Sanders on Reasonable Doubt About James Bradley Thayer

Anthony B. Sanders, Institute for Justice, is publishing Reasonable Doubt About James Bradley Thayer in volume 18 of the Elon Law Review. Here is the abstract.

This Article responds to some recent pathbreaking work concerning the real-world justification for James Bradley Thayer’s famous 1893 essay The Origin and Scope of the American Doctrine of Constitutional Law. Thayer’s essay defended the use of a “beyond a reasonable doubt” standard when judges engage in judicial review and additionally claimed the standard was of longstanding and widespread acceptance. The recent scholarship has argued Thayer was justified in this historical claim. I respond by arguing that although the standard was mentioned and praised in a variety of sources, in line with Thayer’s claim, when seen in the context of a wider body of caselaw it becomes quite suspect. I survey how state high courts applied—or, more importantly, did not apply—the reasonable doubt standard during a sample of years shortly before Thayer’s essay: 1880 through 1884. I find these courts only mentioned the standard in a small minority of cases when they exercised judicial review. When courts relied on the standard they did so haphazardly and as a practical matter it did little work to affect the outcome of cases. Indeed, these courts seemed to have simply avoided the standard whenever they wanted to. It was exceedingly rare for majority opinions to invoke it when declaring a law unconstitutional, even though the same majorities ruled laws were constitutionally invalid in more than a quarter of the cases in which they exercised judicial review. Before Thayer the standard was, for the most part, exactly what he claimed it was not: rhetoric. But although Thayer was wrong about the past, he shaped the future. Thayer’s version of the reasonable doubt standard, directly or indirectly, later became the modern rational-basis test. That is a standard that influences the outcome of cases. But it is not the same thing. Thus, a tradition of “reasonable doubt” in actual holdings was of limited reality before Thayer. But he is at least partly responsible for the later very robust—but different—reality.

Download the article from SSRN at the link.

Webb on The Lost History of Judicial Restraint @CathULaw @YaleLawSch @NotreDameLRev

Derek Webb, Yale Law School, is publishing The Lost History of Judicial Restraint in volume 100 of the Notre Dame Law Review. Here is the abstract.

This article attempts to answer a question of great contemporary significance – what role courts should play in our democracy. Specifically, it attempts to answer the question of what standard of review courts should use in deciding constitutional cases. It does so by recovering a lost history of how American jurists conceived that role from the American founding to the close of the nineteenth century. It draws upon a voluminous and diverse array of nineteenth century treatises, legal dictionaries, encyclopedias, case books, and manuals of federal practice, on the one hand, most of which have never before been examined, and federal and state supreme court cases in all fifty states on the other, to show, contra prominent legal historians and many leading contemporary originalists, that by the close of the nineteenth century, there was an overwhelming consensus in favor of the presumption of constitutionality, clear error rule, and reasonable doubt standard. James Bradley Thayer, who popularized those rules and gave them a unique theoretical justification in his classic 1893 article “The Origin and Scope of the American Doctrine of Constitutional Law,” did not just invent those rules. He was not, as Learned Hand put it, and many of his critics have subsequently agreed, the “prophet of a new approach.” Rather, he was just one – albeit distinguished and influential – member of a vast yet now forgotten chorus of treatise writers and jurists throughout the country, eventually in all fifty states, who defended a cautious, deferential, and restrained approach to invalidating the acts of democratic bodies. My thesis is that over the course of America’s first century, there emerged a much broader and richer historical consensus around judicial restraint than the advocates or critics of restraint have ever acknowledged. From its earliest origins in the transatlantic constitution, and through piecemeal legal practice in state and federal courts, before and after the creation of the Constitution, the “Thayerian” “rules of administration” associated with judicial restraint were eventually adopted by both the U.S. Supreme Court and all fifty state supreme courts in the country. This has implications not only for legal history but for understanding the scope of the judicial power and duty today. By attempting to recapture this mostly "lost history of judicial restraint," I argue that during America’s first century, through the “discussions” in legal treatises and the “adjudications” in all the country’s apex supreme courts, all pointing overwhelmingly and uniformly in the direction of restraint, the Constitution’s standard of review, and the very meaning of "the judicial power" in Article III, appears to have been fixed or “liquidated" during America's first century.

Download the article from SSRN at the link.

Stern and Moyn on To Save Democracy from Juristocracy: J. B. Thayer and the Tragic Origins of Constitutional Theory @samuelmoyn

Rephael G. Stern, NYU Law; Harvard Graduate School of Arts and Science, and Samuel Moyn, Yale University, have published To Save Democracy from Juristocracy: J.B. Thayer and the Tragic Origins of Constitutional Theory. Here is the abstract.

As many Americans once again worry that their democracy is hostage to judicial power, this Article recovers how the country’s first constitutional law professor set out on a mission to stave off the syndrome before it stuck. The first archival reconstruction of how James Bradley Thayer (1831-1902) arrived at his epochmaking theory of judicial deference — which remains the most influential piece of scholarship on American constitutional law in the country’s history — this Article demonstrates that Thayer was determined to preserve the democratic revolutions of the Civil War and Reconstruction and to transform America in the direction of British legislative supremacy. Scandalized by growing ventures to weaponize the federal judiciary so as to preempt the new American democracy, Thayer bet on something new in global history: mass democracy understood as an experiment in collective learning. The Article thereby provides a new periodization and transatlantic contextualization of the struggles over judicial fiat routinely associated with the early twentieth century: far from simply foreseeing the Supreme Court’s defense of laissez-faire to come, Thayer mobilized in the first instance in response to forgotten manifestations of an American juristocracy after the Civil War. His inspiration, moreover, came from witnessing England’s rapidly-expanding representative democracy in which Parliament — and not the courts — reigned supreme. And yet, as this Article emphasizes, Thayer failed in the long run. His democratizing fix, judicial self-restraint under the “clear error standard” — which this Article shows had the same English roots as his democratic faith — has tragically misled reform. An archival genealogy of rational basis review in constitutional law, this Article explains why Thayer called for it but also why his mission, in spite of its partial implementation after his death, now has to be rescued in its own right. Judicial self-restraint has not prevented the continuation and even the intensification of the very juristocratic syndrome Thayer rightly found so troubling. If Americans still remain with him at the dawn of our commitment to democracy, they will have to save it from judges in a new way all their own.

Download the article from SSRN at the link.