UW Law School will rise even higher in the ranks. We already are regarded I think as one of the best law schools in the country but with the new people who have joined the faculty along with some of us older codgers this law school has a very very bright future. So thank you very much for coming. I deeply appreciate it. And as you know there is a reception waiting for you. Thank you.

Dean Kellye Testy

Stewart thank you so much. I have every confidence that your goal of making a difference in the long term but I think also in the more immediate term is certainly going to happen. So I really enjoyed that talk. It's a little fun. I haven't thought about Marbury versus Madison for a while. So thank you again. Could I ask you to join me in thanking and congratulating Prof. Jay today at his installation? Thank you very much.

Last updated 5/13/2013