A Deeper Dive into Rights Reign Supreme
A Chapter-by-Chapter Examination of Book about Judicial Review and the Supreme Court
Welcome to an annotated table of contents (that is, a chapter-by-chapter breakdown) of my book, Rights Reign Supreme: An Intellectual History of Judicial Review and the Supreme Court.
Introduction
The introduction of Rights Reign Supreme establishes the aims of the book and the overarching thesis of the work, which is the connection between the Supreme Court’s power of judicial review and the intellectual history of natural rights theory which underpinned the philosophy of the American founding. The chapter begins with a relatively recent Court decision (April 2020), in which the Supreme Court incorporated aspects of the Sixth Amendment—particularly the right to a trial by jury and the requirement of unanimous conviction—against the individual states. By employing this decision, an example is given from the beginning of the work that underscores the ties between the American legal system and the natural rights theory that inform it. The introductory chapter goes on to explore the unique intellectual history found in Colonial America, Revolutionary America, and the Early Republic, and contrasts the emergence of judicial review in early nineteenth century America with moments when the practice could have emerged in previous eras in Europe (particularly England and France) but did not. Thus, the introductory chapter establishes the aims of the book while simultaneously laying the groundwork for the intellectual and legal history which the book dives further into in succeeding chapters.
Chapter One: Primary Source Analysis
One aspect that makes this work unique is the way in which the scholarship unfolds. Rather than positioning the historiography in the introduction or first chapter, it is found instead in Chapter Two. The reason for this is a practical one: arming the reader with objective historical data prior to a discussion of scholarship and academic interpretation. Chapter One studies a wealth of primary sources during the late eighteenth century, including James Madison’s notes of the debates during the drafting of the United States Constitution, the writings of the Federalists and Antifederalists, arguments made during the state ratification debates, state court instances of judicial review prior to the new federal constitution, and federal instances of judicial review in the decade following ratification. The first chapter equips the reader, then, with the primary source evidence necessary to evaluate the veracity of the book’s central thesis and allows the reader to possess a more informed view prior to reading the various interpretations among legal scholars, political scientists, and historians regarding the legitimacy of judicial review.
Chapter Two: Historiography/Judicial Review Scholarship
Chapter Two’s historiography is interdisciplinary in nature and threads a difficult needle by discussing the various interpretations of judicial review’s legitimacy, its history, and its evolution. The chapter carefully analyzes not merely scholarship from these differing academic fields but also contends with the differing aims of individual works, as some are prescriptive in nature while others simply seek to lay out an accurate history or legal theory. Chapter Two may be the most challenging chapter due to its discussion of various scholars and views, but it is an ultimately necessary chapter in order to inform the reader of some of the most important debates regarding the history of judicial review and its contested validity.
Chapter Three: The Sedition Act and Nullification, i.e. State Review
Chapter Three returns to the chronological timeline that the book generally follows, focusing on the state of the American republic in its earliest years following the ratification of the federal constitution. The 1790s was the first full decade of the new republic, and among its most tumultuous. Political and ideological bifurcation manifested between the advocacy of centralized power by figures such as George Washington, John Adams, and Alexander Hamilton, against those who feared the threat of undue federal power including Thomas Jefferson and James Madison. The 1790s represented an era where old alliances were ultimately weakened and in many cases broken, and the emergence of what became the two party system of American politics became a reality. Authors of the Federalist papers, James Madison and Alexander Hamilton, found themselves on opposite ends of this ideological war. When the Adams administration signed into law the Alien and Sedition Acts, which included provisions that made it illegal to publicly disparage the President or members of Congress, Jefferson and Madison sought to counter the federal government’s overreach through the philosophical premise of state nullification, arguing that states were duty-bound to reject federal laws which violated the Constitution. Though the Sedition Act has been discussed many times by historians over the years, and the concept of nullification has seen more recent scholarship, the philosophical tension between the concepts of nullification and judicial review have not been examined to any satisfactory degree until now. For this reason, Chapter Three gives state nullification the alternative name of state review. This is to assist the reader in understanding how these two interpretations of constitutional power (nullification and judicial review) are in intellectual opposition and that one cannot possess a strong understanding of the history of judicial review without an understanding of the 1790s, the Alien and Sedition Acts, and the advocacy of state nullification by Jefferson and Madison in response to the Acts. This is particularly noteworthy when considering that the era predated the clear assertion of judicial review by the Supreme Court, which would be seen only a handful of years later in the early nineteenth century.
Chapter Four: Marbury, Stuart, McCulloch, and Barron
Chapter Four examines the Marbury v. Madison decision, which is generally believed to have established judicial review, though chapters prior to Chapter Four provide evidence that this assumption is somewhat incorrect or at least incomplete. The chapter also examines the career of Chief Justice John Marshall, including his time as a soldier in the Revolutionary War, his principled position as an opponent of the Alien and Sedition Acts, and his ideological differences with figures like Thomas Jefferson. The chapter examines other important decisions by the Marshall Court, including Stuart v. Laird, McCulloch v. Maryland, and Barron v. Baltimore, all of which contributed significantly both to the authority of the Court, the authority of the federal government, and the constitutional limits of the Bill of Rights during the era. This chapter is significant not merely for its discussion of the Marshall Court, but also to provide the reader with the understanding that the United States Constitution and the Bill of Rights were of a significantly different character than they would come to be following the Civil War. In an era where the Bill of Rights was enforced against the federal government and not the states, the protection of rights—by the Court and otherwise—was a much more anemic enterprise.
Chapter Five: Indian Removal and Dred Scott
A white-washing of history is the last thing a historian should ever do, and with that in mind Chapter Five addresses some of the most egregious aspects of the Supreme Court and relevant policies of the United States during the nineteenth century, specifically Indian Removal and the Dred Scott decision. Any defense of the American system requires an admission of tyranny, imperialism, and oppression in the history of the United States. Similarly, any defense of the American judiciary and its power to nullify laws it deems unconstitutional requires a sober analysis of its historical abuses and an examination of its most significant failings. Rather than seeking to ignore the most egregious aspects of American history and the Court’s participation in such events, Chapter Five provides a focused and difficult exploration of the history of nineteenth century America.
Chapter Six: Privileges or Immunities and the Fourteenth Amendment
If two chapters of Rights Reign Supreme can be considered the most crucial, it may be argued that it could be chapters Six and Seven. Whereas Chapter Seven explores the intellectual history of natural rights theory and its connection to American constitutionalism and law, Chapter Six examines one of the most important eras in the evolution of the United States Constitution, the Bill of Rights, the Supreme Court, and the recognition of rights values. Chapter Seven discusses the ratification of the Fourteenth Amendment, the author of the first section of the Fourteenth Amendment, Congressman John Bingham, and the revolutionary evolution of rights recognition in the decades that followed. An understanding of the United States Constitution and the Bill of Rights, as we know it today, is simply not possible without understanding the Fourteenth Amendment and the circumstances that brought it into existence.
Chapter Seven: Rights
To some degree, Chapter Seven serves as a sort of climax, as it most overtly connects the intellectual history of natural rights theory, its antecedents, other—and in some way competing rights values (such as classical republicanism)—with the evolution in thought regarding the importance of written constitutions and the limits of common legislation in what became the United States. The intellectual history follows the reemergence of classical republicanism in Florence in the fifteenth century, its incorporation by the English in the seventeenth century during their civil wars, and it finding its way to the American colonies in the seventeenth and eighteenth centuries. Meanwhile, a different strain of rights theory, more individualistic and liberal in character, was formulated by figures like Montesquieu and John Locke in the seventeenth and eighteenth centuries. This liberal strain of rights theory came to be profoundly influential on those who designed a new form of constitutional government in the United States, including James Madison and John Adams. Chapter Seven demonstrates that the unique history of Colonial America and its unique combination of influences, including the use of colonial charters, independent local courts, and institutions designed to review the legitimacy of legislation, as well as the philosophical influences previously mentioned, allowed for the design of constitutional governance that came to define the United States, as well as the power of judicial review which came to be central to its operation.
Chapter Eight: Rights Assertions via the Court
To some degree an extended epilogue, Chapter Eight takes advantage of the knowledge the reader has received from the previous chapters and provides a rich legal history of judicial review from the 1920s to the early 2020s. Once it was established and affirmed that the Fourteenth Amendment enforced the legal protections enumerated in the Bill of Rights against the individual states, the Supreme Court in the early decades of the twentieth century revolutionized the recognition of rights values. This impacted all areas of American life and culture. Matters of speech, privacy, bodily autonomy, sexual freedom, and other questions of liberty were brought before the court and given constitutional protection for the first time. This was not, however, the result of a living, breathing constitution of legal positivism, but an affirmation of fundamental rights values and the power of the Court to assert the limits of state and federal government when rights were involved. In addition to the many cases discussed in Chapter Eight that contended with rights matters, the influence of so-called Footnote Four and its presumption of constitutionality is examined and the value of its veracity is openly questioned. Chapter Eight proposes a different formulation for the evaluation of the constitutionality of state and federal laws which would rely instead on fundamental rights values enshrined in the U.S. Constitution and the Bill of Rights, including the Ninth Amendment which asserts the existence of unenumerated rights. Essentially, Chapter Eight is the culmination of the chapters that precede it by demonstrating how the wealth of intellectual history and scholarship laid out in the previous chapters were put to use in the twentieth and twenty-first centuries with the Court recognizing and protecting rights at a level never before seen. Chapter Eight reveals that the past century of the American experiment would not be what it has been without the power of judicial review.
Conclusion
The book’s conclusion discusses how the use of the courts to seek legal remedy in the case of rights violations by seeking to have a law overturned was once seen as an abuse of the system. However, a judicial decision in the middle of the twentieth century affirmed that turning to the courts to overrule an unconstitutional law was not an abuse of the system but a legitimate use of it. The chapter goes on to explain how this decision provided for an inevitable politicization of the courts. It is the contention of this writer, however, that such politicization was a natural byproduct of seeking remedy through the courts and that the problem with politicization is not to be found in the power of judicial review but in the two major political parties seeking to blame the Court for rulings they do not like. Furthermore, as each political party seeks to remake the court in its own image, it subverts and endangers the judiciary by acting as though its independence is a bug and not a feature. Political parties seek to undermine the independence and legitimacy of the Court, whether by attempts to pack the Court or through other means. They violate the mission their own constituents voted them into office for, which is to safeguard a system of government defined in no small part by the independence of its judiciary. It was an independence fought for from the time of the American Revolution and reinforced time and again through the Supreme Court’s power to nullify unconstitutional laws. If the Court were to ever lose this power, it would lose all significant authority to protect the rights of the people from the excesses of the other branches and that of the individual states.
Even as controversial decisions continue to emanate from the judicial branch, a belief that designing a Court that reflects the whims of the political party that wields power in a given period would certainly create newer problems and put the American constitutional system at more risk, not less. The intellectual history involved in the development of judicial review historically puts the independence of the courts and the rights of individuals above that of collective will and majoritarianism. Efforts made to undermine such a system may ultimately wreak havoc on the very people who seek to put fundamental rights further into the hands of temporary majorities and their opportunistic representatives.
[James M. Masnov is a writer, historian, and lecturer. His book, Rights Reign Supreme: An Intellectual History of Judicial Review and the Supreme Court, published by McFarland Books, is available here. His first book, History Killers and Other Essays by an Intellectual Historian, is available here.]