Friday, February 28, 2020

Graber on the Ship-Money Case

Not because we know enough to have an opinion on the merits, but because we're not immune from the appeal of snark in a title, we smiled when we saw that Mark Graber, University of Maryland Francis King Carey School of Law, has posted Ship Money: The Case that Time and Whittington Forgot, which is forthcoming in Constitutional Commentary:
The absence of Ship-Money from the canon of judicial review creates a lacuna in the scholarship on the theoretical foundations for judicial review. This review details how the majority and dissenting opinions in Ship-Money provided Americans with two distinctive paths to a judicial power to declare laws unconstitutional. The majority opinions emphasized sovereignty. Judicial review serves to protect the will of the sovereign, be that the King, Parliament or the people. The dissents emphasized fundamental law. Judicial review serves to protect higher law principles. Marbury grounded judicial review in a theory of sovereignty. James Otis when protesting the Stamp Act grounded judicial review in higher law principles. Both approaches intertwine in American constitutional development.

The absence of Ship-Money from the canon of judicial review creates a lacuna in the scholarship on the political construction of judicial review. Increasing agreement exists among scholars of constitutional law that judicial review has political foundations. Ran Hirschl and Tom Ginsburg detail how the judicialization of politics outside the United States has similar political foundations. Talk of politics disappears, however, when conversation turns to the rise of parliamentary sovereignty in England. Distinguished histories begin with Bonham’s Case, which scholars discuss as an intervention in the theory of judicial power. The English path ends with Blackstone declaring that courts have no power to declare laws unconstitutional. Parliamentary sovereignty appears to have just happened in England or Bonham perhaps aside, been the rule from time immemorial. No politics here.

Ship-Money puts politics back into explanations for the rise of parliamentary sovereignty in England and the later rise of judicial power in the United States. The judicial opinions in Ship-Money demonstrate that judicial elites in the mid-seventeenth century had developed a conception of judicial power rooted in royal sovereignty that justified striking down parliamentary legislation inconsistent with royal prerogatives. The political foundations of Ship-Money judicial review, however, collapsed almost immediately. The judicial majority in Ship-Money placed the courts firmly on what become within a decade the losing side of the English Civil War when asserting that sovereignty was vested in the King, that one aspect of this sovereignty was royal power to levy exactations without parliamentary consent, and that laws that trenched on this regal prerogative were void. Institutional power after 1648 and 1688 flowed to Parliament, the institution on the winning side of the English revolution. The new understanding of judicial power, celebrated by Blackstone, maintained that courts could not strike down legislation because Parliament was sovereign, but that justices could declare illegal royal decrees inconsistent with Parliamentary sovereignty. “Ultra vires” judicial power and only “ultra vires” judicial power does not date from “time immemorial, but became during the late seventeenth and early eighteenth centuries the dominant philosophy of the members of Parliament who gained power after the English Civil War and Glorious Revolution.
--Dan Ernst