One of the most important ongoing debates in constitutional law is the degree of deference that judges should accord legislation in assessing its constitutionality. And the most famous article arguing for deference remains “The Origin and Scope of American Constitutional Law,” written by James Bradley Thayer. Indeed, as suggested by the fact that it is still being discussed 126 years after it was written, it has a strong claim to being the most famous article ever about American constitutional law. Given how important originalism has become in constitutional interpretation, it is not surprising that today that scholars, including my Northwestern colleague Steven Calabresi, are evaluating whether Thayer’s renowned article reflects an originalist view.
Matthew Franck, one of the most sophisticated advocates of judicial restraint, has made the case for this article’s originalism in a fascinating American Political Thought essay, “James Bradley Thayer and the Presumption of Constitutionality: A Strange Posthumous Career.” He argues that Thayer’s claims have been unfairly distorted by subsequent scholars, particularly those who favor judicial engagement—the opposite of deference. While there is much that is extremely valuable in the article, I do not believe it succeeds in defending Thayer’s article as originalist.
There are at least four reasons not to count Thayer in the originalist camp: First, some of Thayer’s key arguments are consequentialist, not interpretive. Second, Thayer does not investigate fully what the founders thought about judicial review, and that allows him to exaggerate deference into a “beyond a reasonable doubt standard” which exceeds that which can be fairly gleaned from the record. Third, without providing any support in the Founding, Thayer argues that judges should be more deferential to federal than state legislation. Finally, Thayer assumes that much of the Constitution is unclear. As a result, there is a lot of room for deference to operate. But here he follows a jurisprudential understanding that developed after the Founding.
Thayer concludes his article by suggesting that too intrusive a judicial review will diminish the likelihood that the legislators (and presumably the Executive) will engage in constitutional review themselves. Ultimately, the Constitution depends on the protection of political branches and only a deferential attitude will build up that culture of legislative scrutiny. This is essentially a consequentialist argument of Thayer’s own without support in the thought of the Framers. Indeed, as I have argued in “The Duty of Clarity,” the Framers thought judicial review necessary because the federal legislature could not be trusted to exercise impartial judgment, particularly when it was determining the extent of its own powers. It thus seems unlikely that in the Framers’ view the absence of searching judicial review would incentivize legislators to look carefully at the congruity of legislation with the Constitution.
Another of Thayer’s arguments for judicial deference flows from respect for coordinate branches of government. As Thayer puts it, “where a power so momentous as this primary authority to interpret [the Constitution] is given [to Congress], the actual determinations of the body to whom it is intrusted are entitled to a corresponding respect.” This argument also faces the difficulty that legislatures were not thought always to have impartial judgment, particularly about their own powers. Moreover, respect is given when one gives fair and indeed respectful consideration to the arguments that the legislature makes in its defense. But respect does not entail deference.
The Proper Originalist Standard
Thayer does reflect an originalist view that judges must be convinced by compelling evidence that a statute is unconstitutional before invalidating it. The best support for this proposition is not found in Thayer, however, but in Philip Hamburger’s magisterial Law and Judicial Duty, Hamburger suggests that the standard in English law permitted judges to decline to follow another branch only if there was a “manifest contradiction” between the action and some higher law. But English law was generally unwritten and American judges became more confident that they could assess contradictions between legislation and the Constitution when the law was written.
Moreover, this standard, as Franck himself appears to recognize, is less stringent that Thayer’s demand that laws not be struck down unless they are unconstitutional “beyond a reasonable doubt.” In one of the article’s most important contributions, Franck persuasively shows that in hitting on this standard Thayer was influenced by his own work on the relations between judges and juries. This insightful comparison by itself makes Franck’s own article a substantial contribution to the scholarship on Thayer.
But the analogy between judicial review of the fact-finding of juries and judicial review of legislative interpretation of the Constitution was not to my knowledge made at the Framing, and for good reason. First, legislatures were thought partial, particularly in judging their own powers in a way that juries were not. Second, constitutional interpretation is a game of much more complete information than criminal adjudication. The relevant evidence about constitutional meaning can be gleaned from the text, interpretive rules, and a relatively fixed historical record, whereas much evidence about a crime may have vanished or still be hidden, making a much stronger presumption of innocence warranted than a presumption of constitutionality. Moreover, there is no indication that the Framers thought the danger of wrongfully invalidating legislation was as bad as condemning an innocent man. And a beyond-a-reasonable-doubt standard greatly increases the danger that judges will permit unconstitutional legislation to go into effect. In other words, it does not capture the balance between the risk of over-enforcing and the risk of under-enforcing the Constitution, particularly in an era when the Framers had a distrust of the excesses of popularly elected legislatures.
The Difference between Review of Federal and State Legislation
Perhaps the most glaring evidence that Thayer is not taking an originalist approach is that he believes a stricter standard of deference should be applied to federal than to state legislation. He offers no support for this idea in the Founding materials. One historian has suggested that Thayer’s enthusiasm for deference to federal and not state legislation was related to his support for national civil rights legislation. This distinction would fit his presentist objective better than originalism.
Thayer’s General Jurisprudence Bears Little Relation to the Framers’
A final reason that Thayer does not have an originalist view of judicial review is that he does not accept that the view widely held at the Framing that judges could generally discover the answer to legal questions. Thayer thought instead that legal materials were often so unclear that judges could not help making law up themselves. As I also discuss in the “Duty of Clarity,” between the early Republic and Thayer’s time, Blackstone had been dethroned as the reigning jurisprudential theorist. John Austin, writing under the influence of Jeremy Bentham, believed that judges made law and did not discover it. In fact, Austin called it a “childish fiction” that judges did not make law—a barb almost certainly aimed at Blackstone. The “indefiniteness” in terms of law was “incorrigible,” and thus judicial legislation was inevitable. Thayer, like many of the leading legal intellectuals of the postbellum era, was influenced by Austin.
Thayer was thus of the view that constitutional law is generally open to many interpretations, necessarily giving undisciplined discretion to the judge. He wrote:
[T]he constitution often admits of different interpretations; that there is often a range of choice and judgment; that in such cases the constitution does not impose upon the legislature any one specific opinion, but leaves open this range of choice; and that whatever choice is rational is constitutional.
The repetition of the word “choice” emphasizes his view that judges inhabit a world of discretion and judicial lawmaking. If law is pervasively indeterminate, judicial deference should play a large role in constitutional law. Better to have the legislature than the judiciary as sovereign, because the legislature is democratic. But judicial deference plays a much smaller role if one believes that the meaning of the Constitution could be generally fixed by accepted legal methods. Here is an imperfect modern analogy: Justice Scalia accepted the idea of Chevron deference to agencies, but rarely applied such deference because he was confident in methods of interpretation to find definite meaning.
In short, understanding the general legal methods of the Framers is needed to capture their approach to constitutional interpretation. Thayer may have seized upon a few words from jurists here and there to support his version of extreme deference, but he is deaf to the jurisprudential music of the era.