The Lost History of Judicial Restraint

Derek A. Webb*

For over 125 years, jurists and scholars who have championed judicial restraint have looked back to James Bradley Thayer’s 1893 Harvard Law Review article, The Origin and Scope of the American Doctrine of Constitutional Law, as the seminal authority for the rule that courts should presume the constitutionality of a challenged law and only invalidate it if its unconstitutionality is “clear” and “beyond a reasonable doubt.” But Thayer presented those three rules (presumption of constitutionality, clear error rule, and reasonable doubt standard) as rooted in historical legal practice in America. And yet none of his twentieth or twenty-first century acolytes systematically checked to determine the accuracy of his historical account or discover whether those rules really did become widely accepted and deeply rooted in American legal practice, mostly relying instead upon Thayer’s say-so. Meanwhile, some prominent historians have disputed his account of the history, and many leading originalists have disputed different elements of Thayer’s thesis, some disagreeing with the presumption of constitutionality, others the clear error rule, and still others the reasonable doubt standard.

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. Indeed, I aim to show that by Thayer’s time, the presumption of constitutionality, clear error rule, and reasonable doubt standard had become a widely accepted (if not always practiced), liquidated understanding of the meaning of the judicial power. 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.

Through a systematic exploration of two kinds of sources—over forty nineteenth-century legal treatises, dictionaries, encyclopedias, constitutional law casebooks, and manuals of federal practice, on the one hand, and decisions of the U.S. Supreme Court and hundreds of decisions by state supreme courts from 1780 to 1900 on the other—I attempt to not only demonstrate the fact of that broad consensus in the late nineteenth century, but show how that consensus and its underlying rationale developed from the American Founding to just after the Civil War. I show that two decisions in particular—the Dred Scott decision in 1857 and the Civil Rights Cases in 1883—had a strong impact upon both treatise writers and state supreme courts in the direction of greater judicial restraint, especially the acceptance of the reasonable doubt standard.

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 courts, all pointing overwhelmingly and uniformly in the direction of restraint, the Constitution’s standard of review, though “more or less obscure and equivocal” in 1787, appears to have been fixed or “liquidated” by the end of the nineteenth century.

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© 2024 Derek A. Webb.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Assistant Professor of Law, Catholic University Columbus School of Law.  I would like to particularly thank John Witt, Larry Solum, and Robin West, who each helped to inspire this project in its very early stages.  I would also like to thank Bruce Ackerman, Joel Alicea, Stephanie Barclay, Will Baude, Monica Bell, Steven Calabresi, Judge David Campbell, Jud Campbell, Dale Carpenter, Marc DiGirolami, Michael Dreeben, Dianellen Evans, William Ewald, Noah Feldman, John Garvey, Jonathan Gienapp, Sherif Girgis, Christopher Green, A.E. Dick Howard, William Kamin, Larry Kramer, Kurt Lash, Michael McConnell, John Mikhail, Samuel Moyn, Eloise Pasachoff, Jeff Pojanowski, Robert Post, Zachary Price, Brad Snyder, Chad Squitieri, Mark Storslee, Judge Jeffrey Sutton, William Treanor, Kevin Walsh, Morgan Weiland, Lael Weinberger, Adam White, Keith Whittington, Ilan Wurman, and Michael Zuckert for comments and discussions on the paper.  Presentations of this paper at Robin West’s Fellows Workshop at Georgetown Law Center, Michael McConnell’s Stanford Law School Constitutional Law Center Works-in-Progress Workshop, Yale Law School, and my new home at Catholic University proved to be invaluable.