Skip to comments.THE IRREPRESSIBLE MYTH OF MARBURY
Posted on 12/14/2004 3:30:28 PM PST by Ed Current
CONSTITUTIONAL THEORY COLLOQUIUM SERIES
Nearly all of American constitutional law today rests on a myth. The myth, presented as standard history both in junior high civics texts and in advanced law school courses on constitutional law, runs something like this: A long, long time ago - 1803, if the storyteller is trying to be precise - in the famous case of Marbury v. Madison,1 the Supreme Court of the United States created the doctrine of "judicial review." Judicial review is the power of the Supreme Court to decide the meaning of the Constitution and to strike down laws that the Court finds unconstitutional.
As befits the name of the court from which the doctrine emanates, the Supreme Court's power of judicial review - the power, in Chief Justice John Marshall's famous words in Marbury, "to say what the law is"2 - is supreme. The Congress, the President, the states - indeed, "We the People" who "ordain[ed] and establish[ed]"3 the Constitution - are all bound by the Supreme Court's pronouncements. Thus, the decisions of the Supreme Court become, in effect, part of the Constitution itself. Even the Supreme Court is bound by its own precedents, at least most of the time. Occasionally the Court needs to make landmark decisions that revise prior understandings, in order to keep the Constitution up to date with the times. When it does, that revised understanding becomes part of the supreme law of the land. Other than through the adoption of a constitutional amendment, however, the Supreme Court is the final authority on constitutional change.
Judicial review (the myth continues) thus serves as the ultimate check on the powers of the other branches of government, and is one of the unique, crowning features of our constitutional democracy. The final authority of the Supreme Court to interpret the Constitution has withstood the test of time. It has survived periodic efforts by the political branches, advanced during times of crisis (the Civil War and the Great Depression) or out of short-term political opposition to initially unpopular or controversial rulings (like Brown v. Board of Education4 and Roe v. Wade5), to undermine this essential feature of our constitutional order. Through it all - Dred Scott6 and the Civil War, the New Deal Court-packing plan, resistance to Brown, the Nixon Tapes case,7 the Vietnam War, the quest to overrule Roe v. Wade - the authority of the Supreme Court as the final interpreter of the Constitution has stood firm. Indeed, the Court's authority over constitutional interpretation by now must be regarded, rightly, as one of the pillars of our constitutional order, on par with the Constitution itself.
So the myth goes.
But nearly every feature of the myth is wrong. For openers, Marbury v. Madison did not create the concept of judicial review, but (in this respect) applied well-established principles. The idea that courts possess an independent power and duty to interpret the law, and in the course of doing so must refuse to give effect to acts of the legislature that contravene the Constitution, was well accepted by the time Marbury rolled around, more than a dozen years after the Constitution was ratified. Such a power and duty was contemplated by the Framers of the Constitution, publicly defended in Alexander Hamilton's brilliant Federalist No. 78 (as well as other ratification debates), and well-recognized in the courts of many states for years prior to Marbury.8
Moreover, and also contrary to the mythology that has come to surround Marbury, the power of judicial review was never understood by proponents and defenders of the Constitution as a power of judicial supremacy over the other branches, much less one of judicial exclusivity in constitutional interpretation. Nothing in the text of the Constitution supports a claim of judicial supremacy. The courts possess "[t]he judicial Power of the United States"9 and that power extends to "Cases, in Law and Equity, arising under this Constitution,"10 but nothing in the logic or language of such a statement of constitutionally authorized judicial jurisdiction implies judicial supremacy over the other branches of government. Jurisdiction to decide cases does not entail special guardianship over the Constitution. (If anyone could lay claim to the title of Special Trustee or Lord Protector of the Constitution, it would be the President, for whom the Constitution prescribes a unique oath that he will, "to the best of my Ability, preserve, protect, and defend the Constitution of the United States.").11 None of the Constitution's authors or proponents ever suggested that the Constitution provides for judicial supremacy over the other branches in constitutional interpretation.
None of the Constitution's authors or proponents ever suggested that the Constitution provides for judicial supremacy over the other branches in constitutional interpretation.All prominent defenses of the Constitution at the time of its adoption explicitly deny - indeed, take pains to refute - any such notion, which was sometimes charged by opponents of ratification but never accepted by the document's defenders. 12
Nothing in Chief Justice Marshall's opinion in Marbury makes such a claim of judicial supremacy either. The standard civics-book (and law school casebook) myth misrepresents and distorts what John Marshall and the Framers understood to be the power of judicial review: a coordinate, coequal power of courts to judge for themselves the conformity of acts of the other two branches with the fundamental law of the Constitution, and to refuse to give acts contradicting the Constitution any force or effect insofar as application of the judicial power is concerned.
That was a big enough deal in its own right. The idea that written constitutions could serve as judicially enforceable checks on the powers of legislatures elected by the people is an important, distinctively American, contribution to what the founding generation called the science of politics.13 Written constitutionalism, combined with separation of powers - including an independent judiciary deriving its authority directly from the Constitution and not from the other branches - yields an independent judicial power to interpret and apply the Constitution in cases before the courts. That is the proposition of Marbury v. Madison, and it is a proposition of considerable significance (even if not original to the case).
But that proposition is nowhere close to a holding, or claim, of judicial supremacy over the other branches - a notion that would have been anathema to the founding generation, and that the Supreme Court in Marbury appeared explicitly to disavow.14 Nothing in Marbury supports the modern myth of judicial supremacy in interpretation of the Constitution. Quite the contrary, Marbury's holding of judicial review rests on premises of separation of powers that are fundamentally inconsistent with the assertion by any one branch of the federal government of a superior power of constitutional interpretation over the others.
The logic of Marbury implies not, as it is so widely assumed today, judicial supremacy, but constitutional supremacy - the supremacy of the document itself over misapplications of its dictates by any and all subordinate agencies created by it. As a corollary, Marbury also stands for the independent obligation of each coordinate branch of the national government to be governed by that document rather than by departures from it committed by the other branches. Under Chief Justice John Marshall's reasoning (and Alexander Hamilton's before him in Federalist No. 78), the duty and power of judicial review do not mean the judiciary is supreme over the Constitution. Rather, the duty and power of judicial review exist in the first place because the Constitution is supreme over the judiciary and governs its conduct. As Marshall wrote in Marbury, "the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature."15
It is the fundamental betrayal of Marbury's premises and Marbury's logic that accounts for nearly all of what is wrong with "constitutional law" today. The twin peaks of constitutional law today are judicial supremacy and interpretive license. Marbury refutes both propositions. Correctly read, Marbury stands for constitutional supremacy rather than judicial supremacy. And constitutional supremacy implies strict textualism as a controlling method of constitutional interpretation, not free-wheeling judicial discretion.
This Essay proceeds in two Parts. First, I will discuss John Marshall's near-flawless argument for judicial review. This should be familiar ground, but it is not. Marbury truly fits Mark Twain's definition of a "classic": a work that everybody praises but nobody actually reads.16 Marbury is invoked today for the myth it has become, not for its actual reasoning and logic. I will challenge the reader to attend closely to what Marbury actually says - the premises set forth; the logic of the argument - and to shed the judicial supremacist preconceptions with which most modern readers, thoroughly corrupted by the Myth of Marbury, come to the case. If one does so, I believe, one will be forced to conclude that the case cannot bear a judicial supremacist reading. Marbury stands instead for constitutional supremacy, judicial independence, interpretive coordinacy, and the personal responsibility of all who swear an oath to support the Constitution to be guided by their best understanding of the Constitution and not pliantly to accede to violations of the Constitution by other governmental actors.
The second half of the Essay will then sketch the rather remarkable - even stunning - but entirely logical implications of Marbury's argument. Constitutional supremacy, interpretive coordinacy, and personal interpretive responsibility imply parallel duties of truly independent constitutional interpretation - that is, interpretation not controlled by the Supreme Court's decisions - by the executive and legislative branches of the national government, by all judges (irrespective of stare decisis), by juries, and even by agencies of state government. In short, if Marbury's reasoning is right, nearly all of our constitutional practice today is wrong. II. MARBURY'S LOGIC
II. MARBURY'S LOGIC
Marbury v. Madison is, of course, wrong about a great many things.17 But on the essential point for which the case is justly celebrated - the judiciary's power of independent constitutional review of the lawfulness of acts of the other branches - Marbury's premises are unassailable, its logic impeccable, and its rhetoric beautiful. All of which makes its contemporary betrayal so lamentable.
As has been noted by too many people to count, Chief Justice John Marshall's opinion for the Court in Marbury is questionable, perhaps even deliberately mischievous, on a number of points.18 But it is hard to find fault in Marshall's proof for judicial review. In part, this is because the argument was so well-rehearsed in the work of earlier writers and prior judicial opinions. Talent borrows and genius steals. And John Marshall was undoubtedly a talented guy. In Marbury, Marshall displays his skills as a subtle and gifted plagiarist, shamelessly borrowing from Hamilton's The Federalist No. 78. But he does add his own distinctive and important twist, as we shall see.
There are three core points to Marshall's argument for judicial review in Marbury. They can be summarized briefly, but then deserve attention in detail.
First, Marshall's absolutely foundational starting point is the principle of constitutional supremacy. Marshall finds this postulate inherent in the nature of written constitutionalism. It is reinforced by some strongly supportive, specific textual provisions. It is not, however, an argument that derives its forces from any particular provision, but from the document as a whole. It is the fact of having a written constitution, and the nature of written constitutionalism, that does the work.
Marshall's second core proposition in Marbury is the interpretive independence of the several branches of government, a consequence that flows both from constitutional supremacy and, implicitly, from the structural separation of powers of the various departments of government. Marshall's contention is that it would be utterly inconsistent with the first principle of constitutional supremacy - indeed, inconsistent to the point of absurdity - for one branch to be able to bind another with its (by hypothesis) erroneous constitutional actions or views.
The third proposition of Marbury reinforces the conclusion following from the first two points, and it is Marshall's distinctive contribution to the traditional argument for judicial review. The obligation of the oath to support "this Constitution" requires that an interpreter have direct, unmediated recourse to the Constitution. Marshall's three arguments yield the specific conclusion of the power of judicial review of legislative acts - the legitimate power of courts to refuse to give effect to legislative acts that the courts find to be in violation of a rule of law supplied by the Constitution. But his arguments are fully generalizable: they equally support parallel powers of constitutional review by each branch of the actions of the others; and, moreover, they refute decisively any notion of judicial supremacy. Let us begin where Marshall does, with the postulate of constitutional supremacy. Marshall begins his argument for judicial review, intriguingly, with the first principle of the American Revolution: the right of the people to establish such principles for their own self-government as they deem most conducive to their well-being; the priority of those fundamental principles over the actions of government that depart from them; and the ultimate power of the people to judge whether such departures have occurred and to take remedial action. In a sense, the premises of the Declaration of Independence thus parallel the premises of judicial review, and one can hear distinct echoes of American revolutionary thought in the opening lines of Marshall's argument in
Marshall's three arguments yield the specific conclusion of the power of judicial review of legislative acts - the legitimate power of courts to refuse to give effect to legislative acts that the courts find to be in violation of a rule of law supplied by the Constitution. But his arguments are fully generalizable: they equally support parallel powers of constitutional review by each branch of the actions of the others; and, moreover, they refute decisively any notion of judicial supremacy.
Let us begin where Marshall does, with the postulate of constitutional supremacy. Marshall begins his argument for judicial review, intriguingly, with the first principle of the American Revolution: the right of the people to establish such principles for their own self-government as they deem most conducive to their well-being; the priority of those fundamental principles over the actions of government that depart from them; and the ultimate power of the people to judge whether such departures have occurred and to take remedial action. In a sense, the premises of the Declaration of Independence thus parallel the premises of judicial review, and one can hear distinct echoes of American revolutionary thought in the opening lines of Marshall's argument inMarbury:
That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.19
This is the cornerstone from which Marshall proceeds. The Constitution, as an original act of self-government by the supreme authority - "We the People" - must be regarded as supreme lawlimiting all government. This proposition is reinforced, later in the Marbury opinion, by noting Article VI's reference to the Constitution as "the supreme law of the land,"20 but it is, characteristically for Marshall, a structural inference - a deduction from the nature of selfgovernment and written constitutionalism, more than a specific text - that establishes the postulate that the Constitution is supreme law. Marshall continues:
This original and supreme will [that is, the People] organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments. The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation.21
Note how Marshall's argument is a general one, not necessarily limited to legislative violations of the Constitution. The Constitution's allocation of powers establishes "limits not to be transcended" by any of the different departments. The powers of the legislature are defined and limited in writing, but the same is of course true of the executive and the judiciary. Those limitations are binding, or else written constitutionalism - the power of the People to establish limits on their government agents - is abolished. Marshall then draws the conclusion - deduces the theorem - that legislative enactments that violate the Constitution are void, since the only alternative is the unacceptable one of denying the supremacy of the written Constitution:
It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.
Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.
Certainly all those who framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.22
This fundamental principle of constitutional supremacyis, however, "lost sight of" in almost all further consideration of the subject of judicial review by today's academics, judges, lawyers, and students.
They rush to a linethat shows up a few paragraphs later in the opinion - "It is emphatically the province and duty of the judicial department to say what the law is"23 - but wrench it from context. Marshall's argument, to this point, has been that the written Constitution prevails over the inconsistent actions of government or else the Constitution is meaningless. And this point (as I will develop below) surely applies to the judiciary as well as the legislature. Indeed, one can (and, in a moment, I will) repeat Marshall's argument to this point, substituting the words "court" for "legislature" and "judicial judgment" for "legislative act," with no change in the logic and flow of the argument. And, of course, one can make precisely the same argument for "president" and "executive action." Thus, it is a proposition "too plain to be contested" that either the Constitution controls the actions of the President and the decisions of the judiciary, or that the President and Supreme Court may alter the Constitution by their ordinary actions. If the Constitution is the "fundamental and paramount law of the nation," then, under the logic of Marbury, the theory of our government must be that "an act [of the President, or of the courts], repugnant to the Constitution, is void" in the same way as an act of the legislature.
This principle, not "to be lost sight of in the further consideration of this subject," helps to frame Marshall's second step in the argument for judicial review in Marbury. That step is to ask whether the judiciary must give effect to unconstitutional enactments of the legislature: "If an act of the legislature, repugnant to the constitution is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law?"24
This, Marshall says bluntly, would be ridiculous. It "would be to overthrow in fact what was established in theory."25 It would be, Marshall says (in one of my favorite judicial phrases of all time), "an absurdity too gross to be insisted on."26
Is this because the Court, and not Congress, is designated as the authoritative interpreter of the Constitution? The next line in Marbury is the oft-quoted one that many take as supporting such a view: "It is emphatically the province and duty of the judicial department to say what the law is."27 But this does not get one very far. It is just a sonorous paraphrase of Hamilton's line in The Federalist No. 78 that "[t]he interpretation of the laws is the proper and peculiar province of the courts."28 Neither Marshall's version nor Hamilton's claims exclusive or superior interpretive authority for the courts. Moreover, often neglected is the immediately following sentences from the same paragraph of Marbury, which explain why it is the province of courts to say what the law is: "Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each."29 This is a far cry from a claim of judicial supremacy. It is merely a statement that, when performing the judicial task calls for deciding whether an act of Congress departs from the Constitution, the courts are up to the task. It is within the judicial province to make such a determination, and to make it independently of what Congress has determined. (Remember: the whole point Marshall is trying to make is that the courts are not bound by Congress's say-so - that this would be an "absurdity too gross to be insisted on."30) Making those types of determinations is no different in principle from the work courts do all the time when faced with conflicting statutes (a point Marshall also lifts straight from The Federalist No. 78).31 But it is a huge and illogical stretch, one certainly not warranted by the "emphatically the province" sentence and indeed quite inconsistent with the rest of Marshall's argument, to move from the proposition that the courts are competent to determine constitutional cases to the proposition that the courts' views bind everybody else. The Myth of Marbury is simply not very well grounded in the actual language of Marbury.
In fact, the same arguments that Marshall uses to develop the proposition of independent judicial interpretation tend to support the conclusion that the other branches are similarly competent to interpret the Constitution and likewise not bound by the erroneous interpretations of their fellow branches:
Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.
This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.32
Such a view, Marshall warns, "reduces to nothing what we have deemed the greatest improvement on political institutions - a written constitution . . . ." That, he says, is "sufficient, in America" to reject the contention.33
What is truly arresting about Marshall's arguments here - at least to eyes not conditioned to readingMarbury through judicial supremacist lenses and shut to what Marbury actually says - is that the exact same reasoning would seem to apply with equal force to executive and legislative constitutional review of the propriety of acts of the judiciary. If the nature of a written constitution implies enforceable limitations on the powers exercised by the organs of government created thereunder, it implies limitations on the powers of courts, as well as Congress and the President. (Just a few paragraphs later, Marshall will write that the Constitution is an instrument "for the government of courts, as well as of the legislature."34) If requiring courts to carry out acts of the legislature contrary to the limits set by the Constitution "would overthrow in fact what was established in theory" and constitute "an absurdity too gross to be insisted on," so too in principle requiring the political branches to carry out decisions or precedents of the courts contrary to the limits set by the Constitution likewise would, absurdly, "overthrow in fact what was established in theory."
If the Constitution supplies rules and principles that Congress and the President must apply in performing their duties, just as it supplies rules and principles that courts must apply in performing theirs, are Congress and the President permitted to interpret the Constitution directly, or are they required to "close their eyes on the constitution" and "see only" the decisions of the courts? Marbury says that such a restriction, at least where urged on courts, "would subvert the very foundation of all written constitutions."35 Why this would not equally be true if the tables were turned is hard to answer, unless one were to assume judicial infallibility and perfect will-less-ness by the courts. But assuming that the courts might, like the legislature, misinterpret or misapply the Constitution, to then require the political branches to be bound by the courts' departure from the "fundamental and paramount law of the nation" would similarly be to "declare that an act" - here, an act of the judiciary - "which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory."36 It would be to declare that if the courts do "what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual."37 It would be giving to the courts "a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits."38 Indeed, such a doctrine would, by Marbury's logic, "reduce to nothing what we have deemed the greatest improvement on political institutions - a written constitution"! 39
Alexander Bickel, writing more than forty years ago in his classic book, The Least Dangerous Branch, made this same observation about Marbury's logic, but went exactly the wrong way with it. It was perhaps true, Bickel conceded to John Marshall, that to leave the question of constitutionality to the legislature would, absurdly, "allow those whose power is supposed to be limited themselves to set the limits." But the same could be said of the courts: "[T]he Constitution does not limit the power of the legislature alone. It limits that of the courts as well, and it may be equally absurd, therefore, to allow courts to set the limits."40
For Bickel, this was a weakness in John Marshall's argument, for surely Marshall could not have intended to rest the power of judicial review, and against legislative supremacy, on premises that equally could be deployed against the supremacy of the judiciary's constitutional determinations! But Bickel, like so many who have followed him, erred in assuming that the point ofMarbury was to establish judicial supremacy rather than to demolish legislative supremacy and establish coequal and independent judicial interpretive competence. The problem with Bickel's critique of Marbury was that he assumed that Marshall was trying to prove the modern Myth of Marbury, when Marshall was doing nothing of the kind. Bickel could not and did not point to any flaw in Marshall's reasoning - in fact, Bickel's analysis agrees with my own about where Marshall's reasoning leads. But Marbury's reasoning in that case does not yield the conclusion that Bickel thought it ought to, or needed to, in order to justify modern practice. That is precisely my point: Marbury's reasoning and modern constitutional practice are hopelessly irreconcilable with each other. Marbury's logic stands opposed to any claim of judicial supremacy - the idea that the other branches are bound by the courts' actions no matter what. Bickel's analysis supports, quite unintentionally, my position here.41
The attentive defender of judicial supremacy might at this point interject that the premise of this extension ofMarbury's reasoning is that the Court is as likely to err as the political branches. Not at all. The premise is that the Court could err and that there is no more reason in principle - and none remotely suggested in the pages of Marbury - for Branch X to be bound by Branch Y's errors than for Branch Z to be bound by Branch X's. Marshall's whole argument for the coordinate interpretive competence and independence of the judiciary assumes the existence of an unconstitutional action by another branch. In such an instance, it is "an absurdity too gross to be insisted on" to require a coordinate branch to be bound, within the province of its duties, to enforce or acquiesce in such an act, contrary to the paramount law of the nation. Nowhere does Marshall say that "unconstitutional" is defined by whatever a court, and a court alone, says. Rather, he treats "unconstitutional" as an objective fact - whether something is unconstitutional is determined, interestingly enough, by what the Constitution says.42
It is at this point that Marshall turns, finally, to specific constitutional provisions, which he uses not as proof-texts of judicial supremacy but as examples of the absurdity of requiring that courts be bound, within the sphere of their power and in the performance of their duties, by a plain violation of the Constitution perpetrated by another branch. In each case, the argument can be turned around and applied to interpretation of the Constitution by the executive and legislative branches.
The judicial power of the United States is extended to all cases arising under the constitution. Could it be the intention of those who gave this power, to say that in using it the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained.
In some cases, then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey?43 Flawlessly logical. But the same logic applies, for example, to the President The point is particularly easy to make with respect to the President, because the constitutional provisions giving him power and responsibility to "take Care" to faithfully execute the laws and to "preserve, protect, and defend" the Constitution are remarkably clear The same point can be made (albeit more awkwardly) with respect to Congress, and indeed with respect to Marshall then proceeds with hypothetical examples of constitutional questions that easily could come up in a case appropriate for judicial resolution. There are many other parts of the constitution which serve to illustrate this subject. It is declared that "no tax or duty shall be laid on articles exported from any state." Suppose a duty on the export of cotton, of tobacco, or of flours; and a suit instituted to recover it. Ought judgment to be rendered in such a case? Ought the judges to close their eyes on the constitution, and only see the law? The constitution declares that "no bill of attainder or ex post facto law shall be passed." If, however, such a bill should be passed, and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavors to preserve? "No person," says the constitution, "shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare From these, and many other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of Once again, Marshall's logic is impeccable. And once again, it is easy to turn these hypotheticals into situations calling for executive or congressional interpretation of the Constitution, and pose the same rhetorical questions There are, of course, some difficult questions posed by a theory that permits multiple actors independently to interpret the Constitution, particularly the question of which interpretation will or should prevail. Marshall's third major argument in support of judicial review flows from the
Flawlessly logical. But the same logic applies, for example, to the President: the executive power of Article II extends to all matters of enforcement or execution of U.S. law. Moreover, the President is specifically charged to "take Care that the Laws be faithfully executed," presumably including the Constitution as the paramount law of the Nation, and further obliged to swear an oath to "preserve, protect, and defend the Constitution of the United States."44 Could it be the intention of those who gave this power, and imposed a duty of faithfulness to the Constitution, to say that in carrying it out the Constitution should not be looked into? That a situation arising under the Constitution should be decided without examining the instrument itself? This, like a similar disability on the courts, "is too extravagant to be maintained." In some case, the Constitution must be looked into by the President. If he can open it at all, what part is he forbidden to read?
The point is particularly easy to make with respect to the President, because the constitutional provisions giving him power and responsibility to "take Care" to faithfully execute the laws and to "preserve, protect, and defend" the Constitution are remarkably clearin assigning duties that require interpretation of the Constitution. Indeed, I have had some students advance the view, which I allude to above, that the Constitution in express terms makes the President, not the courts, the special "Guardian of the Constitution"! One need not go so far in order to make the simpler point that Article III's assignment of "the judicial Power" to decide cases "arising under the Constitution" does not, in a regime of separation of powers, create a superior power of constitutional interpretation than does Article II's assignment of a duty to "preserve, protect, and defend the Constitution of the United States."
The same point can be made (albeit more awkwardly) with respect to Congress, and indeed with respect toall who exercise power under the Constitution. Every act of Congress is an implicit act of constitu- tional interpretation concerning the scope of its Article I (or other legislative) powers. Under the logic of Marbury, if Congress is obliged to consider the question of the constitutional propriety of its actions, could it be the intention of those who imposed such an obligation to say that, in making the determination, the Constitution itself should not be looked into?
Marshall then proceeds with hypothetical examples of constitutional questions that easily could come up in a case appropriate for judicial resolution.
There are many other parts of the constitution which serve to illustrate this subject. It is declared that "no tax or duty shall be laid on articles exported from any state." Suppose a duty on the export of cotton, of tobacco, or of flours; and a suit instituted to recover it. Ought judgment to be rendered in such a case? Ought the judges to close their eyes on the constitution, and only see the law?
The constitution declares that "no bill of attainder or ex post facto law shall be passed." If, however, such a bill should be passed, and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavors to preserve?
"No person," says the constitution, "shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declareone witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?
From these, and many other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government ofcourts, as well as of the legislature.45
Once again, Marshall's logic is impeccable. And once again, it is easy to turn these hypotheticals into situations calling for executive or congressional interpretation of the Constitution, and pose the same rhetorical questions: Should Congress "close its eyes" to the Constitution before passing a law that is arguably a bill of attainder or an ex post facto law, or imposing an export duty on articles from a particular state, deferring such constitutional questions to (possible) subsequent judicial determination? If the courts' precedents would uphold such a law in instances where Congress reads the Constitution to forbid such action, should Congress close its eyes? Or is it at least competent to judge for itself, within its province?46 What if Congress passed, and the courts upheld, an unconstitutional tax or duty, or a bill of attainder or ex post facto law, or convicted a man of treason on the strength of the testimony of one witness rather than two? Would the President be bound to execute the law, shutting his eyes to the Constitution? If Congress should pass such a law, and a prior administration brought a prosecution pursuant to it, and a court wrongly "condemn[ed] to death those victims whom the constitution endeavors to preserve," must the President go along?
There are, of course, some difficult questions posed by a theory that permits multiple actors independently to interpret the Constitution, particularly the question of which interpretation will or should prevail.47 But my point here is simply that none of the hypotheticals posed by Marshall remotely suggests judicial exclusivity or even judicial priority in constitutional interpretation. They all involve constitutional questions of a type that could (and should) be considered in the ordinary course of business of the legislative and executive branches. There is nothing uniquely judicial about them, so as to suggest in any way that constitutional interpretation is a uniquely judicial activity. Marshall's point - the crux of his argument for an independent power of judicial review - is that constitutional supremacy implies independent interpretive power because, once it is assumed that a coordinate branch might depart from the Constitution, it becomes absurd to say that one of the other coordinate branches is bound to ratify the error and is foreclosed from looking directly to the words and logic of the document itself.
Marshall's third major argument in support of judicial review flows from thejudges' oath to support the Constitution. Up to this point, Marshall's opinion has had the feel of a straightforward, deductive mathematical proof. It is only when he gets to the oath that the opinion becomes genuinely impassioned.48 Immediately after stating that the Constitution is "a rule for the government of courts, as well as of the legislature," Marshall asks:
Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!
Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him?
If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.49
A crime! Marshall takes the oath requirement very seriously; indeed, the founding generation as a whole took oath-taking extremely seriously.50 Article VI of the Constitution requires that all legislative, executive, and judicial officers, both of the United States government and of the governments of the states, "be bound by Oath or Affirmation, to support this Constitution . . . ."51 And, as we have already observed, Article II of the Constitution prescribes a special oath for the President, under which he is required to swear or affirm that he will, to the best of his ability, "preserve, protect and defend the Constitution of the United States."52
The implication of Marshall's argument from the oath requirement is obvious: Marbury is no argument for judicial supremacy in constitutional interpretation. It is an argument for the personal constitutional responsibility of all who swear an oath to support the Constitution to resist and refuse support to usurpations or violations of that Constitution by all others. To paraphrase Marbury once again, why does the Constitution require that members of Congress, the President, other federal judges, state judges, state legislatures, and state executives, all swear an oath to discharge their duties agreeably to the Constitution of the United States if that Constitution forms no rule for their government? If it is closed to them, and cannot be inspected by them? "If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime."53 Again, Alexander Bickel is an unwitting ally in my cause. Here is his critique of Marshall's argument on this point:
Again, Alexander Bickel is an unwitting ally in my cause. Here is his critique of Marshall's argument on this point:
Far from supporting Marshall, the oath is perhaps the strongest textual argument against him. For it would seem to obligate each of these officers, in the performance of his own function, to support the Constitution. . . . Surely the language lends itself more readily to this interpretation than to Marshall's apparent conclusion, that everyone's oath to support the Constitution is qualified by the judiciary's oath to do the same, and that every official of government is sworn to support the Constitution as the judges, in the pursuance of the same oath, have construed it, rather than as his own conscience may dictate.54
Hold the phone a minute: What makes this latter alternative "Marshall's apparent conclusion"? Is this anything other than the modern Myth ofMarbury read back into the case from a distance of a century and a half? Bickel was right, that the oath would seem to obligate each of these officers, in the performance of his own function, to support - and thus independently interpret, according to Marbury - the Constitution. But Bickel was wrong in thinking that this furnishes any sort of argument against Marshall's conclusion, for the simple reason that Bickel was wrong about what Marshall's conclusion was.
The Oath Clause is an important argument inMarbury. It is Marshall's icing on the cake of his proof of judicial review, a moral clincher that is Marshall's distinctive addition to the well-accepted argument for judicial review. And it is one, as we shall see in a moment, that has important implications in its own right, for it is the only purely textual (as opposed to structural or inferential) argument in Marbury that supports independent interpretive power by agencies of state government.
The final substantive paragraph of Marbury ends the opinion with what is, comparatively, a whimper. "It is also not entirely unworthy of observation," Marshall writes, half-heartedly, that the Supremacy Clause of Article VI lists the Constitution first, in its listing of what constitutes the "supreme law of the Land" and gives a similar status to statutes "made in pursuance of the constitution." This is only weak supportive evidence of a power of judicial review, because the Supremacy Clause proceeds to say that the judges "in every state" shall be bound by that supreme law. Still, Marshall notes, the Supremacy Clause "confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument."55 Once again, the concluding paragraph is hard to square with the judicial supremacist Myth of III. If What if we were to take (1) the existence of a power of " (2) the existence of a coequal power of (3) the unconstitutionality of the doctrine of (4) the existence of a legitimate power of My fifth proposition, somewhat less controversial than the others, is that A. It is, emphatically, the province and duty of the executive department to say what the law is. Those who apply the law to particular instances - and execution of the law is a quintessential example of applying the law to particular cases - must of necessity If, therefore, the President is to regard the Constitution, and to regard it as superior to any ordinary act of a subordinate institution created under it, must he close his eyes on the Constitution The argument for "executive review" - the power and duty of the President to exercise independent legal judgment and review of the validity of the actions of B. If the presidency's awesome and wide-ranging constitutional powers and strategic position, combined with independent interpretive authority, make it "The Most Dangerous Branch," Marbury Marbury And Congress has quite a number of such powers, some with potentially sweeping consequence. Congress (the Senate alone, actually) possesses a substantial role in checking appointments of both executive and judicial officers, and it properly may exercise its power in this area based on its vision of how the Constitution should be interpreted and applied by the executive branch and by the courts. That last proposition, of course, is utter blasphemy in the constitutional But if the correct understanding of In addition to these strong, but blunt, front-end and back-end checks on interpretive abuse by the other branches, Congress's prov-inces of constitutional interpretation also include the power to propose constitutional amendments; the coequal power to interpret extremely important constitutional provisions, like the Thirteenth, C. If Consider again what The idea of precedent is almost sacrosanct to lawyers, conditioned by the common law and the case method, so much so that few have examined carefully its premises and whether those premises are compatible with a system that purports to accord primacy to a written, enacted text. Marbury D. The terms "interposition" and "nullification" are practically constitutional profanities these days. The terms are associated with secessionists of the mid-nineteenth century and segregationists of the mid-twentieth, both of whom employed somewhat warped notions of state interpretive authority in the service of the most unjust of causes. But The doctrines of interposition and nullification have reasonably respectable roots. The idea of independent state authority to interpret the Constitution - and to resist asserted violations of the Constitution by the instrumentalities of the national government - dates back at least a half-decade before Interestingly, the idea of state government authority to interpret the federal Constitution finds much to commend it in the reasoning of Interestingly, the idea of state government authority to interpret the federal Constitution finds much to commend it in the reasoning of It follows, I submit, that state government officials, who likewise swear an oath to support the U.S. Constitution as "supreme law of the Land," The right answer is that every government actor - state and federal - is sworn to uphold the Constitution, and that none is the master of the others in terms of what adherence to that oath requires. Each branch of the federal government possesses coequal interpretive authority with the others and may seek to make its interpretation of the Constitution "stick," so to speak, with the constitutional powers at its disposal. Now, this should be a bit unsettling. This Marbury * * * * * Now, I know what you're thinking: If this is truly where Calm down. Lawyers are lovers of order and prone to see disaster in the slightest degree of disagreement, disequilibrium, and disorder. A multiplicity of voices is not the end of the world. It is simply a E. Ah, you say, but there's the rub: All of this assumes Put to one side for a moment Marbury The powers of the legislature are More than that, it is this very writtenness of the Constitution that, in We tend to forget or ignore this, because we are imprisoned by the Myth of What Thus, what seems to scare sensible people about coordinate and decentralized constitutional interpretation is that the interpreters might think themselves properly possessed of To be sure, a "presidential activist" in constitutional interpretation is a dangerous constitutional loose cannon. To be sure, a state government that feels free to interpret the Constitution in a manner cut loose from the constraints of the The more that interpretive power is conjoined with practical governing power, the more important it is that interpretive power be constrained by the relatively clear boundaries of text, intention, and structure. If one is to shed the Myth of IV. C Alas, that is not the constitutional world we inhabit today. Instead, we live in a constitutional world in which the Supreme Court is sultan and a perversion of FOOTNOTES @ SOURCE URL .pdf file.
Once again, the concluding paragraph is hard to square with the judicial supremacist Myth ofMarbury. If "courts, as well as other departments" are "bound by that instrument," it would seem to follow that the other departments are bound to hold the courts, as well as each other, to "that instrument" and to serve as independent interpretive checks against deviations from the Constitution's commands.
IfMarbury's logic is right, then nearly all of our contemporary constitutional practice is wrong. The myth of judicial supremacy that stands at the center of constitutional law today - the notion that the Supreme Court's decisions are final and binding on all other actors in our constitutional system, no matter what, so that all that really matters in constitutional law is the Supreme Court's decisions and precedents - is utterly groundless as a matter of first principles of the Constitution. The myth finds no support in the text, structure, or history of the Constitution.56 Instead, it rests on a complete misreading of the case that is supposed to be the source and justification for the myth: Marbury.
What if we were to takeMarbury's logic seriously on its own terms, and apply faithfully its core propositions: constitutional supremacy, interpretive independence, and the personal responsibility conferred by the oath to support the Constitution? In this Section, I will sketch, in broad strokes, four seemingly radical but entirely logical implications of Marbury, and a fifth implication that is not at all radical but also presents an indictment of present constitutional practice. My first four propositions are:
(1) the existence of a power of "executive review" parallel to the power of judicial review;
(2) the existence of a coequal power ofcongressional constitutional interpretation;
(3) the unconstitutionality of the doctrine ofstare decisis in constitutional law; and
(4) the existence of a legitimate power ofstate government officials to engage in independent federal constitutional interpretation, in matters within their province.
My fifth proposition, somewhat less controversial than the others, is thatMarbury's conception of written constitutionalism implies a particular methodology of constitutional interpretation: originalist textualism - that is, the binding authority of the written constitutional text, considered as a whole and taken in context, as its words and phrases would have been understood by reasonably well-informed speakers or readers of the English language at the time.
It is, emphatically, the province and duty of the executive department to say what the law is. Those who apply the law to particular instances - and execution of the law is a quintessential example of applying the law to particular cases - must of necessityexpound and interpret the law in the course of performing such duties.57 The President applies the law. The Constitution is a rule for the governance of the President (and his subordinates58), as well as for the courts and for Congress. Indeed, as noted, that instrument commands the President to "take Care that the laws be faithfully executed."59 The laws of the nation include its Constitution, which is listed first in Article VI's description of the "supreme law of the Land." As Marbury correctly holds, the Constitution is the "paramount law of the nation," and is thus of superior obligation to other sources of law, like statutes and even judgments of the courts. The President is specifically assigned the sworn duty to "preserve, protect and defend the Constitution of the United States." It follows that, in carrying out his executive duties as President, the President must give effect to the Constitution in preference to a statute, or judicial decree, in cases where they conflict. Again to borrow Marbury's words, "[t]hat is of the very essence of [presidential] duty."60 If a statute, or a judicial ruling, be in opposition to the Constitution, such that the President must either take action conformably with the Constitution or conformably with the act of Congress or decision of the judiciary, he must choose - and he must choose the Constitution.
If, therefore, the President is to regard the Constitution, and to regard it as superior to any ordinary act of a subordinate institution created under it, must he close his eyes on the Constitution, and see onlythe act of Congress, or the decision of the courts? Why does he swear an oath to preserve, protect, and defend the Constitution if it is closed to him? The oath certainly applies in a special manner to the President's conduct in his official character. How immoral to impose it on him, if he must be used as the instrument, and the knowing instrument, for violating what he has sworn to preserve, protect, and defend! To require the President to swear such an oath, yet require him, when persuaded that another branch has acted inconsistently with the Constitution, nonetheless to enforce its statute or its judicial judgment, makes a solemn mockery of the oath.
The argument for "executive review" - the power and duty of the President to exercise independent legal judgment and review of the validity of the actions ofboth other coordinate branches - is thus almost exactly parallel to the argument for judicial review set forth in Marbury. The President is bound by the Constitution. He is not bound by acts of other branches, where those acts are contrary to the Constitution, and he is not bound by those branches' views concerning the constitutional propriety of their own acts, if indeed those views are wrong by the lights of the Constitution itself. Rather, the President possesses an independent power of constitutional review of the actions of the other branches in any matter that falls within the sphere of his governing powers as President under Article II of the Constitution. This means that, just as the Supreme Court may, indeed must, refuse to apply an unconstitutional statute of Congress, so too the President may, indeed must, refuse to carry into execution an unconstitutional statute of Congress. That is precisely the same situation as Marbury: constitutional legal review of an act of Congress. But executive review, by the same logic, also means that the President may, indeed must, refuse to execute or carry out a decision of the judiciary that exceeds the limits the Constitution has imposed on that branch. This is constitutional legal review of the decisions of courts. Such a view stands in opposition to the operative premises of our constitutional system today. Almost no constitutional scholar today embraces such a view, but it follows inexorably from the logic of Marbury.61 Certain provisions ofthe Constitution might be read as imposing specific restrictions on the President's power to act on his independent interpretation of the Constitution;62 the power might be restrained by principles of interpretive restraint and method;63 and the power is of course subject to the check of the other branches' exercise of their independent interpretive powers. But in principle, the President's power of constitutional interpretation is closely parallel to the courts'. Thus, the Supreme Court's interpretations of the Constitution, federal statutes, and treaties no more bind the President than the President's or Congress's interpretations bind the Court. All of this, I submit, follows from Marbury, if one reads Marbury for what it says rather than for what it has been misappropriated to mean.
If the presidency's awesome and wide-ranging constitutional powers and strategic position, combined with independent interpretive authority, make it "The Most Dangerous Branch,"64 it is not an unchecked branch. Not only the courts but also Congress have a power and province of constitutional interpretation. Congress interprets the Constitution, implicitly or explicitly, all the time, in the course of performing its legislative duties. Indeed, it is no exaggeration to say that Congress interprets the Constitution every time it enacts a law, implicitly asserting that its enactment is within the scope of its constitutional powers. Congress may employ its legislative powers (and additional powers not strictly "legislative" in character) to check the errant or willful interpretations of the President or of the courts, and to advance its own views of the proper interpretation of constitutional provisions.
Marbury, of course, is all about independent judicial review of acts of Congress. But the premises and logic of Marbury - constitutional supremacy, interpretive coordinacy, and the responsibility of all who swear to support the Constitution to be guided by the document itself and not by the misinterpretations of the other branches - fully support a province and duty of Congress independently to interpret the Constitution. The Constitution governs Congress, along with the other branches, and the Constitution's requirements are paramount, taking precedence over both presidential actions and judicial decrees that exceed the limits of those branches' constitutional powers. Must Congress nonetheless acquiesce in the actions or views of the Article II or Article III branches, where such actions depart from the language of the document? If presidential or judicial action repugnant to the constitution is void, does it, notwithstanding its invalidity, bind Congress, and oblige it to give effect to this action (assuming Congress possessed an effectual power with which to resist, or defeat, such unconstitutional executive or judicial action)? That would be, in Marbury's words, to overthrow in fact what was established in theory. And it would also require senators and representatives to violate their oaths: Article VI mandates that all members of Congress swear an oath to support the Constitution. Such oath, by Marbury's lights, would be a solemn mockery - and to swear it would be "a crime" - if Congress were forbidden to read the Constitution itself and inquire directly into the constitutional validity of acts of the other branches, but instead relegated to a role of docile servility to the constitutional determinations of one or both of the other branches.
Marbury's logic thus yields the same conclusion for Congress as it does for the President: Congress is not bound by the constitutional views of either the President or the Supreme Court in the exercise of its constitutional powers, and may press its views with all the constitutional powers at its disposal.
And Congress has quite a number of such powers, some with potentially sweeping consequence. Congress (the Senate alone, actually) possesses a substantial role in checking appointments of both executive and judicial officers, and it properly may exercise its power in this area based on its vision of how the Constitution should be interpreted and applied by the executive branch and by the courts.65 Congress possesses substantial control over the jurisdiction and remedial authority of the federal courts, including the Supreme Court, and may employ that power to rein in an imperial judiciary.66 Congress possesses broaddiscretion to enact laws "necessary and proper" for carrying into execution the powers of the judicial department. This discretion includes the power to prescribe rules of decision, procedure, and evidence that can substantially constrain judicial decisionmaking and, quite possibly, require the courts to hew to Congress's vision of the Constitution's text, structure, and intent.67 As the ultimate trump card, Congress also possesses the power to impeach (the House of Representatives) and remove (the Senate) executive or judicial officers for "high crimes and misdemeanors," a term that does not have a fixed, determinate meaning and, I submit, legitimately can extend to violations by an executive or judicial officer of his or her constitutional oath and constitutional responsibilities, as determined by the ultimate independent judgment of the House and the Senate.68 Thus, Congress may impeach and remove a President whom Congress sincerely believes has acted in deliberate violation of the Constitution or of his constitutional duties, as interpreted (presumably in good faith) by Congress. Likewise, Congress may impeach and remove federal judges, including justices of the Supreme Court, who in the ultimate judgment of Congress, act in deliberate violation or disregard of the Constitution or otherwise willfully ignore, manipulate, or disregard controlling law.
That last proposition, of course, is utter blasphemy in the constitutionalworld dominated by the Myth of Marbury. In a regime of judicial interpretive supremacy, impeachment of justices on the ground that their decisions deliberately and flagrantly violate the Constitution (and thus violate their oaths) makes no sense. The justices' decisions are the Constitution. Impeachment on such a ground reflects a basic confusion on the part of Congress.69
But if the correct understanding ofMarbury, and of the Constitution, is that no branch has interpretive supremacy; that each branch has independent interpretive power within its own sphere; and that the standard governing each, and to which each is required to adhere, is the Constitution itself, then impeachment of judges on the ground of constitutional infidelity is not confused at all: it is the ultimate, and perhaps the only truly effective, means by which Congress might, with the cooperation of the executive, resist and check a series of attempted usurpations of power by the courts.70 There may be important prudential reasons for restraint in the exercise of such a heavyhanded power; some might seriously debate whether impeachment on such grounds properly falls within the scope of the power to impeach for "high crimes and misdemeanors"; but there is no reason in principle why Congress is barred from independent consideration of these prudential and constitutional questions by reason of a claim that the judiciary's decisions are immune from constitutional scrutiny by the other branches.71
In addition to these strong, but blunt, front-end and back-end checks on interpretive abuse by the other branches, Congress's prov-inces of constitutional interpretation also include the power to propose constitutional amendments; the coequal power to interpret extremely important constitutional provisions, like the Thirteenth,Fourteenth, and Fifteenth Amendments, that Congress explicitly has been given the power to "enforce" through legislation72; and, indeed, the legislative power generally, including the vitally important appropriations power. As noted, every legislative enactment by Congress is, in a sense, an act of constitutional interpretation - an implicit assertion by Congress that it has constitutional power to do what it is doing. And, whenever such an assertion runs up against the contrary views of the President or the courts, Congress legitimately may press its independent constitutional views with all the legislative powers at its disposal. It may not bind the other branches with its views, of course: that is the absolutely foundational principle of Marbury. But it follows by the same reasoning that the other branches may not bind Congress either. Congress has as much right to interpret the Constitution as does the Supreme Court, and arguably possesses greater powers with which to press its views.
C.The Unconstitutionality of Stare Decisis
IfMarbury is right, the judicial doctrine of stare decisis - the practice of generally adhering to precedent "whether or not mistaken" - is wrong.73 Stare decisis is, of course, not required by the Constitution, as even the Supreme Court concedes.74 But even more fundamentally, when used in this strong sense of adhering to precedents even if wrong, stare decisis is unconstitutional. (In any other sense, stare deci-sis is simply irrelevant, or deceptive: a court that invokes the doctrine to justify a decision it was prepared to reach on other grounds is adding a makeweight, or using the doctrine as a cover for its judgment on the merits.)
Consider again whatMarbury says: The Constitution is supreme, paramount law, superior in obligation to other law. The judges are bound by the Constitution; the instrument is a rule for the government of courts. Imagine if you will - it isn't hard to do - a judicial decision that is not consistent with the Constitution; that ignores its provisions, or construes them wrongly; or where the Court has plainly exceeded the limits marked out by the Constitution's allocation of powers. Marbury says, with respect to legislative actions of such description, that "[t]he constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it."75 The same holds true of judicial actions that depart from the Constitution: The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is alterable when the judiciary shall please to alter it. A doctrine of stare decisis that holds that a faithless judicial interpretation of the Constitution at time T1 is binding at time T2 is a doctrine of judicial alteration of the paramount law. If the Constitution is not alterable whenever the judiciary shall please to alter it, then "a [judicial precedent] contrary to the constitution is not law;" and if the alternative is true, that the Constitution is alterable at the judiciary's option, "then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable."76
The idea of precedent is almost sacrosanct to lawyers, conditioned by the common law and the case method, so much so that few have examined carefully its premises and whether those premises are compatible with a system that purports to accord primacy to a written, enacted text.But on what principle may one generation of judges purport to transform its power to decide cases into a prospective power to bind future judges in future cases? On what principle may a judge in a later case abandon his or her sworn duty to uphold the Constitution by deliberately following a precedent that the judge believes is inconsistent with that Constitution? Under the reasoning of Marbury, the Constitution must always be given preference over the faithless acts of mere government agents that depart from it. The Constitution is paramount law, and must take precedence (so to speak) over precedents that depart from it.77
Marbury's logic applies for lower courts as well as others. Thus, a lower court may, and arguably must, "underrule" (to coin a term)80 Supreme Court precedents that depart from a sound reading of the written Constitution. The Supreme Court usually will have the authority and jurisdiction to review and reverse such lower court underrulings; such jurisdiction is consistent with Article III and the constitutional structure generally.81 But that does not mean that the lower court judges are personally required to abet the constitutional violation. They can, and should, make the Supreme Court do its own dirty work. They can, and must, exercise their own (reverse-able) constitutional interpretive power independently, and correctly.
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. Butthe 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 beforeMarbury, 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 ofMarbury: 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
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. Thisis 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.
* * * * *
Now, I know what you're thinking: If this is truly whereMarbury 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 adecentralized 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.
Ah, you say, but there's the rub: All of this assumeslegitimate disagreement, good faith interpretive differences, genuine disputes over constitutional meaning. What if one branch, or body, advances a highly idiosyncratic interpretation, not remotely supportable by fair reasoning from the Constitution, and insists, for its own policy or self-interested purposes, on pressing such a position to the wall? Decentralization permits a whole array of opportunities for bizarre, potentially destructive interpretive methodologies by any of a number of actors.
Put to one side for a momentthe obvious possibility that a single authoritative interpreter might do exactly the same thing, but without any other authority supplying an effective check on such interpretive abuse. Also put to one side that this possibility might well be thought by many a fair characterization of the actual practice of the modern Supreme Court under the Myth of Marbury. The rhetorical force of this concern lies in the perception that the notion of "interpretation" permits the Interpreter to bend the Constitution to his will; and that, consequently, the only way to constrain the results is to designate an authoritative interpreter who can slap down everybody else, and to choose the branch or body least likely to be willful in its own interpretations.
Marburyrejects this approach in two ways. First, as already discussed, it eschews the single-authoritative-interpreter approach entirely, resting instead on constitutional supremacy and the absurdity (and immorality) of binding one actor with the unconstitutional acts of another. The second point is more subtle, but it is implicit throughout Marshall's analysis: the whole idea that the Constitution is supreme and that one actor cannot be bound by the unconstitutional action of another presupposes that there is some objective meaning to the Constitution that stands on its own, apart from the interpretations or applications of that document by any particular actor. The Constitution means what it means. When Marshall uses the hypothetical of a treason conviction based on the testimony of one, rather than two, witnesses to the same overt act, he is supposing that the meaning of the provision in question is something that exists independently of the interpretation offered by some person or institution, so that any objective observer might be able to judge that the person or institution doing the interpreting just plain got it wrong. The words and phrases of the Constitution have discernible, objective meaning. They are not empty vessels waiting to have content poured into them by an Interpreter. Without such an understanding of constitutional meaning,Marbury simply makes no sense.
The powers of the legislature aredefined and limited; and that those limits may not be mistaken, or forgotten the constitution is written. . . . Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature repugnant to the constitution, is void. This theory is essentially attached to a written constitution, and is, consequently, to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject. . . . [To maintain] that courts must close their eyes on the constitution . . . would subvert the very foundation of all written constitutions . . . . That it thus reduces to nothing what we have deemed the greatest improvement on political institutions - a written constitution - would itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. . . . [C]ourts, as well as other departments, are bound by that instrument.92
More than that, it is this very writtenness of the Constitution that, inMarbury, supplies both the basis for judicial review and the standard for judging whether another branch has departed from the Constitution. The paramount authority of the written text is the core of the argument for the power of judicial review and the controlling standard for the practice of judicial review. Marbury, quite simply, stands for textualism as the proper method of constitutional interpretation.93
We tend to forget or ignore this, because we are imprisoned by the Myth ofMarbury. The myth of judicial supremacy tends to generate the corollary myth of plenary power over interpretive method. Because what the Court says controls, there is no control over what the Court says. The Court's power "to say what the law is" becomes "the law is what the Court says it is."94 Whatever the Court says, goes.
WhatMarbury says, however, is that whatever the Constitution says, goes. The courts don't get to say whatever they want. They are "bound by that instrument."95 There remains, of course, the enduring question about how to interpret that instrument - how to give effect to the authority of the written text - but that is a question to be answered by a different article.96 For present purposes, it is sufficient here to note that the actual opinion in Marbury, as distinct from the myth that has grown up around it, rejects modern notions of interpretive freedom or interpretive license. The text strictly constrains what may with propriety be done in the name of the Constitution. And if what is done in the name of the Constitution is not consistent with the text, fidelity to "that instrument" requires fidelity to the text, and not what has been wrongly done in its name.
Thus, what seems to scare sensible people about coordinate and decentralized constitutional interpretation is that the interpreters might think themselves properly possessed ofMarbury-Myth-like interpretive license to do whatever they like - that they might think that their equal power to say what the law is means that whatever they say, or whatever they can get away with saying, goes. But is that not something of a straw man? If, after all, what is being objected to is the theory of decentralized constitutional interpretive power, flowing from the logic of Marbury's argument for judicial review, should not one be required to challenge that theory on grounds consistent with Marbury's other assumptions about how interpretive power is legitimately to be employed?
To be sure, a "presidential activist" in constitutional interpretation is a dangerous constitutional loose cannon. To be sure, a state government that feels free to interpret the Constitution in a manner cut loose from the constraints of theobjective, original meaning of the text's words and phrases is a dangerous centripetal force. To be sure, if Congress cares not about the document itself, but decides, Humpty-Dumpty-like, that words mean whatever Congress wants them to mean, we could see a great fall. As I have written elsewhere:
The more that interpretive power is conjoined with practical governing power, the more important it is that interpretive power be constrained by the relatively clear boundaries of text, intention, and structure.97
If one is to shed the Myth ofMarbury, one must shed it completely. If one is to embrace Marbury in all its implications, one must embrace those implications fully. And if one does so, that is a constitutional world in which multiple actors, exercising their independent interpretive power, strive in good faith to check one another and hold each other to the meaning of the words of the Constitution's text, and to guard against departures from the nation's paramount law by any of the branches or organs of federal or state government. What a wonderful, wonderful world that would be.
Alas, that is not the constitutional world we inhabit today. Instead, we live in a constitutional world in which the Supreme Court is sultan and a perversion ofMarbury v. Madison is our governing constitutional myth. The myth is, by now, an ingrained one. The Supreme Court lives by the myth. The political branches by and large have accepted it.98 And it has been taught as Holy Writ to several generations of elementary school and law school students. Disentangling our political culture from the Myth of Marbury is not a mere day's work. On this, the occasion of Marbury's 200th anniversary, however, it is worth reflecting on the fact that The Myth is a betrayal of everything that Marbury stands for, and a betrayal of the written Constitution that Marbury identifies as the appropriate object of veneration.
FOOTNOTES @ SOURCE URL .pdf file.
If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.
Thanks for posting. I learned as much in law school, but most non-lawyers (and, indeed, most lawyers) still believe that the federal courts are the sole arbiters of constitutional interpretation.
1. The meaning of the Phrase "to regulate trade" must be sought in the general use of it, in other words in the objects to which the power was generally understood to be applicable, when the Phrase was inserted in the Constn.
Jackson's philosophy seems to be of the FDR "living document" school of thought.
You should at least read the prologue of the article before you call for overturning Marbury v. Madison. The point is that Marbury has been misinterpreted, but that the opinion itself uses flawless logic.
Courts have the duty to interpret laws and the Constitution, and to deem the Constitution as higher law that will override anything to the contrary included in a mere statute, but that should not be construed to deny the other two co-equal branches of government the right and the duty to interpret the Constitution as well.
Read about one-third of it, and it appears that this will not go down well with the oligarchy - federal judges.
It will be interesting when the SC makes a ruling and some President in the future tells them to go fly a kite under power lines.
to go fly a kite under power lines.
IN WET BLACK ROBES!
I disagree with pure "textualism", as it makes no attempt to discern original intent, or take into account changes in the commonly understood meanings of words.
"[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean." Dred Scott v. Sandford, 19 How. 393, 621 (1857) (Curtis, J., dissenting).
"On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed."- Thomas Jefferson (1743-1826), letter to Judge William Johnson, (from Monticello, June 12, 1823) FOUNDER'S LIBRARY
"The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary, as distinguished from technical meaning; where the intention is clear, there is no room for construction, and no excuse for interpolation or addition." - Martin v. Hunter's Lessee, 1 Wheat 304; Gibbons v. Ogden, 9 Wheat 419; Brown v. Maryland, 12 Wheat 419; Craig v. Missouri, 4 Pet 10; Tennessee v. Whitworth, 117 U.S. 139; Lake County v. Rollins, 130 U.S. 662; Hodges v. United States, 203 U.S. 1; Edwards v. Cuba R. Co., 268 U.S. 628; The Pocket Veto Case, 279 U.S. 655; (Justice) Story on the Constitution, 5th ed., Sec 451; Cooley's Constitutional Limitations, 2nd ed., p. 61, 70.
What a FANTASTIC article. I cannot BUMP this any higher!
If I recall correctly, it was Hamilton, defending a loyalist in New York immediately after the Revolutionary War, who first argued that his client's guilt or innocence under the law which he was being charged was irrelevant because the law itself was unjust.
Hamilton won the case.
And that was several years prior to the Constitution.
That is likely where one of the next crises on the path to Revolution will happen. One day a president is going to have to say "That's your ruling? OK, what are you going to do about it?" Or the legislature is going to have to start passing bills with the stipulation that they are not subject to judicial review. One way or the other we're going to get to the place where the bullet meets the meat. And then everybody will be sorry but it is a "necessary phase."
What's your take on US v Morrison?
From a pragmatist's point of view, they are.
From a Constitutionalist's point of view, they should have been impeached back around the time the first Bank of the United States was held Constitutional.
bookmark for a cold winter night
If this was not written by a past editor of the Yale Law Journal, who teaches at the University of Minnesota Law School, and who is writing for a symphosium at the Northwestern Univ. School of Law, [he did work in the Regan Administration] I would think that some folks might consider this guy a backward yahoo.