The Paradox of Judicial Review: Restricting Governmental Actors While Allowing for Societal Change at Critical Moments in American

and French History

Elliot Engstrom JURI 4185: Comparative Constitutional Law Prof. Lori Ringhand University of Georgia School of Law Fall 2012

Introduction One of the most difficult tasks confronted by republican democracies is balancing the democratically expressed desires of the majority with the constitutional rights of the minority through some form of judicial review. History has shown that when judicial review becomes too dogmatically doctrinal, it ends up holding purely formal legal structures above the legitimate policy goals of legislatures or executives, and this ultimately ends up degrading the respect for and deference to courts. At the same time, a judiciary that consistently bows to the pressure of other branches of government essentially becomes a doormat that is trampled on by whatever faction can gain control of these other branches. The question here presented is how smart judicial actors can confront the task of allowing certain forms of necessary change to their constitutional systems while remaining the relatively apolitical actors that are required for judicial review to be an effective check on other branches of government. The answer suggested by the historical examples examined here is that judicial actors must ground their restraints in clear doctrine while also being able to pragmatically adapt legal rules to the facts on the ground in a manner that is clear and comprehensible to other governmental actors.

I. Origins and Assumptions of Judicial Review The United States and France have not been chosen at random to answer the question posed above. Rather, they are useful examples to compare side by side because of the inherent differences in their constitutional systems. Whereas the legal history of the United States has been one of asking how judges should put effective checks on, the relevant question in France has always been whether such judicial and constitutional safeguards are desirable in the first place. Despite the differences in how these nations approach the question of judicial review, one

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will find that the problems that they face, and the solutions they find, often end up being very similar to one another. A. France Frances constitutional system was born near the extreme of pure democratic rule due to a recent history of extreme authoritarianism. In the years preceding the Declaration of the Rights of Man and the Citizen and the Constitution of the First Republic, France endured a series of totalitarian regimes that were extreme even for feudal Europe. Louis XIV, one of the most extreme of these, was famously referred to as Le Roi Soleil, meaning The Sun King, as a reference to the completely centralized state over which he ruled. The name was the result of Louis XVIs identification of himself with Apollo, the Greek god of the sun. The last of these French authoritarian monarchs, Louis XVI, was deposed and executed in 1793 after an unsuccessful attempt to align himself with the French revolutionaries. The story told in France to underline just how out of touch the French royals were with the rest of society goes as follows: Louis XVI, while fleeing the vengeance of the angry mob, attempted to pass the night at a small inn where he paid for his room in the smallest denomination he had -- a single gold coin worth far more than the price of a nights room and board. The innkeeper, suspicious as to why a lone traveler would pay with such money, scrutinized it thoroughly and realized that the face on the coin was the same as that of the man who was using it to pay for a night at the inn. While the story is likely little more than a mixture of oral history and myth, it reflects the tensions between the French masses and the countrys royalty that led up to the dismantling of the monarchy at the end of the 18th Century. Quasi-historical tales aside, the excesses of French state authority indisputably led to the French Revolution, the first of its kind in European history. The sentiment backing this

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revolution could be seen in a variety of changes to French society. One such change was the voluntary military that fought off the armies of invading European monarchs. Whereas in the past European armies had largely been full of drafted serfs that amounted to little more than slaves, the French armys effectiveness was at least partially due to its voluntary nature, which allowed generals to send off military contingents without having to worry about whether or not they would return to the fight. This broad-based and passionate support for a country devoid of authoritarian rule was reflected in the founding documents of the First Republic. The first of these was the Declaration of the Rights of Man and the Citizen, approved by the National Assembly of France on August 26, 1789. This declaration consisted of seventeen articles declaring certain rights for all men. Several of these reflect the general skepticism of the French towards authoritarian power. For examples, Article 1 declares that social distinctions may be founded only upon the general good, and Article 3 that No body nor individual may exercise any authority which does not proceed directly from the nation. The idea of judicial review was not foreign to the drafters of the early French constitutions. In fact, during the 1789 debates on the revision of the Constitution (prior to the final collapse of the monarchy), the idea of an Assembly of Review that would examine whether the legislature had exceeded its powers was put forth by Isaac Rene Guy le Chapelier, a prominent French jurist of the period.1 Also, the French Constitution of 1793, which was only in place for a few months, included a national Grand Jury established to protect the citizen against oppression by the legislative and executive power, and to which every citizen who had

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1

Von Mehren, Arthur T. The Civil Law System: An Introduction to the Comparative Study of Law. 2nd ed. Boston: Little, Brown and, 1977. 248. Print.

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been oppressed by a particular order would have the right to appeal.2 This was not a grand jury in the sense that one might think of it in the United States, but was rather a body which provided at least some check on legislative power, though it was likely not nearly as much of a check as American-style judicial review. The true extent of this bodys power was never established, as the Constitution of 1793 lasted for only a few months, but the important thing to note is that the idea of putting limits on legislative power was not unknown to the creators of the French constitutional system. Therefore, the lack of such effective legislative limits for much of the countrys history was not simply an oversight, but a conscious choice. This conscious choice was at least in part fueled by the fact that French judges and lawyers were on the losing side of the French Revolution. Under the French monarchs, upper-class lawyers and judges greatly benefitted from the status quo, and so had little reason to support any fundamental change to the structure of society.3 Therefore, the great weight of French law throughout most of the nations republican history weighed heavily against any form of judicial review, favoring rather a supreme legislature whose will was put into force by a submissive executive. To understand this basic viewpoint, one must first understand two critical French terms la loi and le droit. Both of these terms translate to law in English, but to the French ear they mean two very different things. La loi refers to physical laws such as statutes and legislation. Le droit, on the other hand, refers to

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2

Constitution of 1793, translation taken from John Hall Stewart, A Documentary Survey of the French Revolution (New York: Macmillan, 1951), pp. 458-68. 3 for the French, rights were created and secured through law; rights were not something that could be enforced against the law. Those who wanted security against Parliament sought it in Executive power, not, as in the United States, in the idea of rights enforceable by the judiciary. To the French mind, courts were tainted by their historical association with oppressive monarchs; an independent judiciary was not foreseeable. Louis Henkin, Revolutions and Constitutions, 49 La. L. Rev. 1023, 1031 (1989)

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the general concept of law. So, laws referred to as la loi are passed in order to form le droit, and le droit is meant to be an expression of the will of the sovereign people. To American ears, this distinction between la loi and le droit can be confusing at first. However, examples to shed light on these two distinct concepts can be drawn from familiar concepts in American law. For example, American law often refers to due process. Due process is a decent example of something that looks a lot like le droit in American law. It is a general concept referring to the fact that if the government is going to take something from someone, there must be some sort of process and opportunity to be heard first. La loi, on the other hand, would be the specific laws that describe how due process is achieved under various circumstances.4 By the time that the Napoleonic Code the predecessor to the modern Code Civil was written, the concept of le droit was as intricate a part of French law as First Amendment principles are in modern American law. Before this Code, France had never possessed a set of permanent laws that were, theoretically, applied equally to all people. Among this new code were ideas such as freedom of religion, mandates that government posts go to the most qualified individuals, and bans on privileges based on birth. Under the Napoleonic Code, any form of judicial review was very limited. While courts had some discretion as to how to interpret a law, they could not refuse to enforce a law based on any sort of constitutional insufficiency. However, the fact that precedent did not exist in French law like it did in the Common Law allowed judges to reinterpret laws as they saw fit, so long as they attempted to put into force the intent of the legislature. It was with these basic assumptions

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4

For example, in Mathews v. Eldridge, 424 U.S. 319 (1976), the Supreme Court of the United States had to decide whether a statutory scheme afforded sufficient due process to a social security beneficiary who was having his benefits revoked.

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in mind the supremacy of the legislature and the subordination of the courts that the French embarked on their constitutional journey. B. United States The historical experience of the United States is quite different than that of France. While Americans are correct in remembering the excesses of King George III, his version of authoritarianism still came nowhere near the total state control exercised by King Louis XIV of France. This was partially due to the parliamentary limits that had already been put on the Kings power, and partially a result of the simple fact that whereas the French ruler was within direct reach of his subjects, an ocean separated King George III from his. Also, whereas the French had experienced a history of majoritarian desires being subverted by a central authority, the framers of the American constitution had already witnessed a system of checks and balances at work in limitations on the powers of the English kings. American constitutional history truly began in 1215, when the Magna Carta required King John to accept that he did not have arbitrary authority to do whatever he willed. For example, Section 41 of this Great Charter stated as follows:
All merchants are to be safe and secure in leaving and entering England, and in staying and traveling in Englandto buy and sell free from all maletotes by the ancient and rightful customs, except, in time of war, such as come from an enemy country [who] shall be detained without damage to their person or goods, until we or our chief justiciar know how the merchants of our land are treated in the enemy country; and if ours are safe there, the others shall be safe in our land.

This language was almost certainly on Lord Cokes mind when he decided The Case of the Tailors in 1615.5 There, the King had granted a charter to the Corporation of the Tailors of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
5

The Case of the Tailors of Ipswich, 77 Eng. Rep. 1218.

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Ipswich, and in this charter had granted these tailors the power to bar anyone from practicing as a tailor in Ipswich, unless they had been approved by its master and wardens. Lord Coke struck down the guilds monopoly on the grounds that it was an unacceptable restraint on the liberty of aspiring tailors:
At the common law, no man could be prohibited from working in any lawful trade, for the law abhors idleness, the mother of all evilespecially in young men, who ought in their youthto learn lawful sciences and trades, which are profitable to the commonwealth, and whereof they might reap the fruit in their old ageand therefore the common law abhors all monopolies, which prohibit any from working in any lawful trade.6

A similar result was found in Dr. Bonhams Case. There, the College of Physicians had obtained a charter from the Crown that allowed it to not only to act as a sort of medical licensor, but also to punish other physicians for practicing without a license from the college, granting the college a de facto monopoly in the medical field. Thomas Bonham was a doctor who had received his medical doctorate from the University of Oxford and practiced in London with the Barber-Surgeons Company. The College of Physicians in London would not allow Bonham to join their ranks, but also threatened him with fines and imprisonment if he continued to practice medicine. The case eventually came before Lord Coke, who struck down the royal charter. Of particular note here is not Cokes specific rationale in striking down the charter, but rather the general principles from which he reached his conclusion:
It appears in our books, that in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void; for when an act of Parliament

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6

Id., 77 Eng. Rep. 1218 at 1218

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is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void; and, thereforesome statutes are made against law and right, which those who made them perceiving would not put them in execution.7

As the American historical experience imported from England already had dealt with checks and balances, it should be no surprise that the American Constitution reflected this. It should be noted that the story of English judicial review is more complex than just judges attempting to limit the powers of the English kings. To some extent, Dr. Bonhams Case is so well known because it is contrary to the traditional narrative of English judicial review. While it is widely accepted that courts in England have exercised some form of judicial review for at least 300 years,8 this does not necessarily mean that this was Marbury v. Madison-style action by the English judiciary. The issue here is not whether or not modern American-style judicial review was inherited as an integral part of the English common law system. Rather, it is important simply to understand that the knowledge base of the American Founders included episodes in English history where the judiciary put effective limits on the actions of the other branches of government. Article III of the Constitution vested the judicial power in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. No explicit power of judicial review is stated in the Constitution. However, this does not mean that it was not on the minds of at least some of the framers. In Federalist No. 78, Alexander Hamilton, in language reminiscent of Dr. Bonhams Case, made this explicit: !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
7 8

Dr. Bonhams Case, 8 Co. Rep. 114 UK courts have exercised judicial review over issues of law for at least three hundred years. Judicial Review and Questions of Law: A Comparative Perspective. Craig, Paul. Legal Research Paper Series, University of Oxford. Paper No. 56/2009. October 2009. P. 2.

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A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred.

The Supreme Court in Marbury v. Madison agreed with Hamilton. In a case that seemed relatively insignificant at the time, Chief Justice John Marshall made the point clear:
It is emphatically the province and duty of the Judicial Department to say what the law isIf two laws conflict with each other, the Courts must decide on the operation of eachSo, if a law be in opposition to the Constitutionthe Court must determine which of these conflicting rules governs the caseIf, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.9

Of particular interest here is the view of Thomas Jefferson in response to the Marbury decision. Jefferson vehemently disagreed with Marshalls reasoning. He thought that Marshall seemed to consider the judges as the ultimate arbiters of all constitutional questions, and feared this judicial power because judges have, with others, the same passions for party, for power, and the privilege of their corpsTheir power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.10 Jeffersons opinion is of particular note because of the hand he had in the construction of the early French constitutional system, including the aforementioned Sovereign Legislature. Before advancing any further, it is important to note that there is a difference between a judge refusing to enforce law in a given situation and a judge declaring a law as !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
9 10

Marbury v. Madison, 5 U.S. 137, 177-78 (1803) Randolph, Thomas J., ed. Memoir, Correspondence, and Miscellanies, from the Papers of Thomas Jefferson. 2nd ed. Vol. 4. Boston: Gray and Bowen, 1830. Print.

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unconstitutionally void via judicial review. Some argue that the power of judicial review as described by Justice Marshall in Marbury v. Madison was a constitutional amendment by fiat, a de facto addition to Article III that was well beyond the powers that the framers, including Alexander Hamilton, intended for the Supreme Court.11 Meanwhile, others respond that the power to rule that a statute violates the Constitution is an inherent judicial power.12 Whether Justice Marshall stepped out of bounds in Marbury v. Madison, or whether he even meant to establish the robust American-style judicial review that has dominated American law since the mid-nineteenth century, is an interesting question, but it is a question for another day. The important point here is that by the mid-nineteenth century, the American constitutional system provided for a Supreme Court that could strike down unconstitutional legislation. It is from this starting point of American legal history that one can begin to examine how American judges wielded this power, and adapted it, at key historical crossroads.

II. Judicial Actors at Historical Crossroads Episode 1 The Conseil dEtat vs. the Vichy Regime: A World Without Judicial Review On May 10, 1940, the military forces of Hitlers Germany invaded France. It did not take long for the German forces to compel a British evacuation and, soon thereafter, a French surrender. There is no denying that the German defeat of France was anything short of a strategic and tactical marvel. Nonetheless, the French capitulation was not due solely to military factors. In the between the World Wars, France was harshly divided among competing factions,

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11

Goldstone, Lawrence. The Activist: John Marshall, Marbury v. Madison, and the Myth of Judicial Review. New York: Walker, 2008. 225. Print. 12 William T. Barrante, The Activist: John Marshall, Marbury v. Madison, and the Myth of Judicial Review-Lawrence Goldstone, Walker & Company, New York, 2008, 258 Pp., 83 Conn. B.J. 87 (2009)

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some of which weighed heavily in favor of siding with Hitler and his Nazi regime, and lack of a unified French front weakened the nations overall defense to foreign invasion. While northern France was won using military force, the countrys southern region was subjugated through a proxy regime headed by Marshal Philippe Ptain, who, with German backing, declared control following the defeat of the official French government. The arrangement was a win-win from the perspective of the two parties Ptain and his followers could maintain some level of autonomy and stave off a complete German occupation, and the Germans would not be forced to physically occupy the entirety of France, allowing them to conserve resources for the inevitable showdown with Great Britain.13 This Vichy Regime, so named for the city in which it was based, took a variety of actions that were hardly constitutional. Among these were delegations of power from one branch of government to another. These delegations were in conflict with the traditional French political model, in which the separations of powers between the various branches of government had to be maintained, and quasi-judicial actors were tasked with maintaining this separation.14 In 1943, the Vichy Regime enacted a metal tax requiring certain people to turn a certain amount of metal over to the Ministry of Production to support the war effort against the Allied forces. However, it did not enact this law via the legislative process. Rather, it did so pursuant

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13 14

The arrangement was, of course, not a win for anyone that did not get along with Nazis. The principal function of judicial control in [the traditional French political model] (whether exercised by courts or court-like jurisdictions administratives in the French tradition) was to ensure that the executive and the administration remained within the confines of the authority delegated by the legislature--the classical judicial concern with ultra vires. Peter L. Lindseth, The Paradox of Parliamentary Supremacy: Delegation, Democracy, and Dictatorship in Germany and France, 1920s1950s, 113 Yale L.J. 1341, 1344 (2004)

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to a post-Vichy amendment to the French constitution delegating the legislative power to the Chief of State, Marshall Petain.15 One of those affected by the new law, M. Vincent, took the opportunity to challenge the constitutionality of the entire scheme by which the legislature had delegated out its powers.16 Before the Conseil dEtat, the highest French administrative court that was (and still is) charged with both advising the executive branch and serving as the highest appellate administrative court, Vincent argued that the act establishing the metal tax could not be put into force because legislation promulgated by the executive branch was unconstitutional and therefore void and without effect. The Vichy government used a familiar concept in defense of its augmented powers the Sovereign Legislature. Its advocate noted that:
The Conseil dEtat has always refused to make itself the judge of the regularity of laws and, especially, of their constitutionalitythe regularity of the Constitutional Acts with regard to the decision of the National Assembly made on July 10, 1940 [the law delegating power to the executive branch] cannot be questioned here.17

From a practical viewpoint, it is fairly clear that the Vichy Regime was turning the law in on itself by using the idea of the Sovereign Legislature to support the centralization of supreme executive power. However, the Conseil dEtat agreed with the regimes arguments. In an extremely brief opinion, the court stated that it did not have the jurisdiction or power to review the powers of the executive branch that were used pursuant to a delegation of authority from the national legislature. The Conseil dEtats reasoning was summed up in one succinct statement: !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
15

Resume of facts taken from Von Mehren, Arthur T. The Civil Law System: An Introduction to the Comparative Study of Law. 2nd ed. Boston: Little, Brown and Company, 1977. Print. 16 Vincent, Conseil dEtat, Assemble, 22 March 1944, S. 1945. Ill. 53 17 Von Mehren, Arthur T. The Civil Law System: An Introduction to the Comparative Study of Law. 2nd ed. Boston: Little, Brown and, 1977. 257. Print.

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Where, in the present state of French public law, this ground is not of such a nature as to be open for discussion before the Conseil dEtatThe petition is rejected. One might think that the Conseil acted as it did due to pure political necessity. Law in France during the Vichy regime was often a mere formality, and it could be that the Conseil dEtat simply did not want to stick its neck out in opposition to the government of the collaborateurs. However, this version of events is brought into question by similar decisions of the Conseil dEtat under much calmer circumstances. For example, after the German defeat and establishment of a provisional French government, a very similar challenge was brought to a very similar law.18 There, the new government had again received augmented powers from the legislature, and the Conseil dEtat again deferred to the legislatures delegation of its power. The decision of the Conseil dEtat in this latter case was very much the same as it had been under the Vichy regime. In its opinion, the Conseil stated very plainly that the Ordinance of 9 October is a legislative act, consequently, the Conseil dEtat cannot consider its validity. The point here is that the Conseil dEtat was not merely rejecting these petitions because it was afraid of the other branches of government. Rather, it was doing what judicial actors in France during this time period were tasked with doing maintaining the bare separation of powers and nothing else. There was no technical legal doctrine stating that the legislature cold not delegate out its powers. Therefore, with no authority to the contrary behind it, the Conseil dEtat simply shrugged and allowed the legislature to delegate authority as it saw fit. This is how a system functions without any sort of effective judicial review. To put it in it terms of traditional French law, la loi was being strictly followed at the expense of le droit because there was no governmental actor tasked with specifically ensuring that le droit remained supreme. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
18

Trbes, Ducasse, de Thor et Tallon, Conseil dEtat, 4 March 1949, S. 1950. Ill. 21.

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It is possible that even under the provisional post-war government, the Conseil dEtat still felt constrained by political necessity to entirely defer to the actions of the legislative and executive branches of government. Regardless, one thing made clear by this episode in French legal history was the necessity for some other sort of constitutional actor to, at the very least, maintain the separation of powers between the other branches of government. Such an actor first took form in the Comit Constitutionnel of the Fourth Republic, and survived (and was augmented) in the Conseil constitutionnel of todays Fifth Republic, which was formed in 1958. The creation of the Conseil constitutionnel set up the next episode in French constitutional history the 1971 showdown between this new constitutional actor and the government of Charles de Gaulles Fifth Republic.

Episode 2 The Laissez-Faire Court vs. the Industrial Age: The Slow and Steady Development of Practical Legal Doctrine The period from the end of the Civil War to the New Deal in the United States can best be described as one of laissez-faire formalist jurisprudence. Note that this is not laissez-faire in the sense of an economic doctrine, but rather in the sense that the court felt constrained to do only certain tasks, regardless of the facts on the ground or the desires of the majority. This was due to the courts belief in dual federalism, a doctrine stating that state and federal governments had their respective spheres of authority, and it was the courts job to ensure that each stayed within its proper bounds. The late nineteenth and early twentieth century courts laissez-faire formalism, while certainly formal in some sense, did have some sort of function in mind. That function was to ensure that government did not become a tool for whatever faction was in power to loot the rest

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of society. However, that function was also based on certain assumptions about the world in which the court existed, assumptions that had in mind the Founders goal for a republic free of factional strife. Among the most critical of these assumptions were (1) the freedom of movement of most Americans and (2) the ability of most Americans to possess their own means of production, as in a world where these assumptions rang true even the humblest of people could, theoretically, take care of themselves.19 Dual federalism made the most sense in a world where a self-reliant populace had the ability to move from state to state, making each state a sort of laboratory. Historically, these assumptions made sense, as this was the world that had existed for several centuries coming into the 1800s. In fact, it was not only the judiciary that acted with these assumptions in mind. The concerns of commerce were the central problem that gave rise to the Constitution itself.20 James Madison noted that one of the goals of the delegates at the constitutional convention was to modify the [government] as that it may be sufficiently neutral between different parts of the Society to controul one part from invading the rights of another, and at the same time sufficiently controuled itself, from setting up an interest adverse to that of the entire society.21 In the early nineteenth century, President Thomas Jefferson insisted, against the wishes of many in his own party, on moving forward with the Louisiana Purchase as an effort to open up more freehold land for Americans who were unhappy with the state in which they lived. It was in this world that the court of the late nineteenth century pursued its goal of the promotion and protection of commerce and the eradication of certain kinds of factional legislative practices designed to advance the special or partial interests of certain groups or !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
19

Gillman, Howard. The Constitution Besieged: The Rise & Demise of Lochner Era Police Powers Jurisprudence. Duke UP, 1992. 26. 20 EEOC v. Wyoming, 460 U.S. 226, 244 (1983) (Stevens, J., concurring) 21 Madison to Jefferson, October 24, 1787, cited in Gillman, p. 23

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classes.22 And for many years, while the assumptions of the early republic were still in effect, the work of the court was admirable in its effectiveness and consistency. The quintessential example of this jurisprudential approach at work is the New York state case of Taylor v. Porter.23 Taylor involved a land access dispute between (of course) Taylor and Porter, hereinafter the plaintiff and the defendant. The defendant had no access to a public road, but instead was blocked off by the property of the plaintiff. The plaintiff refused to grant an easement to the defendant through his property, so the defendant went to the legislature to ask them to take land from the plaintiff and give it to him, amounting to what he would have gotten through an easement. Despite the fact that the legislature was willing to pay the plaintiff just compensation for the taken land, the plaintiff nonetheless went to the court system, arguing that the actions of the legislature and the statute that authorized these actions were both unconstitutional. The court stated that the statute, which authorized a private road to be laid out over the lands of a person, without his consent, was facially unconstitutional and void. This was due to the general principle of American law at this time that private property could be taken only for a public use, and even in that case cannot be taken without just compensation to the owner. In the case at bar, private property was being taken for a private use, and this the court could not allow. In the eyes of the court, to allow the contrary result would be to sanction what was merely an instance of theft and bribery by the state. Taylor v. Porter may have been a fairly inconsequential case compared to Marbury v. Madison or Lochner v. New York, but it is useful in that it clearly illustrates the mainstream view

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22 23

Gillman, p. 22 Taylor v. Porter & Ford, 1843 WL 4428 (N.Y. Sup. Ct. 1843)

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of the role of courts in the early nineteenth century.24 Courts were to ensure that the government was a neutral force that did not favor one faction over another nothing more. In Taylor, the court did not inquire into the motivations behind the governments taking or the plight of the defendant being unable to access the public road from his property. The government was taking from person A and giving to person B without a public purpose in mind, and this was simply not legal. Before advancing, it should be noted that there are aspects of laissez-faire formalism that are more complex that those presented here. While laissez-faire formalism did have the function of maintaining bright-line rules that kept the government from taking from one person and giving to another, there is certainly an argument that this system of bright-line rules still had a more insidious effect and/or purpose of keeping wealth and power in certain segments of society.2526 When considering this argument, however, it is important to note that prior to the industrial revolution, laissez-faire formalist doctrine often ended up protecting the little guy from the interests of the more established, wealthier segments of society.27 Regardless, the question to be !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
24

The author is aware that Taylor v. Porter in fact took place after some of the changes to laissez-faire formalism discussed below. It is nonetheless mentioned due to its being a straightforward example of black letter law. 25 the welfare state standard is the creation of those reformers who, in the face of the monumental changes in reality effected during the nineteenth century, reacted against the narrowness with which the laissez-faire standard defined the problem of poverty and dictated the orthodox methods of dealing with it. Calvin Woodard, Reality and Social Reform: The Transition from Laissez-Faire to the Welfare State, 72 Yale L.J. 286, 289 (1962) 26 in the laissez-faire market individual market transactions were never scrutinized to determine if they were fair; all consumer market transactions which were not deceptive were presumptively fair. Since, in the laissez-faire view, all market transactions eventually resulted in the greatest good for the greatest number, individual market decisions were, by definition, fair, regardless of differences of sophistication, economic necessity, or bargaining power. In the laissez-faire market bad motives were not punished beyond actual loss and unfair results were invisible to the invisible hand. 52 Mass. Prac., Law of Chapter 93A 1.1 27 For example, in Pumpelly v. Green Bay & Mississippi Canal Co., 80 U.S. 166 (1871), the United States Supreme Court held that despite specific statutory authorization to build a dam, the defendant corporation still had to pay damages to any individual landowners who were damaged by water that overflowed as a result of the dams construction. In support of its holding, the Court cited the general rule (in this case

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examined here is not the overall social effects of nineteenth-century laissez-faire jurisprudence. Rather, here we will examine how the court evolved its rules of strict judicial review once it became apparent that they were holding back important and positive societal change. Judicial review is a tool used to keep governmental actors from doing certain things. The industrial age presented an interesting test for this concept, as the courts had to figure out how to respond to a changing world by changing a legal doctrine that was specifically meant to maintain a certain status quo. The industrial ages first major challenge to this laissez-faire formalist mindset came in the form of railroads. By their very nature, railroads had to cut across large swathes of property, many of which were owned by private citizens. The framework of laissez-faire formalism presented two problems to this railroad building process. First, if railroads had to go to state legislatures and ask for the use of eminent domain every time they wanted to cross through private property, this would likely add years onto the process of building railroads, if it did not completely halt the process altogether. Second, railroads were private corporations, so even if legislatures were willing to use their eminent domain powers in favor of railroads, courts would be required to strike down any such use of eminent domain as illegal takings for a private purpose. Courts were faced with a conundrum. They needed to make a pragmatic exception to the rule that a taking could never be from one private entity to another private entity. However, they also needed to be able to ground this exception in the idea that courts were neutral arbitrators that did not favor one faction over another, lest the idea of a neutral government fall along with

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from a state constitution) that the property of no person shall be taken for public use without just compensation therefore.

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traditional doctrine. How, indeed, could courts sanction the taking of property from private individuals for the benefit of railroads without appearing to be favoring railroad interests? The court was forced to make a decision in 1831 when the New York legislature, in order to accelerate the development of railroad lines, granted the Saratoga and Schenectady Railroad Company its power of eminent domain. Using this power, the railroad could take the land of property owners along the railroad route on its own initiative, so long as it paid just compensation for any land taken. Beekman, one of the landowners along the railroads desired route, claimed that this was exactly the same sort of activity that occurred in Taylor v. Porter the government was taking from A and giving to B and this was unconstitutional. The court upheld the actions of the New York legislature, not by getting rid of the public purpose requirement of a legitimate taking, but by finding a public purpose in the grant of eminent domain powers to railroad companies. The court noted that railroads traditionally had been burdened with certain forms of government regulation like the requirement that they take all comers, and so in return they could receive certain privileges that other private entities could not. The court reasoned that this was the proper scenario because:
Railroads are public improvements, from which the public derive a benefit; and the legislature can appropriate the private property of an individual for the purpose of such improvement, or may authorize an individual or a corporation thus to appropriate it, upon paying a just compensation to the owner for the sameThe sovereign power has no right to take the property of one citizen and transfer it to another, even for a full compensation, where the public interest will not be promoted thereby.28

Over the years the court broadened this exception to the public purpose requirement to include businesses of three general classes: (1) those which are carried on under the authority of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
28

Beekman v. Saratoga & S.R. Co., 3 Paige Ch. 45, 45-46 (N.Y. Ch. 1831)

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a public grant of privilege, (2) those which have traditionally been recognized as being attached to the public interest, and (3) those which, though not public at their conception, may be said to have become affected with the public interest.29 Businesses that fell within these categories could receive public benefits and be burdened by government regulation even in the face of arguments about deprivation of due process or violation of freedom of contract. For example, the Supreme Court of Mississippi specifically noted that in exchange for their use of eminent domain powers, competing railroad companies could be required to build junctions between their respective lines when such junctions would serve the public interest.30 These pragmatic exceptions to the general doctrine of laissez-faire formalism allowed for things like the construction of railroads, the regulation of grain elevator prices,31 and even the establishment of certain systems of welfare to care for vulnerable members of society.32 From a legal perspective, the Court did something fairly impressive during this time period. It changed its doctrine of judicial review while all the while appearing to remain consistent. While the assumptions of laissez-faire formalism held true, the doctrine of the court continued to work rather well. However, the Industrial Revolution continued to change the structure of American society, and many of the assumptions of laissez-faire jurisprudence ceased to comport with reality. Americans no longer had the same freedom to move that they did in the early nineteenth century. Freedom was constricted more and more by practical choice, and the rise of large-scale industry meant both that jobs were largely centralized in single locations and !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
29

Charles Wolff Packing Co. v. Court of Industrial Relations of State of Kansas, 262 U.S. 522, 535 (1923) 30 Where two railroads, each getting their charter rights from the state, and lying wholly within the state, and engaged in both intrastate and interstate commerce, be near and contiguous to each other, the state may lawfully authorize or require a connection or junction between them. Alabama & V. Ry. Co. v. Jackson & E. Ry. Co., 131 Miss. 857, 95 So. 733 (1923) 31 Munn v. Illinois, 94 U.S. 113 (1876) 32 Key v. Pittsburg, 104 U.S. 78 (1881)

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that the majority of Americans no longer could support themselves through their own means of production, as economies of scale gave large-scale industry a massive economic advantage over individual producers.33 When legislatures attempted to react to the changing situation on the ground, they ran headfirst into laissez-faire formalist jurisprudence. For example, Congresss attempt to limit the hours children could be made to work in factories was stuck down as beyond the scope of its commerce power.34 One might think that individual states would be able use their police powers to effectuate similar laws, but in the age of large centralized corporations, no single state had enough power to put meaningful limitations on corporate actions. When Congress tried to attack this problem head on with the Sherman Act, a tool meant to break up large corporate monopolies, the court struck this too down as unconstitutional.35 These conflicts led inevitably to the next crucial episode in the history of American judicial review, the slowly evolving laissez-faire court vs. the quick-acting FDR and his New Deal.36

Episode 3 The Conseil constitutionnel vs. the Charles de Gaulle Government: France has its Marbury v. Madison moment Constitutional review of legislation first took a concrete form in the constitution of the French Fourth Republic, which contained a constitutional committee charged with reviewing the constitutionality of legislation before it was put into effect. This a priori constitutional !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
33

As the industrial revolution gained momentum, popular economic and legal philosophy fell in line. Laissez faire economics and the American rule of at-will employment combined to protect the elbow room of managerial discretion. From the industrialist's perspective, at-will employment made labor a much more controllable resource. Not even effusive notions of fairness prevented employers from discharging those who were no longer worth the expense. Thomas P. Owens III, Employment at Will in Alaska: The Question of Public Policy Torts, 6 Alaska L. Rev. 269, 273 (1989) 34 Hammer v. Dagenhart, 247 U.S. 251 (1918) 35 U.S.. v. E.C. Knight Co., 156 U.S. 1 (1895) 36 This episode is discussed below. See p. 21, infra.

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review, which may seem petty by the standards of American jurisprudence, was a large step for a society that had spent most of its history as one rooted in the idea of the sovereign legislature and the supremacy of le droit. The Constitution of October 4, 1958 that of the French Fifth Republic is still in effect today, and provides for the modern constitutional council the Conseil constitutionnel. At the time of its original writing, this constitution included only Article 61, which again permits only a priori review of a laws constitutionality, and not Article 61-1, which today permits a posteriori constitutional review. This Article 61 describes the closest thing to judicial review that existed for the majority of French history:
Acts of Parliament may be referred to the Constitutional Council, before their promulgation, by the President of the Republic, the Prime Minister, the President of the National Assembly, the President of the Senate, sixty Members of the National Assembly or sixty SenatorsThe Constitutional Council must deliver its ruling within one month. However, at the request of the Government, in cases of urgency, this period shall be reduced to eight days.

The drafters of this constitution had in mind a fairly limited power of review for the Conseil constitutionnel, and for the first decade of its history the Conseil stayed within these bounds. The constitutional bodys limited role was not to delve into whether a law violated any fundamental rights, but rather to maintain the separation of powers within the French government. If the president, for example, attempted to promulgate an executive order that was in substance a legislative act, the Conseil could step in and strike down the order as unconstitutional before it ever went into force. Despite the fairly narrow role originally envisioned for the Conseil constitutionnel, the body still had significant power, as Article 62 of

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the Constitution did and still does state that a law found unconstitutional by the Conseil is void and cannot be put into effect. However, the Constitution of the Fifth Republic was different from its predecessors in another important respect. Throughout the majority of French history, the legislature had been the supreme body, with the executive existing to carry out will of the people expressed through their representatives. The 1958 constitution contained a subtle but important shift in the French power structure. One of the problems with previous French constitutions had been the instability that resulted from giving the parliament (referring to the entire general assembly) supreme power. The 1958 constitution attempted to remedy this by putting limitations on legislative actions, instead giving more power to the executive branch. The unanswered question was whether this scheme was still balanced enough for the newly augmented executive branch to be kept in check by its legislative counterpart.37 In May of 1970, the Council of Ministers dissolved a leftist political party, La Gauche Proltarienne.38 The Ministers acted pursuant to a pre-World War II law that was promulgated not with political parties in mind, but was rather focused on the armed militias that were springing up throughout France during the early to mid-1930s. The members of La Gauche Proltarienne wasted no time in reorganizing under a new name Les Amis de la Cause du Peuple.39 The Paris Prefect, however, refused to recognize the party because he believed (probably correctly) that it was simply La Gauche Proltarienne under a different name. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
37

The strengthening of the position of the French president in the constitution of 1958 (a process not fully realized until the constitutional amendment of 1962 establishing the president's direct election) was in many respects aimed at effecting a shift in democratic legitimation out of the legislative and into the executive branch in order to support the new regulatory power. Peter L. Lindseth, The Paradox of Parliamentary Supremacy: Delegation, Democracy, and Dictatorship in Germany and France, 1920s1950s, 113 Yale L.J. 1341, 1407 (2004) 38 The Proletarian Left 39 Friends of the Peoples Cause

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However, just when the government thought that it had seen the last of the leftist group, a Parisian administrative court charged with overseeing the Prefect reversed the decision, granting Les Amis de la Cause du Peuple recognition as an official political party.40 In response to the administrative courts decision, the executive branch and its political allies pushed through the legislature a law granting the Prefect the explicit power to refuse recognition to any political party that (1) had an immoral or illicit goal or (2) was an attempt to reform a political organization that had been declared illegal. Like any other legislative act, the new law granting the Prefect these additional powers had to pass the scrutiny of the Conseil constitutionnel. Up to this point, the Conseil had been extremely accommodating to the actions of the government, merely attempting to maintain the separation of powers. The executive branch had every reason to think that the law would go into effect without any problem. Indeed, in the years directly following the adoption of the Constitution of the Fifth Republic, a French law professor from the University of Lille wrote of the new constitution:
The Constitution Council has as a principal function the decision of conflicts between the government and Parliament in regard to the new division of legislative and rule making powers. It is difficult to conceive, for example, that a law be referred to the council for violation of the general principles contained in the Preamble or called up by it.41

The Conseil constitutionnel was faced with a difficult task. The weight of French jurisprudence was in favor of allowing the executive branch to do what it willed, so long as it did so in a procedurally legal manner. Here, all of the procedural requirements had been met. This !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
40

Summary of facts taken from Haimbaugh, Was it Frances Marbury v. Madison? 35 Ohio St. L.J. 910 (1974) 41 Drago, General Comparative View of the French Constitution, 21 Ohio St. L.J. 535, 548 (1960)

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was not an executive order that was in reality legislation it was a properly promulgated legislative act. If the court were simply to strike down the law as unconstitutional, it risked being seen as an arbitrary political actor trying to protect political parties on the Left from the duly-elected government on the Right. The Conseil needed to find a solution that both struck down the law and maintained the Conseils role as a neutral constitutional body. In a 1971 decision that has been called Frances Marbury v. Madison, the Conseil declared the law unconstitutional and banned its being put into force.42 The Conseil rooted its decision in a fundamental liberty of association that was included both in the Preamble to the Constitution and in one of the most fundamental of French documents The Declaration of the Rights of Man and the Citizen. The Conseil noted:
Among the number of fundamental principles recognized by the laws of the Republic and solemnly reaffirmed by the Preamble to the Constitution there must be listed the principle of liberty of associationThe formation of associations, even when they appear to be void or to have an illicit purpose, thus cannot be subjected to prior action by the administrative authorities or even by the judiciary.43

The Conseil specifically mentioned the preamble to the Constitution of the Fifth Republic, but in doing so it was in fact referencing something much more fundamental. For a decision was made during the formation of the Fifth Republic to specifically incorporate the Declaration of the Rights of Man and the Citizen. Article 2 of this most fundamental of French documents states that The aim of all political association is the preservation of the natural and imprescriptible rights of man. These are liberty, property, security, and resistance to oppression.44 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
42 43

Haimbaugh, Was it Frances Marbury v. Madison? 35 Ohio St. L.J. 910 (1974) CC Decision No. 7114, J.O. 1971 (16 July 1971) 44 Declaration of the Rights of Man and the Citizen, Article 2

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This move by the Conseil constitutionnel was extremely American in nature, with the Conseil arguing that in order to uphold the general principles of French law, it had to undermine the letter of the written law. Thus the Conseil made a pragmatic change to its method of judicial review while at the same time maintaining fealty to the general French idea that le droit the conception of law is superior to la loi the individual laws promulgated by the other branches of government.

Episode 4 The Laissez-Faire Court vs. FDR and the New Deal The historical episode of the laissez-faire Supreme Court vs. President Roosevelt and his New Deal is often thought of as one of the greatest failures of judicial review in American history. The typical narrative goes something like this: the Supreme Court in the 1930s was systematically striking down the New Deal legislation of the FDR government, but then switched its political leanings when the President threatened to pack the court, an event that is often referred to as the switch in time that saved the Nine.45 This typical narrative is in fact not supported by the facts, and a closer look at the Supreme Court of the 1930s reveals that this was a court that changed how it engaged in judicial review not suddenly due to political forces, but gradually due to logical shifts in legal doctrine. Unfortunately, the Court did not do so in explicit enough of a manner, and its unnoticed doctrinal evolution was rendered irrelevant by changes to the Court made by the appointment process in the early 1940s. Leading into the 1930s, the Court had been applying its laissez-faire formalist doctrine on a regular basis, just as it had for much of the nineteenth century. The result was that the Court !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
45

The Supreme Court, so history tells us, eventually succumbed to the external pressures of political and social sentiment and yielded in its constitutional opposition to New Deal economic legislation. Samuel R. Olken, Historical Revisionism and Constitutional Change: Understanding the New Deal Court Va. L. Rev. 265, 267 (2002)

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often struck down so-called social legislation that had the facial purpose of helping those who were hit hardest by the changing industrial world of the early twentieth century. It is important to remember that the courts laissez-faire formalism did have a function in mind: keeping government from being a tool that took from A and gave to B. This function in fact did hold back some laws that were nothing more than special interests trying to gain an upper hand under the guise of helping people that had been marginalized by industry. Ironically, Lochner v. New York, one of the most demonized cases of the laissez-faire era, was in fact just such a case. What is commonly understood is that the court struck down a law that limited the hours that could be worked by bakers to 60 per week. Less commonly understood are the specific facts of the case, including that the bakers in favor of the law already worked 10-hour days.46 These industrial bakeshop special interests pushed for the law, at least in part, because it gave them an economic advantage over the cellar bakeshops owned by recent immigrants out of business.47 For better of for worse, the court interpreted this as the legislature taking from A and giving to B with no public purpose in mind, and struck down the New York law. However, not every case had this insidious flavor of special interests. Some of the new laws truly were legitimate, good faith efforts on the part of legislatures to deal with the changing conditions of the industrial age that were nonetheless struck down by a court that felt constrained to do so. Two of the most blatant examples are Hammer v. Dagenhart and U.S. v. E.C. Knight. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
46

Despite recent substantial and successful revisions of longstanding accounts of the Gilded Age and Lochner Era Courts, the conventional wisdom on the New Deal court persists. Even as these exciting reappraisals of earlier Courts have been emerging, the constitutional history of the New Deal Court has remained almost moribund. Cushman, Barry. Introduction. Rethinking the New Deal Court: The Structure of a Constitutional Revolution. New York: Oxford UP, 1998. 4. Print. 47 Not surprisingly, the Bakeshop Act also received the strong support of the bakers' union. The union's official rationale for supporting the Act was that it was a sanitary measure solely and therefore will stand the closest scrutiny of constitutional lawyers and the courts. However, the union also believed that the Act, especially its hours provision, would benefit its members for reasons beyond improved sanitary conditions. David E. Bernstein, Lochner v. New York: A Centennial Retrospective, 83 Wash. U. L.Q. 1469, 1481 (2005)

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Hammer involved a challenge to the power of the United States Congress to enact regulations pertaining to child labor. The court held that the power to make such laws went beyond the powers of the United States Congress. The court was not necessarily saying that all child labor laws were unconstitutional, but rather that this was the sphere of state legislatures. The court stated:
In interpreting the Constitution, it must never be forgotten that the Nation is made up of States to which are entrusted the powers of local government. And to them and to the people the powers not expressly delegated to the National Government are reservedThus the act in a two-fold sense is repugnant to the Constitution. It not only transcends the authority delegated to Congress over commerce but also exerts a power as to a purely local matter to which the federal authority does not extend.48

In the courts world, the states would be able to enact the necessary legislation to protect children from the dangers of factory labor. However, the courts world no longer corresponded to reality.49 Whether the original drafters of the Commerce Clause ever intended this complete neutrality in regards to the facts on the ground is a point of debate.50 Regardless of the sources of the courts stalwart neutrality, the reality was that centralized industry had allowed corporations to become much more powerful political and economic actors than they ever were during the era of Taylor v. Porter. This created a collective action problem for the states, for if !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
48 49

Hammer v. Dagenhart, 247 US. 251, 275-276 (1918) Some have argued that the court knew exactly what it was doing and intended for their to be a twilight zone of regulation between state and federal governments were industrial interests were free to do as they pleased. However, this argument fails to take into account that the court developed its laissez-faire formalist doctrine long before large, vertically integrated firms had the market power to utilize such a twilight zone. Regardless of whether or not it was intended by the Court, the important point to note is that this twilight zone did, at least to some extent, exist. 50 For example, Neil Siegel has recently argued that the Commerce Clause is best understood in light of the collective action problem under the Articles of Confederation that it was aimed to cure. See Neil s. Siegel, Free Riding on Benevolence: Collective Action Federalism and the Minimum Coverage Provisions, 75 Law and Contemporary Problems 29-74 (2012). Available at http://scholarship.law.duke.edu/faculty_scholarship/2386.

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any particular state enacted the sort of child labor laws attempted by Congress in Hammer, the corporate entity could simply move elsewhere. Congress had already attempted to attack this problem with the Sherman Antitrust Act of 1890, which attempted to put limits on excessive concentrations of economic power. However, when the court tried to use this power against the E.C. Knight Company, which had a monopoly on 98 percent of the sugar refining capacity of the United States, the court halted the congressional effort. In United States v. E.C. Knight Co., an almost unanimous court stated that since the corporation at which the congressional action was aimed was concentrated in a single location, it was not commerce, and therefore was not within the reach of the congressional commerce power:
That which belongs to commerce is within the jurisdiction of the United States, but that which does not belong to commerce is within the jurisdiction of the police power of the StateCommerce succeeds to manufacture, and is not part of it. The power to regulate commerce is the power to prescribe the rule by which commerce shall be governed, and is a power independent of the power to suppress monopoly. But it may operate in repression of monopoly whenever that comes within the rules by which commerce is governed, or whenever the transaction is itself a monopoly of commerce.51

Once again, a judicial actor was faced with a dilemma. The doctrine that it had applied for years no longer made sense. And yet, the Court felt constrained. To simply defer to whatever regulations the legislature had in mind would be to cease being an effective judicial check on legislative abuse. Rather than make one swift political switch as is often thought, the court in fact took a series of doctrinal steps towards a more pragmatic jurisprudence that was

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51

United States v. E.C. Knight Co., 156 U.S. 1, 11-12 (1895)

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consistent with the changing facts of an industrialized world.52 It started down this gradual road over a decade before its decision in Hammer. In 1905, Congress attempted to use the aforementioned Sherman Antitrust Act to put regulations on the meat industry. Specifically, these regulations affected the slaughterhouse of Swift & Company, which had one giant slaughterhouse facility entirely contained within the state of Illinois. Swift challenged the law as an unconstitutional use of Congressional power. The corporation based its argument, logically so, on previous decisions of the Supreme Court holding that economic activity occurring entirely within a single state was not within the powers of Congress. In a unanimous decision, the court held that the application of the Sherman Antitrust Act was a legitimate use of Congress commerce power. The court did not dodge the issue of commerce, but rather specifically confronted it, giving a logical doctrinal reason for why the actions of Congress were constitutional:
It is said that this charge is too vague and that it does not set forth a case of commerce among the states. Taking up the latter objection first, commerce among the states is not a technical legal conception, but a practical one, drawn from the course of business. When cattle are sent for sale from a place in one state, with the exception that they will end their transit, after purchase, in another, and when in effect they do so, with only the interruption necessary to find a purchaser at the stock yards, and when this is a typical, constantly recurring course, the current thus existing is a current of commerce among the states, the purchase of the cattle is a part and incident of such commerce.

The court had taken one step towards a more practical, less formalist jurisprudence that was more in line with the needs of the industrial age without abandoning the need to have clear, !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
52

These steps are detailed in the following pages.

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predictable, and apolitical judicial doctrine. However, the question still existed as to how the court would deal with rule from cases like Taylor v. Porter that the government could not unduly benefit or burden a business that was not affected with the public interest, as this would be taking from A and giving to B in violation of due process. Or, put otherwise, the court had to answer the question of how it would adopt its rules of judicial review to a changing world without merely succumbing to outside forces and ceasing to be an effective check on other governmental actors. The court took a step towards dealing with its previously rigid public/private distinction in Wilson v. New, 243 U.S. 332 (1917). The case involved the validity of a congressional law mandating both an eight-hour workday and a minimum wage for railroad workers. Courts had long since decided that certain regulations of railroads were acceptable, as they were a business affected with the public interest.53 The most important part of this ruling for present purposes was the courts willingness to uphold wage fixing legislation, and its rationale for doing so the idea being that if Congress could set the rates for what prices railroads could charge their customers as businesses affected with the public interest, then they could also set the wages that railroads would pay, as wages are simply the price that the railroad was paying for labor. The next step was Nebbia v. New York, 291 U.S. 502 (1934). There, the court dealt with a challenge to a New York state law that set dairy prices. The laws opponents argued that by setting a minimum price for milk, the court was in effect taking from purchasers of milk and giving to farmers, as purchasers were being forced to pay a price higher than the market rate. Previously, the court had regularly been divided 5-4 in favor of maintaining its laissez-faire

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53

See p. 19, supra

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formalist view that such regulations of businesses other than those affected with the public interest were unconstitutional violations of due process.54 Justice Owen Roberts both switched his vote and wrote the majority opinion. In language that would be referenced in West Coast Hotel, the later case that is traditionally thought to have been a sudden result of political pressure on the court, he explained the rationale for his change:
The argument runs that the public control of rates or prices is per se unreasonable and unconstitutional, save as applied to businesses affected with the public interestThe due process clause makes no mention of sales or of prices any more than it speaks of business or contracts or buildings or other incidents of propertyThe touchstone of public interest in any business, its practices and charges, clearly is not the enjoyment of any franchise from the state...The private character of a business does not necessarily remove it from the realm of regulation of charges or prices.55

Justice Roberts recognized that the idea of a business affected with the public interest served the function of allowing the government to regulate businesses to promote the general welfare so long as the government remained a neutral arbitrator. However, with the changes of the industrial age, the law also needed to change. The non-political nature of Justice Roberts decision to change his vote was reinforced soon thereafter, interestingly enough by his decision to vote against New Deal legislation. In Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936), the lawyers for the government specifically asked the court not to overrule their laissez-faire precedent, but rather merely to distinguish it away. Roberts felt that he could do no such thing, as the court needed to be a !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
54

These steps are examined in much greater detail by Barry Cushman in his book Rethinking the New Deal Court: The Structure of a Constitutional Revolution, the full cite for which is provided below. 55 Nebbia v. People of New York, 291 U.S. 502, 531-532 (1934)

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consistent, apolitical actor. A decade letter, he explained his behavior in a letter to Justice Frankfurter, saying that if the state had asked the court to overrule its precedent, he would have been willing to do so.56 Further evidence supporting the idea that the court that upheld New Deal legislation in West Coast Hotel v. Parrish was not merely reacting to political forces is the unquestionable fact that while the official decision of West Coast Hotel was announced after FDR went public with the court-packing plan, the vote of the justices to side with FDRs New Deal legislation was taken before they knew of the political pressure he meant to put on the court. Therefore, it was impossible for them to have taken their vote with this plan in mind.57 At this point, a reader might wonder so what? The answer is that this narrative shows one of the great mistakes made by judicial actors during their efforts to mold judicial review to accommodate a changing society a failure to be forthright and explicit about what they are doing and why. The great tragedy of the New Deal era court was not that it cowardly succumbed to political pressure, but rather that its gradual evolution towards a form of judicial review that would function in the modern world went unnoticed by so many. FDR was unable to see that the court was gradually moving to a place of relative moderation, and thus instead of allowing the court to go through this natural evolution to a new place of moderation, he filled the court with justices that he knew would uphold his New Deal legislation, turning the court into exactly what it never should have been a political actor. This politicalization of the Court is evidenced by the fact that when FDR had the opportunity to appoint new justices to the bench, he had one !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
56

Cushman, Barry. Rethinking the New Deal Court: The Structure of a Constitutional Revolution. USA: Oxford UP, 1998. 94. Print. 57 There is insufficient space to analyze here Schechter Poultry and Carter Coal, two cases decided in the period between Nebbia and West Coast Hotel where the Court struck down New Deal legislation. However, the excessively brief argument is that these cases were stuck down not because of any sort of laissez-faire formalism on the part of the court, but rather because they legitimately failed to meet the current of commerce standard that had been adopted in Swift for use of Congresss commerce power.

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primary criterion that they had to fulfill would they uphold New Deal legislation? With Wickard v. Filburn and its progeny, the relatively non-political court of Owen Roberts that was willing to gradually change to comport with the needs of society was gone, and the progressive court of Frankfurter took over, dismantling for at least a time many of the constitutional limitations on the powers of Congress.

III. The Future of Judicial Review If one thing is to be learned from these historical episodes, it is that judicial review is a constantly changing concept even for those in favor of the most restrained and laissez-faire approach to constitutional jurisprudence. In some cases, this is the result of slow and steady changes to legal doctrine. In others, it is the result of direct changes to the letter of the law. A recent example of the latter is the French constitutional law of 23 July 2008, which among other things amended the Constitution of 4 October 1958 to add Article 61-1. This article creates the possibility for something resembling constitutional litigation:
If, during proceedings in progress before a court of law, it is claimed that a statutory provision infringes the rights and freedoms guaranteed by the Constitution, the matter may be referred by the Conseil dEtat or by the Cour de Cassation to the Constitutional Council, within a determined period.

This article has been in place for only four years, but examples already exist of it being put to use. Perhaps the most important example so far is the Melki case of 2010, not so much for

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its subject matter (a man accused of being an illegal alien claiming violation of his constitutional rights) but rather the Conseil constitutionnels pragmatic decision to limit its own power.5859 The possibility existed that the new process for referring constitutional violations of fundamental rights in Article 61-1 could come into conflict with basic tenants of European law. Had the Conseil constitutionnel wanted to, it could have found a way to initiate a power struggle with the European Court of Justice, who had already ruled that the new referendum process was legal so long as the Conseil stayed within certain limits. When the Conseil constitutionnel eventually ruled on the merits of the case, it went out of its way to make understood that it would respect European law:
Lastly, Article 61-1 of the Constitution[does] not deprive Courts of law or Administrative Courts, including when they are requested to transmit an application for a priority preliminary hearing on the issue of constitutionality, of the freedom, or, when their decisions cannot be appealed against in domestic law, of their duty to refer to the European Court of Justice for a preliminary ruling under Article 267 of the Treaty on the Function of the European Union.60

Here, the Conseil constitutionnel is doing what smart judicial actors do when faced with a jurisprudential challenge staying within its limits, showing that it understands the facts on the ground, and making perfectly clear what its stance is on its practical role in relation to those facts.

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58

For a more thorough analysis of the entire Melki affaire and Article 61-1, see Toon Moonen, Joined Cases C-188/10 and C-189/10, How the Last Shall Be the First: The Court of Justice Rules on Priority Constitutional Review, 17 Colum. J. Eur. L. 129 (2011) 59 For a less thorough analysis, see Engstrom, Elliot. LArticle 61-1 de la Constitution Franaise: Le Nouveau Article et Son Contexte. N.p., 30 Nov. 2012. Web. <http://www.scribd.com/doc/116291795/Larticle-61-1-de-la-Constitution-francaise>. 60 CC decision no. 2010-605 DC, 12 May 2009

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The United States Supreme Court has also recently, for better or for worse, made a fairly clear statement on where it stands on controversial legislation of a questionably constitutional nature. In National Federation of Independent Businesses v. Sebelius, the Court admitted that its reading of the powers granted to the government in the new healthcare law was permissive, but claimed, in a fashion reminiscent of French deference to the Sovereign Legislature, that it did so due to a general reticence to invalidate the acts of the Nations elected leaders:
Proper restraint for a coordinate branch of the government requires that we strike down an Act of Congress only if the lack of constitutional authority to pass [the] act in question is clearly demonstrated. Members of this Court are vested with the authority to interpret the law. We possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nations elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.61

While the court did note that its deference in matters of policy must not become abdication in matters of law, time only will tell if the Court is able to balance that precarious line between deference and abdication moving forward in the 21st Century. If the Supreme Court and its French counterparts hope to successfully wield judicial review in the future, they will have to learn from the successes and mistakes of the past. At the very least, these constitutional bodies must avoid Justice Owen Roberts mistake of failing to adequately explain their actions, and thereby exacerbating political battles that could possibly be avoided. Judicial actors in both the United States and France have also shown in the past that changes in doctrine can be consistent with predictability and consistency in the general law. Judicial actors must keep in mind the general purpose that judicial review serves protection of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
61

National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566, 2579 (2012)

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the people from overzealous governments. As successful episodes in the history of judicial review have shown, courts must be willing to bend but not break in response to societal change, a task that, while difficult, has been proven to not be impossible.

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