A Short Musical Hymn to the Rule of Law
Chief Justice John Marshall then leads the Court in a stirring, if somewhat partisan, hymn to the rule of law.30 Marshall announces that, under the rule of law, the Supreme Court is duty-bound to pass on the legality of President Jefferson’s and Secretary of State Madison’s failure to deliver the commission to Marbury. Because, intones Marshall, Madison is under a clear legal duty to deliver the commission, he and Jefferson should be ashamed of themselves for flouting the rule of law.
Act III: Find the Missing Court
Act III begins as poor Marbury, all but drunk on the rule of law, holds out his hands for his commission, only to have John Marshall wallop him with a rolled-up copy of the Constitution. Marshall tells the stunned Marbury that, despite his clear legal rights, the Supreme Court can do nothing for him because his fancy lawyer had mistakenly sought relief directly from the Supreme Court in reliance on an unconstitutional 1789 statute that mistakenly granted the Supreme Court power to hear Marbury’s case immediately as part of its “original” jurisdiction. Since, rules Marshall, the 1789 statute gave the Supreme Court more power than the Constitution allows, the statute was unconstitutional. Marshall explains that Marbury’s lawyer should have started in a lower court and then appealed to the Supreme Court, invoking its “appellate” jurisdiction.31 The farce concludes with a bewildered Marbury on his hands and knees frantically searching for the lower court where he should have filed his case. Guess what? There was no lower court. The joke’s on Marbury—and on us. Marbury had to be sacrificed to allow John Marshall to declare a law unconstitutional for the first time.
If Marbury had actually filed his case in the lower courts as Marshall’s decision required, he would have faced a procedural double whammy. No lower federal court would have had power (federal question jurisdiction) to decide his claim that Madison was violating federal law by refusing to deliver the commission. And even if such power had existed, no lower federal court would have had power to issue an affirmative court order to Madison, because in 1803 lower-court federal judges were not authorized to issue a mandamus, a court order requiring an official to perform a specified official action.
Once Congress had repealed Adams’s Midnight Judges Act on March 8, 1802, lower federal courts no longer had power to decide cases involving disputes over federal law (federal question jurisdiction). Believe it or not, after the Midnight Judges Act was repealed, only state courts could decide cases governed by federal law. Lower federal courts would not be given that power again until 1875. In the absence of some backup story about why a lower federal court was empowered to decide his case, it would have been futile for Marbury’s lawyer to have filed his federal law case in a lower federal court just as Congress was getting ready to repeal the court’s power to decide federal cases. The logical backup story for Marbury in 1801–2 would have been Congress’s grant of power to the lower federal courts to decide cases when the opposing parties were from different states (diversity jurisdiction). But diversity jurisdiction was unavailable to Marbury in 1801 because the District of Columbia, where Marbury lived, was not treated as a state by Congress for the purposes of diversity jurisdiction until 1947. In 1801, Marbury would not have been deemed a citizen of any state for the purposes of invoking the power of a federal court under diversity jurisdiction.
Even if he could have figured out a way to get into lower federal court, Marbury would not have been able to get the affirmative court order he needed. In 1801, only the Supreme Court had clear power to issue an affirmative order of mandamus because the 1789 Congress had explicitly bestowed the power on the Supreme Court. Congress would not grant mandamus power to the lower federal courts until 1962.
Nor could Marbury have sought relief in state court. In 1801, state courts lacked power to give orders to a federal official. Indeed, they probably lack the power today. It might have been possible for Marbury, as a resident of the District of Columbia, to have sought relief in the new D.C. Circuit Court, which had survived repeal of the Midnight Judges Act. As a practical matter, though, the D.C. Circuit was off-limits, because one of the circuit judges was none other than James Marshall, John Marshall’s younger brother, who had broken into the State Department in an effort to deliver the justice-of-the-peace commissions on the day of Jefferson’s inauguration. I assume that even John Marshall wouldn’t have had the chutzpah to decide an appeal from his brother involving factual findings about his own conduct in putatively placing the seal of the United States on Marbury’s commission before Adams left office. Most important, though, William Kilty, chief judge of the D.C. Circuit Court, was a staunch Jeffersonian who got the job because Adams and Marshall ran out of time to fill it. Moreover, while the Supreme Court eventually upheld the D.C. Circuit’s power to grant affirmative relief in 1838, that power was far from clear in 1801.32
The ACLU test-case lawyer in me says that in December 1801, Charles Lee was right in deciding that for Marbury it was the Supreme Court or nothing. It turned out to be nothing. In stating that an alternative forum existed, Marshall was just blowing smoke.
A Requiem for the Invention of Judicial Review
A solemn Chief Justice John Marshall then turns to the audience and seeks to justify judicial review. He insists that the Supreme Court was obliged to turn Marbury away out of respect for the rule of law despite his “clearly established” legal rights, because the 1789 statute that gave the Supreme Court power to decide cases like Marbury’s violated the Constitution and was therefore unenforceable.33 But hold the applause. First read Article III, which lays out the power of the Supreme Court, and judge for yourself whether the chief justice protests too much. The two relevant sentences of Article III provide:
In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party, the Supreme Court shall have original Jurisdiction. In all the other Cases . . . the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions and under such Regulations as the Congress shall make.
Chief Justice John Marshall, the first constitutional literalist, argued that because Marbury was neither an ambassador, a public minister, nor a consul, his case could not be heard by the Supreme Court as an original matter, no matter what Congress said in 1789—although it still remains unclear to me why Marbury’s case did not “affect” Madison in his capacity as a “public Minister.”
Marbury responded that the concluding phrase, “with such Exceptions and under such Regulations as the Congress shall make,” provided Congress with flexibility to move Supreme Court cases back and forth between appellate and original jurisdiction.
Marshall insisted, however, that the “Exceptions and Regulations” language applied only to the second quoted sentence dealing with appellate jurisdiction, which would give Congress the power to remove cases from the Supreme Court’s appellate jurisdiction, but not to add them to the Court’s original jurisdiction. In fairness, Marshall’s reading has a slight grammatical edge because the use of a comma instead of a semicolon to introduce the exceptions-and-regulations language implies that it modifies only the sentence of which it is a part. But just as the use of capital letters in the Constitution is notoriously arbitrary, punctuation in 1787 was an art, not a science. The difference between a comma and semicolon is a thin reed on which to rest a reading of Article III that places the Supreme Court’s appellate jurisdiction at the perpetual political mercy of Congress. Moreover, even if the exceptions-and-regulations language applies only to the second sentence of Article III, the first sentence describing the Court’s mandatory original jurisdiction may be read as describing a jurisdictional minimum, not as imposing a jurisdictional maximum, which would mean that additional power could be granted to the Supreme Court above the enumerated constitutional minimum.
In the end, a fair reading of the literal text of Article III simply does not tell us for certain whether Congress may (or even must) remove a case from the Supreme
Court’s appellate jurisdiction by shifting it to original jurisdiction instead of just dropping it into a legal black hole. Structurally, Marshall’s reading is a separation-of-powers disaster because it empowers Congress to eliminate the Supreme Court’s crucial appellate jurisdiction without putting the appellate cases anywhere else. When President Bush and a complaisant Congress sought to strip the Supreme Court of appellate jurisdiction over appeals from detainees at the military prison at Guantánamo Bay, they were merely accepting the invitation issued by John Marshall in Marbury.
But wait, there’s more. How could John Marshall, writing in 1803, have substituted his reading of an ambiguous Article III (drafted in 1787) for an equally plausible alternative reading that had obviously persuaded Congress in 1789 when it passed the law giving the Supreme Court power to hear cases such as Marbury’s in the first place. Why would a Supreme Court justice in 1803 be in a better position to read Article III accurately than the 1789 Congress, many of whose members, including James Madison, were personally involved in the drafting, consideration, and ratification of Article III? And why adopt a reading of Article III that makes mincemeat of Congress’s thoughtful policy decision in 1789 to trust the Supreme Court—and only the Supreme Court—with immediate affirmative judicial power over badly misbehaving federal officials? Most important, why adopt an interpretation of the Constitution leaving someone like Marbury with nowhere to enforce his “clearly established” legal rights? How does it advance the rule of law for Marshall to have adopted a reading of Article III that deprived a deserving litigant of any access to the courts and invited future Congresses to eviscerate judicial review by invoking Marshall’s questionable reading of the “Exceptions and Regulations” Clause?
JUDICIAL REVIEW’S FIRST DIRTY LITTLE SECRET
That brings those of you, dear readers, who have survived the trek through the legal history wilds of Marbury to the first dirty little secret of judicial review. When a collision between a statute and the Constitution is clear and unavoidable, Chief Justice Marshall’s opinion in Marbury makes a compelling logical case for a judge’s duty to enforce the Constitution’s text, not the statute’s. But Marshall’s reasoning in Marbury says next to nothing about settings, like Marbury itself, where reasonable people can differ over how to read the constitutional text. As a matter of logic, in settings where at least two plausible readings coexist, why should the judge’s reading always trump Congress’s equally plausible reading? In Marbury, it seems reasonably clear that, unlike a case where there’s a clear collision between the constitutional text and a statute, Chief Justice Marshall had a choice—which he exercised poorly (or politically). He could have created a collision between the 1789 statute and Article III of the Constitution by reading the Exceptions and Regulations Clause very narrowly, or he could have avoided one by reading the Article III text more flexibly. Why shouldn’t Marshall have been obliged to defer to James Madison’s equally plausible reading of Article III as a member of the 1789 Congress that had adopted the statute in question?
So the first dirty little secret of judicial review is that in more than two hundred years of Supreme Court precedent glibly citing Marbury as the source of the Court’s power to declare statutes unconstitutional the Court doesn’t even try to distinguish between “train wreck” cases involving an unavoidable collision between the Constitution and a statute (where the reasoning of Marbury actually works) and cases where either the statute or the ambiguous constitutional text can be plausibly read to avoid the collision (where Marbury is no help at all). Invoking the iconic power of Marbury and relying on the fact that judicial protection of individual rights is one of our most admired contributions to the art of democratic governance,34 the Supreme Court simply plows ahead, proclaiming its “responsibility” (and power) to “say what the law is.”35 Sometimes, as in Chief Justice Roberts’s 2012 opinion upholding the Affordable Care Act,36 the Court (or at least the chief justice) appears to maneuver to avoid a collision; sometimes, as in Marbury itself, the Court appears to labor to construct the collision. But in the absence of a constitutional train wreck, why should such a judicial power exist at all? More than two centuries after Marbury, we are in the uncomfortable position of being deeply committed to judicial review because it works so well in protecting the individual against majoritarian tyranny, while lacking an intellectually satisfying explanation of where such muscular judicial power comes from and how it should be exercised.
THE SECOND DIRTY LITTLE SECRET OF JUDICIAL REVIEW
Worse, once we get beyond train-wreck cases, in which Congress or the president has been caught violating unambiguous parts of the Constitution’s text, judges have absolutely no idea how to read the ambiguous provisions of either the Constitution or the challenged statute. Chief Justice Marshall’s reasoning in Marbury invites us to think of the Bill of Rights as a self-propelled legal machine, automatically protecting our liberty by instructing judges to prevent a transient political majority from violating the rights of the individual. But history, logic, and common sense teach that the Bill of Rights does not operate on autopilot. Its real-world effectiveness depends on broad public understanding of and support for the values it catalogs, and on wise judicial readings of its necessarily abstract and ambiguous terms.
In recent years, waves of mostly right-handed repair specialists, inspired by Justice Antonin Scalia,37 have tried to shore up the Marbury model by urging greater judicial respect for constitutional text as a source of objectively knowable commands to judges. These right-handed repair specialists promise us that fidelity to the text can provide a judge with a democratically legitimate, externally mandated way to decide constitutional cases without invoking the judge’s own values.38 My effort to mine the forty-five words of the First Amendment to recapture Madison’s music is a tribute to the power of Justice Scalia’s reminder that text matters. But it matters in different ways. My search for harmony and purpose in the whole text is a far cry from right-wing textualism. One group of right-wing textualists, calling themselves literalists, insist that the Constitution’s single correct meaning can be found in each of its 4,543 words. All you need to decipher the Constitution’s one true meaning, they claim, is a good 1789 dictionary and the courage to read the text literally.
Literalists have a minor point. When you want to know how many witnesses are needed to convict someone of treason (two), or how old the president must be (thirty-five), or the president’s required citizenship status (native-born, not naturalized), or how many votes each state gets in the Electoral College (one for each of the state’s two senators, plus one for each representative to the House), or how many electoral votes it takes to elect a president (currently, two hundred seventy), the Constitution’s literal text delivers a single definitive answer. Even when the literal text seems ambiguous, the context often dictates that a word with more than one dictionary meaning must be read in only one plausible way. For example, when the Third Amendment states that “no soldiers shall in times of peace be quartered in any home,” the clause can’t be read as a ban on cutting up enlisted men for the stewpot. On the other hand, doubts can arise even when the text appears to have a single literal meaning. For example, while it’s clear that the government needs two witnesses for a treason conviction, must both witnesses be physically present in court? Can one or both required “witnesses” be co-conspirators whose incriminating out-of-court statements in furtherance of the conspiracy currently satisfy the rules for evidentiary admission? There is no dictionary answer to that question. Someone has to decide what the word “witness” should mean in the constitutional text, not in the Oxford Unabridged Dictionary. Thus, useful as literalism can be in reading the Constitution in many relatively trivial settings, everyone agrees that the dictionary has its limits.
Many of the Constitution’s words and phrases plausibly carry multiple dictionary meanings, especially the necessarily abstract words and phrases used in the Constitution’s rights-bearing provisions. As we’ve seen, liter
alism is of absolutely no help in reading the First Amendment.39 Like the term “witnesses” in the Treason Clause, the phrase “the freedom of speech” is a legal blank canvas that must be filled in by human readers of the text. There is no dictionary road map for the job.
It only gets harder to impose a single literal meaning on phrases such as the ban on “unreasonable searches and seizures” in the Fourth Amendment, the guaranty of “due process of law” in the Fifth Amendment, and the prohibition on “cruel and unusual punishment” or “excessive fines” in the Eighth Amendment. When you add “equal protection of the laws” in the Fourteenth Amendment, the nontextual implied guaranty of equality in the Fifth Amendment’s Due Process Clause, and the nontextual addition of freedom of association to the First Amendment, the idea of a literal Constitution collapses.
A related group of repair specialists, the “originalists,” led by Justice Antonin Scalia, argue that most constitutional ambiguities can be reduced to a single correct meaning, not necessarily by consulting a dictionary, but by asking what the Founders originally intended the words to mean. But figuring out the original meaning of an ambiguous constitutional phrase turns out to be much harder than Justice Scalia admits. For starters, it’s unclear why we would want to adopt a method of reading the Constitution in the twenty-first century that locks us into the mind-set of an era in human history when slavery was legal, women couldn’t participate in politics or most professions, only the rich could vote, and the idea of freedom of speech and political association was so weak that President John Adams locked up most newspaper editors who opposed him in the election of 1800. Dred Scott v. Sandford, a consensus choice for the worst decision in Supreme Court history, is a nightmare application of originalism, illustrating the moral and political price of looking backward to read our most precious legal text.
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