Professor Derek Webb of Catholic Law recently published an article in the first issue of the 100th Volume of the Notre Dame Law Review entitled "The Lost History of Judicial Restraint." In this piece, Webb argues that James Bradley Thayer’s influential 1893 proposal—that courts should presume the constitutionality of legislation and only set aside a law if it was clearly and obviously unconstitutional—was far from revolutionary but was instead rooted in historical legal practice stretching across the entire country.  

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In his article, Webb 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.

Webb argues that Thayer 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, influential, and idiosyncratic – 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.

This has implications not only for legal history, he argues, but for understanding the scope of the judicial power and duty today. By attempting to recapture this mostly "lost history of judicial restraint," Webb argues that during America’s first century, through the “discussions” in legal treatises and the “adjudications” in all fifty of the country’s apex supreme courts, as well as the U.S. Supreme Court, all pointing overwhelmingly and uniformly in the direction of restraint, at least in principle if not always in practice, 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.