Merica and Europe

America and Europe.
Decline and Emergence of Judicial Review

Author(s): Gottfried Dietze
Source: Virginia Law Review, Vol. 44, No. 8 (Dec., 1958), pp. 1233-1272
Published by: Virginia Law Review
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VIRGINIA LAW REVIEW
VOLUME 44 DECEMBER 1958 No. 8
AMERICA AND EUROPE -DECLINE AND

EMERGENCE OF JUDICIAL REVIEW
GOTTFRIED DIETZE*
rOR generationscomparisonshave been drawn between American

l and Europeaninstitutionsbelievedto be representative
of Western
civilization.Today, when Toynbee can speak of "the World and the
West," 1 when we become increasinglyaware of the threatto our
way of life,and when we see the finde siecle ominouslyforecastat
the end of the last centuryby the few sages who saw the destructive
influenceof the French Revolution,2these institutionsought to be
re-evaluated.We are prone these days to overemphasizethe dangers
thatthreatenus fromwithout. However we should not overlookthe
shortcomings of our own society-maladiesthatspelledruinto Europe
and mightbringaboutdisasterin thiscountry.Duringthe pastdecades,
a fundamental changehas takenplace in thegovernmentsof the United
States and European nations. This change has been a blessingto
Europeans,althoughits officialadoptioncame too late to preventthe
catastrophe.In America,the changehas been to the bad, but here the
developmentcan stillbe halted and disasterprevented.
Ever since the great revolutionsof 1776 and 1789, America and
Europe havehad in commonsomeformof populargovernment. Never-
theless,importantdifferences have existedas to the positionof the
individualunder the respectivegovernments,and also between de-
*
AssociateProfessorof Political Science, JohnsHopkins University.LL.B., 1948,
Dr. jur., 1949,Heidelberg;A.M., 1951,Ph.D., 1952,Princeton.
1. TOYNBEE, THE WORLD AND THE WEST (1953).
2. For instance,
Burckhardt,
Nietzsche,and Ortegay Gasset.
[ 1233]
1234 VirginiaLaw Review [Vol. 44
mocracyin America and that in European countries. It is a crucial

aspectof the individual'sstatusin a democraticsocietywhich concerns
us here. Namely,his libertyunder the law, his libertyfromthe law-
maker,and his guaranteefor that liberty,judicial review. Actually,
the threeare concomitant.It can admitof no doubtthatlibertyunder
law mustmean libertyfromthe lawmaker. For while the individual
in any societycan only be freeunder the law, thatfreedomcan exist
only if the law is not oppressive,if thosewho make it are not tyrants.
Fromthisfollowsa limitation of thelegislature.This maybe autolimita-
tion, as suggestedby JusticeGibson in his famousanswer to Chief
JusticeMarshall.3 However, trustingan institutionwhich exercises
politicalpower to restrainitselfis a dubiousthing. And just as earlier
therewas a need, recognizedby those who wanted freedom,to put
limitationsupon the executive,so today thereis a need, again for the
sake of freedom,to restrainthe legislature.Since such restraint,if
exercisedby the executive,would be likely to re-institute absolute
monarchy,the only possibilityof restraining the legislature,while at
the same timepreservingpopular government, is throughjudicial re-
view. In the seventeenthand eighteenthcenturies,freedomof the
individualwas thoughtto depend upon strengthening the legislative
againstthe executivepower. But with the growthof the former,that
freedomwas increasinglyput at the mercyof the lawmaker,and its
preservation became increasinglydependentupon a properrestriction
of thelegislativebody. In our time,individualfreedomwithoutjudicial
reviewseemsunthinkable.4
3. Eakinv. Raub, 12S.&R. 330 (Pa. 1825).
4. The argumentthatjudicial reviewis conduciveto a dictatorship of the judiciary
is ill founded.Hamiltonstatedthat"whoeverattentively considersthe differentdepart-
mentsof powermustperceivethat,in a government in whichtheyare separatedfrom
each other,the judiciary,fromthe natureof its functions,will always be the least
dangerousto the politicalrightsof the Constitution;because it will be least in a
capacityto annoy or injure them . . . The judiciaryhas no influenceover either
the sword or the purse; no directioneitherof the strengthor of the wealth of the
society;and can take no active resolutionwhatever. It may truly be said to have
neitherFORCE nor WILL, but merelyjudgment;and mustultimatelydepend upon
the aid of the executivearm even for the efficacyof its judgments.This . . . proves
incontestably,thatthe judiciaryis beyondcomparisonthe weakestof the threedepart-
mentsof power.... It equallyproves,thatthoughindividualoppressionmay now and
then proceed fromthe courtsof justice,the generallibertyof the people can never
be endangeredfromthat quarter.. . ." THE FEDERALIST No. 78, at 503-04 (Modern
Libraryed. 1937) (Hamilton). The truthof thisstatement has been borneout by ex-
perience. Even the opponentsof judicial review have to admit that the world has
seen executiveand legislativedictatorships, but hardly any judicial ones. As long
1958] JudicialReviewin Americaand Europe 1235
The Europeans have learned this truththroughbitterexperience.

Even those who from the beginningwere distrustfulof legislative
assembliesand sought consolationin the idea that the legal norm is
wiser than those who made it,5came soon to realize the futilityof
theirhopes. Law, in the handsof the positivists, was reducedto some-
thingmerelynominalistic, and often twistedbeyond recognitionby
men who seemed to have lost all sense of justice. Accepting every
legislativeact at face value and consideringits interpretation a mere
"art," the judges became nothing but technicians. They served a
dubious legalitywhich not only worked to the detrimentof the in-
dividualwhile therestillexistedpopulargovernment, but also supplied
a welcome instrument of power for a Mussolini,a Hitler, a Petain.
Americawas more fortunate.Here the specificnormwas considered
in the contextof the whole legal frameworkof the nation. Acts of
Congressnever were blindly accepted by the judiciary; they were
carefullytested for their legitimacy.The individualwas thus pro-
tectedfroman oppressionby the "interestedand overbearingmajor-
ity."6 Only duringthe past decades,it seems,did the courts of this
countrybecomelessvigilantand moretemptedto accept legislativefiat,
irrespectiveof the ensuing dangers to minorityrights. In Europe
blindacceptanceof the acts of the mostdemocraticbranchof govern-
mentresultedin a positivistlegalismwhichpaved theway fordictator-
ship and broughtabout the eliminationof the representative legislature
itself. If in Americathe institution of judicial review is relinquished,
Americaneed not,in the words of JusticeHolmes, "come to an end"
as a nation,7but certainlyfreegovernment in the United Statesis likely
to come to an end. America might,like European countries,go the
way froma despotismof the majorityto that of one man. Judicial
reviewseemsto be vital for the protectionof the individual'sliberty
as the judiciaryis separatedfrom the other branchesof government-andjudicial
review in our sense of the word has such a separationfor its premise-"judicial
dictatorship"seemsto be a contradiction in terms.
5. This idea openedthe possibility for an interpretationof the law whichread some-
thinginto a writtennormwhich actuallyhad not been in the mind of the lawmaker.
Thus, the judges could possiblymitigatethe bad actions of the lawmaker. Such a
behaviorof the judges seemedto be sanctionedby the famousarticle4 of the Civil
Code which said that the judge who refusesto pass a verdictunder the pretextof
the silence,obscurity,or insufficiency of the law, shall be guiltyof denial of justice.
It appearedto many as a last resortto keep the law just. See RADBRUCH, RECHTS-
PHILOSOPHIE 211 (4thed. 1950).
6. THE FEDERALIsT No. 10, at 54 (Modem Library ed. 1937) (Madison).
7. HOLMES,Law and theCourt,in COLLECrEDLEGAL PAPERS 295-96 (1920).
1236 VirginiaLa'w Review [Vol. 44
in a democraticsociety. More and moreEuropeans have come to be-

lieve in it, just as fewer and fewerAmericansseem to care for it.
In the followingdiscussionwe shall considerthe developmentof
judicial reviewin America and Europe. Proceedingstep by step,we
shall firstdeal with the reasons that led to its establishmentin the
United States and its rejectionby European nations. Then we shall
pointout certainconsequencesof thatestablishment and rejectionbe-
forefinallyturningto the reorientation thathas takenplace in Europe
and theUnitedStates.
11
Both the establishingof judicial reviewin Americaand its rejection
in Europe resultedfrom a desire to make the individualfree from
governmentaloppression.This phenomenoncan be considereda re-
sult of the Americanand French Revolutions.Since the individualin
pre-revolutionary days was oppressedby different agenciesof govern-
ment on the two continents,the revolutionaries'fightfor freedom
was directedin different channels. From this resulteda differencein
the positionsoccupied by the legislatureand judiciary.
In the Americancolonies it was the acts of the English Parliament
which were consideredto be an unjust infringement upon the rights
of the colonists. Naturally,resortwas had to Lord Coke's words in
Dr. Bonham'sCase of 1610, that"the commonlaw will controulActs
of Parliament,and sometimesadjudge them to be utterlyvoid" as
"againstcommonrightand reason."8 JamesOtis invoked this argu-
mentin the Writsof Assistance Case.9 The SupremeCourt of Vir-
giniain 1766 declaredthatthe StampAct did not bind the citizensof
thatstate"inasmuchas they conceived" it "to be unconstitutional." 10
Likewise,in 1772 George Mason, who laterdraftedthe Bill of Rights
of the Constitution of Virginia,assertedthatthe same doctrineapplied
to local legislationwhich was "contraryto natural right."11 And
shortlybeforethe Declarationof Independence,JudgeCushing,who
laterbecame a judge on the originalbench of the SupremeCourt of
8. 8 Co. Rep. 113bat 118a,77 Eng. Rep. 646at 652 (C.P. 1610).
9. See Quin. 469 (Mass. 1761).
10. 5 MCMASTER, A HISTORY OF THE PEOPLE OF THE UNITED STATES 394-95 (1900).
11. Argumentin Robin v. Hardaway in JEFFERSON, REPORTS109 (Thomas Nicholson
1795) (Decisions of cases in Virginiaby the High Court of Chancery,1788-1795).
the UnitedStates,adviseda Massachusetts jury to ignoreacts of Parlia-
mentas "void" and "inoperative." 12
The lessonof legislativeoppressionwhich the colonistshad learned

in the years preceding the Declaration of Independencewas soon
forgotten.The early state constitutions, while professinga belief in
Montesquieu'sdoctrineof the separationof powers,conceivedof that
separationas meaningprimarily a meansforthe restriction of executive
power. This was due to the strugglethat took place in the colonial
periodbetweenthe royal governorand the colonial assembly.Legisla-
tive power was undefinedand fundamentally unrestricted,a vortex
into which the otherpowers tendedto be drawn."3Naturally,it was
likelyto becomedespotic. As earlyas 1777,BenjaminRush complained
that under the constitutionof Pennsylvania,"the supreme,absolute,
and uncontrolledpower of the State is . . . in the handsof one body
of men. Had it been lodged in the hands of one man,it would have
been less dangerousto the safety and libertiesof the community.
Absolutepower shouldneverbe trustedto man .... I shouldbe afraid
to commitmy property,libertyand life to a body of angels . ..." 14
Jefferson made a similarattackagainstthe constitution of Virginiabe-

cause of its concentrationof power in the assembly.This was to him
"preciselythe definition of despoticgovernment," and it made no dif-
ferencethat such powers were vested in a numerousbody "chosen
by ourselves,"since "one hundredand seventy-three despots" were
"as oppressiveas one." 15 The oppressionwas especiallyfelt in those
stateswherethe debtorelement,the "rag money" party,constituteda
majorityin the state legislatureand passed acts fixingprices in paper
money and makingit a misdemeanorto refusepaper currencyat its
face value. And even though the notion of legislativesovereignty
had come fromthe pages of Blackstoneto influenceAmericanlegal
thinking,the spiritof an Otis, a Mason, and a Cushing was revived
by Rhode Island judges who refusedto enforcea rag moneylaw be-
cause of its alleged repugnancy,that is, self-contradictory character,
12. CORWIN, THE DOCrRINE OF JUDICIALREVIEW 32 (1914).
13. See Corwin, The Progressof Constitutional
Theory Betweenthe Declarationof
Independenceand the Meetingof the PhiladelphiaConvention,30 AM. HIST. REV. 511
(1925).
14. RUSH,Observationson the Governmentof Pennsylvania,
in THE SELECrED WRIT-
INGS OF-BENJAMIN RUSH 57 (Runes ed. 1947)..
15. 2 THE WRITINGS OFTHOMAS JEFFERSON162-63(Memorialed. 1903).
in the year Shay'sRebellionbrokeout."' It was not to die in the

following decades.
One of the mainreasonsfor the meetingof the Convention was
to checkthedemocratic despotismas it existedundertheruleof the
in thestates.Motivatedby a desireto protectthe rights
legislatures
of theminority, mostof thedelegates favoredjudicialreview.17 Like-
wise,it is considered partof the Constitution in the classicalcom-
mentary And whiletheyoungRepublic
of thatlaw, theFederalist.18
was recovering fromwhatJohnFiske called its "criticalperiod,"19
in someof themember
judicialreviewwas established Finally,
states.20
in 1803,JohnMarshalldeclaredan act of Congressvoid because of
withthe Constitution.21
its incompatibility For the sake of the in-
dividual'sprotection fromextremedemocracy,judicialreviewhad
becomeestablished on boththestateandnational levels.It was destined
to become,"together withitsjuristic
product, a bodyof 'constitutional
law,' . . . the most distinctivefeatureof the Americanconstitutional
system. . . " 22
In Europe,thesituation was quitedifferent.There the oppression
of theindividual was feltto derivefromthemonarch, not fromthe
legislature. And sincethemonarchhad as a rule beensupported by
subservient in thereplacement
judges,liberation of theking'sabsolut-
ismwas soughtthroughpopulargovernment-that is, throughan in-
creaseofthepowerofa representative legislature.
In England,Coke'sdictumin Dr. Bonham'sCase,mentioned above,
meantone thingin pre-revolutionary days,sinceunderthe absolute
ruleofthekingitwasnotso mucha polemicagainsttherepresentatives
of thepeoplebut againstthemonarchwho, as Coke daredto say a
littlelater,was "protected"by thelaw.28It meantquiteanother thing
onceabsolutemonarchy hadbeenreplacedby a constitutional govern-
mentin whichthe legislature was predominant. Naturally,the great
16. See Trevettv. Weeden (R.I. 1786). For this case, see BRINTONCoxE, JUDIcLIL
LEGIsLATIoN 23448 (1893).
POWERAND UNCONSTITUTIONAL
17. For a good survey,see CORWIN, THE DOCTRINE OF JUDICIAL REVIEW 10-12 (1914).
18. See THE FEDERALISTNo. 78 (Hamilton). For the fact thatMadison also favored
judicial review in the FederalistPapers, see Dietze, Madison's Federalist-A Treatise
forFree Govermnent, 46 GEO.L.J.21, 38,47-48(1957).
19. See FISKE,TE CRITICAL PERIOD OF AMERICAN HISTORY 1783-1789(1888).
20. See CORWiN,op. cit.supranote 17,at 75-76.
21. See Marburyv. Madison,5 U.S. (1 Cranch) 137 (1803).
22. Corwin,JudicialReview,8 ENCyC.Soc. Sca. 457 (1932).
23. For a discussion of Coke's famous statement, see FRDRICH, CoNSnTIUoNAL
Govriea~sr AND DEMOCRACY105 (rev.ed. 1950).
liberator,
Parliament, wasnottobe restricted anymore.Coke'sdoctrine,
whileachieving a certainamountof currency duringtheseventeenth
century,was superseded by theBlackstonian principle that"thepower
of parliament is absoluteand withoutcontrol." The supremacy
24 of
thelegislature,whichwas so muchresented by theAmerican colonists
in theirstruggle forindependence, becamethe maincharacteristic of
Englishgovernment.
On thecontinent, thedevelopment was similar.In France,theking
undertheancienregimewas not onlytherealm'schiefadministrator,
but also,through his powerof promulgation, the superiorlawmaker.
He was also thehighest judicialauthority. The revolution transferred
thesovereignty fromthemonarch to thepeople,by whom,in turn,it
was delegated to theirrepresentatives in theAssembly.As in theearly
American stateconstitutions,thetribute paidto Montesquieu's doctrine
of theseparation of powerswas moreor less lip service.25 Actually,
thelegislature was madeomnipotent. The judiciarywas accordedno
important role. The revolutionaries remembered boththe old courts'
abuseoftheirrightof"verification etremontrances" andthejudges'op-
positiontothereforms thatwereplannedbythekinginthelastyearsof
theancienregime.Judicial reviewwas notonlynotestablished, it was
prohibited andputunderpenalty.28 Thisremained so undersubsequent
governments fromtheEmpireto theThirdRepublic.27
In Germany, undertheJustizstaat oftheFirstReich,thejudgestried
to protecttheindividual's rights(iura quaesita)fromthepolicepower
of theprince(ius politiae). Since,however,theprinceswould often
disregardthedecisionsof theReichcourts,theprestige of thejudges
dwindledmoreandmoreuntilfinally, in thepolicestateof theeight-
24. 1 COOLEY,BLACKSTONE'S COMMENTARIES 161 (2d ed. rev. 1872).
25. Article 16 of the Declarationof the Rightsof Man and Citizen of Aug. 26,
1789,maintainsthat "any society,in which the protection(garantie) of rightsis not
secured and the separationof powers not definitelyaccepted (determinee),has no
constitution."It is significant
that neitherthe Bill of Rights of the Constitutionof
1791,nor the declarationof the rightsof man of May 29, 1793,nor the declaration
of the rightsof man and citizenof June 23, 1793,nor the declarationof the rights
and dutiesof man and citizenof the constitution of the 5th fructidorof the year III
contained such a statement.
26. See Law of Aug. 16-24, 1790, arts. 10, 11 (Fr.); Constitution of Sept. 3, 1791,
tit.III, ch. 5. art.3 (Fr.); Constitution
of 5 fructidor,
yearIII, art.203 (Fr.); CODEPENAL
art.127 (Fr. 1810).
27. See DESFoUGERES CONTRO'LE JUDICIAIRE DE LA CONSn mrunONNALrrf DES Lois 94
(1903); Ho Hio Ky, LE, CONTR&LE DR LA CONSTITUTIONNAuTi DEs Lois EN FRANCE 135
(Diss. Paris 1926).
eenthcentury,the courtslost theirindependenceand became a means

for the monarch'sexerciseof cabinet justice. The struggleagainst
the absoluteking was waged for popular participation in government,
especiallyin the legislativeprocess. And althoughunderthe Konstitu-
tionalismusof the nineteenthcenturythe judges were independent,
that independencewas one under the law, not one above legislative
enactment.For the protectionof the individual,the courtswere per-
mittedto testadministrative acts fortheirlegality.But, as the principle
of Gesetznidssigeit der Ver'waltung implies,only the conformity of the
administrative act with the statutecould be tested,and by no means
thestatuteitself.Rechtsstaatmeantthe individual'sprotectionfromthe
executivethroughthe legislativeand judicial branchesof government.
It did notimplyhisprotectionfromthelegislature throughthe judges.28
In Italy, the Napoleonic invasionoverthrewthe absolute rulersin
the different states,and liberatedthe people fromthe oppressionof
the princes,aristocracies, and the judges who were in theirservices.
And althoughthe old rulerscould stagea comebackafterthe defeatof
Napoleon,the desireforpopularparticipation in government remained
alive. In 1848,thekingof Piedmontgrantedto his people a constitution
thatvestedlegislativepower with the representatives of the people and
made the monarchand the judgessubordinateto the law. This Statuto
became,afterunification, the Italian constitution.In the ensuingdec-
ades, the Germanconcept of Rechtsstaatwas adopted in Italy.29For
28. The term"Rechtssaat" (State of right) is actuallya misnomerthat came about
"at the criticalpointat which the unproblematicallaw (unproblematisches
Recht) was
split up into legalityand legitimacy."SCHMITT, DIE LAGE DER EUROPAISCHEN RECHTS-
WISSENSCHAFT 25 n.33 (1950). It should be correctedinto "Gesetzesstaat"(state of
laws, i.e., man made laws). The very inventionof the term Rechtsstaatshows the
acceptance of the identityof the writtennorm and right or justice. Significantly
Stahl,who can be consideredthe creatorof the conceptof Rechtsstaat,
was a positivist.
See ROMMEN, THE NATURAL LAW 117-18(1948). For Stahl's definition of Rechtsstaat,
See STAHL, DIE STAATSLEHRE UND DIE PRINZIPIEN DES STAATSRECHTS 137 (3d ed. 1856).
Other prominent works on that subject include: BXHR, DER RECHTSSTAAT (1864);
GNEIST, DER RECHTSSTAAT UND DIE VERWALTUNGSGERICHTE IN DEUTSCHLAND (1872);
JELLINEK, VERWALTUNGSRECHT?? 5, 12,13,14 (3d ed. 1931).
29. See ORLANDO, PRIMo TRATTATO COMPLETO DI DIRITTo AMMINISTRATIVO (1900); 1
CRITERI TECNICI PER LA RIcosTRuZIONE GIURIDICA DEL DIRITTO PUBBLICO (1925); ROMANO,
L'ORDINAMENTO GIURIDICO (1902). In 1912,Raneletti stated that in a Rechtsstaat"the
law stands above all other activities; everything,including the state itself,must remain
subject to the law, and must live and operate according to its norms. The state,
inasmuch -as it subjects itself to the law and guarantees its enforcement even with
respect to itself, by means of appropriate measures, is a "State governed by law."
RANELETTI, PRINCIPII DI DIRITTo AMmINISTRATIVO 142 (1912). The norms of which
the protectionof the individual,the public authority,executiveand

judicial alike,was restrictedby legislativeenactments.The courtshad
no rightto questionthe constitutionality of such enactments.In Italy,
as in otherEuropean countries,the legislaturereignedsupreme.
Summarizingthe reasonsfor the establishment of judicial reviewin
Americaand its rejectionin Europe, we may say, firstof all, thatthey
derivefromthe conditionsthatexistedin the different societiesat the
timeof theirrespectiverevolutionsand reforms. In America,theEnglish
Parliamentappeared as the great oppressor,with the King and the
royal governorin minorparts. Naturallythe role of the liberatorfell
to the courts. In Europe, on the other hand, the monarchwas the
tyrant,and the judges his willful assistants.Consequently,liberation
was to be the taskof the legislatureas the representativeof the people.
The Americans complementedLocke's philosophy of legislative
supremacythroughthe doctrineof judicial review,because they had
come to realize that withoutjudicial review Locke's ideal, the pro-
tectionof the individual'slife,liberty,and property,could hardlybe
accomplished.30 The Europeans,on the otherhand,not havinghad a
chance to experiencethe shortcomings of legislativeomnipotence,did
not fillthegap in thephilosophyof Locke. Indeed theywere quitecon-
tentedwithRousseau.In America,then,theindividualwas protectedby
a law thatwas superiorto thatmade by Congress. He thusremained
an individualbeforethe legislature.In Europe the individual,being
absorbedby the volonti generate,was protectedthroughthe law made
by the legislature,and by nothingelse. Nothingelse? Yes. Europeans,
believingin the Rousseauisticdoctrineof the infallibility of the legis-
laturewhich,somewhatin a mysticalway, like the volont6generale,
cannoterr,thoughtthisdegreeof protectionquite adequate. Whether
they were right,we shall partlyanswerin the followingpages when
we deal with some of the consequencesof the adoption of judicial
reviewin Americaand its rejectionin Europe.
III
In the old world, where the ancien regime was rejected,the in-
dividual'sfreedom-soone hoped-was to be securedwithinthe limits
of any new law which was produced by the legislatureand had not
Ranelettispeaksare,of course,made by the legislature.For an accountof the develop-
mentof the conceptof Rechtsstaatin Italy,see Caristia,Venturae avventuredi una
formola:Rechtsstaat,26 RIVISTADI DIurTToPUBBLICO 388 (1934).
30. See Corwin, supra note 13, at 511.
yet proved its value. In the new world, the old institutions, having
shown their meritsduring the colonial period, were fundamentally
retainedafterindependencehad been achieved. In otherwords,where-
as the citizenof the old world hoped to become freeunder new law,
the inhabitantsof the new world trustedthey would remain free
under old law. The significanceof that "older" law3' ought not to
be overlooked. Of course,judicial reviewwas based upon the excep-
tional rejectionof the sentencelex posteriorderogat priori,through
the acceptanceof the principlethatsuperiorlaw cannotbe superseded
by inferiorlaw; that superiorlaw must invalidateinferiornorms.32
Hamilton,in FederalistNo. 78, made it clear that "a constitutionis
. . .and must be regardedby the judges, as a fundamentallaw"83
whichis superiorto any statute! "No legislativeact,therefore,
contrary
to the Constitution, can be valid."34 At firstsight,essay 78 depicts
the Constitutionas the sole source of justice. This, however,appears
to be a rathernarrowinterpretation. A more carefulreadingreveals
thatfor Hamiltonthe Constitutionwas not only the source,but also
the recipientof superiorlaw. It did not only distributebut it also
receivedjustice.35As distributor of law, the Constitution
was superior;
31. The term "older" law seems to be a happier expressionthan such terms as
"higher,""natural,"or "historical,"law. Althoughit is not necessarilymore precise
than theseexpressions, it is more comprehensive, since it includes"higher,""natural,"
and "historical" law, eventhelaw of an unwritten constitution. McIlwainuses thatterm.
See MCILWAIN, CONSTITUTIONALISM, ANCIENT AND MODERN 39 (1940).
32. See THE FEDERALISTNo. 78 (Hamilton).
33. Id. at 506 (ModernLibraryed. 1937).
34. Id. at 505.
35. This can be concludedfromHamilton'sconcept of a limitedConstitution. Al-
thoughhe saysin FederalistNo. 78, "by a limitedConstitution, I understand one which
containscertainspecifiedexceptionsto the legislativeauthority, such, for instance,as
thatit shall pass no bills of attainder,no ex-post-facto laws, and the like," his use of
the term "limited"insteadof "limiting"suggeststhat also the Constitutionitselfis
limitedby certainprincipleswhich protectindividualrightsand that the restrictions
upon the legislature,laid down in the writtenConstitution, are only declaratoryof
some of thosesupra-constitutional principlesthat rule the Constitution.This can also
be concludedfromthe factthatHamiltonrefersto the Constitution as "a fundamental
law" (singular),but shortly,thereafter, he statesthat the judges ought to regulate
their decisionsby "the fundamentallaws" (plural), thus again indicatingthat the
Constitutionis only a partial declarationof those supra-constitutional fundamental
laws by which it is limited-andthereforeruled. Does it thusfollow fromFederalist
78 that the Constitutionis the recipientof superiorlaw? There can be no doubt
about thisif one considersthe Federalistas a whole. The Constitution appearshere as
nothingbut the best possible-butby no meansperfect-realization of the ideal of free
government.It is thusinferiorto thatideal and continually nourishedby it. See Dietze,
1958] JudicialReview in Americaand Europe 1243
as a recipientof law, it had to be inferior.And just as it was superior

to the youngerlaw, the statute,it was inferiorto the "older" law.
The acknowledgement of thisolderlaw becameone of thecharacter-
isticsof the exerciseof judicial review by Americanjudges. While
many of them dared to follow only the narrow interpretation of
Hamilton'sessay,othersfollowedthe broaderone, realizingthatsince
the Constitution, as a source of law, was superiorto the statute,and
as a recipientof law inferiorto the older law, the older law had cer-
tainlyto be as superiorto the statuteas it was to the Constitution.
The resultwas thatmanyjudges,while makingreferenceto the Con-
stitution,hastenedalso to stressthe incompatibility of the statutein
questionwith the older law. Others even went so far as to mention
only those older law principles.Two opinionsof originaljudges of
the SupremeCourt may serve as illustrations to show how, fromthe
start,the older law was tied up with the Constitution,and how it
served,even though not expresslyconnected with the Constitution,
as a guidingprincipleto the judge. As early as 1795, JusticePatter-
son, afterreferring to certainprovisionsof the constitutionof Penn-
sylvania,maintained:
It is evidentthatthe rightof acquiringand possessing property, and

havingit protected, is one of the natural,inherentand unalienable
rightsof man . . . The legislature, therefore, had no authority to
makean act divestingone citizenof his freehold,and vestingit in
another, withoutjust compensation. It is inconsistentwiththe prin-
ciplesof reason,justiceand moralrectitude;it is incompatible with
the comfort, peace and of
happiness mankind; it is contrary to the
in
principlesof social alliance every free and
government; lastly,
it is contrarybothto theletterand spiritof theConstitution.
316
Three yearslater,JusticeChasestated:
I cannotsubscribeto the omnipotence of a State Legislature,or

thatit is and
absolute without its
controul;although authority should
not be expressly restrained or fundamental
by the Constitution, law,
of theState.... The nature,and endsof legislative powerwill limit
the exerciseof it. This fundamentalprincipleflowsfromthe very
Hamilton'sFederalist-Treatisefor Free Government(pts. 1-2) 42 CORNELLL.Q. 307,
501 (1957); Dietze, Madison'sFederalist-ATreatisefor Free Goverrment, 46 GEO. L.J.
21 (1957).
36. Van Horne's Lessee v. Dorrance,2 U.S. (2 Dall.) 304, 310 (1795).
natureof our freeRepublicangovernments, thatno man shouldbe

compelled to do what the laws do not require;nor to refrainfrom
acts which the laws permit. There are acts which the Federal,or
State,Legislature cannotdo, withoutexceedingtheirauthority. There
are certainvitalprinciples in ourfreeRepublicangovernments, which
willdetermine and over-rulean apparentand flagrant abuseof legis-
lativepower;as to authorizemanifest injusticeby positivelaw; or to
takeaway thatsecurityforpersonalliberty, or privateproperty, for
theprotection whereofthe government was established.An ACT of
theLegislature(forI cannotcall it a law) contrary to thegreatfirst
principlesof the social compact, cannot be considered a rightful
exerciseof legislative authority.The obligationof a law in govern-
mentsestablished on expresscompact,and on republicanprinciples,
mustbe determined by the natureof the power, on which it is
founded.A few instanceswill sufficeto explainwhat I mean. A
law thatpunisheda citizenforan innocentaction,or,in otherwords,
foran act,which,whendone,was in violationof no existinglaw; a
law thatdestroys, or impairs, the lawfulprivatecontractsof citizens;
a law thatmakesa mana Judgein hisown cause;or a law thattakes
property fromA. and givesit to B: It is againstall reasonand justice
fora peopleto entrust a Legislature withSUCH powers;and,there-
fore,it cannotbe presumedthattheyhave done it. The genius,the
natureand thespirit,of our StateGovernments, amountto a prohibi-
tionof suchacts of legislation; and thegeneralprinciplesof law and
reasonforbidthem.The Legislature mayenjoin,permit,forbid,and
punish;they may declare new crimes, and establishrulesof conduct
forall its citizensin futurecases; theymay commandwhat is right,
and prohibitwhatis wrong;but theycannotchangeinnocenceinto
guilt;or punishinnocenceas a crime;or violatetherightof an ante-
cedentlawfulprivatecontract;or the rightof privateproperty.To
maintain thatour Federal,or State,Legislature possessessuchpowers,
if theyhad notbeen expressly restrained,would,in my opinion,be a
politicalheresyaltogether inadmissible in our freerepublicangovern-
ments.37
Statements like thesewere frequentlymade throughoutthe nineteenth

It became character-
and the firstdecades of the twentiethcenturies.38
37. Calder v. Bull, 3 U.S. (3 Dall.) 386, 387-89(1798).
38. See, e.g.,JusticeStoryin Terrettv. Taylor, 13 U.S. (9 Cranch) 43, 51-52 (1815),
and Wilkinsonv. Leland, 27 U.S. (2 Pet.) 627, 657-58 (1829); JusticeMiller in Loan
Ass'n v. Topeka, 87 U.S. (20 Wall.) 655, 663-64 (1874); JusticeBrown in Holden v.
Hardy, 169 U.S. 366, 389 (1898); JusticeLamar in Simon v. Southern Ry., 236
U.S. 115,122 (1915).
1958] JudicialReviewin America'
and Europe 1245
istic of American constitutionaldevelopmentthat it was not only

maintainedthatthe Constitutionimpliedlimitations on the legislatures
thatwere derivedfromolderlaw, but also thatthe olderlaw in turnim-
plied limitationsupon the Constitutionitselfand thus upon the legis-
laturethatactedunderthatConstitution.39
As can be gatheredfromthe earlydecisionsjust quoted,the "older"
law was of a most varied type. It rangedfromthe principlesof the
commonlaw to those of naturallaw and the law of God; fromsuch
general maximsas the social contractand free governmentto those
of naturalrightsand natural justice.40Naturally,this great variety
of valueswas not likelyto createa preciseand clearlydefinedconcept
of the older law, and this was not alteredby the fact that some of
thesevalues were put down in so many words in famousdocuments,
such as the colonial chartersand the Declaration of Independence.
Since,in turn,the older law was in variousways intertwined with the
writtenConstitution, that Constitutionwas by no means that clearly
defineddocumentwhichcorrespondedto theideal of a Thomas Paine.4'
Consequentlythebody of constitutional law could not possiblybecome
too conciseeither.Hooker said of law thatit was "the breathof God"
and "investedwith a halo." 42 From what we have seen, it does not
seem improperto apply that attributeto the AmericanConstitution.
Thus the whole body of constitutionallaw in this countrybecame
enshroudedin a certainmysticism.This resultedin the venerationof
theConstitution as somecivicgospel.43Its congregationweretheAmeri-
can people; its highpriests,the justicesof the SupremeCourt.
It is obviousthatsuch a vague and mysticalconcept of a Constitu-
tion cannot fulfillone essentialpurpose of the law, namely,legal
security.Therefore,it was necessaryto concretizethe manifestations
of the older law. Naturally,thistask fell to thosewhose "properand
peculiarprovince"is to interpretthe laws, the judges.44By applying
the law to the case beforethem,theymouldedwhat was nothingbut
39. See Corwin, The "Higher Law" Backgroundof AmericanConstitutional Law
(pts. 1-2), 42 HARV. L. REV. 149, 365 (1928-29). See also HAINES, THE REVIVAL OF
NATURAL LAW CONCEPTS (1930).
40. This versatilityprobablytraces to BLACKSTONE, COMMENTARY ON THE LAWS OF
ENGLAND (1765-69).
41. See Paine's statementthat 'a constitution does not exist unless one can put it
intoone's pocket,"in 3 BURDEAU. TRAITE' DE SCIENCE POLITIQUE 16 (1950).
42. FRANK, LAW AND THE MODERN MIND 54-55(1930).
43. See 1 BRYCE, THE AMERICAN COMMONWEALTH 251,305 (1910).
44. THE FEDERALIST No. 78, at 506 (Modern Libraryed. 1937) (Hamilton).
1246 VirginiaLaw Retiew [Vol. 44
a massof constitutionaland extra-constitutional principlesintoa specific

Constitution. And whereas theirinterpretation of the law would take
into accountthe specificconditionsof a specifictimeand thusbe very
much down to earth,45 it would always be remindfulof the values of
theolderlaw, and thusbe close to the Heavens. The judges performed
theirtask so admirablythat Americangovernmentcame to be char-
acterizedas a "government of laws-not of men,"a termwhichsymbol-
izes thetransmutation of theolderlaw intoconcretenorms,emphasizing,
at the same time,the superiorityof the formerover the latter. Like
the sculptorwho, when moulding his clay into a piece of art, is
guidedby considerations of aesthetics,
theAmericanjudgeswere,when
formingthe law into legal decisionsthroughan interpretation of the
Constitution, guided by considerations of an ethicaljustice.
The powerof judicialreview,far-reaching as it was, did by no means
a
implyto the judges participationin the processof politicaldecision,
as was emphasizedby ChiefJusticeMarshallas earlyas 182446 and by
JusticeRobertsas late as 1936.47 The judiciaryremainedin the position
attributedto it by Hamilton,i.e., "beyond comparisonthe weakest
of the threedepartments of power."48 In spiteof greatand tempting
of self-aggrandizement,
possibilities the judges made it clear that they
did not intendto transcendthe bounds thatwere imposedupon them
45. See Chief JusticeMarshall'sdictum: "[W]e must never forget,that it is a
constitution we are expounding.""[A] constitution, intendedto endure for ages to
come, and, consequently, to be adopted to the various crisesof human affairs."Mc-
Culloch v. Maryland,17 U.S. (4 Wheat.) 316,407, 415 (1819).
46. "Judicialpower, as contradistinguished from the power of the laws, has no
existence.Courtsare the mere instruments of the law, and can will nothing.When
theyare said to exercisea discretion,it is a mere legal discretion,a discretionto be
exercisedin discerningthe course prescribedby law; and, when that is discerned,
it is the duty of the Court to follow it. Judicial power is never exercisedfor
the purposeof givingeffectto the will of the Judge;alwaysfor the purposeof giving
effectto the will of the Legislature;or, in otherwords,to the will of the law." Osborn
v. Bank of the United States,22 U.S. (9 Wheat.) 738, 866 (1824).
47. "It is sometimessaid thatthe court assumesa power to overruleor controlthe
action of the people's representatives. This is a misconception. . . . When an act
of Congressis appropriately challengedin the courtsas not conformingto the con-
stitutionalmandatethe judicial branch of the Governmenthas only one duty,-to
lay the article of the Constitutionwhich is invoked beside the statutewhich is
challengedand to decidewhetherthelattersquareswiththe former.All the courtdoes,
or can do, is to announce its consideredjudgmentupon the question. The only
power it has, if such it may be called, is the power of judgment.This court neither
approvesnor condemnsany legislativepolicy." United States v. Butler,297 US. 1,
62-63(1936).
48. Tim FwmL4usTNo. 78, at 504 (Modern Libraryed. 1937) (Hamilton).
by the law and decidedto remainnothingbut interpreters of thatlaw.

This self-abnegationcontributedto a growing admirationfor the
bench. Though the weakest of the branches of government,the
judiciarybecame the most respected.Foreignershave been impressed
by this venerationever since de Tocqueville.49 An Americanwriter
could verywell speak of "The Cult of the Robe." 5
On the otherside of the Atlanticone could, by contrast,speak of a
cult of the popularvogue. Whereas a statementlike BenjaminHich-
born's in 1777, that "civil liberty"was "not a 'governmentby laws,'
made agreeableto charters,bills of rightsor compacts,but a power
existingin the people at large, at any time,for any cause, or for no
cause, but theirown sovereignpleasure,to alteror annihilateboth the
mode and essenceof any formergovernment, and to adopt a new one
in itsstead"6' was fundamentally rejectedin America,the Rousseauistic
concept of the omnipotenceof the volonte general met, in the end,
with generalapprovalin Europe. This was due to the new concept
of the constitutionand the law that came into existenceduringthe
Frenchrevolution.
As we have seen, the AmericanConstitutiondid by no means,as
Thomas Paine thought,owe its existenceto a mere constituentact
by the Americanpeople.52Rather,it was largelydeclaratoryof norms
that had-though unwritten-beenaccepted throughoutthe colonial
period. ThereforetheAmericanRevolutioncan hardlybe said to have
brokenthe continuityof constitutional law. The French revolution,
on the otherhand, broke that continuity.Here, the adoptionof the
writtenconstitutionamountedto a truly constituentact, since the
unwrittenconstitution of the ancien regime was not consideredto be
a constitution at all. Volney'squestionto theadherentsof theold order,
"I ask you, where is your Constitution?Who made it? When was
it made? Where is the code thatcontainsit,whereare the well known
and invariablecustomswhich form it?" 3 appeared to the French
more convincingthan the answerthat it was absurdto maintainthat
"a State which has existedand flourishedfor three thousandyears
49. See 1 DE TOCQUEVILLE, DEMOCRACY IN AMERICA 101-06 (1873).
50. This term was firstused by Jerome Frank as the title of an article which ap-
pearedin the SaturdayReview of Literature,Oct. 13, 1945,p. 12.
51. PRINCIPLES AND ACrs OF THE REVOLUTION IN AMERICA 27 (Niles ed. 1822).
52. PAINE, RIGHTS OF MAN 182 (Everyman's Library ed. 1915).
53. VOLNEY, DES CONDITIONS NECESSAIRES A LA LUGALITE DES tTATS-GENERAUX 5 (1798)
(author's translation).
1248 VirginiaLaw.Revieiw [Vol. 44
should never have been constituted."54The French Revolution re-

jected the olderlaw of the ancienregimeand replacedit by an entirely
new law. It replacedthe ancient,organicallygrown,naturalconstitu-
tion,throughthe modernformalconstitution which owed its existence
to a mereact of the generalwill.
This generalwill was the ruthlesspurgerof the older law and was
consideredinfallible. Thus the new constitutionestablishedby the
Conventionappeared as the very embodimentof right,and Sieyes
could very well maintainthat "the nationalwill only needs its own
realityin orderto be alwayslegal."5 The glorification of thenew con-
stitutionwent so far as to lead one delegateto proposethat someone
who dared suggestan amendmentto the constitutionshould suffer
capital punishment.56 In French revolutionarythoughtthe old dis-
tinction,so characteristicof Americanideology, between the older
naturallaw and the youngerpositivelaw was cast aside. Whatever
was legal,was also legitimate.
This identitybetween legalityand legitimacywas of even greater
consequencein view of the fact that it was matchedby an identity
between constitutionmaker (pouvoir constituant) and ordinarylaw
maker (pouvoir constitue). For the French did not only believe in
the maximthatthe new constitution was supremeand unhamperedby
considerations of higherlaw. Their constitution also declaredsupreme
power vestedin the representation of the people,the legislature.Thus
not only the constitution made by the legislatorhad to be legitimate;
in addition,any law made by the legislatorhad to be constitutional.
This, of course,leftno room for judicial reviewwhich is based upon
the distinctionbetween inferiorand superiorlaw. Its exercisewas
punishableas a crime.57Not the Robe, but the popularvogue reigned
supreme.
The voice of the people was identifiedwith the voice of God, and
did not remaindistinguished fromit as it did in America in spite of
the progressingmarch of democracyin that country. In the New
World,God's law, or thelaw of nature,had,alongwiththeConstitution
54. Cabiersde la Noblesse du Bugey,quoted in LEMARIE, LES Lois FONDAMENTALES
DE LA MONARCHIE FRANCAMSE 2 (Diss. Paris 1907).
55. SIYEis, QUTEST-CE QuiE LE TIERS-kTAT? 114 (3d ed. 1789).
56. See MICHELET, HISTORICAL VIEW OF THE FRENCH REVOLUTION 3 (1908) saying:
"The Revolution . . . was but the triumph of right, the resurrection of justice, the
tardy reaction of thought against brute force."
57. See note 26 supra.
1958] JudicialReviewin Americaand Eu'rope 1249
embodyingits principles,remainedthe guide for the acts of the legis-

lator. In France,thepeople,havingdiscoveredtheirown divinity, could
derisivelyrejectwhat theyrightlyconsidereda rathermysticalconcept
of the supremeolder law. It was replacedthrougha concrete,written
law, which could be seen in black on white and whose realitywas
beyondany doubt: A law withmere"artificial reason"was discardedin
favor of one which appeared to be the very embodimentof raison
itself.'8This convictionin the rightfulnessof the generalwill resulted
in sheerenjoymentof law-making.The legislator,drunkwith power,
indulgedin the framingof more and more,and, in his opinion,better
and better,constitutions and statutes.A wave of codificationswept
over the country,climaxingin the Napoleonic legislationwith its
masterpiece, theCivil Code.59 These laws wvere looked upon as the last
and finaldemonstration of truth,and the French juristBugnet stated
verywell the sentiment of his timewhen he said thathe did not know
such a thingas the civil law, but only the Code Napoleon.60
The new ideas did not remainconfinedto France. The vision of
Kant, who pressedto its extremelimitsthe oppositionbetweennatural
and positivelaw and separatedethicsfromlaw, came truein spiteof all
attemptsat restoration:The FrenchRevolution,having"discoveredin
humannature . . . an abilityto improvement," was "a phenomenon
in human history"which was "never forgotten." 61 Its impact upon
the othernationsof the continentwas an immediateand enduringone.
The hypnosisderivingfrom the French codificationswas probably
even strongerthan thatstemmingfromthe militaryand politicalsuc-
cessesof the new Caesar. At any rate,it was a morelastingone, being
58. See FRIEDRICH,op. cit.supranote23,at 103-05.
59. The Civil Code (or NapoleonicCode) was enactedin 1804,aftervariousdeclara-
tions of the rightsof man and constitutions had been framedsince 1789. It was
followedby othercodes, such as the Code of Civil Procedure(1807), the Commercial
Code (1807), the Code of CriminalProcedure(1808), and the Penal Code of 1810. For
a good surveyon Frenchcodificationafterthe Revolution,see Brissaud'scontribution
to A GENERAL SURVEY OF EVENTS, SOURCES, PERSONS AND MOVEMENTS IN CONTINENTAL
LEGAL HISTORY 274-93 (1 ContinentalLegal History Series 1912) [hereinafter cited
as GENERAL SURVEY].
60. BONNECASE, ECOLE DE L'EXJCGESEEN DROIT CIVIL 128 (2d ed. 1924). This attitude
could hardly be found prior to the French Revolution, although there had come into
existencesome codificationsof the law due to the then existingreformmovements.
But at thattimethe customarylaw was not yet rejectedto the degree it was after
the French Revolutionand, consequently,the writtennormswere not consideredas
absolutelaw.
61. VII DER STREIT DER FAKULTXTEN IN DREi ABSCHNITrEN 400 (1798).
responsibleforthe wave of codificationthatwas to sweep over Europe

in thefollowinggenerations.
On the otherside of the Rhine, the HeidelbergRomanistThibaut
pleaded for a codificationof Germanlaw as early as 1814.62 And al-
thoughtheinfluential Savigny,in hisanswerto Thibaut,at once sounded
a warningon the danger of such an undertaking, and the Historical
School foundedby himralliedto his support,theirefforts were of no
avail.63Quite a few of the Germanstatesadoptedwrittenconstitutions
thatbear themarkof Frenchliberalism64 and,afterunification had been
achieved,the processof codificationthathad been goingon throughout
the nineteenthcenturyin the variousGermanstateswas broughtto a
climaxin a seriesof codificationsforthe Reich.65To the southof the
Alps, the situationwas very similar. Neither the Historical School66
northerestoration of theItalianprincesafterthefallof Napoleon could
preventan increasingcodificationof the law. The extensionof the
laws of the Napoleonic Empireto the Italianstateswas receivedby the
peoplewithacclamation,and thelawsmetwitha betterand morelasting
fortunethanthesovereignty of theEmpire. Afterthefallof Napoleon,
theItalians'desireforcodificationwas so stronglyfeltthatthe restored
governments made the cause of codificationone of theirfirstcares. If
such legislationwas in the beginningpossibleonly in the variouspetty
62. See THIBAUT, OBER DIE NOTHWENDIGKETrEINES ALLGEMEINENBURGERLICHEN
RECHTSFUR DEuTSCHLAND(1814).
63. Savigny's answer to Thibautwas publishedin SAVIGNY,VOM BERUF UNSERERZEIT
FUR GESETZGEBUNG UND RECHTSWISSENSCHAFT (1814) and in Stimmenfur und wider
neue Gesetzbzfcher, 3 ZEITSCHRIFTFUR GESCHICHTLICHERECHTSWISSENSCHAFT No. 1
(1816).
64. E.g., Nassau (1814), Schwarzburg-Rudolstadt (1816), Schaumburg-Lippe(1816),
Waldeck (1816), Saxony-Weimar (1816), Saxony-Hildburghausen(1818), Bavaria
(1818), Baden (1818), Wiirttemberg (1819), Hanover (1819), Brunswick(1820), Hesse-
Darmstadt(1820),Saxony-Coburg(1821), Saxony-Meiningen (1824), Saxony-Meiningen-
Hildburghausen (1829).
65. Saxonyissueda civil code in 1863;criminallaw was codifiedin Bavariain 1813
and 1861,in Prussiain 1851,and in Austriain 1852-53.Codifications of civil procedure
were adoptedin Bavaria (1869), and in Hanover (1850). These are only the more out-
standingof the different codificationsin the Germanstatesbeforeunification.For the
whole of Germany,criminallaw and the law of literarycopyrightwere systematized
in 1870;the law of patentsand that of copyrightsin the plasticarts were regulated
six yearslater. In 1877,civil and criminalprocedureand the law of bankruptcywere
codified. The most difficult task of a codificationof civil law was undertakenin
1874. For a surveyof codificationin Germanyduringthe nineteenth century,see the
writingsof Brunner,Schrbder,Stobbe,and Z6pflin GENERAL SURVEY.
66. See Vanni,I GiuristiDella Scuola Storica,RIVISTA DI FILOSOFIA SCIENTIFICA (1865);
Brugi,I RomanistiDella Scuola Storica,CIRCOLO GIURIDICO (1883).
statesof thepeninsula,67 therecame about,afterthe politicalunification

of the country,a codificationof the law forthe whole nation."8Other
Europeannationsexperienceda similargrowthof codifiedlaw.69
The consequencesof thesecodifications upon the legal professionare
not to be underestimated.Of course,under the new concept of the
relationbetweenlaw and constitution, the judges had no rightto test
legislativeacts. However, the denialof such a rightdid not in the be-
ginningnecessarilyimply their acquiescence in the new situation.70
The importantfactis thatthroughoutthe periodof codification, there
came about a change of mindwith the judges. Soon, a denial of the
rightto testlawswas no longerconsideredan infringement upon judicial
competence. On the whole, the judges lost the awarenessthatsuch a
rightwas conceivable.They became "brain-washed"by the new ideas,
and moreand more convincedthatany one of the legislativefiatswas
a perfectembodiment of reasonand beyondreproach.In theiropinion,
all laws were not only legal, but also legitimate.Judicialperformance
becamenothingbuta meretechnique,largelyconcernedwitha formalis-
tic interpretationof the mereletterof the writtennormwhose validity
was acceptedat face value. The quaestiojurisjuriswas not raised. The
disasterwhichhad been foreseenby Savignyin 18'14had come true.
In hisfamousanswerto Thibaut,thefounderof the HistoricalSchool
had deniedthe"call" of histimeforcodification.But,at the sametime,
he had stressedthat there was a definitecalling for jurisprudence
(Rechts'wissenschaft) to orientthe positivewrittennormstoward the
67. For instance,the Kingdom of the two Sicilies enacted a code on civil and
criminallaw, civil and criminalprocedure,and commerciallaw in 1819. The Papal
States received codes of civil procedure (1817) and commerce (1821). Tuscany
adopted a criminalcode in 1853. Parma received codes on civil law and civil pro-
cedure in 1820,and codes of criminallaw and procedurein 1821. Sardinia (including
Genoa and Piedmont) promulgateda civil code in 1837,a criminalcode in 1839,a
commercialcode in 1842,and codes of criminaland civil procedurein 1848and 1854.
All of these codes were influencedby the French codes.
68. In 1865,therewere promulgatedfor all of Italy a Civil Code, a Code of Civil
Procedure,a Code of CriminalProcedure,and a Code of Commerce.In 1890,a Criminal
Code was promulgated.For a surveyof codificationin Italy duringthe nineteenth
century, see Calisse'scontribution
to GENERAL SURVEY 187-97.
69. For the extensionof the Napoleonic Code to other countries,see Brissaud,
op. cit. supra note 59, at 302-05. For a surveyof codificationin the Scandinavian
countries, see Hertzberg'scontributionto GENERAL SURVEY 562-68;Glasson,La Codifica-
tion en Europe en XIXe sie'cle,2 RFEVUEPOLITIQUE ET PARLEmENTAIRE 201 (1894).
70. The numerouslaws providingfor a punishmentof judges exercisingjudicial
revieware the best proof of this. See note 26 supra.Napoleon's ill treatment of the
juristsis a well knownfact.
values of higher,historicallygrown law, and thus to preventthose

norms from degeneratinginto somethingmerely nominalistic.71 A
shortremarkon therole of jurisprudence duringthe periodof codifica-
tion seemsthereforeappropriate,the more so since in European coun-
triesthat science is as importantfor the developmentof the law as
are thecourts.Did Europeanjurisprudence attemptto savethelaw from
degeneratinginto positivism?On the whole, this question must be
answeredin thenegative.It can be said thatEuropean juristsbecameas
much the slaves of the writtenlaws as did the judges. With a few
exceptions,72French jurists,throughtheir conceptionof codification
and its principles,were reducedto the part of mere interpreters. The
exegeticalschool73was succeeded by the dogmaticschool,74and what
mainlydistinguished the latterfromthe formerwas that it followed
the orderof the titlesof the Civil Code ratherthanthatof the articles.
Anotherschool was thatof Laurent,who attachedthe highestimport-
ance to thestudyof the generalprincipleswhichgoverneach subject.75
But,as one authorput it,"whetherusingexegesis,dogmatics,or govern-
ing principles,all thesemethodsdiffered only in theirway of arranging
thematerial.At bottomtheywereidenticalin one respect:theirabsolute
respectforthe text,which servedas a pointof departurefor theirde-
velopments,and the logic of their deduction,which was their sole
meansof solvinglegal problems."76 Clearly,juridicalsciencein France
was not likelyto ask any questionabout the value of the law. The
situationwas similarin Germany. The Historical School did by no
means succeed in preventingan extremepositivism,but, being itself
detachedfromnaturallaw, only delayedit. The whole bankruptcyof
that school is symbolizedby the ironicalparadox that in 1842 their
founderand acknowledgedleader, Savigny, the great opponent of
71. See SAVIGNY, supra note 63.
72. See Batbie, Revisiondu Code Napoleon, 28 REVUE CRITIQUE DE LEGISLATION ET DE
JURISPRUDENCE 125, 308 [hereinafter cited as REVUE CRITIQUE], the Civil
criticizing
Code and adding proposals for reform. For further criticism of the Civil Code, see
Batbie's subsequent articles in 29 REVUE CRITIQUE 116; 30 REVUE CRITIQUE 50, 128, 213,
322, 402; ACCOLAS, NEcEssIiE DE REFONDRE L'ENSEMBLE DE Nos CODES ET NOTAMMENT
LE CODE NAPOLEON AU POINT DE VUE DE L'IDE'E DEMOCRATIQUE 16-22 (2d ed. 1866).
73. Outstanding representativesof this school were Duranton and Troplong.
74. Probably its most illustrious representativewas Demolombe.
75. For an account of legal science in this period, see BONNECASE, LA SCIENCE DU
DROIT PRIVE EN FRANCE AU XIXE SikcuE,LA THE'MIS (1819-31);BONNECASE, FONDATEUR
ATHANASE JOURDAY (1914).
76. Alvarez' contribution in THE PROGRESS OF CONTINENTAL LAW IN THE NINETEENTH
CENTURY 40 (2 Continental Legal History Series 1918).
codification, becamePrussianMinisterforthe revisionof statutes.Five

yearslater,the eminentjuristvon Kirchmanndeniedthe value of juris-
prudenceas a sciencebecause of the jurists'impotencetowardand de-
pendenceupon legislativeacts.77And towardthe end of the century,
Bergbohmcould writethatfromthepointof view of juridicalpositivism
everylaw, even the basestlegal norm,mustbe recognizedas binding,
as long as it came about in the prescribedforms.78He expressedthe
thengeneralopinionin a countrywhere positivismhad come to reign
supreme.In Italy,juristicthinkingwas, duringthe nineteenth century,
stronglyinfluencedby French and German authors. In that country,
too, the juristsdid, on the whole, accept the acts of the legislatorat
facevalue.79In therestof Europe,thesituationwas not muchdifferent.
Thus the representatives of the European schools of jurisprudencebe-
came as much enchantedwith the concise normsthat were showered
upon themby the legislatoras did theirbrethrenof the Robe. Like the
latter,convincedof the finalvalue of all legal norms,they made no
attemptsto challengethe legitimacyof those norms.
If the nineteenthcenturywitnesseda definitedependenceof juris-
prudence upon the legislature,that dependence turned into slavery
the more the twentiethcenturyadvanced. This was due to a variety
of causes. Firstof all, owing to the march of egalitariandemocracy,
the legislatureas the most democraticof the branchesof government
becamemoreand moreentrenchedin itspower and could thusincrease
its prestige.This developmentmade unlikelya reversalof the jurists'
respectforthe legislativebody and the resultingacquiescencein legis-
lative fiat. However, importantas this considerationmay be, another
reasonoughtto be emphasized.It seemsimperativenot to overlookthe
factthatthe furtherincreaseof legislationduringthiscenturyreduced
the very possibilityof a change in the jurists'attitude. Already von
Kirchmannhad statedthatjurisprudence would be overtakenby legis-
lationand would neveragain be able to catch up with it.80The truth
of thisstatement becamemoreand moreevidentwhen legislativepower
was increasingly delegatedto theexecutiveand thustheshowerof legis-
lative acts, as it had existedduringthe precedingcentury,became a
77. See KIRCHMANN, YBER DIE WERTHLOSIGKEIT DER JURISPRUDENZ ALS WISSENSCHAFT
(1848).
78. BERGBOHM, JURISPRUDENZUND RECHTSPHILOSOPHIE (1892).
79. See SoLMI, LA STORIADEL Diurro ITALIANO,851-55 (3d ed. 1930).
80. See KIRCHMANN,op. cit.supranote77.
veritabledelugeof statutesand executivedecrees.8'Whereaspreviously

the jurists,whenacceptinglegislativeacts,had actedvoluntarily because
theywere genuinelyimpressedwiththe lawmaker'sproduct,theynow
had virtuallyno alternativebutthatof acceptance,becausetheenormous
increaseof normsjust overwhelmedthem. Thus theycontinuedto ac-
quiesce. Formerlyonly statuteswere consideredconstitutional; now
also decrees,beingin conformity withstatutes,would be so considered.
Judicial subserviencehad progressedone step further. The whole
attitudeof that time was well expressedby Kelsen's dictumthat "a
wrong of the state must under all circumstancesbe a contradiction
in terms."82
This statement, made in the 'twenties,sums up the predicamentof
Europe's legal profession.The main blame for thatpredicamentgoes,
of course, to values of the French Revolution,the worship of the
the legislature,and the ensuing
volonti ge'ne'raland its representative,
venerationof the new codifications.But also, those who interpreted
these codificationsare to blame, althoughtheirattitudecan be con-
sidereda tragicconsequenceof the French Revolutionratherthan ill
will. It is not maintainedthatan existingordercan existwithouta firm
foundationof positivelaw. Codificationof the law may not be bad in
itself.However one is temptedto wonder whetherthe supposedend
of codification,legal security,was actually achieved,or whetherthe
mass of codificationthat came about in the nineteenthand twentieth
centuriesdid not rathercreatea stateof permanentrevolutionresulting
in legal insecurity.83Also, it is not denied that the interpretationof
positivenormsis the legitimatetask of the judges and those trained
81. See ScHMITT,op. cit.supranote28,at 18-21.
82. KELSEN, HAUPTPROBLEME DER STAATSRECHTSLEHRE249 (1923). It is realized, of
course,thatKelsen'sdictumcould,fromthe pointof view of his theoryof law, not be
differentand did not amountto a denial of ethicalvalues. Nevertheless,it afforded
even the most despoticrulera meansfor demandingobediencefromhis subjects,in-
cludingjurists,and was thereforenot unlikelyto have dangerousconsequences.It ap-
pears indeed ironicalthat Kelsen should have been one of the firstto feel the in-
justice(the "wrongof thestate"thatcould,accordingto Kelsen,not exist) of the Hider
regime.
83. JacobBurckhardt saw the mostdisastrous consequencesof the FrenchRevolution
in the "authorizationfor a permanentrevision" (Vollmacht zur ewigen Revision),
sayingthat"the decisivelynew thingwhich was introducedby the FrenchRevolution
of and desirefor changesfor the public weal." BURCK-
intothe world is the possibility
HARDr, HISTORISCHE FRAGMENTE 205 (1942). HAURIOU, PRINCIPES DE DROIT PUBLIC XI
(1916), complainedthatthe Revolutionof 1789amountedto the absoluteintroduction
of the writtenlaw and the systematicdestructionof customaryinstitutions, that "it
in thelaw. Juridicalpositivismcan thusfulfillan important role forthe

preservationof legal security,which is a prerequisitefor the orderin
society. England furnishesan example that legal positivismin itself
need not have bad consequences.84However, it is maintainedthat
positivismmightlead to disaster,and thatin its extremeformson the
continentit did lead to bankruptcyof the law itself,as soon as man
made law was consideredthe equivalentof right,as soon as Gesetz was
conceivedto be ofnecessityRecht.
Having arrivedat thisstateof nihilism,85
the finalphase of the tragic
developmentcan only appear natural. The statementof a Frenchman
warningof the "legalitythat kills"86 found its tragic confirmation,
shortlyafterSchelling'slecturesat Berlinduringthe winterof 1841-42
had usheredin thespiritualcatastropheof Germanidealisticphilosophy
and theology. Under the normsof the liberalwrittenconstitutions of
Italy,Germany,and France87supremepower was transferred to dicta-
tors,88who later,in a very legal manner,could proceed to purge the
resultedin a perpetualstateof revolution, because the mobilityof the writtenlaw was
not any longer neutralizedby certaincustomaryinstitutions, and because the forces
of changewere strongerthanthose of stability."It is interesting to note in this con-
nectionMadison'sopinion on codification:"The internaleffectsof a mutablepolicy
are . . . calamitous.It poisonsthe blessingsof libertyitself. It will be of littleavail
to the people,thatthe laws are made by men of theirown choice, if the laws be so
voluminousthattheycannotbe read,or so incoherentthattheycannotbe understood;
if theybe repealedor revisedbeforetheyare promulgated, or undergosuch incessant
changesthat no man,who knows what the law is to-day,can guess what it will be
to-morrow."THE FEDERALIST No. 62, at 406 (Modern Libraryed. 1937) (Madison).
84. But see thewarningvoiced by theLord ChiefJusticein LORDHEWART, THE NEW
DESPOTISM(1929). The situationin England stronglysupportsour thesisthat too
muchemphasisupon the values of codifiedlaw is likelyto resultin a declineof right
and justice. In England,the commonlaw remainedfundamentally intactin spite of
variouscodifications.Codifiedlaw thus never supersededthe historicallygrown law
to the degreeit did on the continent.Legal positivismwas, therefore, not likelyto
have disastrous consequences.
85. See MlTrEIs, UBERDAS NATURRECHT 29 (1948).
86. SCHMITT, Op. cit. supranote28,at 31.
87. The Italian constitution, the Statuto,was the old constitutionof Piedmontof
1848. The Constitutional Laws of the Third Republic were adopted in 1875. The
WeimarConstitution was adoptedin 1919.
88. Mussoliniwas appointedPrime Ministerby the King on Oct. 30, 1922,and ob-
taineda 306 to 116 vote of confidencein the Chamberon Nov. 18. A week later,the
Chambergrantedhim plenarypowers by a vote of 275 to 90. Hider was appointed
Chancellor by PresidentHindenburg on Jan. 30, 1933, and got plenary powers
throughthe Enabling Act of March 24 by the comfortablemajorityof 441 to 94.
(No votes were cast by 81 communists and 26 socialists,who were imprisonedor in
hiding). Petain receivedplenarypower fromthe regularlyconstitutedNational As-
laws of theirliberal and democraticfeatures." The continuationof

dictatorshipwas, in turn,facilitatedby a legal professionwhich had
been broughtup in a traditionof subservienceto the legislatorand his
writtennorms. Possibly still unaware that sheer legality had now
definitelykilled legitimacy-forto most of them this was impossible
in view of the accepted identitybetweenthesetwo values-the repre-
sentativesof jurisprudenceas well as the membersof the judiciary
continuedto accept decrees and laws as they were used to doing,
in spiteof thefactthatmanyof theselaws obviouslydid not come up to
that"ethicalminimum"which Georg Jellinek,one of the greatEuro-
had consideredthe essenceof law.Y0 Kant's idea of a
pean positivists,
rightof resistanceagainstthe obviouslyunjust normwas forgotten.91
The words summ jus summainjuriarevealedtheirtruthin a most
terribleway. In contrastto theirAmericancolleagues,Europe's jurists,
and especiallythe judges who applied terrorlaw, had reached a low
pointin professionalethics.
IV
The reactionagainstthissituationwas as sharpas it could be. After
the catastropheof the Second World War and the fall of the au-
thoritarian regimes,the Europeanstook stepsto emancipatethemselves
not only fromdictatorship, but also fromthe omnipotenceof a legisla-
tive body which,seconded by a positivistnominalism, had paved the
way to dictatorship and disaster.The modem European constitutions
did not only re-establishdemocraticformsof government.For the
protectionof the individual,they also took care that the most demo-
cratic branch of governmentwas restrictedwithin proper bounds.
Provisionwas made for the review of legislativeacts throughcon-
stitutionalcourts.92Thus the few voices which in the precedingdec-
ades had warned againstthe dangersensuingfroma blind acceptance
of legislativefiathad finallycome to be recognized.
semblyon July10, 1940,by a vote of 569 to 80. Even if the communists, who were
not presentat the vote,would have voted againstthis act, it would have passed with
a comfortable majority.
89. Formally,however,neitherMussolininor Hitler ever abolishedthe old con-
stitutions,the Statutoand the Weimar Constitution, but rathermade use of the pro-
visionswhichservedtheirpurposes.
90. See JELLINEK, DIE SoziALETHIscHE BEDEUTUNG VON RECHT, UNRECHT, UTNDSTRAFE
45 (2d ed. 1908).
91. See MiTrrEis,op. cit.supranote85,at 30.
92. See Dietze, Constitutional Courtsin Europe, 60 DICK. L. REv. 313 (1956).
1958] JudicialReviewin Americaand Eurrope 1257
In spite of the jurists'generalacceptance of the supremacyof the

lawmakerthroughoutthe nineteenthand firstdecades of the twen-
tiethcenturies, such voiceshad existed.Significantly, theywere strong-
est in France, where the problem of legality versus legitimacyhad
firstbecome evident,and in Germany,where juridicalpositivismhad
reached its most extremeforms. As to the scope of judicial review,
thereexistedmainlytwo schools of thought.A narrowerexerciseof
judicialreview,similarto what could be noticedin the United States,93
being based upon specificconstitutional provisions,was distinguished
froma broaderone which adjudged laws for theircompatibility with
naturaland supra-positivelaw. These schools had importantrepre-
sentativeson both sides of the Rhine. The formerwas representedby
Jalabert,Jeze, and Saleilles in France, by Buehler and Nawiasky in
Germany;94 thelatterby Thaller,Hauriou,and Duguit,and by the Ger-
mansGoldschmidt, von Bieberstein,and von Hippel.95While in the dec-
ades priorto the Second World War the questionhad been whether
eitherone of theseschoolswas justifiedat all in advocatingjudicial re-
view, now the Europeans' main problemaccepted the institutionof
judicial reviewfor its verypremise,namely,which one of the schools
was rightand shouldbe followed. This was indeed progressfromthe
Europeans' traditionalacceptanceof legislativesupremacy.
Of the threemajor countries,judicial review has been weakest in
modernFrance. This is due to a varietyof factors.France being the
countryof governmentby assembly(gouvernement d'assemblee)par
excellence,the idea of legislativesupremacyand the resultantglorifica-
tion of writtennormswas here more firmlyentrenchedthan in the
other countries. Besides, the French, under the Vichy regime,can
hardlybe said to have experienceddictatorship in its mostcruel forms,
or fortoo long a period. Consequently,the failureof the Rousseauistic
type of democracywas not too obvious,the more so since it could be
pointedout thatthe arrivalof the Petain regimewas not only due to
theshortcomings oftheThird Republicbutalso to theGermaninvasion.
Nevertheless,the establishmentof the ConstitutionalCommi ttee
(ComiteConstitutionnel) with power to "determinewhetherthe laws
passed by the National Assemblyimplyan amendmentof the consti-
tution"marksdefiniteprogresstoward the institutionof judicial re-
93. See textat P. 1243supra.
544,546-48
94. See Dietze,judicial Reviewin Europe,55 MICH. L. REv.539,(1957)S
95. Id. at 542-48.
view.6 The new constitution of the FifthRepublic revealsa further

trendtowardjudicialreview.
Under the presentItalian constitution,judicial review existsin a
very strongform. In distinctionto the ComiteConstitutionnel, the
Constitutional Court (CorteCostituzionale) is composedto guarantee
its independencefromthe political departmentsof government,and
has also the authorityto test the constitutional legalityof laws and
acts havingforce as the law of the Italian State and Regions.97Ever
since it came into existence,the Italian court has demonstrated that it
is no mererubberstampof thelegislature, and has proveditswillingness
and abilityto protectthe individualfromlegislativeencroachments.98
While the GermanFederal Constitutional Court (Bundesverfassungs-
gericht)99 is, as to its compositionand independence,very similarto
its Italian counterpartit extendedthe scope of judicial review con-
siderably. The reasonsfor this are manifold. First of all, the blind
acceptance of man made law had the most disastrousconsequences
in Germany,resultingin the cruel authoritarianism of the Third
Reich. Naturally German judges were most anxious to prove their
farewellto a positivism which had assumedtrulybarbaricformsin the
precedingyears. Their attemptsto enlargethe scope of judicial re-
view were encouragedby the post-warrevivalof a broad concept of
natural law. Following the constitutionsof the newly established
GermanLander, the Bonn Basic Law, in contrastto the French and
Italianconstitutions, did not only announcethe validityof the secular-
ized deisticnaturallaw of the age of reason,but also the relevanceof
the theistichigherlaw of the Middle Ages-a law which was there
96. For a discussion of judicial review in the Fourth Republic by French authors, see
LEMASURIER, LA CONSTITUTION DE 1946 ET LE CONTRULE JURIDIcTIONNEL DU LEGISLATEUR
(1954), which contains a comprehensive bibliography; PRELOT,PRECIS DE DROIT CON-
STITUTIONNEL 539-41 (1950); DUVERGER, MANUEL DE DROIT CONSTITUTIONNELET DE
SCIENCE POLITIQUE 376-78(5th ed. 1948).
97. For comments upon the Italian constitutional Court, see generally Farrelly, The
Italian Constitutional Court, 1 ITALIANQ. 50 (1957); Farrelly & Chan, Italy's Con-
stitutionalCourt: ProceduralAspects,6 AM. J. COMP.LAW 314 (1957). Among the
Italian authors, see generally ESPOSITO,LA COSTITUZIONEITALIANA263-81 (1954);
LUCIFREDI,LA NUOVACOSTITIZIONE ITALIANA197-205 (1952).
98. See Farrelly,supranote 97,at 58.
99. The Federal Constitutional Court is discussed in Cole, The West German
Federal Constitutional Court: An AppraisalAfterSix Years, 20 JOURNALOF POLITICS
278-307 (1958). From among German authors, see GIESE, GRUNDGESETZ FURDIE BuNDEs-
REPUBLIK DEUTSCHLAND 225-36 (3d ed. 1953), which gives the most comprehensive
survey of the Court's work.
irrespectiveof its discoveryby humanreasonand its transmutation by

man into writtennorms.100 With Germanthoroughness, the orthodox
concept of judicial reviewwas furtherdevelopedby the judges. Not
only was it maintainedthat statutescould be void because they con-
flictedwith the constitution; normsthemselveswere
the constitutional
testedfor theircompatibility with naturallaw.10'
Thus the Europeans, convinced throughbitter experienceof the
dangersof legislativesupremacyand the resultantdeificationof codi-
fiedlaw, discardedthe values of the French Revolution. They freed
themselvesfromthe fettersof a democracywhich had turnedout to
be a majoritariandespotism.In this development,America was the
shiningexample. Her constitutionalism was imitatedin establishing
judicial review,and also in the adoptionof a broad scope of that in-
stitution-the testingof constitutional
normsfortheircompatibility with
naturallaw beingnothingbut a developmentof the Americandoctrine
of reviewinglaws for their conformitywith "older" law.'02 After
1945,Americaappearedto Europeansnot only as liberatorthroughthe
forceof armsfromfascistdictatorship.She also appearedas emancipa-
tor frommajoritarian despotismby forceof the most idealisticfeature
of her government, namely,judicial review.
For an observerof recentAmericanconstitutional development, the
questionmusthave arisenwhetherthismostidealisticfeatureof Ameri-
can governmental practiceis not becominga mereideal, and whether
afterthe Second World War theEuropeanswere impressedby an ideal
ratherthanby an actuallyexistinginstitution.As a matterof fact,the
Supreme Court of the United States has shown great reluctanceto
declareacts of Congressunconstitutional since 1936.103 Of course,this
reluctancedoes not in itselfimplythe disappearanceof judicial review
as a governmental practice. Americanconstitutional historyhas known
a periodlongerthana merequarterof a centuryin which the constitu-
tionalityof national laws was not at all contestedby the Supreme
Court.104Nevertheless,recent developmentsin this countryindicate
100. See Dietze, Natural Law in the Modern European Constitutions, 1 NATURAL
L. F. 73 (1956).
101. See Dietze, Unconstitutional
Constitutional
Norms? Constitutional Development
in PostwarGermany,42 VA. L. REV. 1 (1956).
102. See Id. at 20-22.
103. The only two cases being United States v. Lovett, 328 U.S. 303 (1946), and
Trop v. Dulles,356U.S. 86 (1958).
104. There was a considerablylonger lapse of time betweenMarburyv. Madison
in 1803,and theDred Scottdecisionin 1857.
changes which seem fundamentalenough to warrant apprehensions

concerningthe very survival of judicial review as an institution.
Throughoutthe years fromMarburyv. Madison to Dred Scott, the
acquiescence of the judiciaryin acts of Congress neitherimplied a
recognitionof legislativesupremacynor of majoritarianism, in spiteof
the fact that this was the epoch of the great debates which saw
Congressat theapex of its prestige,and witnesseda substantialprogress
of democracythroughthe broadeningof suffrage.105 The rigorous
exerciseof judicial review in the years afterthe Civil War did not,
on the whole, come as a surprise.By no means was it considereda
usurpationof power by the judiciary. Rather,it seemsto have been a
corollaryto the furtherincrease of egalitariandemocracy,and, as
such, a quite naturalphenomenon.106 Today, judicial acquiescencein
congressionalfiatmust,by contrast,appear as the arrivalof legislative
supremacy.The SupremeCourt seems to have abdicated its former
positionas the guardianof the Constitutionand freegovernment with
its capitulationbefore the American volont6e generatein 1937 and
throughits reluctanceto exercise judicial review in the following
decades.
This abdicationcan in the mainbe attributedto factorsthatare the
resultof the march of egalitariandemocracyand the adjustmentof
juridicalthinkingto thismarch.Early in thiscenturyWoodrow Wilson
announceda "New Freedom,"holdingthat,forthe sake of the popular
majority,the propertyowningminorityof the big manufacturers, the
bankers,and the heads of the greatrailroadcombinationsshould have
theirinfluencecurtailed.107He was the spokesmanforthoseAmericans
who consideredthemselvesunderprivileged, whose ranks had been
swelled,as JusticeLurton complained,by the recent "great influxof
an enormousmass of immigrants. . . wholly unfamiliarwith the
Americanconstitutional idea . . . ."; people who increased"the num-
105. It was duringthis very period that the great AmericanjuristsJosephStory,
JamesKent, and Thomas M. Cooley advocated judicial review along the same lines
as Chief JusticeMarshall. See 3 STORY,COMMENTARIESON THE CONSTITUTIONOF THE
UNITED STATES425-666 (1833); 1 KENT, COMMENTARIES295 (5th ed. 1844); COOLEY,
CONSTITUTIONAL LIMITATIONS(1868). It is significantthat Story dedicated his work
to Marshall.
106. From 1789 to 1864,the SupremeCourt declared a nationallaw void in only
two cases. From 1864 to 1885 in sixteen, from 1886 to 1906 in twelve, from 1906 to
1924 in twenty-three,and from 1924 to 1935 in seventeen cases. During the first
years of the Court's existencejudicial review was exercizedonly twice,
seventy-five
whereasin the followingseventy-one yearsthiswas done as oftenas sixty-eighttimes.
107. WILSON,THE NEW FREEDOM(1916).
ber of thosevoterswho object to any restraintupon the will of the

majority...."; people who, arrivingfrom nationswhich rejected
judicial review,consideredthe "power to annul a law as the usurpa-
tion of legislativeauthority."108 Hamilton,the builderof the American
nation,the advocate of the protectionof privateproperty,and the
originatorof the American doctrineof judicial review,109 was now
denied the privilegeof being considereda great American,because
presumably"he did not thinkin termsof Americanlife."110 Wilson's
conceptof theAmericanway of lifeamountedto a new freedomindeed.
It came close to that type of freedomthat had been proclaimedby
Hichborn at the beginningof the criticalperiod of Americanhistory
in 1777,111 as well as by theFrenchrevolutionariestwelveyearslater.112
It was a decisivestep towardthe substitution of a limiteddemocracy
in which the legislativemajoritywas restrictedunder law through
an absolutedemocracyin which the majoritarian will reignedsupreme.
The New Deal was only a furtherstep in thisdirection.It completed
a developmentthathad gottenits startat the end of the past century
and was of necessityopposed to judicial controlof legislativeacts.113
108. Lurton,A Governmentof Law or A Governmentof Men?, 93 NORTH AMERI-
CAN REV. 9,17 (1911).
109. Compare HOLMES, COLLECTED LEGAL PAPERS 269, (1920), where in his essay on
Marshallhe states:"The Federalist,when I read it manyyears ago, seemed to me a
trulyoriginaland wonderfulproductionforthe time. I do not trusteven thatjudgment
unrevisedwhen I rememberthat The Federalistand its authorsstrucka distinguished
English friendof mine as finite;and I should feel a greaterdoubt whether,after
Hamilton and the Constitutionitself,Marshall'swork proved more than a strong
intellect,a good style,personal ascendancyin his court, courage, justice and the
convictionsof his party." For a discussionof the connectionof nationalism,the
protectionof propertyand judicial reviewin Hamilton'sessaysin The Federalist,and
in his politicalthoughtin general,see Dietze, Hamilton'sFederalist-Treatisefor Free
Government,42 CORNELL L.Q. 307, 501 (1957); Dietze, Hamilton'sConcept of Free
Government, 38 NEW YORK HISTORY 351 (1957).
110. WILSON, op. cit. supra note 107, at 47.
111. See note51 supraand accompanying text.
112. See notes53-57supraand accompanying text.
113. The forerunner of Wilson's New Freedom was Theodore Roosevelt'sSquare
Deal. It is interesting
to note thatTheodore Rooseveltled the Bull Moose Partyin a
campaignthat included a demand for the recall of judicial decisions. In 1912,he
stated: "I contendthat the people, in the natureof thingsmustbe betterjudges of
what is the preponderant opinionthan the Court,and that the Courts should not be
allowed to reversethe politicalphilosophyof the people." Roosevelt,The Right of
thePeople to Rule, 100THE OUTLOOK 618,620 (1912). CompareRoot, The Importance
of an Independent Judiciary,72 THE INDEPENDENT 704 (1912); TAFT, POPULAR GOVERN-
MENT 162-68(1913).
1262 Law Review
Virgini'a [Vol. 44
An oppositionto judicial review by the majorityof the people or

by the politicaldepartments of government, no matterhow vehement,
does not necessarilyamount to a disappearanceof that institution.
Americanhistoryfurnishes ample proofof this.114As long as no con-
stitutionalamendments prohibitedits exercise,therecould be no doubt
that judicial review did exist,providedit was not renouncedby the
judges themselves.As a matterof fact, the Supreme Court seemed
littleimpressedby the growingtendencytoward majoritarianism and
legislativesupremacyforquite sometime.A considerablygreaternum-
ber of congressional statutesor partsthereofwere foundto be uncon-
stitutionalduringthe firstthirty-five yearsof thiscentury,thanin the
same periodprecedingit."15 The very threatof a potentialgrowthof
legislativemajoritarianism seemed to call upon the judiciaryto stop
legislativeambitions.""0Stabilitywas secured by testingwhat were
conceivablyacts of a majoritarianpassionfor theircompatibility with
the Constitutionand those principlesof the older law that were con-
sideredpart of the Americanconstitutional order."17But this general
attitudeof the Court did not remainunchallenged.During the same
period therecame about a new formof juridicalthinkingwhich was
ideally suited to the march of egalitariandemocracy. Stimulatedby
contemporary developmentalist and pragmatist philosophywhich con-
114. For a few examplesof animositytowardjudicialaction,comparethe comments
of variousAmericanPresidents:14 THE WRITINGSOF THOMAS JEFFERSON 302-06(Mem.
ed. 1903) (letterto W. H. Torranceof June11, 1815); Richardson,2 COMPLICATION OF
THE MESSAGESANDPAPERSOF THE PRESIDENTS 582 (1907) (Jackson'sveto of the Bank of
the United States); 2 WORKS291 (Fed. ed. 1905) (Lincoln'sattitudetowardthe Dred
Scottdecision).
115. See note 106supra.
116. Indeed, it seems justifiedto speak here of reaction and counterreaction, i.e.,
the rule that dangersof legislativemajoritarianism are being matchedby tendencies
toward a more rigorousexerciseof judicial review. Such a rule would, of course,
correspondto what was originallyconsideredthe functionof judicial review,namely,
the restriction the popularmajorityto withinthe limits
of the legislaturerepresenting
setby superiorconstitutional law.
and extra-constitutional
117. For the fact that too much and too fast a lawmakingmay lead to legal in-
security,see Madison'sstatementin THE FEDERALIST No. 62, quoted at note 83 supra.
Hamiltonmade similarcomments.Viewingthe rule of the statelegislatures underthe
Articlesof Confederation with concern,he saw those bodies "taintedwith the spirit
of faction"and contaminatedwith "those occasional ill-humors,or temporaryprej-
udices and propensities which . . . beget injustice and oppressions of a part of the
community." He complained of "those practices . . . which have undermined the
foundations of property and credit, have planted mutual distrust in the breasts of all
classes of citizens, and have occasioned an almost universal prostrationof morals." THE
FEDERALIST No. 27, at 167, No. 85, at 568 (Modern Library ed. 1937) (Hamilton).
1958] JudicialReviewin Americaand Ewrope 1263
sidered stabilityan impossible-even an undesirable-conditionand

elevated the concept of change into a principleof social theory,'18
sociological jurisprudencequestioned the Court's skeptical attitude
toward legislativefiat and, thereby,the institutionof judicial review
itself.
The greatmanof sociologicaljurisprudence, OliverWendell Holmes,
statedas earlyas 1881 thatthe law "shouldcorrespondwith the actual
feelingsand demandsof the community, whetherrightor wrong."11"
Three yearslater,he said: "Every one instinctively recognizesthatin
thesedays the justificationof a law forus cannotbe foundin the fact
thatour fathersalwayshave followedit. It mustbe foundin some help
whichthelaw bringstowardreachinga social end which the governing
power of the communityhas made up its mind it wants."120 The
necessityof a law which reflectedthe mutabilityof social conditions
was thuslinkedup with a rejectionof older law. Presentlaw was to
be purged of "every word of moral significance," 121 i.e., of a priori
higherlaw standards.To makethingscomplete,, Holmes arguedagainst

judicial review. In his famousdissentin Lochnerv. New York,he
maintained"the right of the majorityto embody their opinions in
law . . . ." and cautionedthe Court about its exerciseof judicial re-
view.122 In 1913,the BostonBrahminused moredirectlanguage: "I do
notthink,"he remarked, "theUnitedStateswould come to an end ifwe
lost our power to declare an Act of Congressvoid." 123 This meant
thatthe Constitutionand the older and higherlaw were irrelevantif
theyconflictedwiththe wishesof the majorityas reflectedin the acts
118. See CAHILL, JUDICIALLEGISLATION 21-31(1952).
119. HOLMES, THE COMMON LAW 41-42 (1881).
120. HOLMES,Law in Science and Science in Law, in COLLECTED LEGAL PAPRs 210,
225 (1920). See also his statement, made in 1897: "It is revoltingto have no better
reason for a rule of law than that so it was laid down in the time of Henry IV.
It is stillmore revoltingif the groundsupon which it was laid down have vanished
long since,and the rule simplypersistsfromblind imitationof the past." The Path of
theLaw, id. at 187.
121. "I oftendoubtwhetherit would notbe a gainif everyword of moralsignificance
could be banishedfromthe law altogether,and other words adopted which should
convey legal ideas uncolored by anythingoutside the law. We should lose the
fossilrecordsof a good deal of historyand the majestygot fromethicalassociations,
but by riddingourselvesof an unnecessary confusionwe shouldgain verymuch in the
clearnessof our thought."McKinnon,The Secretof Mr. JusticeHolmes: An Analysis,
36 A.B.A.J.261,264 (1950).
122. 198U.S.45, 75 (1905).
123. HOLMES, Law and the Court,in CoLLEcrED LEGAL PAPERS 291, 295-96 (1920).
of Congress.'24Here was a revolutionary conceptof Americangovern-

ment indeed. On the whole, it amounts to a recognitionof the
supremacyof the American volonte generate and comes very close
to the ideas held by European juristsin the period afterthe French
Revolution.
Sociological jurisprudencehad a great impact upon constitutional
developmentin the United States. In a way, Holmes came to occupy
in great measurethe positionof officialjudicial philosopherfor the
modernage. Not only can he be considered"the startingpoint for
almostall recentAmericanlegal writers...."n 1215 but also as the judge
who broughtaboutthefundamental shiftin the attitudeof theSupreme
Court toward legislationand judicial review. His philosophy,origin-
ally confinedto a smallminorityof the Court,advancedas consistently
withinthatbody as did theidea of absolutedemocracywiththe Ameri-
can people. In the middle 1920's,the famousminorityof Holmes and
Brandeiswas strengthened by Stone. By the middleof the 1930's,the
minorityfavoringthe Court's acceptanceof New Deal legislationhad
increasedto four judges. Finally, the 1937 Court, faced with the
threatof Roosevelt'scourt-packingplan, submittedto the demandsof
the popular majority. The "Cult of the Robe" was replaced by a
cult of the popularvogue. A landmarkof Americanconstitutionalism,
the Court's traditionalpolicy of protecting"the rightsof the minor
party"from"the superiorforce of an interestedand overbearingma-
jority"126 throughthe invalidationof legislativefiat irrespectiveof
thereactionof the otherbranchesof government and the generalpub-
lic, had come to an end. It is one of the principlesof limiteddemocracy
thatmajoritarian tendenciesshouldbe matchedby an increasedexercise
124. For the ensuingdangerto individualfreedom,see Dietze, Hamilton'sFederalist
-Treatise for Free Government, supra note 109,at 517-18. For Holmes' derisiveat-
titudetowardthe Court'stestingof legislativeacts for theircompatibility with older
and higherlaw, see his dissentin Baldwinv. Missouri,281 U.S. 586,595 (1930), where
he complainsthatone can see "hardlyany limitbut the sky to the invalidationof . . .
[legistativeacts] if they happen to strikea majorityof the Court as for any reason
undesirable."The commonlaw was for Holmes "not a broodingomnipresencein the
sky but the articulatevoice of some sovereignor quasi-sovereign that can be identi-
fied ... ." Southern Pac. Co. v. Jensen,244 U.S. 205, 222 (1917).
125. CAHILL, op. cit.supranote 118,at 32.
126. These wordsare takenfromMadison'sfamousessay 10 of the FederalistPapers,
whichshowsthe Virginian'sfearof sheermajorityrule. For the theorythatMadison
in the Federalistalso favored judicial review as a means for the preventionof
majoritarianism,see Dietze, Madison's Federalist-A Treatise for Free Govermnent,
46 GEo. L.J.21,38,47 (1957).
of judicial review. Consequently,one would have expected that

throughoutthe New Deal the judiciarywould continueto meet an
increasedmajoritarian challengewith an increasedactivityin the exer-
cise of judicial review. Instead,weakened by a judicial philosophy
which bore the mark of majoritariandemocracy and was comple-
mentaryto, ratherthan preventiveof, a democraticdespotism,'27 the
SupremeCourt capitulated.
Nothing the Court did in the ensuing years could minimizethe
importanceof thatcapitulation,the decisivefeatureof which was the
Court's abandonmentof the individualto the dangersof majoritarian
oppression.The Court, it is true, set out on an ambitiousprogram
to protectnon-economiccivil rights. In approachingthese cases, the
judges, ofteninvokingolder and naturallaw, have tended to assume
that statutesregulatingsuch rightsare unconstitutional.While the
regulatorymeasureswere usuallythe productof local and statelegis-
lation,the Court did not completelyrefrainfrom exercisingjudicial
review over nationallegislation.The recent decision in a citizenship
case is indeed a refreshing reminderof the Court's tradition.'28Still,
forthetimebeing,it is hardlymore. It does not conceal the declineof
judicialreviewin theUnitedStates;theCourt'sattitudehardlyamounts
to a challengeof majoritarianism. The invalidationof stateratherthan
nationallegislationleadsone to ask whethertheCourt'sactivitiesare not
promptedby the secure feelingof havingthe supportof the national
majority,and also raisesdoubtsas to whetherthe Court would be able
to musterthe courage to face nation-wideunpopularity.The fear of
being unpopularis even more evidentin the Court's invalidationof
statuteswhich regulatenon-economicrightsas distinguished fromlaws
that restrictthe activitiesof economic minorities.But throughout
Americanhistorythe veryessenceof judicial reviewwas its being ex-
ercised in spite of popular disapproval,and irrespectiveof criticism
by economicor non-economicgroups. Therefore,it is hard to believe
that judicial review is emergingfromits period of decline when the
Court has not demonstrated its courage to face unpopularityby chal-
lenginglegislativeaction also for the sake of economic rights. The
different evaluationof non-economicand economicrightsappearsto be
arbitrary.'2"It is absurdto maintainthat the rightto picket is more
127. See DESVERNINE, DEMOcRATICDESPOTISM (1936).
128. See Trop v. Dulles,356U.S. 86 (1958).
129. See Latham,The MajoritarianDilemma in the United States Supreme Court,
2 CONFLUENCE 22 (1953).
importantthan freedomof contractand the rightto work. There is,

aside from the Four Freedoms,a Fifth Freedom.130Of course, the
latteroccupies,quite symbolically, the positionof a numericalminority
vis-a-visits fourbrethren.But thisis a symbolof its importanceabove
anythingelse. It shouldnot be overlookedthatits juxtapositionto the
Four Freedomsmeans,above all thatfroma qualitativepoint of view
theFifthFreedomis as importantas the Four Freedomstakentogether
and thusmoreimportant thanany one of thefour. In short,the Court's
discriminatory distinctionbetweeneconomicand non-economicrights
appearsto be artificialand unjustified.The only explanationfor the
judges' acquiescencein legislationharmfulto the rightsof economic
minoritiescan be the fact thatfundamentally the SupremeCourt still
bows to legislativemajoritarianism.
While such a recognitionof thelegislativewill resultedin an increase
of the Court'spopularity,it was likelyto bringabout a decline of its
prestige,sincethatprestigewas largelybased upon the Court'spractice
of keeping the legislativebody withinthe bounds set by the letter
and spiritof the Constitution.It can hardlybe doubtedthatthe Court
today does not commandthe respectit once did fromfriendand foe
alike. It is no longer that "citadel of public justice," functioningas
an "excellentbarrierto the encroachment and oppressionsof the repre-
sentativebody" 131 Hamilton wished it to be, and by no means that
"strongholdand . . . battery"fromwhich Jefferson thought"all the
works" of egalitariandemocracy are "beaten down and erased."132
This declineof the Court'sprestige,due to the judges' capitulationbe-
forethe popularvogue, was enhancedby stillanotherfactorthat ap-
pearsto be immediately connectedwiththatcapitulation.It is probably
no mere coincidencethat parallel to the Court's bowing to politics,
politicsenteredthe Court.'33 By 1941 the conservativejudges of the
130. "[T]here is a FifthFreedom-economicfreedom-without which none of the
otherfourfreedomswill be realized."HOOVER,The FifthFreedom,in ADDRESSES UPON
THE AMERICAN ROAD: WORLD WAR II, 1941-1945222 (1946).
131. See THE FEDERALIST No. 78, at 503,505 (Modern Libraryed. 1937) (Hamilton).
132. Quotationsin MASON, FREE GOVERNMENT IN THE MAKING 309 (1950).
133. It would indeed be a worthwhileundertaking to studyif and to what degree
the behavioramong judges of a tribunalis the resultof the behaviorof that tribunal
as a whole vis-a-visother institutions.In the opinion of this writer,there probably
is such a connection.The loss of prestigeof an institution like the SupremeCourt
throughits capitulationin 1937 was likely to resultin a loss of prestigefor the in-
dividual judges,with the consequencethat the judges lost their mutual esteemand
adopted a behaviorthat was oftennot in tune with the dignityof their profession.
(The fightbetween JusticesJacksonand Black comes to mind immediately.)This
pre-Roosevelt Courthad been replaced.The riftof the Court,in-

troducedthroughthe dissentsof the adherents of sociologicaljuris-
prudence, had now lostitsraisond'etre,sincethenew judgeswerein
sympathy withtheNew Deal. A new unityof the SupremeCourt,
bolsteringitswaningprestige, could havebeen expected."But peace
and order,mostunfortunately, did not come."134 Rather,the judges
"turnedto fighting one anotheras theyand theirliberalpredecessors
had foughtthe conservatives. They splintered in all directions in a
riotof legalisticdiversityto the accompaniment of whatwas hardly
abovethelevelof undignified name-calling."135 The judgeshad not
onlycapitulated beforethelegislative body; judicialbehaviorbecame

verysimilar to thatdisplayed by themembers of themostdemocratic
of
branch government. The reasonsforthesetwofailures ofthejudges
arerather similarandstrongly connected witheachother,whichseems
tosubstantiatethethesisthattheCourt'scapitulation beforethepolitical
departments openedit up forpolitics.The internal disunity has been
attributed to the factthatthe new Justices were rebelsagainstthe
earlierconceptof the Courtas a passiveinstrument of the law, a
conceptwhichthrough the generations had contributed considerably
towardtheprestige of thejudiciary-and to theJustices' belief,shaped
by a sentiment inimicalto judicialreview,thattheCourtwas actually
one of severalgovernmental institutionsmoldingpublicpolicy. This
new attitude,it was said, preventedthe judges fromhaving"the
reverence fortheCourtthathad beeninspired by theconceptof the
Courtas virtually theinstrument of a higherpower."136 This is quite
correct.Oncethejudiciary wasno longerconceived tobe theprotector
of the"older"law of whichtheConstitution was a partialdemonstra-
tion,itwaslikelyto losea greatdealofitssublimity. Thisloss,in turn,
was to reflectupon the moralsof its members.'37 But, at the same
time,it shouldnot be overlookedthatthe behaviorfailure,leading
behaviorseems to substantiate the old truththat capitulatorsare not likely to act
as dignified as do martyrs.
134. Swisher,The SupremeCourt-Need for Re-evaluation,40 VA. L. REV.837, 844
(1954).
135. Id. at 845.
136. Id. at 844-45.
137. See note 133 supra. An outstandingexampleof a judiciarywhich disregarded
all conceptsof older and higherlaw and was devoid of all judicial decorumwas the
Volksgerichtshof of the Third Reich. For a good discussionof the problemsarising
fromthe judges' obeyinghigherratherthan man-madelaw, see RADBRUCH, RECHTS-
PHILOSOPHIE 182 (4thed. 1950).
to the disunityamongthe judges,is nothingbut a consequenceof the

fact thatthe Court, consideringitselfbound by legislativefiatrather
than"older" law, could no longerbe an instrument of a higherpower
because it had degeneratedinto a tool of the legislature.Thus the
struggleamongthe judges is of the same originas the Court'scapitula-
tionbeforethe lawmakerthroughthe non-assertion of judicial review.
To the reproachthatthe Court has become "an aggregationof prima
donnas"138 theremaybe added the apprehension lest legislativemajori-
tarianismhas become the golden calf aroundwhich such primadonnas
aredancingtheirlegalisticsteps.
In summary,it appears that the Europeans,when adoptingthe in-
stitutionof judicial review,were guided by an Americanideal rather
than an actual practice. The Americans,not havingknown legislative
supremacythroughoutthe firstcenturyand a half of theirnational
existence,and hardlyaware of its disastrousconsequencesfortheEuro-
peans, carelesslyventuredinto an experiencethat had been Europe's
duringthe same period of time. Under the influenceof politicalideas
whichemphasizedtherightsof themajorityof societyratherthanthose
of theindividual,theAmericanSupremeCourt,adjustingto, ratherthan
checkinglegislativefiat,permittedjudicial review to fade away. The
old Americanprincipleof a governmentof laws and not of men was
increasinglyreplaced by the democraticdogma that the voice of the
people is the voice of God. Thus the Americanideal of judicial re-
view, which at the end of the Second World War appearedto Euro-
peans as the great liberator,could now be used by the Americans
themselvesfor theirliberationfroma democraticdespotismthat has
come into being as a consequenceof the increasingacceptance from
Europeansof theegalitarian ideasof theFrenchRevolution.
V
In theprecedingpages,an attemptwas made to describethe develop-
ment of judicial review in America and Europe. This development
went in differentdirections.The United States,havingsufferedfrom
legislativedespotism,accepted judicial review at the beginningof her
nationalexistenceand cherishedit as a means for the preservationof
constitutionalism.Legislativeacts were consideredsubordinateto older
constitutionaland higher law. Thus the judges could protect in-
dividual rightsfrom the will of the popular majority. Democratic
138. Swisher,supranote 134,at 847.
1958] JudicialRevie'win Americaand Europe 1269
governmentwas limited and preventedfrom becoming oppressive.

With the march of egalitariandemocracy, the situation changed.
Judicialreviewas a limitationupon majoritarianism disappearedmore
and more,and the way was opened for the advance of a democratic
despotism.On the other hand the Europeans,consideringthe legis-
lature as the great liberatorfrom monarchicaldespotism,rejected
judicial reviewas being incompatiblewith theirown concept of con-
stitutionalism.'39 Under that concept, the law of the ancien regime
was discarded. It was replaced by constitutions which providedfor
an identityof those who made the constitutionand those who made
ordinarylaws. The statutebecame as importantas the constitution
itself. Thus individualrightscould be infringedupon by the legis-
lativemajority.Majorityrule was unlimitedand not preventedfrom
turninginto despotism. With the march of democracy,the inevit-
able happened: Democracy became more and more oppressiveuntil
it was, for the sake of the individual,finallylimitedthroughthe in-
stitutionof judicial review. On the whole, it can be said that con-
stitutionalism in America and Europe, originallycharacterizedre-
spectivelyby the acceptance and rejection of judicial review, be-
came, in recent times,distinguishedrespectivelyby the decline in
Americaand the emergencein Europe of thatinstitution.
In spiteof the differentdevelopmentof judicial review in the new
and old worlds,greatsimilarities as to the detailssurrounding that de-
velopmentcan be noticedwhich seem to justifycertainconclusionson
the role of that institutionitself. First of all, on both continents
judicial review was adopted for the protectionof the individual's
rightsfromlegislativeencroachments.Since the legislaturewas com-
posed of the representatives of the people, judicial review can be
considereda bulwarkagainsta possibledespotismof the popular ma-
jority. Secondly,the veryinstitution of judicial reviewseemsto have
made Americanand European judges do their best to buttressthat
bulwark. They were not satisfiedwith a narrowapplicationof their
rightto testlegislativeacts. Not only was the letterof the constitu-
tion used as a criterionfor measuringthe validityof statutes,but
also its spiritand higher,extra-constitutional
principles.The broaden-
ing of judicial review can, as much as its establishment, be traced to
139. It is significant
and interesting
that the French word "constitutionnalisme"
as
well as the German word "Konstitutionalismus" mean primarilya restrictionof the
executivethroughthe law and do not,in general,implya restriction
of the legislature.
the desireto check sheermajoritarianism. The judges,being conscious

of theircalling to serve justice by protectingindividualrights,con-
sidered a constitutionnot only a statementof its framers'sense of
justice,but beyond that,an embodimentof justiceitself. In theirde-
sire to protectthe individualto the greatestpossibledegree,they fol-
lowed theprinciplenonsubhomine sedsubdeo et legel'*in a mostun-
equivocal way. The adherenceto this principle,while being com-
plementaryto the purpose of judicial review,also providedan ideal
defensefor that institution.It logically excluded the judges from
exercisingpoliticalpower. Thus, while the judges would check the
popularmajorityforthe sake of the minority, theywould not identify
themselveswith that minority,but ratherwith the law itself. As a
result,the prestigeof the judiciaryconsiderablyincreased.
However, thisincreaseof respectfor the judges was only too often
matchedby increasingunpopularityof the courts. In America and
Europe alike, judicial review has been under strongattack fromthe
advocatesof unlimitedmajorityrule. The judges' argumentthat,when
declaringa statutevoid, they were just servingthe law, was con-
sideredhypocritical.Their recourseto higherlaw and extra-constitu-
tionalprinciplesor the merespiritof the constitution was condemned
as illegal. The voiding of statutesfor theirincompatibility with the
letter of the constitution
was branded as undemocratic. Judicialreview
was rejected as a reactionaryinstitutionthat preventedprogressas
desiredby the majorityof society.
We may thus say that, no matterwhetherone agrees with the
advocatesor the antagonistsof judicial review,thisinstitutionappears
to be inextricably connectedwith democracyand its mostinnateand
140. This is the inscriptionon Langdell Hall of the Harvard Law School. It seems
to be representative of Americanconstitutionalism priorto the changebroughtabout
by sociological jurisprudence.Contrariwise,the inscriptionof the Supreme Court
buildingseemsto be representative of Americanconstitutionalism in the more recent
period. "Equal JusticeUnder Law" can, of course, be interpretedto mean equal
justice under higheras well as man-madeconstitutional and ordinarylaw. On the
other hand, it may also be interpretedto mean equal justice under man-madelaw
only, which would imply the subordinationof the judiciaryunder all law that is
made by man,irrespective of whetherit is, fromthe point of older and higherlaw,
acceptableor not. This latterinterpretation does not appear to be possible in the
case of the sentencenon sub hominesed sub deo et lege. It is interesting
to note that
the constructionof Langdell Hall preceded that of the SupremeCourt Buildingby
about a generation,the time in which sociological jurisprudencecame to the fore.
Thus the two inscriptionscan possiblybe considereda symbol of the change of
Americanconstitutionalism.
pressingproblem,namely,to what degreethe popularmajorityshould

rule, and to what degree the individualor the minorityshould be
immunefrom such rule. From what we could observe in America
and Europe, it is not known whetherjudicial review would have
been institutedhad therebeen no fear of the popular majoritysup-
pressingthe rightsof the individual. Similarly,judicial review would
hardlyhave come under attackhad it not been for the fear that the
majoritywould not get what it wanted. Judicialreview thus appears
to be a decisive factor for the type of democracythat exists. Its
existenceseems to be a prerequisitefor Locke's ideal of a limited
democracy. Its absence paves the way for Rousseau's concept of an
absolutedemocracy.
The questionwhetherthere should be judicial review in a demo-
cratic societyis thus paramountto the question as to what type of
democracy,limited or absolute, we prefer. Should we regret the
decline of judicial review in America,or be happy about it? Should
we praisethe emergenceof judicial reviewin Europe, or condemnit?
From what was said in the precedingpages, therecan hardlybe any
doubtas to the answer. Experiencespeaksstronglyin favorof judicial
review. Absolutedemocracyled Europe into disaster.Literallyfrom
the ashes therearose the demand for a limiteddemocracy. Judicial
reviewwas introducedas an importantmeansto achieve that type of
governmentand the great degree of minorityprotectionthat goes
withit. Limitedmajorityrule had, afterall, proveditsvalue in Ameri-
ca. In view of the European experience,the declineof judicial review
in the United States must be observedwith apprehension.Like the
Europeansbeforethem,the Americansseem to feel thata rule by the
representativesof thepeopleis not likelyto degenerateintoa despotism.
This, of course,ignoresnot only the experienceof the old world but
also the developmentthat led to the PhiladelphiaConvention and
theresultantadoptionof judicialreviewin thiscountry.Consequently,
no need fora restriction of the legislativemajorityhas, on the whole,
been felt. The authordoes not share this attitude.The development
throughoutthe past decades makesit evidentthat thereexistsin this
countrya presentdanger to individualfreedomthroughdemocratic
majoritarianism which,sinceit does not seemto be clearto many,ought
to be pointed out. In America, limiteddemocracyis in danger of
being supersededby absolute democracy. It should be remembered
that not everythinggood for the people is automaticallyright;but,
rather,onlywhat is rightcan actuallybe good forthe people.'4' Euro-

peans found out this truththroughdisaster. It is to be hoped that
Americaneed not go througha similarexperience.
It seemsregrettable indeed thatAmericashouldno longerappreciate
an institutionwhich has been so instrumental throughoutits historyto
the emancipationof the individualfrom governmentalcontrol,and
which was so essentiala part of Americanlimiteddemocracy,a type
of constitutionalism conceived of as a missionfor the rest of the
world. By the same token,thereis good reason to rejoice in the in-
creasing acceptance of judicial review by European nations. That
acceptancewould hardlyhave happenedhad not the Americanpractice
of judicial review convincedthe Europeans of the meritsof that in-
stitution.Therefore,it can be said thatthe Americanmissionof help-
ing the cause of freegovernment in the world has not been unsuccess-
ful. Whetherthiscan be a consolationforthe increasingdisappearance
of judicial review in the United Statesis, however,open to doubt.
Judicialreview,havingoriginatedin Europe and been accepted as a
doctrinein the United States,has returnedto Europe elaboratedand
expanded by Americanjudges. The indicationsare that in the old
world it will be furtherdeveloped and strengthened as a means for
protectingthe individualfrom sheer majorityrule.'42 In this new
form,it may againcrossthe Atlantic,influenceAmericanconstitutional
developmentanew, and bring about another great period in the
SupremeCourt's history.Thus the institutionof judicial review has
been the object of a give-and-takebetween the new and the old
worlds. This exchange demonstrateshow much the American and
European democracieshave been confrontedwith the same problem-
namely,to what degree the popular majorityshould be permittedto
rule. It shows the perpetualdangerin these democracieslest the in-
dividualbe suppressedby thatmajority,and the resultingattemptsto
preventsuch an oppression.It is demonstrative, at the same time,of
the fundamentaltensionswithinthe various democracies,and of the
friendship betweenthesedemocracies,of the spiritualbond thatunites
America and Europe, continentsso representativeof our Western
heritage.
141. This was sadly statedby Radbruchafterthe experienceof the Hitler regime.
See RADBRUCH, op. cit. supra note 137,at 335.
142. For the theorythat the possibilityof unconstitutional normshas
constitutional
been admitted,see textat p. 1259 supra.

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America and Europe.

Decline and Emergence of Judicial Review

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AMERICA AND EUROPE -DECLINE AND

rOR generationscomparisonshave been drawn between American

mocracyin America and that in European countries. It is a crucial

The Europeans have learned this truththroughbitterexperience.

in a democraticsociety. More and moreEuropeans have come to be-

The lessonof legislativeoppressionwhich the colonistshad learned

Jefferson made a similarattackagainstthe constitution of Virginiabe-

in the year Shay'sRebellionbrokeout."' It was not to die in the

eenthcentury,the courtslost theirindependenceand became a means

the protectionof the individual,the public authority,executiveand

as a recipientof law, it had to be inferior.And just as it was superior

It is evidentthatthe rightof acquiringand possessing property, and

I cannotsubscribeto the omnipotence of a State Legislature,or

natureof our freeRepublicangovernments, thatno man shouldbe

Statements like thesewere frequentlymade throughoutthe nineteenth

istic of American constitutionaldevelopmentthat it was not only

a massof constitutionaland extra-constitutional principlesintoa specific

by the law and decidedto remainnothingbut interpreters of thatlaw.

should never have been constituted."54The French Revolution re-

embodyingits principles,remainedthe guide for the acts of the legis-

responsibleforthe wave of codificationthatwas to sweep over Europe

statesof thepeninsula,67 therecame about,afterthe politicalunification

values of higher,historicallygrown law, and thus to preventthose

codification, becamePrussianMinisterforthe revisionof statutes.Five

veritabledelugeof statutesand executivedecrees.8'Whereaspreviously

in thelaw. Juridicalpositivismcan thusfulfillan important role forthe

laws of theirliberal and democraticfeatures." The continuationof

In spite of the jurists'generalacceptance of the supremacyof the

view.6 The new constitution of the FifthRepublic revealsa further

irrespectiveof its discoveryby humanreasonand its transmutation by

changes which seem fundamentalenough to warrant apprehensions

ber of thosevoterswho object to any restraintupon the will of the

An oppositionto judicial review by the majorityof the people or

sidered stabilityan impossible-even an undesirable-conditionand

higherlaw standards.To makethingscomplete,, Holmes arguedagainst

of Congress.'24Here was a revolutionary conceptof Americangovern-

of judicial review. Consequently,one would have expected that

importantthan freedomof contractand the rightto work. There is,

pre-Roosevelt Courthad been replaced.The riftof the Court,in-

onlycapitulated beforethelegislative body; judicialbehaviorbecame

to the disunityamongthe judges,is nothingbut a consequenceof the

governmentwas limited and preventedfrom becoming oppressive.

the desireto check sheermajoritarianism. The judges,being conscious

pressingproblem,namely,to what degreethe popularmajorityshould

rather,onlywhat is rightcan actuallybe good forthe people.'4' Euro-

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