Colonial Virginia: Incubator of Judicial Review

Note — Volume 106, Issue 3

106 Va. L. Rev. 765
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*University of Virginia School of Law, J.D. 2020. I am grateful first and foremost for Professor Cynthia Nicoletti and her insightful input, unwavering patience, and immense generosity. I would like to thank both Christian Talley and Anna Cecile Pepper for helpful comments and also the members of the Virginia Law Review, especially Clay Phillips, for careful editing and feedback. I am solely responsible for all errors.Show More

What is the historical origin of judicial review in the United States? Although scholars have acknowledged that British imperial “disallowance” of colonial law was an influential antecedent, the extant historical scholarship devoted to the mechanics of disallowance is sparse. This limited exploration is surprising. Not unlike modern judicial review, the guiding question imperial overseers considered when disallowing colonial legislation was whether it was ‘repugnant’ to the laws of England. In response, this Note’s first contribution is to explain the process by which the so-called repugnancy principle was enforced against inferior colonial law. Even fewer scholars have attempted to connect the ultimate repugnancy assessment to the historical context surrounding disallowed colonial laws. This Note’s second contribution is thus to augment existing literature by exploring colonial Virginia’s specific experience under imperial supervision.

Among the scholars that have explored the connection between colonial disallowance and the origins of judicial review, some have documented the link between imperial legislative review of colonial legislation and James Madison’s proposed constitutional solution to the problem of unrestrained state legislatures in the aftermath of independence. What remains to be explored, however, is how Madison explicitly drew on the history of imperial review of colonial Virginia’s laws as he argued at the Constitutional Convention for a federal power to “negative” state laws. Accordingly, this Note’s third contribution is to reveal that the historical practice of imperial review in Madison’s native Virginia animated his proposed solution to check the unrestrained popular will of state legislators. Although his proposed solution was ultimately rejected at the Convention, that rejection was conditioned on the judiciary possessing the power of judicial review. By exposing this hidden link, this Note demonstrates that colonial Virginia rightly may be regarded as the intellectual incubator of judicial review.

Introduction

During the British imperial era, the supreme laws of England trumped conflicting inferior colonial law. Colonial assemblies—by the terms of their colonial charters—were prohibited from enacting legislation repugnant to the laws of England. The British monarch, to both monitor the colonial assemblies and to ensure compliance with the superior laws of England, empowered the Board of Trade (“Board”) and the Privy Council with the duty to enforce the so-called repugnancy principle. That principle required the Privy Council and the Board to compare colonial legislation to English law. If the colonial legislation was, upon that comparison, deemed repugnant to the laws of England, then the law was disallowed.1.Disallowance was the term used to proclaim that colonial law was legally inoperative as it diverged from the laws of England. See Dudley Odell McGovney, The British Privy Council’s Power to Restrain the Legislatures of Colonial America: Power to Disallow Statutes: Power to Veto, 94 U. Pa. L. Rev. 59, 81 (1946); see also Robin L. Einhorn, American Taxation, American Slavery 15 (2006) (equating disallowance to a “veto”); Robert J. Steinfeld, The Rejection of Horizontal Judicial Review During America’s Colonial Period, 2 Critical Analysis L. 214, 218 n.19 (2015) (“[D]isallowance operated as a ‘repeal’ of the statute.”).Show More The historical record suggests that the imperial power of legislative review was not one the Privy Council and the Board were hesitant to exercise. Indeed, from 1696, when the Board of Trade was established, to 1776, when the United States declared its independence, scholars have estimated that more than 8,500 colonial laws were reviewed,2.Mary S. Bilder, The Corporate Origins of Judicial Review, 116 Yale L.J. 502, 538 (2006).Show More and over 400 colonial laws were disallowed for being repugnant to the laws of England.3.Jonathan R.T. Hughes, Social Control in the Colonial Economy 13 n.12 (1976); see also Leon T. David, Councillors and the Law Officers in the Colonies in America, 12 Am. U. L. Rev. 23, 32 (1963) (“Of some 8,563 acts submitted for approval, it disallowed 469.”); Sharon Hamby O’Connor & Mary Sarah Bilder, Appeals to the Privy Council Before American Independence:An Annotated Digital Catalogue, 104 Law Libr. J. 83, 85 (2012) (“The Council could disallow a law; approximately 8563 were sent for review and 469 (5.5%) disallowed.”).Show More This historical system of oversight and disallowance echoes a similar, more modern institution: American judicial review. The similarity between British imperial oversight and modern judicial review has not gone unnoticed. In the words of one historian, the Privy Council and the Board subjected colonial “provincial laws to a kind of constitutional test.”4.Oliver Morton Dickerson, American Colonial Government 1696–1765, at 234 (1912).Show More

Within the last decade, Mary Bilder and Alison LaCroix have explored the connection between the disallowance of colonial legislation and the origin of judicial review.5.See Mary Sarah Bilder, The Transatlantic Constitution: Colonial Legal Culture and the Empire (2004); Alison L. LaCroix, The Authority for Federalism: Madison’s Negative and the Origins of Federal Ideology, 28 Law & Hist. Rev. 451, 466–69 (2010). But see Philip Hamburger, A Tale of Two Paradigms: Judicial Review and Judicial Duty, 78 Geo. Wash. L. Rev. 1162, 1174–75 n.38 (2010). His research shows that “judges had for centuries done their duty by holding government acts unlawful and void. They had done this as to sovereign acts of the king and even as to legislation, other than acts of Parliament. As a result, early American judges did not need to establish precedents for a power of judicial review.” Id. Although Professor Hamburger offers a compelling alternative account, he overlooks the fact that even though crown officials “consistently recognized the assemblies’ authority to pass laws, they always insisted that those bodies were subordinate institutions.” Jack P. Greene, Law and Origins of the American Revolution in The Cambridge History of Law in America 447, 449 (Michael Grossberg & Christopher Tomlins eds., 2008). The insubordination of colonial assemblies beneath the British imperial apparatus thus also provides a historical antecedent from which Americans, like James Madison, could derive intellectual inspiration for American judicial review.Show More The argument is that “recurrent administrative testing of colonial statutes against a ‘constitutional’ standard exemplified in the laws of England helped pave the way for acceptance of the doctrine of judicial review in the new nation.”6.Joseph H. Smith, Administrative Control of the Courts of the American Plantations, 61 Colum. L. Rev. 1210, 1253 (1961).Show More Yet the extant historical scholarship devoted to this striking similarity hardly touches upon the mechanics of imperial disallowance.7.Astonishingly, Oliver Morton Dickerson’s American Colonial Government, which was published in 1912, remains the authoritative source on the mechanics of imperial disallowance.Show More In this respect, this Note’s first contribution is to explain the mechanics by which the repugnancy principle was enforced against inferior colonial law.

By a similar token, even fewer scholars have attempted to connect colonial legislation and the law’s surrounding historical context to the Board and the Privy Council’s ultimate repugnancy assessment.8.See Mary Sarah Bilder, Colonial Constitutionalism and Constitutional Law, in Transformations in American Legal History: Essays in Honor of Professor Morton J. Horwitz 28, 43 (Daniel W. Hamilton & Alfred L. Brophy eds., 2009).Show More The reason for the dearth of scholarly literature linking together these narratives is that there exists “no comprehensive list of disallowed acts.”9.Id.Show More This lacuna in source material also explains why “comparably little study has been given to the topic” of imperial review of colonial law in general.10 10.Id.Show More In response, this Note’s second contribution is to augment the existing literature by exploring the colonial experience under imperial supervision, specifically in the Colony of Virginia.

Colonial Virginia, after all, “had the largest population of any colony in North America,” possessed an influential economic and legal system, and “produced great leaders,” many of whom would go onto shape the Constitution’s structural framework.11 11.William E. Nelson, The Law of Colonial Maryland: Virginia Without Its Grandeur, 54 Am. J. Legal Hist. 168, 198–99 (2014).Show More Virginia was, on balance, “the jewel in the crown” of Britain’s overseas empire.12 12.Mary Carroll Johansen, The Relationship Between the Board of Trade and Plantations and the Colonial Government of Virginia, 1696–1775, at 38 (1992) (unpublished M.A. thesis, The College of William & Mary) (on file with The College of William & Mary Libraries).Show More This fact alone makes the absence of a thorough analysis of colonial Virginia’s interaction with the Privy Council remarkable. And this historical gap is only compounded by the fact that the “father of the Constitution,” James Madison, was himself a son of colonial Virginia.13 13.Michael P. Zuckert, Judicial Review and the Incomplete Constitution: A Madisonian Perspective on the Supreme Court and the Idea of Constitutionalism, in The Supreme Court and the Idea of Constitutionalism 53, 55 (Steven Kautz et al. eds., 2009).Show More In modern times, Madison is rightly memorialized for his profound influence on the Federal Constitution’s structure and for “laying the foundations of the Republic.”14 14.Charles Evans Hughes, James Madison, 18 A.B.A. J. 854, 854 (1932) (referring to Madison as the “Father of the Constitution”); see also Daniel J. Hulsebosch, Being Seen Like a State: How Americans (and Britons) Built the Constitutional Infrastructure of a Developing Nation, 59 Wm. & Mary L. Rev. 1239, 1269 (2018) (“His theory of factional checks and balances is why many consider him the most thoughtful constitution maker.”).Show More He understood the “overall logic of the new order better than anyone else at the time.”15 15.Zuckert, supra note 13, at 55.Show More His understanding of the new order was, as it turns out, deeply shaped by his experience with the old. According to Alison LaCroix, the “centerpiece of Madison’s plan to reconstitute the Republic . . . sprang directly from the institutions and practices of the British Empire, the thralldom of which the American colonies had escaped.”16 16.LaCroix, supra note 5, at 464.Show More Likewise, Michael Zuckert contends that Madison had both “an unparalleled understanding of the political nature of the Constitution,” and possessed “an unexcelled understanding of what judicial review was to be in the new system.”17 17.Zuckert, supra note 13, at 55.Show More Yet underappreciated, until now, is the influence that Privy Council disallowance of his own commonwealth’s legislation had on Madison’s frame of mind and his approach to subordinating the will of state and national electorates to the supreme law of the land.

Herein lies this Note’s third contribution. In short, I seek to enrich the existing scholarship on the origins of judicial review by offering a targeted analysis of the experience in colonial Virginia. Many scholars have argued that the concept of judicial review originated from Madison’s proposals at the Constitutional Convention.18 18.See Steven G. Calabresi, Originalism and James Bradley Thayer, 113 Nw. U. L. Rev. 1419, 1450–51 (2019) (building on James Bradley Thayer’s discussion of Madison’s proposed continuation of the imperial practice of legislative review); see also Sean Gailmard, Imperial Politics, English Law, and the Strategic Foundations of Constitutional Review in America, 113 Am. Pol. Sci. Rev. 778, 788 (2019) (“My argument is that delegates to the Constitutional Convention of 1787 recognized and sought to preserve benefits of Crown review by the Privy Council as an external bound on legislation.”).Show More The general story tracing the link between the Privy Council, the Constitutional Convention, and the federal courts’ ability to disallow repugnant legislation has been told.19 19.Section 25 of the Judiciary Act of 1789 granted federal courts jurisdiction over state courts in matters where “the validity of a statute” is drawn into question “on the ground of their being repugnant to the constitution.” Judiciary Act of Sept. 24, 1789, ch. 20, § 25, 1 Stat. 73, 85. In essence, the federal courts were empowered, much like the Board and the Privy Council, with the duty to enforce the repugnancy principle against state and federal legislation that conflicted, not with the laws of England, but with the text of the Constitution.Show More Against the backdrop of these abstract accounts, this Note restricts the study of Privy Council oversight specifically to colonial Virginia. This narrow focus better facilitates an understanding of how Madison, through his knowledge of actual practice, envisioned the will of subordinate legislatures conforming to the supremacy of the new Federal Constitution.20 20.Indeed, Professor Jordan Cash has observed that “judicial review had long been practiced in Virginia, and the English jurisdictional tradition continued to be influential into the early national period.” Jordan T. Cash, The Court and the Old Dominion: Judicial Review Among the Virginia Jeffersonians, 35 Law & Hist. Rev. 351, 365 (2017). Although less general than most accounts, Professor Cash’s assertion still paints with too broad a brush, as it does not explore British imperial oversight’s influence upon Madison’s proposed constitutional solutions.Show More As this Note uncovers, Madison himself thought deeply about imperial review of colonial legislation—particularly that of colonial Virginia—in the years leading up to the Constitutional Convention. And it was from Madison’s Privy Council-influenced proposals that judicial review ultimately sprung. This Note, therefore, confines itself to the study of Privy Council oversight of colonial Virginia and explores the story of three Virginian colonial acts, and their interaction with the British imperial system, to cast useful light on Madison’s vision of judicial review and constitutional theory more generally.

This Note is divided into three Parts. Part I discusses the history of the Board of Trade and the Privy Council’s enforcement of the repugnancy principle. Surprisingly, that enforcement process, and the innerworkings of both the Privy Council and the Board, has received remarkably little scholarly attention. Part II details the three Virginian Acts in chronological order. Discussing each Act’s historical context and ultimate demise brings to the surface some of the major issues that plagued colonial society. It also calls attention to the process and general cultural perception of legislative review in colonial Virginia. Part III turns to the influence imperial oversight of Virginia’s colonial legislation had on Madison—an influence that inspired Madison’s proposed federal constitutional framework. In short, the influence that both the Privy Council and Board’s scrutiny of Virginia’s colonial legislation had on Madison’s attempt to restrain the democratic will of state and national electorates may help us more clearly understand the imperial, colonial origin of judicial review.

  1. * University of Virginia School of Law, J.D. 2020. I am grateful first and foremost for Professor Cynthia Nicoletti and her insightful input, unwavering patience, and immense generosity. I would like to thank both Christian Talley and Anna Cecile Pepper for helpful comments and also the members of the Virginia Law Review, especially Clay Phillips, for careful editing and feedback. I am solely responsible for all errors.

  2. Disallowance was the term used to proclaim that colonial law was legally inoperative as it diverged from the laws of England. See Dudley Odell McGovney, The British Privy Council’s Power to Restrain the Legislatures of Colonial America: Power to Disallow Statutes: Power to Veto, 94 U. Pa. L. Rev

    .

    59, 81 (1946); see also Robin L. Einhorn, American Taxation, American Slavery 15 (2006) (equating disallowance to a “veto”); Robert J. Steinfeld, The Rejection of Horizontal Judicial Review During America’s Colonial Period, 2 Critical Analysis L. 214, 218 n.19 (2015) (“[D]isallowance operated as a ‘repeal’ of the statute.”).

  3. Mary S. Bilder, The Corporate Origins of Judicial Review, 116 Yale L.J

    .

    502, 538 (2006).

  4. Jonathan R.T. Hughes, Social Control in the Colonial Economy 13 n.12 (1976); see also Leon T. David, Councillors and the Law Officers in the Colonies in America, 12 Am. U. L. Rev

    .

    23, 32 (1963) (“Of some 8,563 acts submitted for approval, it disallowed 469.”); Sharon Hamby O’Connor & Mary Sarah Bilder, Appeals to the Privy Council Before American Independence: An Annotated Digital Catalogue, 104 Law Libr. J

    .

    83, 85 (2012) (“The Council could disallow a law; approximately 8563 were sent for review and 469 (5.5%) disallowed.”).

  5. Oliver Morton Dickerson, American Colonial Government 1696–1765, at 234 (1912).

  6. See Mary Sarah Bilder, The Transatlantic Constitution: Colonial Legal Culture and the Empire (2004); Alison L. LaCroix, The Authority for Federalism: Madison’s Negative and the Origins of Federal Ideology, 28 Law & Hist. Rev. 451, 466–69 (2010). But see Philip Hamburger, A Tale of Two Paradigms: Judicial Review and Judicial Duty, 78 Geo. Wash. L. Rev. 1162, 1174–75 n.38 (2010). His research shows that “judges had for centuries done their duty by holding government acts unlawful and void. They had done this as to sovereign acts of the king and even as to legislation, other than acts of Parliament. As a result, early American judges did not need to establish precedents for a power of judicial review.” Id. Although Professor Hamburger offers a compelling alternative account, he overlooks the fact that even though crown officials “consistently recognized the assemblies’ authority to pass laws, they always insisted that those bodies were subordinate institutions.” Jack P. Greene, Law and Origins of the American Revolution in The Cambridge History of Law in America 447, 449 (Michael Grossberg & Christopher Tomlins eds., 2008). The insubordination of colonial assemblies beneath the British imperial apparatus thus also provides a historical antecedent from which Americans, like James Madison, could derive intellectual inspiration for American judicial review.

  7. Joseph H. Smith, Administrative Control of the Courts of the American Plantations, 61 Colum. L. Rev. 1210, 1253 (1961).

  8. Astonishingly, Oliver Morton Dickerson’s American Colonial Government, which was published in 1912, remains the authoritative source on the mechanics of imperial disallowance.

  9. See Mary Sarah Bilder, Colonial Constitutionalism and Constitutional Law, in Transformations in American Legal History: Essays in Honor of Professor Morton J. Horwitz 28, 43 (Daniel W. Hamilton & Alfred L. Brophy eds., 2009).

  10. Id.

  11. Id.

  12. William E. Nelson, The Law of Colonial Maryland: Virginia Without Its Grandeur, 54 Am. J. Legal Hist. 168, 198–99 (2014).

  13. Mary Carroll Johansen, The Relationship Between the Board of Trade and Plantations and the Colonial Government of Virginia, 1696–1775, at 38 (1992) (unpublished M.A. thesis, The College of William & Mary) (on file with The College of William & Mary Libraries).

  14. Michael P. Zuckert, Judicial Review and the Incomplete Constitution: A Madisonian Perspective on the Supreme Court and the Idea of Constitutionalism, in The Supreme Court and the Idea of Constitutionalism 53, 55 (Steven Kautz et al. eds., 2009).

  15. Charles Evans Hughes, James Madison, 18 A.B.A. J. 854, 854 (1932) (referring to Madison as the “Father of the Constitution”); see also Daniel J. Hulsebosch, Being Seen Like a State: How Americans (and Britons) Built the Constitutional Infrastructure of a Developing Nation, 59 Wm. & Mary L. Rev. 1239, 1269 (2018) (“His theory of factional checks and balances is why many consider him the most thoughtful constitution maker.”).

  16. Zuckert, supra note 13, at 55.

  17. LaCroix, supra note 5, at 464.

  18. Zuckert, supra note 13, at 55.

  19. See Steven G. Calabresi, Originalism and James Bradley Thayer, 113 Nw. U. L. Rev. 1419, 1450–51 (2019) (building on James Bradley Thayer’s discussion of Madison’s proposed continuation of the imperial practice of legislative review); see also Sean Gailmard, Imperial Politics, English Law, and the Strategic Foundations of Constitutional Review in America, 113 Am. Pol. Sci. Rev. 778, 788 (2019) (“My argument is that delegates to the Constitutional Convention of 1787 recognized and sought to preserve benefits of Crown review by the Privy Council as an external bound on legislation.”).

  20. Section 25 of the Judiciary Act of 1789 granted federal courts jurisdiction over state courts in matters where “the validity of a statute” is drawn into question “on the ground of their being repugnant to the constitution.” Judiciary Act of Sept. 24, 1789, ch. 20, § 25, 1 Stat. 73, 85. In essence, the federal courts were empowered, much like the Board and the Privy Council, with the duty to enforce the repugnancy principle against state and federal legislation that conflicted, not with the laws of England, but with the text of the Constitution.

  21. Indeed, Professor Jordan Cash has observed that “judicial review had long been practiced in Virginia, and the English jurisdictional tradition continued to be influential into the early national period.” Jordan T. Cash, The Court and the Old Dominion: Judicial Review Among the Virginia Jeffersonians, 35 Law & Hist. Rev. 351, 365 (2017). Although less general than most accounts, Professor Cash’s assertion still paints with too broad a brush, as it does not explore British imperial oversight’s influence upon Madison’s proposed constitutional solutions.

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