Philip Hamburger's Liberal Suppression is nothing if not ambitious, but is it persuasive?
James Bradley Thayer’s article on judicial review is one of the most renowned pieces of scholarship in American constitutional law. It is famous for the “clear mistake doctrine”—his notion that legislation should be struck down only if it violated what any rational person would believe the Constitution to mean. “Clear mistake” thus embodies very strong judicial restraint. My article, The Duty of Clarity, shows why “clear mistake” is itself clearly mistaken.
Thayer’s strongest originalist support for the doctrine comes from the many cases around the time of the Framing that state that judges should invalidate legislation only when it is in clear or “manifest contradiction” with the Constitution. But Thayer misunderstands these cases because his own premises about law are so different from those of the Framers. He quotes the words of law without understanding the accompanying jurisprudential music.
First, unlike those in the Framing generation, Thayer believes that constitutional law serves a political function that differs fundamentally from other applications of law. He describes judicial review thus: “In simple truth, while this is a mere judicial function, it involves, owing to the subject-matter in which it deals, taking a part, a secondary part, in the political conduct of government.” He criticizes as “severe” Marshall’s argument in Marbury v. Madison that judicial review flows from treating the Constitution like other law except that the Constitution controls when the two conflict.”
But as Philip Hamburger has shown, judicial review was rooted in the judicial duty of law application and was not understood as more political than any other application of law. The notion that the Constitution was law and was to be applied as a matter of ordinary judicial duty was shared by essentially all jurists. The requirement of clarity did not stem from the notion that judicial review was a particularly political aspect of law but instead came from a fear that judges needed to show that they made their decisions based on legal rather than policy considerations. That was of the essence of the republican theory of judicial review. Nothing makes this clearer than Marshall’s embrace of the duty of clarity along with his arguments for judicial review.
Second, Thayer is of the view that constitutional law is open to many interpretations, necessarily giving unfettered discretion to the judge. Thayer stated: “The 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 whatever choice is rational is constitutional.” The repetition of the world choice emphasizes his view that judges inhabit a world of discretion and judicial lawmaking.
It is not surprising that Thayer takes this view. Between the early republic and Thayer’s time, John Austin had become an influential jurisprudential theorist. Austin, writing under the influence of Jeremy Bentham, believed that judges made law and did not discover it. For Austin, terms in law often had an “incorrigible indefiniteness” and thus judicial legislation was inevitable. Law in general was the command of some sovereign—either the legislature or the judiciary.
Since James Bradley Thayer embraced Austin’s view that justices were often lawmaking in the interstices of the law where meaning ran out, it is not surprising that he interpreted the comments about the obligation of clarity as a command against judicial lawmaking in such gaps. Constitutional review did not need to fill in these gaps. The legislature, Austin’s primary sovereign, could do so instead.
But as I show in my article, the jurisprudence of the Framing and the early republic did not contemplate judicial lawmaking in Austin’s sense. Judges were to elucidate law through legal methods. The reason for the duty of clarity was not that law could not be elucidated in a disciplined way but rather than the all entities within the government, the legislature and the judiciary were trying to discover the true nature of the law and that deference was a check on judicial passion. For Thayer as for Austin, text that was unclear on its face inevitably generated an arbitrary discretion. But for the Framers’ generation the meaning of an unclear text could be discovered or largely elucidated by legal methods.