James Bradley Thayer’s article on judicial review is one of the most renowned pieces of scholarship in American constitutional law. It is famous for the “clear mistake doctrine”—his notion that legislation should be struck down only if it violated what any rational person would believe the Constitution to mean. “Clear mistake” thus embodies very strong judicial restraint. My article, The Duty of Clarity, shows why “clear mistake” is itself clearly mistaken.
Thayer’s strongest originalist support for the doctrine comes from the many cases around the time of the Framing that state that judges should invalidate legislation only when it is in clear or “manifest contradiction” with the Constitution. But Thayer misunderstands these cases because his own premises about law are so different from those of the Framers. He quotes the words of law without understanding the accompanying jurisprudential music.
First, unlike those in the Framing generation, Thayer believes that constitutional law serves a political function that differs fundamentally from other applications of law.
