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Congress, the Court, and the Constitution (2nd & 3rd excerpt)
House of Representatives, Subcommittee on the Constitution, Committee on the Judiciary, Washington, ^ | January 29, 1998 | ROBERT L. CLINTON

Posted on 03/11/2003 10:12:00 AM PST by Remedy



Discussion of the United States Constitution cannot avoid confronting the obvious fact that the Supreme Court is now widely regarded to be the primary guardian of our fundamental law. The Court's monopoly in constitutional law rests largely upon two kinds of argument. The first argument, political, says that judicial control of the Constitution is required in order to protect individuals and minority groups from the majority tyranny which would be implemented by legislatures in the absence of the judicial monopoly. The second argument is historical, asserting that judicial supremacy in constitutional matters is grounded in American constitutional history, especially in the landmark case of Marbury v. Madison (1803). My expertise is in the history of judicial review, so I shall confine my remarks mainly to the second argument.

In Marbury v. Madison and Judicial Review,(see footnote 157) I described the historical process by which legal commentators in late-nineteenth and early-twentieth century America employed the Marbury case to lay a precedential foundation for modern judicial supremacy. Some of the present-day practical effects of the resulting judicialized constitutionalism are summarized by Robert F. Nagel in the following passage:

Today federal courts control more important public decisions and institutions in more detail and for more extended periods than at any time in our history . . . This unprecedented use of judicial power is not a response to specific and limited necessity or emergency. The power is exercised in every state and on a wide variety of social issues . . . Even a relatively ''conservative'' Supreme Court seems transfixed; recent decisions, such as those dealing with the legislative veto and political gerrymandering, illustrate the Court's continuing insistence that almost no public issue should be excluded from judicial oversight . . . Heavy reliance on the judiciary—in various ideological directions—is fast becoming an ingrained part of the American system; already it is difficult for many . . . even to imagine any alternative.(see footnote 158)

The ever-growing list of judicial intrusions into areas of activity historically governed by other institutions makes it clear that it is no longer possible to question the observation that we are, in many of the most vital aspects of life in the American polity, governed primarily by judges. Nagel's metaphor is that of ''addiction:'' American society has grown ''dependent'' on the omnipresent, omnicompetent federal judge, who appears to have supplanted the priest of earlier times.(see footnote 159) Nagel concludes that ''excessive reliance on judicial review'' undermines long-term support for basic constitutional principles, impairs the ''general health of the political culture,'' and works against ''both the preservation and the healthy growth of our constitutional traditions.''(see footnote 160) I concur with these conclusions.

One of the most important results of judicialization has been to turn virtually all discussions about the Constitution into discussions about the role of judges in its interpretation. Here are two prominent examples. Soterios Barber, one of the few contemporary constitutional theorists who has tried to establish that the Constitution and constitutional law are two different things,(see footnote 161) nonetheless suggests that the most important job of ''mainstream scholars'' is to justify ''a strong and unapologetic exercise of judicial power in constitutional cases.''(see footnote 162) The second illustration is provided by Michael Perry:

In a society, like American society, in which it is axiomatic that the judiciary should enforce the Constitution, the choice among competing conceptions of the Constitution is (in part) precisely a choice among competing conceptions of judicial role. In resolving the question how to conceive of the Constitution, we are resolving the question what role the judiciary should play. In that sense, the two questions are really one question: What conception of ''Constitution/judicial role'' ought we to choose?''(see footnote 163)
This equation of Court with Constitution is pervasive in contemporary constitutional theory. It has led to a form of constitutional nihilism, expressed by Mark Tushnet, that judicial review is an ''all or nothing'' proposition: ''Either one allows judges to do whatever they want or one allows majorities to do whatever they want. Either choice is deeply anticonstitutional—which means, I suppose, that constitutionalism is self-contradictory.''(see footnote 164)

Let's think about this for a moment. Here are three of our nation's leading constitutional theorists unflinchingly declaring: (1) that the main job of constitutional scholars today is to justify judicial activism (not to understand the Constitution); (2) that in our system, the word ''Constitution'' really means ''judicial role''; and (3) that constitutionalism is ''anticonstitutional,'' or ''self-contradictory!'' This is astounding. Constitutionalism may be a contradiction under any regime in which judicial review is ''all or nothing;'' but judicial review is ''all or nothing'' only under a theory of judicial supremacy. So if judicial supremacy is incompatible with constitutionalism, shouldn't we just get rid of judicial supremacy, and keep the Constitution? My answer is an unequivocal affirmative; and I would add that American constitutional history supports this answer. Let's consider this history now.


During the antebellum period, constitutional interpretation was performed continuously by all three branches of the federal government. The great debates in Congress during this period were arguments over the meaning of constitutional provisions. The record is literally permeated by assertions of legislative duty to interpret the Constitution both rightly and in accordance with accepted canons of construction.(see footnote 165) In the 1790s, debates in Congress on the meaning of key provisions in Articles I, II, and III shaped the contours of the federal government as it was to exist for a century-and-a-half.(see footnote 166) At the same time, during the first half-century of the republic, presidential vetoes of congressional acts were exercised almost solely on constitutional grounds, and most of these were accompanied by explicit, uncontested assertions of executive authority to interpret the fundamental law.(see footnote 167)

Note also that the indeterminacy of certain portions of the constitutional text has frequently required provision of constitutional meaning via the interplay of non-judicial political forces (for instance, in the establishment of a national executive administration in the 1790s, in the interposition, nullification, and secession controversies of the antebellum period, in some famous impeachment controversies, or in more recent conflicts over the reach of executive power in foreign and military affairs). The result here has been an extralegal constitutional construction which, though principled, is nonetheless primarily a political activity necessarily involving non-judicial actors and agencies and is largely unsuitable for courts. When judges go beyond the activity of applying determinate legal texts, where all the resources of traditional legal practice are available both to circumscribe their efforts and to justify their results, they enter an area in which they have neither special claim nor special competence. Attention to the importance of constitutional constructions throughout American constitutional history makes it clear that constitutional development in the United States has been very much a ''departmental'' affair, involving not only the political branches and the administration of the national government, but the states as well.(see footnote 168)

Finally, and perhaps most tellingly, the Supreme Court itself did not claim ''finality'' or conclusiveness for its own constitutional interpretations until 1958;(see footnote 169) nor did constitutional commentators until the early twentieth century.(see footnote 170) Nor did the Court assert any power to control the boundaries of constitutional authority assigned to other agencies of government until the late nineteenth century, except in ''cases of a judiciary nature.''(see footnote 171) The last-mentioned point reflects the Court's successful assertion, in Marbury, of its power to construe constitutional provisions in such a way as to make possible their application as law, but only in the decision of cases involving the performance of judicial functions.(see footnote 172)

Thus the historical record unequivocally establishes that the origin of modern judicial supremacy in constitutional law can be found neither in the Constitution itself nor in its early judicial application. Rather, it originated in the polemics of legal academicians and commentators in the late nineteenth and early twentieth centuries.(see footnote 173) It emerged in full flower only in the 1950s.(see footnote 174) During earlier periods, questions about constitutional meaning were not generally regarded as solely, or even primarily, judicial. Tocqueville's famous aphorism according to which all political questions sooner or later developed into judicial ones described a feared tendency rather than a reality. So had the earlier arguments of the antifederalist Brutus.(see footnote 175) When Jeffersonian Republicans and Jacksonian Democrats launched early attacks on the Court, they did so on the basis of a widespread belief that congressional and/or presidential interpretations of the Constitution were entitled to as much respect as those of the judiciary.(see footnote 176)

During the last forty years, the Court has pressed its claim to be the primary organ of constitutional interpretation in the United States with increasing frequency, intensity, and success. The Court's first assertion of constitutional guardianship came in 1958. In that year the Court decided Cooper v. Aaron (the Little Rock school desegregation case); claiming, for the first time in American constitutional history, judicial ''finality'' for its readings of the Constitution. This ruling effectively equated the Court's own constitutional interpretations with the Constitution itself.(see footnote 177) The legal peg supporting the maneuver was the Court's assertion that its own constitutional rulings possessed Article VI ''supreme law'' status, along with constitutional provisions, national laws, and federal treaties.(see footnote 178) In another ''first,'' the Cooper Court cited Marbury v. Madison as precedent for its newly-discovered ''ultimate'' interpretive authority.

Since the Cooper decision, many have come to believe that, in Marbury,(see footnote 179) the Supreme Court declared itself to be the primary organ of constitutional interpretation. The theory that appears to be most widely accepted currently is that the primacy of judicial review was established in Marbury on the basis of a comparatively weak or ''inconclusive'' historical foundation in the Founding and immediate post-Founding eras.(see footnote 180) According to this theory, modern (broad-gauged) judicial review is explained and justified as an original ''creative'' fashioning by the Marshall Court that was later expanded by subsequent Courts in response to the demands of individuals and groups for judicial supervision of states, executives, and Congress in accord with the growing ''needs'' of American society.

As the Court's own record of precedents demonstrates, this conception of American constitutional history is fundamentally wrong. A limited form of judicial review was already established by 1800, but only as to relatively ''clear cases.''(see footnote 181) Marbury v. Madison did not alter this, but rather established a clear precedent for the Court's power to disregard congressional laws in cases ''of a judiciary nature''—i.e., cases in which judicial functions were threatened by application of a questionable statutory provision.(see footnote 182) Marbury thus established only that the judiciary would play an important role in constitutional interpretation, not that it would be the sole, ultimate, or final constitutional interpreter. The idea that a single organ of government must possess such authority is a product of later times. After Marbury the Court would not invalidate another act of Congress until the 1850s.(see footnote 183) Nor would it cite Marbury in support of any kind of constitutional judicial review until the 1880s; and not in support of broad-gauged review until the 1950s.(see footnote 184)

After its decision in Cooper v. Aaron, the Court has used Marbury to support its constitutional hegemony at least ten times, most recently in City of Boerne v. Flores (1997).(see footnote 185) There, the Court invalidated a provision of the Religious Freedom Restoration Act of 1993 (RFRA) that attempted to restore the ''compelling interest'' standard in free exercise cases that the Court declined to apply in Employment Div., Dept. of Human Resources of Oregon v. Smith (1990).(see footnote 186) In promulgating RFRA, Congress relied upon its authority to ''enforce, by appropriate legislation,'' the provisions of the Fourteenth Amendment which, by judicial ruling, applies the First Amendment's Free Exercise Clause to the states. But the Court held in Boerne that the congressional enforcement authority is only ''remedial,'' not ''substantive;'' and thus that Congress is forbidden to determine ''the substance of the Fourteenth Amendment's restrictions on the States,'' or to enact legislation which ''alters the meaning of the Free Exercise Clause'' by determining ''what constitutes a constitutional violation.''(see footnote 187)

Though it is indeed difficult to see how Congress can ''enforce'' the Constitution without being able to ''determine what constitutes a constitutional violation;'' for purposes of our historical survey, the crucial point that must be understood here is this: the reason why RFRA can be held to have altered the meaning of the Free Exercise Clause is that, in Cooper v. Aaron, the Court has put its own understandings of constitutional meaning (its ''interpretations'') on a par with the Constitution itself. In other words, according to the logic of Cooper, the Court's decision in Oregon v. Smith about the meaning of the Free Exercise Clause is the Free Exercise Clause. Not content, however, to rest upon this claim alone in Boerne, the Court explicitly denies the authority of Congress to interpret the Constitution conclusively or to define its own powers in accordance with it.(see footnote 188)

Thus it appears that the development of judicial supremacy in constitutional law is now virtually complete. Modern judicial review is driven by a logic which affords the Supreme Court ultimate freedom to strike down laws merely because the justices believe those laws to be inconsistent with the Constitution. Co-ordinate agencies of government, the policies of which are defeated by the Court, are then expected to goose-step to the Court-imposed drumbeat, even to the point of conforming future policy choices to judicial preferences.

As I have said, it has not always been so. Nowhere is this shown more clearly than in the Court's historical treatment of the Marbury case—the very case misrepresented in Cooper and Boerne to support constitutional judicial supremacy. Given the importance of stare decisis in our legal system, it is worthwhile to examine the Court's treatment of Marbury during previous historical periods, because this treatment indicates how the Court conceived its own power during those periods.


In Marbury v. Madison and Judicial Review, I surveyed and catalogued all of the Court's citations of Marbury from 1803 through 1983.(see footnote 189) Here's what I found. During the remainder of John Marshall's tenure as chief justice (through 1835), ten separate opinions contain references to Marbury. Nine are purely jurisdictional in nature, supporting the distribution of jurisdiction contained in Article III. The remaining reference is made to support the ruling that writs of mandamus may issue to executive officials only when engaged in the performance of purely ministerial duties. The Court's power to invalidate laws is not mentioned in any of these cases.

Between 1835 and 1865, Marbury is cited in 15 separate opinions in the U.S. Reports. As before, the largest number of cites is in the jurisdictional area (eight references). Six concern nuances in the mandamus remedy. One clarifies some dicta in Marbury that were unnecessary to the decision of that case. Judicial review is not mentioned at all. Even in Dred Scott v. Sanford (1857), the only other case before the Civil War in which the Court invalidated an act of Congress, Marbury is not mentioned! This pattern continues during the 30-year period following the Civil War, a period in which the Court invalidated national laws in no fewer than 20 cases—yet Marbury is mentioned in none of them! As in earlier periods, the instances in which Marbury is cited pertain primarily to jurisdiction or mandamus. It is during this period, however, that Marbury is first cited in support of any kind of judicial review—but not over Congress. The citation is found in Mugler v. Kansas (1887), and is offered in support of judicial authority to overturn state laws via use of the doctrine of substantive due process!

At the beginning of the next period, in the famous Income Tax Case (1895), the Court, for the first time in its history, cites Marbury in support of its power to determine the constitutionality of national laws. Between 1895 and 1957, the Court cites Marbury in 38 additional instances, hardly more often than during the 30-year period preceding 1895. As before, most of the citations have nothing to do with judicial review. Five refer to the right/remedy maxim. Four support the holding that writs of mandamus may be issued only as an exercise of appellate jurisdiction. Four refer to the distinction between ''ministerial'' and ''discretionary'' executive acts. Four confirm that acts in violation of the Constitution are not law, but say nothing about the Court's power to deny their enforcement. Three pertain to questions about the removal power of the president. Two refer to sections of the Marbury opinion which imply that courts may resolve only ''cases or controversies'' according to the regular course of judicial procedure. Two concern the idea that general expressions in judicial opinions are to be taken ''in connection with the case in which they are used.'' Two involve the relation between executive appointments and commissions. Two use Marbury to support the principle that no words in the Constitution should be presumed to be without effect. One maintains that constitutional language should receive a liberal construction whenever individual rights are at stake. Another supports the idea that the national government is supreme within its lawful sphere.

Eight of the Marbury citations during this period pertain to the judicial power to invalidate laws, and all reflect a narrow or restrictive conception of the power. Two are offered in support of the idea that judicial review should be confined to ''clear cases.'' A third is offered to show that courts have no ''general veto power'' over legislation, but may invalidate laws only in ''proper cases.'' A fourth is used to confine judicial review to ''cases or controversies.'' A fifth restricts court review to cases in which literal interpretations of the Constitution are possible. A sixth imposes on the Court the obligation to ''interpret the law,'' but only in ''proper cases.'' A seventh merely notes the petitioner's argument that Marbury forbids executive invasions of ''the Judicial sphere.'' The eighth citation mentions Marbury as one of a long line of cases in which legislation was declared unconstitutional ''because it imposed on the Court powers or functions that were regarded as outside the scope of the 'judicial power' lodged in the Court by the Constitution.''

Thus it may be fairly concluded that, although the Court began to notice Marbury's judicial review aspect during the first half of the present century, it recognized fully its restrictive nature. Nowhere is there anything approaching a declaration that the Court is the final arbiter of constitutional questions. All told, of the 92 citations of Marbury by justices of the Supreme Court between 1803 and 1957, only ten refer to that portion of the Marshall opinion that is currently thought to have ''established judicial review.''

All this changed in 1958. During the 25-year period between 1958 and 1983, there are 89 separate citations of Marbury, a number that almost equals the total of the previous 154 years. Of these 89, fifty utilize Marbury in support of judicial review. Of these 50, at least eighteen employ Marbury to justify sweeping assertions of judicial authority. Of these 18, nine apply Marbury to support the idea that the Court is the ''final'' or ''ultimate'' interpreter of the Constitution, with power to issue ''binding'' proclamations to any other agency or department of government respecting any constitutional issue whatsoever. As I have noted above, Cooper v. Aaron is the first of the cases in this last-mentioned category. If we take the Court's own statements seriously, then it must again be concluded that judicial supremacy could not have originated in Marbury, but rather is a doctrine firmly established by the Warren Court and subsequently developed by the Burger Court. And if we take seriously the Court's use of Marbury in the Boerne case, we must also conclude that the Rehnquist Court is presently doing its part to perpetuate the doctrine.

But if the doctrine of judicial supremacy in constitutional law is not the correct understanding of the judicial function established in the Constitution, then what is the correct understanding? The best way to answer this question is to contrast the modern doctrine with its traditional counterpart. I shall first sketch out the judicial function as it was understood at the time of the Founding. I will then try to show how the modern practice of review in cases involving the constitutional powers of co-ordinate agencies of government like Congress deviates from traditional practice. Finally, I shall attempt briefly to make out a case for a return to tradition.


Judicial review of national law in the U.S. is usually thought to be constitutionally grounded in the Article III extension of federal judicial power to cases ''arising under'' the Constitution, laws and treaties.(see footnote 190) The most explicit statement regarding the scope of this power is found in James Madison's Notes on the Federal Convention. According to Madison, the Founders extended federal judicial power to such cases only after it had been generally agreed ''that the jurisdiction given was constructively limited to cases of a Judiciary nature.''(see footnote 191) According to. B.F. Wright, Madison's meaning points to ''a theory of judicial review which did not recognize the courts as the exclusive or final interpreters of all parts of the Constitution.''(see footnote 192) Ralph A. Rossum says that Madison did not believe ''that the Court's interpretations were superior to or entitled to precedence over those of Congress or the President. He claimed only that the Court should have final authority to pass on constitutional questions that affected its own duties and responsibilities, that is, that were of a 'judiciary nature'.''(see footnote 193)

Supporting the statements of Wright and Rossum are Madison's own remarks during the 1789 congressional debates over the president's removal power. Arguing in support of vesting this power solely in the president, and responding to the charge that the legislature had no right to interpret the Constitution (via vesting of the power by statute), Madison states the following:

I acknowledge, in the ordinary course of government, that the exposition of the laws and constitution devolves upon the judicial. But, I beg to know, upon what principle it can be contended, that any one department draws from the constitution greater powers than another, in marking out the limits of the powers of the several departments. The constitution is the charter of the people to the government; it specifies certain great powers as absolutely granted, and marks out the departments to exercise them. If the constitutional boundary of either be brought into question, I do not see that any one of these independent departments has more right than another to declare their sentiments on that point. . . . There is not one government on the face of the earth, so far as I recollect, there is not one in the United States, in which provision is made for a particular authority to determine the limits of the constitutional division of power between the branches of the government. In all systems there are points which must be adjusted by the departments themselves, to which no one of them is competent. If it cannot be determined in this way, there is no resource left but the will of the community, to be collected in some mode to be provided by the constitution, or one dictated by the necessity of the case.(see footnote 194)

It can be argued that Madison's ''mode to be provided by the constitution'' is formal amendment and that the modes ''dictated by the necessity of the case'' may be elections, impeachments, or even revolutions.(see footnote 195) It is more plausible, however, to assume that ''necessity of the case'' refers to the three branches of government working out in the daily routine of constitutional government the functional differentiations inherent in the separation of powers. It was Madison who just two years previously had recorded approvingly the Philadelphia Convention's restriction of the ''arising under'' jurisdiction of federal courts to cases ''of a Judiciary nature;'' and in the passage just quoted, Madison straightforwardly denies the power of the courts to issue final constitutional pronouncements in cases which involve interpretations of the constitutional powers of co-ordinate agencies. Cases not of a judiciary nature that also arise under the Constitution are pre-eminently those that require determination of the constitutional authority of the legislative or executive branch. Appropriate cases for judicial review must be those which do not require such a determination.

It is likely that the 1787 cases ''of a judiciary nature'' are exactly those 1789 cases in which, ''in the ordinary course of government,'' the exposition of the ''constitution devolves upon the judicial.'' Under this view, it is only in cases which involve constitutional provisions directly addressed to the courts that the Supreme Court's refusal to apply relevant law is necessarily final. In cases involving constitutional provisions addressed to other branches of government (e.g., the Article I, Section 8 ''necessary and proper'' clause), the Court may surely refuse to apply the law, but it may not do so with finality in the strict sense. Even though the Court's decision may bind the parties in a particular case, Congress may nonetheless choose to disregard the Court's constitutional ruling and provide for executive enforcement of the statute. Congress may even go so far as to utilize its power to regulate the Court's appellate jurisdiction so as to discourage or prevent future appeals on the question of the law's constitutional validity. In such instances, it is the judgment of Congress, not that of the Court, which will be ''final.'' On the other hand, if the case involves such a constitutional provision as that in the Sixth Amendment's right to confront one's accusers in a federal criminal trial, then the Court's decision on the constitutional question will necessarily be final, since carrying on any federal criminal trial requires a court, and federal trial courts are bound by rulings of the Supreme Court.

From this perspective, Madison's theory of judicial review partitions constitutionally defective laws into two categories. One group includes those instances in which judicial review is appropriate, because final authority for nonapplication of the unconstitutional law rests in the courts by virtue of the nature of the judicial function. The most obvious example is an act which operates ''unconstitutionally'' on a court's performance of its own duties. In the other category, constitutional judicial review is inappropriate, because the performance of judicial duty in those instances is unaffected by the constitutional infirmity of the law.


The case which best illustrates Madison's theory is also the one which has been most often used to support the modern theory of review, and which (nominally) involved Madison himself as a party. In Marbury v. Madison, Chief Justice John Marshall, writing for a unanimous Court, held a provision of the Judiciary Act of 1789 (which extended the Supreme Court's original jurisdiction to all federal officials) to be in contravention of Article III's jurisdictional distribution (which restricted the Court's original jurisdiction to cases involving ''ambassadors, public ministers, consuls, and states '').(see footnote 196) Marbury is a case of judiciary nature in the pure sense because it involved not only constitutional and statutory provisions aimed directly at the Court, but also involved a constitutional provision which embodied a clear restriction on judicial power. The Court's refusal to apply the law thus left the coordinate branches of government no alternative but to comply with its decision (i.e., to do nothing) because the Court, by enforcing a constitutional restriction on judicial power, essentially did nothing. Its decision therefore amounted to a ''final,'' or ''ultimate'' interpretation of the Constitution.

If this sounds like a strange basis for judicial review, one should be reminded that virtually all exercises of review by courts in the early American republic were of the Marbury type; that is, they involved courts resisting legislative attempts either (a) to impose extra-constitutional duties on judges, (b) to interfere with judicial procedure in ways that were unauthorized by the Constitution, or to usurp judicial functions outright. In the first category, one may point to the Invalid Pensioner Cases of the 1790s,(see footnote 197) to the famous Correspondence of the Judges,(see footnote 198) and to Marbury itself. In the second category, one can refer to the many early cases involving statutory suspension of jury trials.(see footnote 199) In the third, we have frequent instances of legislative usurpation via passage of attainders and retrospective criminal laws.(see footnote 200)

If one has trouble imagining judicial review so confined in its scope, it is probably because the modern American mind, conditioned by at least a half-century of judicial supremacy, can hardly help but regard the judicial branch as a co-equal partner in the public policy making process. But it was doubtless to prevent such participation by judges in policy-making that the Founders circumscribed the jurisdiction and power of courts so narrowly in the first place. And just as surely was it to prevent being dragged into such processes that early American judges strongly utilized the power of review to safeguard their independence; both by resisting legislative encroachment on legitimate judicial functions, and by refusing to intrude themselves upon domains they regarded as better left to others.

Marshall implicitly recognized this in Marbury, by drawing a clear distinction between the issue of constitutionality and that of judicial review; that is, between (a) a law being a nullify due to its incompatibility with the Constitution, on the one hand, and (b) a court's having the power to nullify such a law, on the other. In Marshall's words, granting that ''the constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts,'' does it nonetheless follow that an act, ''repugnant to the constitution, notwithstanding its invalidity, bind the courts, and oblige them to give it effect?''(see footnote 201) In answering this rhetorical question, Marshall articulated the theory of judicial function for which Marbury is justly celebrated:

It is emphatically the province the duty of the judicial department 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. So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty.(see footnote 202)

Since these lines recently have been so frequently cited as precedent for a notion of judicial power which renders the Supreme Court ultimate arbiter of all constitutional questions, it is important to assess what is not said in them. No exclusive power to interpret the fundamental law is claimed for the Court, here or anywhere else in Marbury. To be sure, it is ''the province and duty of the judicial department to say what the law is,'' but only ''of necessity,'' whenever those ''who apply the rule to particular cases'' must determine which of two ''conflicting rules governs the case.'' In other words, the power of review claimed by the Court in Marbury is merely a power of discretion to disregard existing laws in the decision of particular controversies, provided that the constitutional and statutory provisions involved are, like those in Article III and the Judiciary Act, addressed to the Court itself. If the provisions are not addressed to the Court, then the Court will not be compelled, as a matter of logic, to choose between them in order to decide the case. Since precedents are created by holdings on points of law necessarily decided in particular cases, the Court's choice between constitutional and statutory provisions, one or both of which are not addressed to the Court, should not control the decision of subsequent cases. Marbury thus affords no basis for inferring that the Court is bound to disregard a statutory provision in conflict with the Constitution, except in that relatively small number of instances in which the Constitution furnishes a direct rule for the courts.

Where does the Constitution furnish direct rules for the courts? Most of the provisions of this type may be found in two places: Article III and Amendments 4–8 of the Bill of Rights. The classic example is one that Marshall himself used in Marbury: the treason clause, which requires either a confession or the testimony of two witnesses in open court to the same overt treasonable act.(see footnote 203) For an obvious example from the Bill of Rights, one only need add the requirement of the Fifth Amendment that such a confession be uncoerced. Now suppose that Congress, in a zealous attempt to suppress subversion, amends the federal rules of criminal procedure so as to make it possible for the government to obtain a conviction on a charge of treason on the basis of a coerced confession. This situation presents a clear-cut case of a judiciary nature precisely because the Court cannot apply the statutory provision without at the same time violating the Constitution.

Reformulating the emphasized portion above as a question allows formulation of a rule which will help one to determine whether any particular case is one of a judiciary nature. In each case, one may ask: ''Can the Court apply the law in question without itself violating the Constitution?'' If the answer to this question is negative, then the case is one of a judiciary nature, and the Court will have no sensible alternative but to invalidate (refuse to apply) the law. If, on the other hand, the answer is positive, then the case is nonjudiciary in nature, and the Court must apply the law, whether or not the law itself violates the Constitution.

Applying this method, one may read down the list of provisions in Article III and Amendments 4–8, and be quickly satisfied that most of the cases which have arisen (and may yet arise) under them fall into the former category (cases of a judiciary nature). At the same time, one may look almost anywhere else in the Constitution and be satisfied, though perhaps not so quickly, that most of the cases which have arisen (and may yet arise) under provisions other than Article III and Amendments 4–8 fall into the latter category (cases of a nonjudiciary nature).


What would be the effect of the Supreme Court's adoption of an approach which confines the scope of judicial review in cases involving the constitutional power of co-ordinate agencies of government to those ''of a judiciary nature,'' leaving to other branches the right to construe constitutional provisions addressed to them? Such an approach would authorize judicial invalidation of laws only when to do otherwise (i.e., to uphold the law) would cause the Court to violate a constitutional restriction on judicial power. It would not allow the Court to defeat legislative or executive policies merely on the ground that such policies were unauthorized by the Constitution. It would not allow judicial nullification of policies forbidden by the Constitution, except when the participation of courts is required to effectuate them. Would not adoption of this approach, which I call ''functional co-ordinate review,'' put an end to constitutional law as we presently understand it, leaving us in the grip of tyrannous popular majorities?

Examination of the historical record does not confirm such fears. To be sure, had the Supreme Court followed this approach throughout its history, the majority of the cases wherein congressional acts were nullified would have been decided differently. Of the 130-odd cases in which federal laws were invalidated between 1800 and 1985, only 38 were ''of a judiciary nature.''(see footnote 204)

However, when the cases are examined more closely, a different picture emerges. First, leaving aside Marbury and Dred Scott(see footnote 205) (the earliest instance of judicial invalidation of congressional policy in a case not of a judiciary nature), the Court invalidated national laws in 75 cases between the end of the Civil War and 1936—on the eve of the Roosevelt Court-packing scheme.(see footnote 206) Only 14 of these occurred in cases ''of a judiciary nature;'' leaving 61 having occurred in cases inappropriate for judicial review, under Madison's theory. The bulk of these latter cases were decided on the ground either of: (a) Fifth Amendment substantive ''economic'' due process, (b) Tenth Amendment ''dual federalism,'' or the Court's mere opinion that Congress had overstepped its constitutional authority. The crucial point is this: virtually all the last-mentioned decisions (the ''inappropriate'' ones) have since been either over-ruled or so thoroughly emasculated as to have effectively disappeared from our constitutional law.

During the period following the Court-fight to 1985, the Court overturned some 53 acts of Congress.(see footnote 207) The Roosevelt and Warren Courts together performed 26 of these, all but five in cases ''of a judiciary nature.''(see footnote 208) Conversely, the Burger Court performed 27 nullifications, only two of which clearly were in cases of a judiciary nature.(see footnote 209) The obvious conclusion to be drawn from this brief survey is that, unless one happens to be a staunch devotee of the Burger Court, adoption of Madison's theory of review would hardly reduce our constitutional law to a shambles. Instead, it would only serve to eliminate the more questionable portion of the Court's historical interferences with national legislative policy. Indeed, of the 90-odd cases comprising this portion, the Court has itself already eliminated roughly two-thirds!

I believe that this record is a testament to the good sense of Madison and the Founders. They knew what we have apparently forgotten, that courts are fragile institutions, with little political capital to squander, and which must be jealously guarded if they are to perform well their most vital function: that of resolving disputes peacefully, so as to prevent alternative resolution by force of arms. This is arguably the most important activity of any governmental office in a constitutional republic, and it cannot likely be performed well by any but the ''least dangerous branch.'' When that branch attempts self-aggrandizement via constitutional struggles with the more explicitly ''political'' (and ultimately stronger) organs of government, it will not, in the long run, become the ''most dangerous branch;'' rather, it will put the entire machinery of peaceful dispute-resolution at risk, and thereby undermine the real source of its own authority.

The Founders also knew something else that we seem to have forgotten. Three decades ago, constitutional historian Donald G. Morgan, warning of the danger of the already-advancing judicial monopolization of the Constitution, reported being struck by ''the solicitude with which citizens and officials [in the early constitutional period], when contemplating measures of government action, probed constitutional issues.''(see footnote 210) Jefferson believed that ''congressional involvement with constitutional inquiries'' was ''essential to an informed electorate,'' the ''safest depository of ultimate power.''(see footnote 211) Madison viewed such constitutional involvement as 'essential to the integrity of the Legislature itself':

It is incontrovertibly of as much importance to this branch of the government as to any other that the Constitution should be preserved entire . . . the breach of the Constitution in one point, will facilitate the breach in another; a breach in this point may destroy that equilibrium by which the House retains its consequence and share of power.(see footnote 212)

Commenting on Morgan's book, the late Senator Sam J. Ervin, Jr. issued a call which, in the wake of the Boerne decision, seems especially appropriate:

The thesis of this book is that it is the responsibility of every Senator and Representative in the national Congress to study the constitutionality as well as the wisdom of the legislative proposals pending before the Congress . . . As a member of the Senate, I accept the validity of this thesis, which was evidently in the minds of the men who drafted and ratified the Constitution.(see footnote 213)

Professor Clinton, an associate professor of political science at Southern Illinois University, is a widely-published authority on the relationship between Congress and the Court.

(Excerpt) Read more at ...

TOPICS: Constitution/Conservatism; Culture/Society; Government; News/Current Events


Thank you. It is interesting to me that there is today such awe—indeed almost reverence—for the pronouncements of the judiciary. Their opinions are held by many to be unchallengeable, almost divine.

When a court declares, for example, that Congress does not have the power to ban pornography in its military commissaries, some act as if if God himself has spoken.

After considerable study of this issue, I have concluded that the present practice of the elected branches bowing to judicial supremacy in interpreting the Constitution squares neither with the Constitution nor with American history.

I will begin by stating that I do not find fault with Justice Marshall's 1803 decision in Marbury v. Madison. The Constitution clearly gives the Court the right to form an opinion on constitutionality. We call this judicial review.

Indeed, the Court makes a valuable contribution to the understanding of our nation's laws, and, of course, it is essential in the resolution of disputes between litigants.

But a mere opinion on constitutionality by one branch is not, and only recently has been, considered supreme and binding on the others.

In order to illustrate this, I would like to share with you a sampling of the views of prominent Americans on judicial supremacy:

—Take for example Alexander Hamilton, who in the Federalist Papers argued that the Court should not be feared, since it has a, quote, ''total incapacity to support its usurpations by force.''(see footnote 1)

—Or Chief Justice John Marshall, who, just two years after the famous Marbury decision, noted the desirability of the legislature to interpose a substantive check on the Court's interpretations.(see footnote 2)

—Thomas Jefferson, in 1820 put his rejection of the doctrine of judicial supremacy very clearly: and I quote,

[T]o consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. . . . The constitution has erected no such single tribunal.''(see footnote 3)

I should add that after the Court took the time to interpret the Constitution in Marbury, President Jefferson simply ignored their reasoning and declined to seat Mr. Marbury in his judgeship.

President Jefferson is not alone.

—In 1832 President Jackson issued the following veto message regarding the creation of the Bank of the United States:

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. . . . The opinion of the judges has no more authority over the 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.(see footnote 4)

—Or take Joseph Story, a Justice appointed to the Supreme Court in 1811 and who served for 34 years.

Justice Story—and I apologize for beating a dead horse here, but it is important—wrote the following concerning the power of Congress in his famous Commentaries on the Constitution, and I quote:
''If the judicial department alone should attempt any usurpation [of the Constitution], congress, in its legislative capacity, has full power to abrogate the injurious effects of such a decision.(see footnote 5)

* * * again: * * *

On the other hand, the worst, that could happen from a wrong decision of the judicial department, would be, that it might require the interposition of congress . . .(see footnote 6)

* * * again * * *

[I]f the usurpation [of the Constitution] should be by the judiciary, and arise from corrupt motives, the power of impeachment would remove the offenders; and in most other cases the legislative and executive authorities could interpose an efficient barrier. A declaratory or prohibitory law would, in many cases, be a complete remedy.''(see footnote 7)

—One of the most compelling rejections of Judicial Supremacy is evident in President Lincoln's response to the Supreme Court's Dred Scott v. Sanford decision of 1857.

In Dred Scott, the Supreme Court had declared that the Constitution did not allow for the prohibition of slavery by the federal government—Clearly an atrocious interpretation by the Court.

Lincoln debated the binding nature of Dred Scott with Senator Douglas in 1858. The following excerpt from the debate is instructive today:

He [Douglas] would have the citizen conform his vote to that decision [Dred Scott]; the Member of Congress, his; the President, his use of the veto power. He would make it a rule of political action for the people and all the departments of the government. I would not . . .(see footnote 8)

Five years later, and true to his word, President Lincoln issued the Emancipation Proclamation in disregard of the Supreme Court.

It should be mentioned that in regard to the Dred Scott decision, Congress also rejected the supremacy of the Supreme Court when it passed an Act prohibiting the extension of slavery into the territories in 1862.(see footnote 9)

As Louis Fisher of CRS has noted, Congress has acted at other times in disregard for judicial supremacy.(see footnote 10) Child labor laws in the early part of this century, women's rights to practice before the Supreme Court, and—most recently—the Religious Freedom Restoration Act, all were passed despite the contrary opinion of the Supreme Court.

If judicial supremacy is without constitutional support, we must ask why does the doctrine persist?

I contend that judicial supremacy can be a convenient doctrine.

It can be politically expedient to place the great policy decisions of our times in the hands of an unelected elite rather than to be held accountable to the voters back home.

Nevertheless, it is time to put the doctrine of judicial supremacy to rest.

We all take oaths to uphold the Constitution.

Where the legislative branch disagrees with a statutory construction of the Supreme Court, we must make haste to correct the wrong.

If it be a Constitutional error by the Court, we must first do what we can to negate the impact.

Where the Court's opinion is truly an egregious constitutional error, we must refuse to allow the Executive branch to carry out the Court's orders.

In such cases, the People will ultimately decide the issue in the next election when they face the opposing views.

This, my colleagues, is the paramount issue. Is it the People's Constitution? Is it the People's government?

Perhaps President Lincoln summed it up best in his first inaugural address: quote,

''I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court . . . At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole of the people is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having . . . resigned their Government into the hands of that eminent tribunal.''(see footnote 11)

No Mr. Chairman, we must never resign our government—that government of the People, by the People and for the People—in the hands of the Supreme Court or any lower court.

Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives. - James Madison

1 posted on 03/11/2003 10:12:05 AM PST by Remedy
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To: Remedy
great post!
2 posted on 03/11/2003 11:05:01 AM PST by SUSSA
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To: Remedy
Thanks for your three recent posts on the Judicial role in Constitutional interpretation.
3 posted on 03/11/2003 2:33:57 PM PST by Libertarianize the GOP (Ideas have consequences)
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To: Coleus
Bump in response to your post
4 posted on 03/16/2003 5:13:55 PM PST by Remedy
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