The Origin and Scope of the American Doctrine of Constitutional Law James B. Thayer Harvard Law Review 1893 Professor James Thayer taught at Harvard Law School from 1873 until his death in 1902. He authored a constitutional law casebook and numerous articles, including one of the most influential law review articles ever written, called “The Origin and Scope of the American Doctrine of Constitutional Law,” published in 1893. In this article, Thayer writes that judges should always defer to the legislature except in rare cases where there is a clear constitutional violation. The US Constitution created three branches of government, each with its own role. Drafting laws is the exclusive prerogative of the legislature. Thayer argues that if courts declare legislative acts to be constitutional or unconstitutional (apart from rare and obvious cases), then the court is, in effect, legislating by deciding whether something is a law. It can only disregard the Act when those who have the right to make laws have not merely made a mistake, but have made a very clear one, - so clear that it is not open to rational question. That is the standard of duty to which the courts bring legislative Acts; that is the test which they apply, -not merely their own judgment as to constitutionality, but their conclusion as to what judgment is permissible to another department which the constitution has charged with the duty of making it. Thayer posits that his theory of judicial review has been the traditional viewpoint. He cites historical examples of both state and federal courts adhering to a strict separation of powers. Although there are often multiple ways to interpret the Constitution, it is not the responsibility of a court to decide which is valid or preferable. The constitution often admits of different interpretations; that there is often a range of choice and judgment; that in such cases the constitution does not impose upon the legislature any one specific opinion, but leaves open this range of choice; and that whatever choice is rational is constitutional. Thayer explains why it is not only a question of the proper role of the judiciary but that it has a practical impact on the behavior of the legislature. It is bad for the democratic system if judges are doing the job of the legislature. Congress should be careful when enacting laws and the voters ought to be able to hold them accountable. If Congress decides to rely on the courts to enact or block laws, they become sloppy when crafting legislation and the voters have no recourse because they don’t vote for the judges. Later scholars, interpreting Thayer, coined the terms “judicial activism” and “judicial restraint” to describe competing theories of judicial review. “Thayerism” itself has become a term to describe a philosophy of judicial restraint or deference. But scholars still debate exactly how Thayer conceived of judicial review and how he envisioned his theory in action. What standards should be used to decide if a law is clear or rational? Are these principles applicable all of the time, or only in certain circumstances? Was Thayer an early Originalist or is his theory contrary to Originalism? This article and Professor Thayer’s corresponding casebook influenced generations of academics and judges alike, including Supreme Court Justices Holmes, Frankfurter, Rehnquist, and White. And, it continues to inform constitutional law debates about the proper role of the judiciary, today.