The Warren Revolution: Reflections on the Consensus Society
By Brent Bozell.
Arlington House, 1966.
Hardcover, $49.99.
Reviewed by Nicholas Mosvick.
Since the beginning of the second Trump administration, it has been a repeated practice for a lower court, through an extraordinary display of judicial power, to curtail or prevent the administration from enforcing and carrying a whole host of policies from border enforcement to tariffs and, most recently, curtailing executive orders related to election integrity. At the highest level, the administration and the right have at the end of the Supreme Court’s term seen defenses of the right to bear arms and the President’s efforts to stem abuse of the asylum system and “temporary protective status.” Amid all this judicial action, defenders of the Supreme Court’s decision on the right have often sought to remind their conservative opposition of the imperative of judicial review. Yet all these judicial conundrums are symptoms of a much larger dilemma in modern American political society.
The problem of judicial imperialism is one that has been plaguing and eroding our constitutional system for nearly a century. One of its most powerful past critics was L. Brent Bozell Jr., one of the founders of National Review and the brother-in-law to William F. Buckley Jr. Sixty years ago, in March 1966, Bozell put out The Warren Revolution: Reflections on the Consensus Society through Arlington House Publishing, a firm run by NR ally Neal McCluskey. Bozell was aided both by the editing efforts of his wife Trish and Neal Freeman, the NR staffer who had run Bozell’s 1964 campaign for a Maryland House seat.
Bozell’s powerful insight was to show precisely why judicial supremacy, as it fully emerged under the Warren Court, was such a dangerous and ominous threat to the American constitutional order. Bozell notably does not hesitate to start with the now canonical case so integral to the shift in the American system towards judicial imperium, Brown v. Board of Education. Bozell’s thesis was not entirely original: in the early twentieth century, the Marxist historian Louis Boudin had written a two-volume work, Government by Judiciary, advancing the theory that the Dred Scott decision was the “very foundation of our constitutional system as it exists today.” The venerable legal historian Edward Corwin wrote about judicial review as an “instrument of popular government,” conceding that the primary difficulties in resolving the question of whether the framers intended the Supreme Court to have the power of judicial review was the “paucity of the strictly contemporary evidence” with the “veil of obscurity in which intervening years and developments have shrouded the meaning of what evidence there is.” Corwin showed decades before Bozell that alongside the question of whether judicial review was intended, there was the question of what kind of review—with a wide gap between the notion of judicial review as a pronouncement of the Court which only settles the law of the case or where it struck the law down entirely or even fixed the meaning of the Constitution against all the branches.
Among the scholars that Bozell takes on is the political scientist Charles G. Haines, who asserted in his 1932 work The American Doctrine of Judicial Supremacy that, by 1775, the principle of judicial review had “taken such a firm hold on the minds of lawyers and judges that decisions were rendered in rapid succession [which] maintained the authority of courts, as guardians of a fundamental law, to pass upon the acts of coordinate departments.” Haines believed judicial review and supremacy that flowed from it to have been one of the “prime features” of the new federal system established by the Constitution. Bozell answers Haines’s contention that there is a “simple, uniform, uncontestable” response to his argument: every one of the new state constitutions formed between 1776 and 1787 “fully embraced the principle of legislative supremacy handed down from Blackstone’s England.” The minority of state constitutions that had a “Council of Censors” in the case of Pennsylvania and Vermont, or New York’s “Council of Revision,” were not precursors to judicial review, but reflective of popular democracy according to Locke and Vattel whereby the “people are the ultimate custodians of every constitution,” but one in which there was no power given to invalidate legislative acts.
Bozell examines, case by case, the various state precedents commonly cited by defenders of judicial review and finds all of them wanting and doing nothing to discredit the prevailing founding notion of legislative supremacy. The “apologists” for judicial supremacy had a talent, Bozell said, for “making a feast of the thinnest morsel.” Holmes v. Walton, for instance, is a 1775 New Jersey case which judicial review advocates often point to as an instance of a state Supreme Court declaring a statute void and unconstitutional. Bozell finds that this is merely a legend, as the court left no written opinion, the parties involved did not raise the question of the law’s validity, and it would have departed from an “unbroken tradition of legislative supremacy.” Commonwealth v. Caton, a Virginia decision written by Judge George Wythe, the Founder and jurist mentor to the likes of Thomas Jefferson and John Marshall, likewise provides little precedent for judicial review, as the court did not hold the statute in question unconstitutional even though it “undoubtedly was,” but focused instead on the fact that the resolution passed by one house of the legislature was inoperative because the other house had not concurred in the resolution.
Rutgers v. Waddington is one of the most notable early cases in American history and is commonly cited as the most significant pre-constitutional precedent for judicial review given the role of Alexander Hamilton in the case. It saw the participation of Hamilton as advocate for a British loyalist who argued that New York’s Trespass Act, which punished Waddington with the loss of his property, violated the 1783 Treaty of Paris. It is widely known among legal historians like Peter Charles Hoffer as a crucial predicate not only to judicial review but national supremacy. Here, too, Bozell departs from the dominant position. He notes that Rutgers raised the “momentous question of whether the individual States or the central government was supreme under the Articles of Confederation” and whether an act of a state legislature could thus be annulled by a federal treaty. Bozell argues that the New York Court was in an impossible position, given the immense political stakes of the decision, for resolving the question in favor of the federal government would undermine the supremacy of its own legislature, while finding against the federal treaty would risk the possibility that the British resumed hostilities against America. Bozell finds a genius in the court’s resolution in that the judges refused to “invalidate the statute, declaring in the most sweeping terms imaginable its capacity to do such a thing, and then proceeded to ‘interpret’ the statute in a way that saved the Treaty of [Paris].”
The New York court had to strategically renounce “any intention of challenging the omnipotence of the legislature,” according to Bozell. The Court immediately announced that the “supremacy of the legislature need not be called into question; if they think fit positively to enact a law, there is no power which can control them.” As he puts it, the Court followed the “orthodox doctrine of legislative supremacy” right down to the phraseology taken “nearly verbatim” from Blackstone’s Tenth Rule for construing statutes. What later apologists for judicial supremacy had failed to acknowledge, Bozell suggests, is that the evasions and “mental gymnastics” of the New York judges show “the importance they attached to preserving the appearances of legislative supremacy, once they had decided, pro bono publico, that the Treaty must be saved.” The case was controversial enough at the time that serious efforts were made to remove the Mayor and City Recorder, who had been judges on the case.
Bozell’s common theme regarding all the key pre-Constitution state precedents is the degree to which legal scholars and historians have misrepresented them in order to favor judicial review. In the case of Trevett v. Weeden, the Rhode Island decision regarding an attempt by the Rhode Island legislature in 1786 to deal with the most pressing political issue of the day—the war debt—by introducing paper money and allowing it as legal tender. The law not only included fines for any refusal to accept paper bills and provided that all claims under the law be tried before special courts without a jury. Legal scholars, most notably Herman Pritchett in his work The American Constitution, treated Trevett as the best known pre-Constitutional precedent regarding judicial review. The unanimous decision of the Court refused to enforce the law, deciding that “the information is not cognizable before them,” and the state legislature sent summons to the judges demanding reasons for declaring a state law unconstitutional and void. Judge Howell rationalized the decision before the legislature, proving, according to Bozell, “incontestably that the court had not entered a judgment of unconstitutionality, or sought to invalidate the legislation, or any of the sort.” Bozell argues that Trevett was not about anything more than a “judicial right of self-defense,” as the law in question constituted a “direct assault on established judicial procedures” by abrogating the right of jury trial, creating special jurisdictions and procedures, and denying the state’s highest court a right to hear appeals. Legal scholars had misrepresented this aspect of the case, treating the decision as evidencing a broad power to review all legislative acts. Crucially, rather than a legal landmark or any kind of precedent for judicial review, the case was decided only on “repugnancy” and “impossibility” grounds rather than constitutionality and “stands wholly within the orthodoxy of Blackstone.”
The one exception to pre-Constitution state court precedent is the North Carolina case of Bayard v. Singleton, or “the Newton” case. Bozell admits that there is little question that Bayard is an example of judicial review, but argues that the crucial question is whether the case is “part of a continuing tradition of judicial review with Lord Coke and culminated in the Constitution of 1787—a part of [Haines] ‘irresistible process’? Or was it, rather, an anachronism in American legal history which—in one quite remarkable aspect of the case—anticipated a new tradition that was to take hold not at the Constitution Convention, but at a considerably later moment?” Bayard did, like Trevett, see the state legislature interfere with the judicial process by trying to deny the established right of jury trial in particular cases and the right to hear such cases at all. The law was part of the state legislature’s efforts to confiscate Tory property, which Bozell deems a clear violation of legal rights “clearly guaranteed by the state constitution, by the simple expedient of denying litigants access to the judicial process.” Bozell credits James Iredell, later a Supreme Court justice, with having written the “first systematic exegesis of an American doctrine of judicial review,” but dismisses the significance of Iredell’s opinion, tersely noting that he was, “so to speak, the John the Baptist of that institution whose voice, in 1787, was crying in a deep wilderness.” That is, Bayard v. Singleton cannot be thought of as falling “neatly into place as the capstone of a continuing tradition of judicial review,” given that there was no such prior and existing tradition. As Bozell attests, the Newbern case had a “hard chronological obstacle” to supposing it had any influence over the Philadelphia Convention, as on only one occasion did a delegate refer to alleged state precedents for judicial review—Elbridge Gerry—and he did so well before news of the North Carolina decision might have reached the Convention.
Bringing all the proclaimed pre-constitutional state precedents into consideration, Bozell notes that each involved a “clear-cut legislative violation of the constitution” and a “flagrant usurpation of power.” That is, they were not in any sense courts writing their own opinions into a constitution via a theory of the “living Constitution.” None of the courts outside of the North Carolina court in Bayard presumed to go any further than declining to enforce the law in question and even in the case of Bayard, there was a second key step involved in which the legislature actively acquiesced in the judges’ ruling in order for the nullification of the law to be recognized. Such an observation fits with Gordon Wood’s stellar analysis of the origins of judicial review in Empire of Liberty, where he observes that “[e]ven those who agreed that many of the laws passed by the state legislatures in the 1780s were unjust and even unconstitutional could not agree that judges ought to have the authority to declare such legislation void” and thus many delegates to the Constitutional Convention “regarded judicial nullification of legislation with a sense of awe and wonder.”
As a corollary, any time that the courts were “made so bold as to question a legislative act, even within the narrow limits we have remarked, an angry, indignant and vengeful reaction set it” from both the state legislatures and the general community. Finally, even if the Court was intended to have such power, Bozell reminds readers that it is not obvious what “judicial review” means—there is a wide difference between the notion that the Court’s determination is final and precludes future legislative action and the idea, offered by various framers at the Convention, that the Court could refuse to enforce laws they considered invalid and that they would be a “temporary check on the legislature inasmuch as the court [would deny] the lawmakers the use of its particular enforcement machinery.” The judiciary had a right to defend its own prerogatives as well against a coordinate legislature, but they were never presumed to have the power to invalidate legislation permanently.
Of Article III’s text, Bozell starkly states that it is a “grant of jurisdiction” and nothing more. It cannot be, in his estimation, anything like the source for judicial supremacy following from judicial review. Article III grants the judicial power, but does nothing to state what that power entails beyond the types of cases that the Supreme Court has original jurisdiction over. Bozell argues that there is a clear and plausible explanation for why the framers did not spell out the particular elements of “the judicial power”—they regarded the meaning of the term as self-evident and embodying the existing traditional and inherent authority courts were understood to possess under contemporaneous jurisprudence.
Bozell was not wrong, in a certain sense, to feel the existential dread of government by judiciary. Conservatives today should take heed that adopting a liberal framework of judicial supremacy and a rights-based order enforced by its decrees will bring no ultimate conservative victories, regardless of who is on the Court.
Nicholas Mosvick holds a PhD in American History and J.D./M.A. in legal history. He writes about the intellectual history of the American conservative movement, the constitutional history of the Civil War, and historic meaning of free speech, the right to bear arms, and the right to trial by jury.
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