Posted on 12/14/2004 3:30:28 PM PST by Ed Current
CONSTITUTIONAL THEORY COLLOQUIUM SERIES
Nearly all of American constitutional law today rests on a myth. The myth, presented as standard history both in junior high civics texts and in advanced law school courses on constitutional law, runs something like this: A long, long time ago - 1803, if the storyteller is trying to be precise - in the famous case of Marbury v. Madison,1 the Supreme Court of the United States created the doctrine of "judicial review." Judicial review is the power of the Supreme Court to decide the meaning of the Constitution and to strike down laws that the Court finds unconstitutional.
As befits the name of the court from which the doctrine emanates, the Supreme Court's power of judicial review - the power, in Chief Justice John Marshall's famous words in Marbury, "to say what the law is"2 - is supreme. The Congress, the President, the states - indeed, "We the People" who "ordain[ed] and establish[ed]"3 the Constitution - are all bound by the Supreme Court's pronouncements. Thus, the decisions of the Supreme Court become, in effect, part of the Constitution itself. Even the Supreme Court is bound by its own precedents, at least most of the time. Occasionally the Court needs to make landmark decisions that revise prior understandings, in order to keep the Constitution up to date with the times. When it does, that revised understanding becomes part of the supreme law of the land. Other than through the adoption of a constitutional amendment, however, the Supreme Court is the final authority on constitutional change.
Judicial review (the myth continues) thus serves as the ultimate check on the powers of the other branches of government, and is one of the unique, crowning features of our constitutional democracy. The final authority of the Supreme Court to interpret the Constitution has withstood the test of time. It has survived periodic efforts by the political branches, advanced during times of crisis (the Civil War and the Great Depression) or out of short-term political opposition to initially unpopular or controversial rulings (like Brown v. Board of Education4 and Roe v. Wade5), to undermine this essential feature of our constitutional order. Through it all - Dred Scott6 and the Civil War, the New Deal Court-packing plan, resistance to Brown, the Nixon Tapes case,7 the Vietnam War, the quest to overrule Roe v. Wade - the authority of the Supreme Court as the final interpreter of the Constitution has stood firm. Indeed, the Court's authority over constitutional interpretation by now must be regarded, rightly, as one of the pillars of our constitutional order, on par with the Constitution itself.
So the myth goes.
But nearly every feature of the myth is wrong. For openers, Marbury v. Madison did not create the concept of judicial review, but (in this respect) applied well-established principles. The idea that courts possess an independent power and duty to interpret the law, and in the course of doing so must refuse to give effect to acts of the legislature that contravene the Constitution, was well accepted by the time Marbury rolled around, more than a dozen years after the Constitution was ratified. Such a power and duty was contemplated by the Framers of the Constitution, publicly defended in Alexander Hamilton's brilliant Federalist No. 78 (as well as other ratification debates), and well-recognized in the courts of many states for years prior to Marbury.8
Moreover, and also contrary to the mythology that has come to surround Marbury, the power of judicial review was never understood by proponents and defenders of the Constitution as a power of judicial supremacy over the other branches, much less one of judicial exclusivity in constitutional interpretation. Nothing in the text of the Constitution supports a claim of judicial supremacy. The courts possess "[t]he judicial Power of the United States"9 and that power extends to "Cases, in Law and Equity, arising under this Constitution,"10 but nothing in the logic or language of such a statement of constitutionally authorized judicial jurisdiction implies judicial supremacy over the other branches of government. Jurisdiction to decide cases does not entail special guardianship over the Constitution. (If anyone could lay claim to the title of Special Trustee or Lord Protector of the Constitution, it would be the President, for whom the Constitution prescribes a unique oath that he will, "to the best of my Ability, preserve, protect, and defend the Constitution of the United States.").11 None of the Constitution's authors or proponents ever suggested that the Constitution provides for judicial supremacy over the other branches in constitutional interpretation.
Nothing in Chief Justice Marshall's opinion in Marbury makes such a claim of judicial supremacy either. The standard civics-book (and law school casebook) myth misrepresents and distorts what John Marshall and the Framers understood to be the power of judicial review: a coordinate, coequal power of courts to judge for themselves the conformity of acts of the other two branches with the fundamental law of the Constitution, and to refuse to give acts contradicting the Constitution any force or effect insofar as application of the judicial power is concerned.
That was a big enough deal in its own right. The idea that written constitutions could serve as judicially enforceable checks on the powers of legislatures elected by the people is an important, distinctively American, contribution to what the founding generation called the science of politics.13 Written constitutionalism, combined with separation of powers - including an independent judiciary deriving its authority directly from the Constitution and not from the other branches - yields an independent judicial power to interpret and apply the Constitution in cases before the courts. That is the proposition of Marbury v. Madison, and it is a proposition of considerable significance (even if not original to the case).
But that proposition is nowhere close to a holding, or claim, of judicial supremacy over the other branches - a notion that would have been anathema to the founding generation, and that the Supreme Court in Marbury appeared explicitly to disavow.14 Nothing in Marbury supports the modern myth of judicial supremacy in interpretation of the Constitution. Quite the contrary, Marbury's holding of judicial review rests on premises of separation of powers that are fundamentally inconsistent with the assertion by any one branch of the federal government of a superior power of constitutional interpretation over the others.
The logic of Marbury implies not, as it is so widely assumed today, judicial supremacy, but constitutional supremacy - the supremacy of the document itself over misapplications of its dictates by any and all subordinate agencies created by it. As a corollary, Marbury also stands for the independent obligation of each coordinate branch of the national government to be governed by that document rather than by departures from it committed by the other branches. Under Chief Justice John Marshall's reasoning (and Alexander Hamilton's before him in Federalist No. 78), the duty and power of judicial review do not mean the judiciary is supreme over the Constitution. Rather, the duty and power of judicial review exist in the first place because the Constitution is supreme over the judiciary and governs its conduct. As Marshall wrote in Marbury, "the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature."15
It is the fundamental betrayal of Marbury's premises and Marbury's logic that accounts for nearly all of what is wrong with "constitutional law" today. The twin peaks of constitutional law today are judicial supremacy and interpretive license. Marbury refutes both propositions. Correctly read, Marbury stands for constitutional supremacy rather than judicial supremacy. And constitutional supremacy implies strict textualism as a controlling method of constitutional interpretation, not free-wheeling judicial discretion.
This Essay proceeds in two Parts. First, I will discuss John Marshall's near-flawless argument for judicial review. This should be familiar ground, but it is not. Marbury truly fits Mark Twain's definition of a "classic": a work that everybody praises but nobody actually reads.16 Marbury is invoked today for the myth it has become, not for its actual reasoning and logic. I will challenge the reader to attend closely to what Marbury actually says - the premises set forth; the logic of the argument - and to shed the judicial supremacist preconceptions with which most modern readers, thoroughly corrupted by the Myth of Marbury, come to the case. If one does so, I believe, one will be forced to conclude that the case cannot bear a judicial supremacist reading. Marbury stands instead for constitutional supremacy, judicial independence, interpretive coordinacy, and the personal responsibility of all who swear an oath to support the Constitution to be guided by their best understanding of the Constitution and not pliantly to accede to violations of the Constitution by other governmental actors.
The second half of the Essay will then sketch the rather remarkable - even stunning - but entirely logical implications of Marbury's argument. Constitutional supremacy, interpretive coordinacy, and personal interpretive responsibility imply parallel duties of truly independent constitutional interpretation - that is, interpretation not controlled by the Supreme Court's decisions - by the executive and legislative branches of the national government, by all judges (irrespective of stare decisis), by juries, and even by agencies of state government. In short, if Marbury's reasoning is right, nearly all of our constitutional practice today is wrong. II. MARBURY'S LOGIC
Marbury v. Madison is, of course, wrong about a great many things.17 But on the essential point for which the case is justly celebrated - the judiciary's power of independent constitutional review of the lawfulness of acts of the other branches - Marbury's premises are unassailable, its logic impeccable, and its rhetoric beautiful. All of which makes its contemporary betrayal so lamentable.
As has been noted by too many people to count, Chief Justice John Marshall's opinion for the Court in Marbury is questionable, perhaps even deliberately mischievous, on a number of points.18 But it is hard to find fault in Marshall's proof for judicial review. In part, this is because the argument was so well-rehearsed in the work of earlier writers and prior judicial opinions. Talent borrows and genius steals. And John Marshall was undoubtedly a talented guy. In Marbury, Marshall displays his skills as a subtle and gifted plagiarist, shamelessly borrowing from Hamilton's The Federalist No. 78. But he does add his own distinctive and important twist, as we shall see.
There are three core points to Marshall's argument for judicial review in Marbury. They can be summarized briefly, but then deserve attention in detail.
First, Marshall's absolutely foundational starting point is the principle of constitutional supremacy. Marshall finds this postulate inherent in the nature of written constitutionalism. It is reinforced by some strongly supportive, specific textual provisions. It is not, however, an argument that derives its forces from any particular provision, but from the document as a whole. It is the fact of having a written constitution, and the nature of written constitutionalism, that does the work.
Marshall's second core proposition in Marbury is the interpretive independence of the several branches of government, a consequence that flows both from constitutional supremacy and, implicitly, from the structural separation of powers of the various departments of government. Marshall's contention is that it would be utterly inconsistent with the first principle of constitutional supremacy - indeed, inconsistent to the point of absurdity - for one branch to be able to bind another with its (by hypothesis) erroneous constitutional actions or views.
The third proposition of Marbury reinforces the conclusion following from the first two points, and it is Marshall's distinctive contribution to the traditional argument for judicial review. The obligation of the oath to support "this Constitution" requires that an interpreter have direct, unmediated recourse to the Constitution. Marshall's three arguments yield the specific conclusion of the power of judicial review of legislative acts - the legitimate power of courts to refuse to give effect to legislative acts that the courts find to be in violation of a rule of law supplied by the Constitution. But his arguments are fully generalizable: they equally support parallel powers of constitutional review by each branch of the actions of the others; and, moreover, they refute decisively any notion of judicial supremacy. Let us begin where Marshall does, with the postulate of constitutional supremacy. Marshall begins his argument for judicial review, intriguingly, with the first principle of the American Revolution: the right of the people to establish such principles for their own self-government as they deem most conducive to their well-being; the priority of those fundamental principles over the actions of government that depart from them; and the ultimate power of the people to judge whether such departures have occurred and to take remedial action. In a sense, the premises of the Declaration of Independence thus parallel the premises of judicial review, and one can hear distinct echoes of American revolutionary thought in the opening lines of Marshall's argument in
That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.19
This is the cornerstone from which Marshall proceeds. The Constitution, as an original act of self-government by the supreme authority - "We the People" - must be regarded as supreme law
limiting all government. This proposition is reinforced, later in the Marbury opinion, by noting Article VI's reference to the Constitution as "the supreme law of the land,"20 but it is, characteristically for Marshall, a structural inference - a deduction from the nature of selfgovernment and written constitutionalism, more than a specific text - that establishes the postulate that the Constitution is supreme law. Marshall continues:This original and supreme will [that is, the People] organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments. The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation.21
Note how Marshall's argument is a general one, not necessarily limited to legislative violations of the Constitution. The Constitution's allocation of powers establishes "limits not to be transcended" by any of the different departments. The powers of the legislature are defined and limited in writing, but the same is of course true of the executive and the judiciary. Those limitations are binding, or else written constitutionalism - the power of the People to establish limits on their government agents - is abolished. Marshall then draws the conclusion - deduces the theorem - that legislative enactments that violate the Constitution are void, since the only alternative is the unacceptable one of denying the supremacy of the written Constitution:
It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.
Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.
Certainly all those who framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.
This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.22This fundamental principle of constitutional supremacy
is, however, "lost sight of" in almost all further consideration of the subject of judicial review by today's academics, judges, lawyers, and students.They rush to a line
that shows up a few paragraphs later in the opinion - "It is emphatically the province and duty of the judicial department to say what the law is"23 - but wrench it from context. Marshall's argument, to this point, has been that the written Constitution prevails over the inconsistent actions of government or else the Constitution is meaningless. And this point (as I will develop below) surely applies to the judiciary as well as the legislature. Indeed, one can (and, in a moment, I will) repeat Marshall's argument to this point, substituting the words "court" for "legislature" and "judicial judgment" for "legislative act," with no change in the logic and flow of the argument. And, of course, one can make precisely the same argument for "president" and "executive action." Thus, it is a proposition "too plain to be contested" that either the Constitution controls the actions of the President and the decisions of the judiciary, or that the President and Supreme Court may alter the Constitution by their ordinary actions. If the Constitution is the "fundamental and paramount law of the nation," then, under the logic of Marbury, the theory of our government must be that "an act [of the President, or of the courts], repugnant to the Constitution, is void" in the same way as an act of the legislature.This principle, not "to be lost sight of in the further consideration of this subject," helps to frame Marshall's second step in the argument for judicial review in Marbury. That step is to ask whether the judiciary must give effect to unconstitutional enactments of the legislature: "If an act of the legislature, repugnant to the constitution is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law?"24
This, Marshall says bluntly, would be ridiculous. It "would be to overthrow in fact what was established in theory."25 It would be, Marshall says (in one of my favorite judicial phrases of all time), "an absurdity too gross to be insisted on."26
Is this because the Court, and not Congress, is designated as the authoritative interpreter of the Constitution? The next line in Marbury is the oft-quoted one that many take as supporting such a view: "It is emphatically the province and duty of the judicial department to say what the law is."27 But this does not get one very far. It is just a sonorous paraphrase of Hamilton's line in The Federalist No. 78 that "[t]he interpretation of the laws is the proper and peculiar province of the courts."28 Neither Marshall's version nor Hamilton's claims exclusive or superior interpretive authority for the courts. Moreover, often neglected is the immediately following sentences from the same paragraph of Marbury, which explain why it is the province of courts to say what the law is: "Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each."29 This is a far cry from a claim of judicial supremacy. It is merely a statement that, when performing the judicial task calls for deciding whether an act of Congress departs from the Constitution, the courts are up to the task. It is within the judicial province to make such a determination, and to make it independently of what Congress has determined. (Remember: the whole point Marshall is trying to make is that the courts are not bound by Congress's say-so - that this would be an "absurdity too gross to be insisted on."30) Making those types of determinations is no different in principle from the work courts do all the time when faced with conflicting statutes (a point Marshall also lifts straight from The Federalist No. 78).31 But it is a huge and illogical stretch, one certainly not warranted by the "emphatically the province" sentence and indeed quite inconsistent with the rest of Marshall's argument, to move from the proposition that the courts are competent to determine constitutional cases to the proposition that the courts' views bind everybody else. The Myth of Marbury is simply not very well grounded in the actual language of Marbury.
In fact, the same arguments that Marshall uses to develop the proposition of independent judicial interpretation tend to support the conclusion that the other branches are similarly competent to interpret the Constitution and likewise not bound by the erroneous interpretations of their fellow branches:
Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.
This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.32
Such a view, Marshall warns, "reduces to nothing what we have deemed the greatest improvement on political institutions - a written constitution . . . ." That, he says, is "sufficient, in America" to reject the contention.
33What is truly arresting about Marshall's arguments here - at least to eyes not conditioned to reading
Marbury through judicial supremacist lenses and shut to what Marbury actually says - is that the exact same reasoning would seem to apply with equal force to executive and legislative constitutional review of the propriety of acts of the judiciary. If the nature of a written constitution implies enforceable limitations on the powers exercised by the organs of government created thereunder, it implies limitations on the powers of courts, as well as Congress and the President. (Just a few paragraphs later, Marshall will write that the Constitution is an instrument "for the government of courts, as well as of the legislature."34) If requiring courts to carry out acts of the legislature contrary to the limits set by the Constitution "would overthrow in fact what was established in theory" and constitute "an absurdity too gross to be insisted on," so too in principle requiring the political branches to carry out decisions or precedents of the courts contrary to the limits set by the Constitution likewise would, absurdly, "overthrow in fact what was established in theory."If the Constitution supplies rules and principles that Congress and the President must apply in performing their duties, just as it supplies rules and principles that courts must apply in performing theirs, are Congress and the President permitted to interpret the Constitution directly, or are they required to "
close their eyes on the constitution" and "see only" the decisions of the courts? Marbury says that such a restriction, at least where urged on courts, "would subvert the very foundation of all written constitutions."35 Why this would not equally be true if the tables were turned is hard to answer, unless one were to assume judicial infallibility and perfect will-less-ness by the courts. But assuming that the courts might, like the legislature, misinterpret or misapply the Constitution, to then require the political branches to be bound by the courts' departure from the "fundamental and paramount law of the nation" would similarly be to "declare that an act" - here, an act of the judiciary - "which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory."36 It would be to declare that if the courts do "what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual."37 It would be giving to the courts "a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits."38 Indeed, such a doctrine would, by Marbury's logic, "reduce[] to nothing what we have deemed the greatest improvement on political institutions - a written constitution"! 39Alexander Bickel
, writing more than forty years ago in his classic book, The Least Dangerous Branch, made this same observation about Marbury's logic, but went exactly the wrong way with it. It was perhaps true, Bickel conceded to John Marshall, that to leave the question of constitutionality to the legislature would, absurdly, "allow those whose power is supposed to be limited themselves to set the limits." But the same could be said of the courts: "[T]he Constitution does not limit the power of the legislature alone. It limits that of the courts as well, and it may be equally absurd, therefore, to allow courts to set the limits."40For Bickel, this was a weakness in John Marshall's argument, for surely Marshall could not have intended to rest the power of judicial review, and against legislative supremacy, on premises that equally could be deployed against the supremacy of the judiciary's constitutional determinations! But Bickel, like so many who have followed him, erred in assuming that the point of
Marbury was to establish judicial supremacy rather than to demolish legislative supremacy and establish coequal and independent judicial interpretive competence. The problem with Bickel's critique of Marbury was that he assumed that Marshall was trying to prove the modern Myth of Marbury, when Marshall was doing nothing of the kind. Bickel could not and did not point to any flaw in Marshall's reasoning - in fact, Bickel's analysis agrees with my own about where Marshall's reasoning leads. But Marbury's reasoning in that case does not yield the conclusion that Bickel thought it ought to, or needed to, in order to justify modern practice. That is precisely my point: Marbury's reasoning and modern constitutional practice are hopelessly irreconcilable with each other. Marbury's logic stands opposed to any claim of judicial supremacy - the idea that the other branches are bound by the courts' actions no matter what. Bickel's analysis supports, quite unintentionally, my position here.41The attentive defender of judicial supremacy might at this point interject that the premise of this extension of
Marbury's reasoning is that the Court is as likely to err as the political branches. Not at all. The premise is that the Court could err and that there is no more reason in principle - and none remotely suggested in the pages of Marbury - for Branch X to be bound by Branch Y's errors than for Branch Z to be bound by Branch X's. Marshall's whole argument for the coordinate interpretive competence and independence of the judiciary assumes the existence of an unconstitutional action by another branch. In such an instance, it is "an absurdity too gross to be insisted on" to require a coordinate branch to be bound, within the province of its duties, to enforce or acquiesce in such an act, contrary to the paramount law of the nation. Nowhere does Marshall say that "unconstitutional" is defined by whatever a court, and a court alone, says. Rather, he treats "unconstitutional" as an objective fact - whether something is unconstitutional is determined, interestingly enough, by what the Constitution says.42It is at this point that Marshall turns, finally, to specific constitutional provisions, which he uses not as proof-texts of judicial supremacy but as examples of the absurdity of requiring that courts be bound, within the sphere of their power and in the performance of their duties, by a plain violation of the Constitution perpetrated by another branch. In each case, the argument can be turned around and applied to interpretation of the Constitution by the executive and legislative branches.
The judicial power of the United States is extended to all cases arising under the constitution. Could it be the intention of those who gave this power, to say that in using it the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained.
In some cases, then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey?43 Flawlessly logical. But the same logic applies, for example, to the President The point is particularly easy to make with respect to the President, because the constitutional provisions giving him power and responsibility to "take Care" to faithfully execute the laws and to "preserve, protect, and defend" the Constitution are remarkably clear The same point can be made (albeit more awkwardly) with respect to Congress, and indeed with respect to Marshall then proceeds with hypothetical examples of constitutional questions that easily could come up in a case appropriate for judicial resolution. There are many other parts of the constitution which serve to illustrate this subject. It is declared that "no tax or duty shall be laid on articles exported from any state." Suppose a duty on the export of cotton, of tobacco, or of flours; and a suit instituted to recover it. Ought judgment to be rendered in such a case? Ought the judges to close their eyes on the constitution, and only see the law? The constitution declares that "no bill of attainder or ex post facto law shall be passed." If, however, such a bill should be passed, and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavors to preserve? "No person," says the constitution, "shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare From these, and many other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of Once again, Marshall's logic is impeccable. And once again, it is easy to turn these hypotheticals into situations calling for executive or congressional interpretation of the Constitution, and pose the same rhetorical questions There are, of course, some difficult questions posed by a theory that permits multiple actors independently to interpret the Constitution, particularly the question of which interpretation will or should prevail. Marshall's third major argument in support of judicial review flows from the
Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!
Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him?
If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.49
A crime! Marshall takes the oath requirement very seriously; indeed, the founding generation as a whole took oath-taking extremely seriously.50 Article VI of the Constitution requires that all legislative, executive, and judicial officers, both of the United States government and of the governments of the states, "be bound by Oath or Affirmation, to support this Constitution . . . ."51 And, as we have already observed, Article II of the Constitution prescribes a special oath for the President, under which he is required to swear or affirm that he will, to the best of his ability, "preserve, protect and defend the Constitution of the United States."52
The implication of Marshall's argument from the oath requirement is obvious: Marbury is no argument for judicial supremacy in constitutional interpretation. It is an argument for the personal constitutional responsibility of all who swear an oath to support the Constitution to resist and refuse support to usurpations or violations of that Constitution by all others. To paraphrase Marbury once again, why does the Constitution require that members of Congress, the President, other federal judges, state judges, state legislatures, and state executives, all swear an oath to discharge their duties agreeably to the Constitution of the United States if that Constitution forms no rule for their government? If it is closed to them, and cannot be inspected by them? "If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime."53 Again, Alexander Bickel is an unwitting ally in my cause. Here is his critique of Marshall's argument on this point:
Far from supporting Marshall, the oath is perhaps the strongest textual argument against him. For it would seem to obligate each of these officers, in the performance of his own function, to support the Constitution. . . . Surely the language lends itself more readily to this interpretation than to Marshall's apparent conclusion, that everyone's oath to support the Constitution is qualified by the judiciary's oath to do the same, and that every official of government is sworn to support the Constitution as the judges, in the pursuance of the same oath, have construed it, rather than as his own conscience may dictate.54
Hold the phone a minute: What makes this latter alternative "Marshall's apparent conclusion"? Is this anything other than the modern Myth of
Marbury read back into the case from a distance of a century and a half? Bickel was right, that the oath would seem to obligate each of these officers, in the performance of his own function, to support - and thus independently interpret, according to Marbury - the Constitution. But Bickel was wrong in thinking that this furnishes any sort of argument against Marshall's conclusion, for the simple reason that Bickel was wrong about what Marshall's conclusion was.The Oath Clause is an important argument in
Marbury. It is Marshall's icing on the cake of his proof of judicial review, a moral clincher that is Marshall's distinctive addition to the well-accepted argument for judicial review. And it is one, as we shall see in a moment, that has important implications in its own right, for it is the only purely textual (as opposed to structural or inferential) argument in Marbury that supports independent interpretive power by agencies of state government.The final substantive paragraph of Marbury ends the opinion with what is, comparatively, a whimper. "It is also not entirely unworthy of observation," Marshall writes, half-heartedly, that the Supremacy Clause of Article VI lists the Constitution first, in its listing of what constitutes the "supreme law of the Land" and gives a similar status to statutes "made in pursuance of the constitution." This is only weak supportive evidence of a power of judicial review, because the Supremacy Clause proceeds to say that the judges "in every state" shall be bound by that supreme law. Still, Marshall notes, the Supremacy Clause "confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument."55 Once again, the concluding paragraph is hard to square with the judicial supremacist Myth of III. If What if we were to take (1) the existence of a power of " (2) the existence of a coequal power of (3) the unconstitutionality of the doctrine of (4) the existence of a legitimate power of My fifth proposition, somewhat less controversial than the others, is that A. It is, emphatically, the province and duty of the executive department to say what the law is. Those who apply the law to particular instances - and execution of the law is a quintessential example of applying the law to particular cases - must of necessity If, therefore, the President is to regard the Constitution, and to regard it as superior to any ordinary act of a subordinate institution created under it, must he close his eyes on the Constitution The argument for "executive review" - the power and duty of the President to exercise independent legal judgment and review of the validity of the actions of B. If the presidency's awesome and wide-ranging constitutional powers and strategic position, combined with independent interpretive authority, make it "The Most Dangerous Branch," Marbury Marbury And Congress has quite a number of such powers, some with potentially sweeping consequence. Congress (the Senate alone, actually) possesses a substantial role in checking appointments of both executive and judicial officers, and it properly may exercise its power in this area based on its vision of how the Constitution should be interpreted and applied by the executive branch and by the courts. That last proposition, of course, is utter blasphemy in the constitutional But if the correct understanding of In addition to these strong, but blunt, front-end and back-end checks on interpretive abuse by the other branches, Congress's prov-inces of constitutional interpretation also include the power to propose constitutional amendments; the coequal power to interpret extremely important constitutional provisions, like the Thirteenth, C. If Consider again what The idea of precedent is almost sacrosanct to lawyers, conditioned by the common law and the case method, so much so that few have examined carefully its premises and whether those premises are compatible with a system that purports to accord primacy to a written, enacted text. Marbury D. The terms "interposition" and "nullification" are practically constitutional profanities these days. The terms are associated with secessionists of the mid-nineteenth century and segregationists of the mid-twentieth, both of whom employed somewhat warped notions of state interpretive authority in the service of the most unjust of causes. But The doctrines of interposition and nullification have reasonably respectable roots. The idea of independent state authority to interpret the Constitution - and to resist asserted violations of the Constitution by the instrumentalities of the national government - dates back at least a half-decade before Interestingly, the idea of state government authority to interpret the federal Constitution finds much to commend it in the reasoning of Interestingly, the idea of state government authority to interpret the federal Constitution finds much to commend it in the reasoning of It follows, I submit, that state government officials, who likewise swear an oath to support the U.S. Constitution as "supreme law of the Land," The right answer is that every government actor - state and federal - is sworn to uphold the Constitution, and that none is the master of the others in terms of what adherence to that oath requires. Each branch of the federal government possesses coequal interpretive authority with the others and may seek to make its interpretation of the Constitution "stick," so to speak, with the constitutional powers at its disposal. Now, this should be a bit unsettling. This Marbury * * * * * Now, I know what you're thinking: If this is truly where Calm down. Lawyers are lovers of order and prone to see disaster in the slightest degree of disagreement, disequilibrium, and disorder. A multiplicity of voices is not the end of the world. It is simply a E. Ah, you say, but there's the rub: All of this assumes Put to one side for a moment Marbury The powers of the legislature are More than that, it is this very writtenness of the Constitution that, in We tend to forget or ignore this, because we are imprisoned by the Myth of What Thus, what seems to scare sensible people about coordinate and decentralized constitutional interpretation is that the interpreters might think themselves properly possessed of To be sure, a "presidential activist" in constitutional interpretation is a dangerous constitutional loose cannon. To be sure, a state government that feels free to interpret the Constitution in a manner cut loose from the constraints of the The more that interpretive power is conjoined with practical governing power, the more important it is that interpretive power be constrained by the relatively clear boundaries of text, intention, and structure. If one is to shed the Myth of IV. C Alas, that is not the constitutional world we inhabit today. Instead, we live in a constitutional world in which the Supreme Court is sultan and a perversion of FOOTNOTES @ SOURCE URL .pdf file.
If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.
bump
Thanks for posting. I learned as much in law school, but most non-lawyers (and, indeed, most lawyers) still believe that the federal courts are the sole arbiters of constitutional interpretation.
1. The meaning of the Phrase "to regulate trade" must be sought in the general use of it, in other words in the objects to which the power was generally understood to be applicable, when the Phrase was inserted in the Constn.
Jackson's philosophy seems to be of the FDR "living document" school of thought.
You should at least read the prologue of the article before you call for overturning Marbury v. Madison. The point is that Marbury has been misinterpreted, but that the opinion itself uses flawless logic.
Courts have the duty to interpret laws and the Constitution, and to deem the Constitution as higher law that will override anything to the contrary included in a mere statute, but that should not be construed to deny the other two co-equal branches of government the right and the duty to interpret the Constitution as well.
Read about one-third of it, and it appears that this will not go down well with the oligarchy - federal judges.
It will be interesting when the SC makes a ruling and some President in the future tells them to go fly a kite under power lines.
Bookie-mark
to go fly a kite under power lines.
IN WET BLACK ROBES!
I disagree with pure "textualism", as it makes no attempt to discern original intent, or take into account changes in the commonly understood meanings of words.
"[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean." Dred Scott v. Sandford, 19 How. 393, 621 (1857) (Curtis, J., dissenting).
"On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed."- Thomas Jefferson (1743-1826), letter to Judge William Johnson, (from Monticello, June 12, 1823) FOUNDER'S LIBRARY
"The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary, as distinguished from technical meaning; where the intention is clear, there is no room for construction, and no excuse for interpolation or addition." - Martin v. Hunter's Lessee, 1 Wheat 304; Gibbons v. Ogden, 9 Wheat 419; Brown v. Maryland, 12 Wheat 419; Craig v. Missouri, 4 Pet 10; Tennessee v. Whitworth, 117 U.S. 139; Lake County v. Rollins, 130 U.S. 662; Hodges v. United States, 203 U.S. 1; Edwards v. Cuba R. Co., 268 U.S. 628; The Pocket Veto Case, 279 U.S. 655; (Justice) Story on the Constitution, 5th ed., Sec 451; Cooley's Constitutional Limitations, 2nd ed., p. 61, 70.
What a FANTASTIC article. I cannot BUMP this any higher!
If I recall correctly, it was Hamilton, defending a loyalist in New York immediately after the Revolutionary War, who first argued that his client's guilt or innocence under the law which he was being charged was irrelevant because the law itself was unjust.
Hamilton won the case.
And that was several years prior to the Constitution.
That is likely where one of the next crises on the path to Revolution will happen. One day a president is going to have to say "That's your ruling? OK, what are you going to do about it?" Or the legislature is going to have to start passing bills with the stipulation that they are not subject to judicial review. One way or the other we're going to get to the place where the bullet meets the meat. And then everybody will be sorry but it is a "necessary phase."
What's your take on US v Morrison?
From a pragmatist's point of view, they are.
From a Constitutionalist's point of view, they should have been impeached back around the time the first Bank of the United States was held Constitutional.
bookmark for a cold winter night
If this was not written by a past editor of the Yale Law Journal, who teaches at the University of Minnesota Law School, and who is writing for a symphosium at the Northwestern Univ. School of Law, [he did work in the Regan Administration] I would think that some folks might consider this guy a backward yahoo.
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