People also understand that the power to interpret a statute will sometimes resemble the power to interpret the Constitution. Delay, lack of legislative time, lack of public interest, and public hesitance to change a judicial result all mean that legislatures are not often able to overturn judicial interpretations of statutes as a practical matter, even though they may have the power to do so. This legislative reluctance, along with the unpopularity of overturning decisions that are intended to protect human rights, has meant that legislatures in Canada, for example, have overturned few, if any, of their courts’ constitutional decisions, despite their legal power to do so.2
These answers are not completely satisfactory, however. The point remains that the Court’s power to give binding effect to a constitutional interpretation is virtually ironclad. This power often concerns matters of great importance to the nation, and it can well place the Court and other governmental institutions at loggerheads. Consider the Court’s reapportionment decisions, which radically changed previous methods for drawing election district boundaries and consequently changed election results in many states; or its “affirmative action” decisions, which limited the use of race as a criterion for, say, assigning students to a secondary school to increase racial diversity there; not to mention its abortion decisions, which struck down laws that prevented women from obtaining abortions. Consider the Court’s decisions finding prayer in public schools unconstitutional—decisions that have shaped the public debate about the relation of government and religion. Consider how its “search and seizure” decisions changed the way in which many police departments operate. Consider how its desegregation decisions changed what previously amounted to a caste system in the South.
In a word, the Court’s application of judicial review has brought about important and often long-lasting changes. Judicial review has resulted in significant limits on the actions of other government bodies, on the terms of public debate, and on the ways in which Americans lead their lives. Hence, it still makes sense to ask why the judiciary does, or should, possess this power, a far stronger power than the power to interpret a statute.
Some have found an answer in the need to ensure a workable democratic system. Free speech helps the voters exercise an informed democratic choice, for example, by helping citizens obtain access even to extreme and highly unusual points of view. Equal protection of the laws helps ensure that government will not improperly weigh one citizen’s voice more heavily than another’s. Thus, to exercise a power that seeks to ensure a well-functioning democracy is not anomalously undemocratic.
Others find answers in the Constitution’s dispersion of power among so many different government bodies. This dispersion, they believe, calls for a referee. Still others find justification in the need to protect minority rights. Democracy, they argue, refers to the will of a majority that may or may not act consistently with equal respect for minorities. Given the history of a twentieth century during which democratically elected governments mistreated minorities and then abandoned democracy altogether, one might see judicial review, here and abroad, as a kind of institutional ballast, helping to stabilize the kind of democracy that respects minority rights and helps to prevent the “people drunk” from undoing the will of the “people sober.”3
These answers may help explain the anomaly, but they cannot fully explain why the Court has the power to find, say in the Constitution’s word “liberty,” certain rights that have little to do with the preservation of democracy or even the protection of minorities. We may still ask why the framers wrote a document that gave the Court the last word as to the constitutionality of virtually any congressional statute. Why did that document let the Court assume the power to strike down a statute as contrary to the Constitution?
THE FRAMERS’ RESPONSE
MANY FRAMERS, FEDERALISTS and even some Republicans, expected the undemocratically selected Court, at least on occasion, to strike down statutes it believed were in conflict with the Constitution. James Madison, for example, pointed out that the Bill of Rights would protect individuals from abuse by a majority. And he immediately added:
Independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.4
Alexander Hamilton wrote the same in The Federalist Papers—a series of newspaper articles in which he, James Madison, and John Jay advocated adoption of the Constitution. Hamilton said that the Constitution’s limitations
can be preserved in practice in no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void.…[Otherwise] all the reservations of particular rights or privileges would amount to nothing.5
The Constitutional Convention and ratification process resounded with similar language. Among those who expressed support for the power of judicial review were Elbridge Gerry of Massachusetts (“[The judiciary possesses] a power of deciding …[on a law’s] constitutionality”); Rufus King, another delegate from Massachusetts (“[The judiciary needs no veto power, for] they will no doubt stop the operation of such [laws] as shall appear repugnant to the constitution”); and James Wilson, speaking at Pennsylvania’s Ratification Convention (“[When the judges] consider [a law’s] principles, and find it to be incompatible with the superior power of the Constitution,—it is their duty to pronounce it void”). One present-day scholar reports that “apparently no delegate” to the Constitutional Convention “questioned the repeated references to the power of the judiciary to ignore unconstitutional laws.” Nor was anyone “surprised by the repeated references to judicial review—precisely the opposite reaction one would expect if judicial review had not yet been generally embraced.”6
How did the framers explain this expectation of judicial review? Hamilton, in The Federalist numbers 78 and 81, argued that the Constitution must trump any ordinary federal law. The Constitution is fundamental, it represents the will of the people, and it is the source of lawmaking authority. A statute, by contrast, represents the exercise of constitutionally delegated authority and reflects the will of the people only indirectly, through their legislators. Thus, says Hamilton, “where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges … ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”7
Hamilton, then, assumed that conflicts between statutes and the Constitution could not be resolved by leaving the matter to the public. Some members of that public would recognize the need to strike down a statute that violates the Constitution. After all, those whom unconstitutional laws help today may be hurt tomorrow. But others might well favor immediate self-interest over constitutional principle. Indeed, public instability in the 1780s such as Shays’s Rebellion pointed directly to that risk.
Hamilton argued against placing final authority to interpret the Constitution in the hands of the president, because the president could then become too powerful. After all, the “executive not only dispenses the honors but holds the sword of the community.” He also argued against placing final authority to interpret the Constitution in the hands of the legislature, because the legislature would too rarely enforce the Constitution if this invalidated a law it had recently passed. How, he asked, can it “be expected that men who had infringed the Constitution in the character of legislators, would be disposed to repair the breach in the character of judges?”8
That left the judiciary. The “interpretation of the laws,” said Hamilton, “is the proper and peculiar province of the courts.” Judges enjoy comparative expertise in the matter. They frequently reconcile apparently conflicting statutes; they study precedents; they are “skill[ed] in the laws,” whe
reas legislators are “rarely … chosen with a view to those qualifications which fit men for the stations of judges.” Indeed, “there is no liberty” unless the “power of judging” be “separated from the legislative and executive powers.”9
Moreover, to place the power to resolve constitutional/statutory conflicts in the judiciary’s hands would not threaten the public. That is because the judiciary, lacking both “purse” and “sword,” is the “weakest of the three departments of power.” Hamilton said the “nature” of the judicial power, how it is exercised, the comparative weakness of the judges, and their inability to “support” any “usurpation[] by force,” reduced the “supposed danger of judiciary encroachments on the legislative authority” to a “phantom.”10
Hamilton saw a greater risk in the opposite tendency, namely, that judges would fail to faithfully guard the Constitution when “legislative invasions of it had been instigated by the major voice of the community.” To stand up against the force of public opinion would require an “uncommon portion of fortitude.” It would require that judges be appointed for lengthy terms and receive constitutional guarantees as to their compensation. For all these reasons, the judiciary was the safest as well as the most natural place to lodge the power of judicial review.11
Another member of the founding generation, the Supreme Court justice James Iredell, elaborated on Hamilton’s argument. In a concurring opinion written in a 1798 case, Calder v. Bull, Iredell assumed the need for an institution that would have the power to strike down an unconstitutional law. Otherwise the legislature could simply ignore the Constitution.12
Iredell must have recognized that the people themselves might help to keep the legislature within constitutional bounds. They could elect new members, petition for repeal of an unconstitutional law, and refuse to carry out such a law. But even if we ignore the instability inherent in such a system, these methods could at most “secure the views of a majority.” What if the legislature enacts a law that is unconstitutional but popular? As Iredell explained in a letter he wrote in the 1780s, every citizen
should have a surer pledge for his constitutional rights than the wisdom and activity of any occasional majority of his fellow-citizens, who, if their own rights are in fact unmolested, may care very little for his.13
Thus, as between court and legislature, it is the court that must have the last word. Individual liberty “is a matter of the utmost moment.” If there be
no check upon the public passions, it is in the greatest danger. The majority having the rule in their own hands, may take care of themselves; but in what condition are the minority, if the power of the other is without limit?14
Iredell concluded that the courts must have the power of judicial review. They may abuse that power, but one can find safeguards against abuse in the transparency of the judicial process, which allows the public to assess the merits of a judicial decision, and in the judges’ own desire to maintain a strong judicial reputation.15
Still, what if the Court abuses that power? Or what if the Court simply gets it wrong? The Court certainly got it wrong in Dred Scott (see Chapter Four). Franklin Roosevelt believed the Court abused its power when it invalidated New Deal legislation he thought essential to the nation’s recovery from the Great Depression. And many believe that a wide variety of individual decisions are very wrong indeed.
When the Court proceeds down a wrong track too long, as the pre-New Deal Court did in the early twentieth century, the public can become aware and react. The reaction can take the form of legislation, say if the Court has misread a statute. Or voters can elect a president and senators who will appoint and confirm judges who have different basic attitudes from the judges with whom they disagree. In President Roosevelt’s case, he pushed for legislation that allowed him to “pack” the Court, a battle he lost. But he ultimately won by virtue of being in office long enough to appoint eight of the nine justices on the Court.
And although judges are guaranteed life tenure in order to withstand the force of public opinion, they cannot help but be aware of the public mood. Criticism of judges and judicial decisions traces back to our founding. It is a healthy thing in a democracy. Judges read the newspaper, they read academic critiques of their decisions, and they read briefs urging them to decide a case one way or the other. They realize they can be wrong. That is why they sometimes reconsider earlier decisions and in rare cases overrule them.
Nonetheless, we Americans have, over the past two hundred plus years, absorbed the notion that in order to be protected by the rule of law, we must follow the law even when we disagree with it. And many, perhaps most, Americans would now likely agree with Hamilton that it is better to give independent judges, rather than the executive or legislative branches, the power of judicial review.
The arguments for judicial review, as Hamilton and Iredell set them out, come down to saying that some power of review is necessary, particularly to protect unpopular minorities; judges are reasonably well qualified to undertake review, which is basically a legal job; and the review power is less dangerous and more effective if lodged in the judicial branch than if lodged elsewhere. One can find widespread support for this view among the founding generation. But questions remain.
For one thing, what exactly does “judicial review” mean? The term refers generally to the fact that the Court has the power to strike down a statute as incompatible with the Constitution in a particular case. But does that mean that Congress or the president must agree with the Court in later, similar instances? Do other institutions have an independent obligation to determine whether a statute is consistent with the Constitution? Can they ignore a Supreme Court decision to the contrary? These matters remained ambiguous for many years, not resolved until the mid-twentieth century.
More important, the arguments for judicial review do not answer the puzzling question of why the public would accept as legitimate and follow the decisions made by the inoffensive, technical, and comparatively powerless body that Hamilton and Iredell described. Where political emotions run high, few accept a technician’s choice as clearly valid. Where public feelings are strong, a technician lacking “purse” and “sword” may find it difficult to assuage them. Why doesn’t the public just ignore a constitutional decision that a majority believes is both important and wrong? And if they do ignore the Court’s decisions, has the whole objective of Hamilton’s argument not been rejected? None of the framers answers that question. Yet it is a question that, during our nation’s history, has cried out for an answer.
IN SHAKESPEARE’S HENRY IV, Hotspur listens to Owen Glendower boast, “I can call spirits from the vasty deep.” Hotspur then replies, “Why, so can I, or so can any man, but will they come when you do call for them?”
This basic question unites and underlies this book’s discussion.
Chapter Two
Establishing Judicial Review:
Marbury v. Madison
IN 1803 IN Marbury v. Madison, Chief Justice John Marshall established the Court’s authority to invalidate laws that conflict with the Constitution through a judicial tour de force. Marshall wrote the Hamiltonian theory of judicial review into law. And in doing so, he overcame major institutional and political obstacles.1
The federal judiciary was a weak institution, and the number of lower-court federal judges was small. State courts enforced federal law, but there was no guarantee they would follow federal court interpretations of that law. Nor was there any guarantee that local officials would carry out federal court orders. The Supreme Court itself had little to do. Its caseload was unimportant, and its judges badly paid, and they had to spend considerable time “riding circuit”—traveling over bad roads to hear cases arising throughout the new nation. The first chief justice, John Jay, resigned in 1795 to become governor of New York; he later refused reappointment because the position lacked “energy, weight and dignity.” A major newspaper referred to the position as a “sinecure.” Lacking its own courtroom, the Court met in the Se
nate clerk’s office.2
The position of the judiciary also became an important and controversial issue between mobilized political parties. The Republicans, led by Thomas Jefferson, had beaten the Federalists in elections, winning the presidency (in 1801) and taking control of Congress. Party rivalry was fierce. The Federalists feared Jefferson as a dangerous radical “visionary” intent on undoing Federalist efforts to create a strong federal government. The Republicans thought the Federalists were seeking a central government so strong as to threaten ordinary citizens’ liberties. And the Republicans particularly disliked the judicial branch, with its judges, appointed by presidents of the opposition party, who had enforced unpopular laws forbidding seditious libel; had found ways to prosecute popular rebels such as the leaders of Pennsylvania’s Whiskey Rebellion; and had, from time to time, spoken out against the Republican Party and in favor of the Federalists. As far as Jefferson was concerned, the less powerful the Supreme Court, the better for the country.3
Furthermore, Jefferson was less willing than was Hamilton to give judges ultimate power to resolve constitutional/statutory conflicts. As he later wrote,
each of the three departments has equally the right to decide for itself what is its duty under the constitution, without any regard to what the others may have decided for themselves under a similar question.
Other Republicans went further, denying that the Court had any power to overturn an act of Congress as contrary to the Constitution.4
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