Tom Burrell Liberty and Common Consent

Magna Carta and Due Process of Law

Magna Carta and Due Process of Law: The Road to American Judicial Activism

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Privileges and Immunities and the Journey from the Articles of Confederation to the United States Constitution: Courts on National Citizenship, Substance, and Antidiscrimination, 35 Whittier L. Rev. ---- (2014), available at
August 2019
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  • The Supremacy Clause

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    Before the Constitution, states violated treaties and ignored both the Articles of Confederation and the Confederation Congress. State judges were under an oath only to their own state constitutions. Confederation authority fell to the side. Enforcing provisions of the Articles of Confederation bedeviled the Founding Fathers.

    At the opening of the Constitutional Convention of 1787, Framers began deliberating on changes to the union. Compliance and enforcement were high on the list. The Virginia Plan advocated for a congressional negative similar to the Privy Council’s negative upon colonial legislation. With the congressional negative, states would submit their legislation to Congress for approval. James Madison was a proponent of the congressional negative throughout the Convention. The congressional negative had its advantages, but the Framers ultimately felt it would be impractical as states would have to wait an indefinite amount of time before state laws were given the green light. There would be many vital state matters that could not wait for congressional validation.

    After much debate, Framers decided on the judicial negative. Framers gave a power to the judiciary to rule null and void state laws and state constitutional provisions conflicting with higher authority in national law. The initial proposal gave supremacy to congressional laws and federal treaties. “Constitution” was added to the Supremacy Clause with no debate. After the revision, the Constitution, national law, and federal treaties were to be considered part of and paramount to state law. State judges would also swear an oath to the Constitution. Instead of states transmitting their laws to Congress for validation, judges would rule void state laws in conflict with national authority when the matter came before them. The Framers felt that state judges would be suitable for the task, giving appellate review to the national judiciary for any conflicts that might arise. Congress could also create inferior tribunals as the need arose. Supremacy over state law was a tolerable discretion in the judiciary as the judges were merely enforcing congressional law and treaties in place of Congress. Before the Constitution, members of Congress in committee, or commissioners selected through a cumbersome process, administered with great annoyance a quasi-judicial function for resolving land boundaries or other disputes. For the Framers who served in the Confederation Congress, the Supremacy Clause and the federal tribunal were a great relief.

    What about judicial review of acts of Congress? The case is not so clear. One struggles to find clear debate concerning the judicial negative of congressional acts. Judicial review of congressional acts crept into the Constitution like a pregnant stowaway to the executive veto or the Supremacy Clause. At best, it was discussed as dicta during the debates on other provisions. It was never defined and confronted directly.

    Although we know that the Framers did in fact intend judicial review of congressional acts, it is hard to believe that a body so fearful of so many factions and institutions—their motives and their jealousies—would give judges a pass on such a vital power. It seems that this generation of statesmen felt that judicial review was an inherent power of the judge.

    Though they felt it was an inherent power of the judge, this does not excuse them from examining the process. After all, the Framers recognized that the executive veto had been an inherent power of the English king and the colonial governor. Nonetheless, the Framers carefully considered the components of the executive veto and even provided for an override of the executive veto as a check. If the executive veto of national laws triggered so much debate, wouldn’t the judicial negative over national laws also trigger debate? The lack of similar detail and discussion of the judicial negative suggests that the Framers were ignorant of the consequences of judicial review (the non-Supremacy Clause variety). The Framers must have felt that judges would exercise judicial review of congressional acts only in cases where there was a constitutional repugnancy so clear that its exercise would not generate any controversy or require any debate.

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