If you mean separation of powers, as it sounds like, then I agree. The Judiciary can no more order the legislative branch to perform a legislative act, say raise taxes, than the legislative or executive branches can overturn a judicial finding. Do I have this right?
Yes.
D. State Interposition and Nullification
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 correctness of a constitutional theory cannot be judged by its misappropriation and misapplication by constitutional hijackers, including South Carolina's John Calhoun, the name most prominently associated with the theory.82
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 Marbury, to the Virginia and Kentucky Resolutions of 1798 and 1799, and James Madison's "Report of 1800" for the Commonwealth of Virginia.83 Indeed, they can claim supportearlier yet, in the political theory of federalism and state checks on national power set forth in The Federalist.84
Interestingly, the idea of state government authority to interpret the federal Constitution finds much to commend it in the reasoning of Marbury: the Constitution is supreme, not the actions of subordinate agencies under it; departures from the Constitution thus cannot be regarded as obligatory and binding lest we overthrow in fact what is established in theory; and those who swear an oath to support the Constitution must interpret it faithfully and independently and could not have been intended to have been forced to violate their consciences by accepting the unsound constitutional judgments of others. Again, all these points apply to state government officials who are called on to consider federal constitutional issues within the sphere of their state government functions, and who likewise swear an oath, pursuant to Article VI, to support the Constitution. True, officers of state governments are not coordinate departments of the national government, as Congress, the President, and the judiciary are. But everything else in Marbury applies, and Marbury makes as much of earlier yet, in the political theory of federalism and state checks on national power set forth in The Federalist.84
Interestingly, the idea of state government authority to interpret the federal Constitution finds much to commend it in the reasoning of Marbury: the Constitution is supreme, not the actions of subordinate agencies under it; departures from the Constitution thus cannot be regarded as obligatory and binding lest we overthrow in fact what is established in theory; and those who swear an oath to support the Constitution must interpret it faithfully and independently and could not have been intended to have been forced to violate their consciences by accepting the unsound constitutional judgments of others. Again, all these points apply to state government officials who are called on to consider federal constitutional issues within the sphere of their state government functions, and who likewise swear an oath, pursuant to Article VI, to support the Constitution. True, officers of state governments are not coordinate departments of the national government, as Congress, the President, and the judiciary are. But everything else in Marbury applies, and Marbury makes as much ofthe idea of constitutional supremacy, and of the obligation of the oath, as it does the coordinacy of the branches of the federal government.
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," are not bound to submit docilely to unconstitutional actions of the agencies of the national government. By the logic of Marbury, they cannot be bound by the erroneous constitutional views of organs of the national government, but are empowered, even required, to interpret the Constitution directly. But note that, just as Marbury's proof of independent judicial authority to interpret the Constitution does not properly imply judicial interpretive supremacy, neither does the existence of state interpretive competence imply state interpretive omnipotence. This, or some modified version of it, was Calhoun's mistake. States are not bound by federal interpretations, but the federal government is not bound by states' interpretations either.85
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.86 So too state government actors possess, by virtue of their oaths to support the U.S. Constitution and the supremacy of the written Constitution over all instrumentalities of the federal government, the prerogative and duty faithfully and independently to interpret the Constitution of the United States and to resist, with the powers at their disposal, violations of that Constitution by the federal government. Just as no branch of the federal government has interpretive supremacy, no level of government - federal or state - has interpretive supremacy. The precise accommodation of conflicting views is a function of the interaction among branches of government and between levels of government.
Now, this should be a bit unsettling. This is Governor George Wallace standing in the schoolhouse door.87 But it is also James Madison and Thomas Jefferson leading Virginia and Kentucky in resistance to the Sedition Act, and vindicating the Constitution in the election of 1800. The fact that a constitutional theory or power might be misused does not prove that it is wrong. Interposition, like the Force, is a double-edged saber; it can be used for good or for evil, depending on how and by whom it is being wielded. This is true of interpretive power generally, including quite obviously interpretive power as wielded by the Supreme Court.88 The true question is whether the Constitution provides for a multiplicity of interpreters, each independent of the others and armed with only a portion of the constitutional power to make their interpretations stick, or instead provides for a single authoritative interpreter whose decisions are conclusive and binding on all other actors, even where they are wrong - contrary to the written Constitution that is our paramount law - and even where they are wicked.
Marbury's answer is that the latter proposition "would subvert the very foundation of all written constitutions"89 and thus "reduce[] to nothing what we have deemed the greatest improvement on political institutions."90 Marbury's logic endorses instead a multiplicity of voices in constitutional interpretation, each independent of the others. To the extent that the implications of this position depart greatly from present constitutional practice - and they do - present practice represents a betrayal of the principles of Marbury v. Madison.
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Now, I know what you're thinking: If this is truly where Marbury leads, following it would be anarchy! Chaos! Madness!
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 decentralized approach to constitutional interpretation. Decentralization is not chaos; it is simply the antithesis of centralized interpretive authority. It is an example of "checks and balances." If there is one thing we know about the Framers, it is that they feared the concentration of power and sought to prevent it in the design of the Constitution. Would it not be somewhat ironic (and quite unlikely) for the Framers, so concerned with the division and dispersal of power generally, to have concentrated the power to interpret all other powers and to bind all other actors with those interpretations in a single institution or organ of government? Marbury certainly suggests no such thing; practically every sentence of the opinion points in precisely the opposite direction. The power of constitutional interpretation - the power, in Marbury's sonorous words, "to say what the law is" - is not vested in a single, authoritative body, but, like any other power too important to place in a single set of hands, is a divided, shared power. Division and shared responsibility admits of the possibility of disagreement, competing interpretations, ongoing tension, struggle, compromise (or deadlock), and lack of a definitive resolution. In other words, it admits of - indeed, virtually assures - exactly what separation of powers is designed to produce as a general proposition. Over time, and across a broad range of issues, such an arrangement tends to produce a kind of general equilibrium - not perfect stability or repose, but general equilibrium. (Does a regime of judicial supremacy really do any better than that?) Rough stability in the law is achieved, under such a model, not by the edicts of a centralized authority, but by the pull and tug of competing interpreters and competing interpretations, none of whom is bound by the views of the others and each of whom, armed with separate powers and overlapping spheres of authority, may press the interpretation it thinks is truest to the Constitution. Often, this will produce a core of consensus. It will also often produce a periphery of uncertainty, especially as to issues on which there is no agreed correct resolution. But that is as it should be. Where an issue remains genuinely contested, and the several branches of government legitimately and in good faith continue to disagree, the issue should remain unsettled.
I’m with you on this one.