THE ORIGINS OF JUDICIAL REVIEW

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THE ORIGINS OFJUDICIAL REVIEW

• Topic 11

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Article III

• Section 1. The judicial power of the United
  States, shall be vested in one Supreme Court, and
  in such inferior courts as the Congress may from
  time to time ordain and establish. The judges,
  both of the supreme and inferior courts, shall
  hold their offices during good behaviour, and
  shall, at stated times, receive for their
  services, a compensation, which shall not be
  diminished during their continuance in office.
• Section 2. The judicial power shall extend to all
  cases, in law and equity, arising under this
  Constitution, the laws of the United States, and
  treaties made, or which shall be made, under
  their authority--to all cases affecting
  ambassadors, other public ministers and
  consuls--to all cases of admiralty and maritime
  jurisdiction--to controversies to which the
  United States shall be a party--to controversies
  between two or more states--between a state and
  citizens of another state--between citizens of
  different states--between citizens of the same
  state claiming lands under grants of different
  states, and between a state, or the citizens
  thereof, and foreign states, citizens or
  subjects.
• In all cases affecting ambassadors, other
  public ministers and consuls, and those in which
  a state shall be party, the Supreme Court shall
  have original jurisdiction. In all the other
  cases before mentioned, the Supreme Court shall
  have appellate jurisdiction, both as to law and
  fact, with such exceptions, and under such
  regulations as the Congress shall make.

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Article III (cont.)

• The Supreme Court is established by the
  Constitution (so Congress need not create it and
  cannot abolish it).
• But the size of the Supreme Court is fixed by
  Congress, not the Constitution.
• Congress must also by law establish other
  inferior U.S. (federal) courts (and can
  subsequently abolish or change them).
• All federal judges serve during good behavior
  (Congress cant change this).
• Federal judges must be paid salaries, which
  cannot be cut.
• U.S. courts have jurisdiction over all cases that
  arise under the Constitution, federal law, and
  treaties, as well as some other cases (e.g., in
  which the U.S., states, or citizens of different
  states, are parties).
• The Supreme Court has original jurisdiction in a
  very small number of cases (e.g., in which states
  are parties),
• that is, such cases are tried before the Supreme
  Court itself (so there can be no appeal).
• Otherwise, the Supreme Courts jurisdiction is
  appellate,
• that is, such case are tried before other
  (inferior) federal or state courts but may
  reach the Supreme Court on appeal.

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The First Congress

• When the first U.S. Congress met in the Spring of
  1789, it had an incredibly heavy agenda.
• It had to pass a law setting up a federal court
  system, in a manner consistent with Article III.
• It had to pass laws establishing the executive
  departments State, Treasury, War, Navy, and
  Post Office.
• It was politically obliged to propose a package
  of constitutional amendments that would include
  the Bill of Rights that the original Constitution
  lacked.
• James Madison was the floor leader in the House
  of Representatives.
• He shepherded the necessary legislation through
  Congress.
• Members proposed a wide range of constitutional
  amendments, many of which reopened the structural
  issues that the convention had resolved by
  difficult compromise.
• Madison skillfully deflected such amendments and
  got Congress to propose a package of 12
  amendments that explicitly secured certain rights
  but did not change the structure of the
  constitution.

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The Judiciary Act of 1789

• An Act to establish the Judicial Courts of the
  United States
• Sec. 1. Be it enacted, That the Supreme Court of
  the United States shall consist of a chief
  justice and five associate justices, . . . .
• Sec. 2. That the United States shall be, and they
  hereby are, divided into thirteen districts, . .
  . .
• Sec. 3. That there be a court called a District
  Court in each district, to consist of one judge,
  who shall be called a District Judge, . . .
• Sec. 4. That the districts shall be divided into
  three circuits, . . . That there shall be held
  annually in each district . . . a Circuit Court,
  which shall consist of any two justices of the
  Supreme Court and the district judge of such
  districts.
• Sec. 9. That the district courts shall have
  cognizance of all crimes and offenses that shall
  be cognizable under the authority of the United
  States . . . . with a number of exceptions.
• Sec 11. That the circuit courts shall have
  original cognizance over the exceptional cases
  . . . and appellate jurisdiction from the
  district courts . . . .
• Sec 13. The Supreme Court shall have appellate
  jurisdiction from the circuit courts and courts
  of the several states in the cases hereinafter
  specially provided for and shall have power to
  issue writs of prohibition to the district
  courts, when proceeding as courts of admiralty
  and maritime jurisdiction, and writs of mandamus,
  in cases warranted by the principle and usages of
  law, to any courts appointed, or persons holding
  office under the authority of the United States.
  . . .
• A writ of mandamus orders an public official to
  carry out a ministerial duty.

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Constitutional Interpretation

• We now briefly revert back to social contract
  theory.
• A Hobbsian constitution would be short and
  sweet and unambiguous
• We the people of the United States, in order
  insure domestic tranquility maintain a state of
  peace and provide for the common defense forget
  about a more perfect union, establishing justice,
  promoting the general welfare, and securing the
  blessings of liberty do hereby give up all of
  our natural liberty and rights and delegate them
  to an all-powerful central government, embodied
  in the person of George Washington, who
  accordingly has authority to exercise unlimited
  power (including naming his successor) in order
  to carry out these functions.
• This constitution has the virtues of brevity,
  simplicity, and lack of ambiguity --- but few
  other virtues.

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Constitutional Interpretation (cont.)

• In contrast, a Lockean constitution tries to
  make lots of distinctions (in particular, between
  powers delegated to the government and powers
  denied to the government) and, as a result, has a
  lot of provisions that are open to differing
  reasonable interpretations.
• Many of the provisions of such a constitution are
  ambiguous because
• they are written in mere words,
• the words may reflect compromises made by its
  framers, and
• some issues were left open or unaddressed by its
  framers, e.g.,
• unilateral succession by states, and
• who has the final say in interpreting the meaning
  of ambiguous aspects of the Constitution.

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Constitutional Interpretation (cont.)

• For example Article 1, Section 8. The Congress
  shall have power . . . to regulate commerce . . .
  among the several states. . . . The Interstate
  Commerce clause
• What does commerce include?
• Just buying and selling goods? (or services?)
• Transporting goods from where they are produced
  to market?
• What happens in fields, mines, factories, etc.?
• What does among the states (or interstate) mean?
• For example, if commerce includes transportation,
  is it interstate only at the moment goods cross
  from one state to another?
• What does regulate mean?
• For example, does the power to regulate include
  the power to entirely prohibit certain goods in
  interstate commerce?

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Constitutional Interpretation (cont.)

• Who has the power to interpret such
  constitutional provisions?
• Congress itself?
• The British Parliament is the sole interpreter of
  its powers.
• The states?
• The doctrine of nullification (and massive
  resistance)
• Special bodies?
• The Council of Revision in the Virginia Plan
• A special Constitutional Court (as in Germany
  and elsewhere)
• The (ordinary) courts?

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Judicial Review

• The power of judicial review is the power of a
  court to interpret both the provisions of the
  Constitution and the provisions of a law and to
  declare the law unconsti-tutional and null and
  void if it judges the law to be incompatible with
  the Constitution.
• No explicit language in the Constitution
• gives federal courts the power of judicial
  review, and
• no explicit language denies them this power).
• The language of the supremacy clause does
  obligate state courts to exercise a power of
  judicial review.
• This Constitution, and the laws of the United
  States which shall be made in pursuance thereof
  and all treaties made, or which shall be made,
  under the authority of the United States, shall
  be the supreme law of the land and the judges in
  every state shall be bound thereby, anything in
  the Constitution or laws of any State to the
  contrary notwithstanding.

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Hamilton, Federalist 78

• The judiciary will always be the least dangerous
  branch. The judiciary has neither FORCE nor
  WILL, but merely judgment and must ultimately
  depend upon the aid of the executive arm even for
  the efficacy of its judgments.
• The complete independence of the courts is
  peculiarly essential in a limited Constitution, .
  . . which contains certain specified exceptions
  to the legislative authority such, for instance,
  as that it shall pass no bills of attainder, no
  ex-post-facto laws, and the like. Limitations of
  this kind can be preserved in practice no other
  way than through the medium of courts of justice,
  whose duty it must be to declare all acts
  contrary to the manifest tenor of the
  Constitution void. . . .
• No legislative act contrary to the Constitution,
  can be valid. To deny this, would be to affirm,
  that the deputy is greater than his principal
  that the servant is above his master that the
  representatives of the people are superior to the
  people themselves.
• The power of judicial review does not by any
  means suppose a superiority of the judicial to
  the legislative power. It only supposes that the
  power of the people is superior to both and that
  where the will of the legislature, declared in
  its statutes, stands in opposition to that of the
  people, declared in the Constitution, the judges
  ought to be governed by the latter rather than
  the former.

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These two portraits sit side-by-side in the
Supreme Courts Private Dining RoomMarbury
v. Madison
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Marbury v. Madison

• Marbury v. Madison (1803) was the first case in
  which the SC claimed and exercised a power of
  judicial review.
• The immediate issue was of trivial significance
  (quite often true in landmark SC cases) and was
  embroiled in early party politics.
• The Presidential election of 1800
• Republican Thomas Jefferson defeated the
  incumbent Federalist John Adams.
• The Republicans (actually the ancestor of todays
  Democratic Party) also took control of Congress
  from the Federalists.
• But the lame duck Federalist Congress passed an
  amendment to the Judiciary Act, creating a lot of
  new judicial positions, which were filled at the
  last minute by Federalist appointees.
• William Marbury received such a midnight
  appointment to a minor judicial post in the new
  District of Columbia.
• His commission was signed by President Adams and
  sealed by the Secretary of State but, by
  oversight, not delivered to Marbury by
  Presidential inauguration day.
• The new Secretary of State, James Madison, did
  not correct this oversight.

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Marbury v. Madison (cont.)

• Marbury sued Madison in the Supreme Court, asking
  the Court to issue a writ of mandamus ordering
  Madison to deliver the commission.
• The SC (and the federal judiciary as a whole) was
  of course dominated by Federalist appointees.
• It had a new Chief Justice, John Marshall,
  himself a midnight appointee who had been Adams
  Secretary of State.
• Marshall did not recuse himself from the case.
• Marshall (like other Federalists) was suspicious
  of the Jeffersonian Republicans and might have
  liked to get even by issuing the writ.
• But he feared a writ would be ignored or defied,
  revealing the weakness of the SC and setting a
  bad precedent for the legitimate authority of the
  courts (the last bastions of Federalist authority
  of the national level).

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Marbury v. Madison (cont.)

• Marshalls opinion
• Has the applicant a right to the commission?
• Yes, it is being illegally withheld.
• Has the applicant a legal remedy for this wrong?
• Yes, a writ of mandamus can properly be directed
  against a public official who fails to carry out
  a ministerial duty.
• Is the applicant entitled to the particular
  remedy for which he applies?
• No, the SC does not have the power to issue such
  a writ.
• But why not? The Judiciary Act explicitly gives
  the SC that power.
• Because the Judiciary Act is in that respect
  unconstitutional.

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Marbury v. Madison (cont.)

• Why is the Judiciary Act unconstitutional?
• The judicial power of the U.S. extends to all
  cases that arise under U.S. law.
• But the Constitution distributes this judicial
  power in two ways
• between the SC and inferior courts, and
• between original and appellate jurisdiction.
• The Constitution gives the SC original
  jurisdiction over a few types of cases and
  Marshall says Congress can neither restrict or
  expand this original jurisdiction.
• By giving the SC itself the power to issue writs
  of mandamus Congress tried (unconstitutionally)
  to expand the SCs original jurisdiction.
• So while Marbury has a valid grievance, he needs
  to go elsewhere (e.g., to a Federal District
  Court) for the remedy.
• Marbury never did this and never got his
  commission.

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Marbury v. Madison (cont.)

• The was a very clever and convenient argument.
• It repeatedly affirms that the (Republican
  controlled) Executive Branch is in the wrong.
• It does this without actually testing the power
  of the SC to issue the writ and have it obeyed.
• In the immediate case, the SC made a
  self-restrained decision in that the SC denied
  itself a power that Congress had tried to give
  it.
• But in the long term the SC was claiming (and
  exercising in a minor way) the far more sweeping
  power of judicial review
• that is not explicit in the Constitution, and
• that it could exercise in the future in far more
  important cases.

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Marbury v. Madison (cont.)

• Marshalls general argument about whether the
  power of judicial review is implied by the
  Constitution is generally cogent and reasonable.
• Remember that Alexander Hamilton made a similar
  argument in Federalist 78.
• And most delegates at the constitutional
  convention evidently assumed courts would have
  this power.
• However, his specific examples focus on easy
  cases where the Constitution is exceptionally
  unambiguous
• no tax or duty shall be laid on articles exported
  from any state
• no bill of attainder or ex post facto law shall
  be passed
• no person shall be convicted of treason unless on
  the testimony of two witnesses to the same overt
  act, or on confession in open court.
• He emphasizes that judges take an oath to uphold
  the Constitution.
• But he does not note that members of Congress who
  passed the Judiciary Act (and all other
  officials) take an identical oath.