The Rise Of American Judicial Restraint

In the very late nineteenth and early twentieth century,America transformed into an industrial society featuring on big scale economic organizations.The transformation of economy and society promotes state legislature and Congress to enact a series of progressive economic laws controlling monopoly group,promoting work environment and wage level of labor.At that time,the Supreme Court of US dominated by conservative judges reviewed rigorously progressive economic legislations of federation and states by “substantial Due Process” to prevent the process of government’s regulation.Simultaneously,they began to advocate and develop judicial restraint.Under above historical background,Progressive scholars,such as Thayer,Holmes and Frankfurter,began to criticize judicial activism of the Supreme Court in works and judicial opinions.They advocated and developed judicial restraint.Thayer,as the father of judicial restraint doctrine,proposed “the clear error” rule—It can only disregard legislative act when those who have the right to make laws have not merely made a mistake,but have made such a very clear one,— so clear that it is not open to rational question.Justice Holmes,as Thayer’s most famous successor,inherited and developed judicial restraint originated from Thayer.Justice Holmes objected to interpret legislation according to judges’ personal preference and thought courts should defer to the will of elected legislature,unless legislations violating the rationality rule and fundamental principles.Influenced by Thayer and Holmes,Frankfurter developed judicial restraint more architectonical.According to Frankfurter,judicial department had the duty to respect legislative facts.Besides,because judicial inherently oligarchy,which results that the power of judicial review must be restricted rigorously,which means that judicial department should defer to democracy.Through the efforts of Thayer,Holmes and Frankfurter,judicial restraint raised and became the mainstream of American judicial review.Its core point is that whatever choice is rational is constitutional,only the legislation violates reasonable question rule,can judicial department invalidate the legislation.The paper’s research method is archaeology of knowledge.The method focus on the responses of American constitutional scholars living in he very late nineteenth and early twentieth century,the responses is to judicial activism of American Supreme Court.At the same time,the method focus on history of judicial review’s controversy during the period.The research method maybe an innovation of the paper.Besides,investigating the rise of American judicial restraint may help us learn about American judicial review and think about our judicial review in the future.