John Marshall s Opposition to Judicial Review

Transcription

1 John Marshall s Opposition to Judicial Review Matthew J. Franck 1 Four decades ago, C.S. Lewis wrote that he had come to distrust the feeling with which I am very familiar that we know exactly what something means. I think this feeling often proves not that we have understood but that we have met a familiar turn of expression and therefore feel no shock. 2 There is no more familiar turn of expression in the study of American constitutional law than judicial review. Do we really know what that phrase means? Do we have a proper sense of where it came from? how it came to be used in constitutional law? and what relationship the phrase has if any to the case whose bicentenary we celebrate today? One standard recent reference book offers the following, fairly typical description of judicial review : the power of the judiciary, or the courts, to determine whether the acts of other branches of government are in accordance with the Constitution. 3 Compare that with this description from the opening lines of the most famous article by James Bradley Thayer (who may justly be called the founding father of the modern study of the Supreme Court in America s law schools), written over a century ago: our American doctrine, which allows to the judiciary the power to declare legislative Acts unconstitutional, and to treat them as null. 4 The two descriptions seem virtually interchangeable, but one inconvenient fact commands our attention: Thayer s article nowhere uses the phrase judicial review, which appears not to have been part of his vocabulary at all (at least in 1893). Presented at Marbury v. Madison and Judicial Review: A Bicentennial Reconsideration, a conference of the Institute of United States Studies, University of London, at Lincoln s Inn, May 30, 2003.

2 2 A growing number of scholars has begun to notice that judicial review was not in the vocabulary of John Marshall or of anyone else in the founding or immediate post-founding generations. 5 The fons et origo of this recent rediscovery is the work of Robert Lowry Clinton, who first pointed out this fact in Clinton suggests that Edward S. Corwin may have been the first to coin the phrase, in the title of an article in the 1910 Michigan Law Review. 7 He is nearly right about this first coinage, but not quite. Corwin, a professor of political science at Princeton University, was largely responsible for the propagation of judicial review as a shorthand expression for the power of the Supreme Court to decide questions of constitutionality. But he did not quite originate the phrase s use in this context; he seems instead to have hit upon it as a happy accident or an unhappy one, as we will see. In his first article on this subject, published in the 1906 Michigan Law Review, Corwin seemed not to know quite what to call the thing he was talking about. 8 He referred in his opening sentence to [t]he power of the Supreme Court of the United States to supervise congressional legislation, and a few lines later to its right to declare an act of Congress of no effect. 9 Similar circumlocutions are littered throughout the article, such as the following: that power to supervise federal legislation and to nullify it when inconsistent with the Constitution ; the right to veto unconstitutional acts of Congress ; the right to declare unconstitutional acts of Congress null and void ; the power of the Supreme Court to sit in judgment upon the constitutionality of congressional legislation ; the power of the Supreme Court to overturn unconstitutional acts of Congress ; pass[ing] upon the validity of the acts of a coordinate legislature ; the power to question the validity of federal legislation ; and so forth. 10 The variations here are interesting in themselves: the Court is said to have acquired a power or right to supervise or to declare of no effect or to veto or to nullify or to sit in judgment on or

3 3 to pass upon the validity of or merely to question acts of Congress with an eye to the Constitution. But Corwin never once used the phrase judicial review in this article. When he wanted a handy two-word phrase, he came up with judicial paramountcy, which he used four times in the article, referring three times to the doctrine of judicial paramountcy. 11 This must not have seemed an apt phrase to Corwin, who appears never to have used it again after He was always rather ambivalent anyway about the nature, origins, and evolution of the power he was attempting to describe here, and judicial paramountcy may have seemed rather too strong an expression for something he wanted his readers to join him in questioning, but without prejudicing the issue one way or the other. By 1909, when he published The Supreme Court and the Fourteenth Amendment in the Michigan Law Review, he had adopted judicial review in its stead, using that phrase twice in the article, and noting at the foot of the first page that the article was part of a planned book to be entitled The Growth of Judicial Review. 12 Surely the new phrase seemed more neutral and dispassionate; it would, in itself, elicit neither applause nor alarm from readers interested in what was then (and still is in some circles) a scholarly controversy. By the following year, when he published, again in the same journal, The Establishment of Judicial Review (the article noticed by Professor Clinton in his 1989 book), Corwin had embarked on a lifelong habit of referring to the Supreme Court s authority over constitutional questions by this name. It was a habit everyone else picked up with remarkable speed by the latter part of the ensuing decade. Where did Corwin get judicial review? The phrase appears first to have migrated gradually into discussions of constitutional law in the law reviews, and then only later into the professional journals of political science, with those of history coming last of all to the use of the phrase. Many of the earliest uses of the expression in law reviews are somewhat equivocal, but

4 4 the first that seems to take on the modern coloration later propagated by Corwin comes in the Harvard Law Review of 1897, where an author declares that the import of a recent case is that the power of Congress to regulate commerce must be subject to judicial review. 13 Another writer a couple of years later, in The Green Bag, declares himself in favor of the system which permits of a judicial review of legislation as opposed to recent proposals for unfettered majority rule by referendum in various states. 14 In the new century, another article states the wellsettled rule that a state law fixing rates charged by public service companies at a level not permitting a reasonable profit is the subject of judicial review, and must be declared void as contrary to the Fourteenth Amendment. 15 A few years after that, an unsigned note in a law review refers offhandedly to cases of judicial review of municipal ordinances. 16 It may be worth noting as an aside that of these few examples, only the first refers clearly to a federal judicial power to review an act of Congress for its constitutionality, while the rest refer to the power of courts, state and federal, to rule on the constitutionality of the acts of state and local governments. The latter has hardly ever been questioned by anyone (at least since the Civil War!), thanks to the supremacy clause of Article VI, while the former has been a matter of considerable historical dispute at various times. In any event, these uses of the expression judicial review, with the meaning to which we are now accustomed, are few and sparse. Equally if not more common in the law and political science journals of this period is the use of the phrase in an administrative-law context, to refer to the way an increasing number of statutes in the nineteenth century provided for the review by courts of the decisions of executive officers, railroad rate commissions, and the like whether that review was to examine the question of mere authority of these decision-makers, or to go further and assess the reasonableness of their decisions. 17 But the important point is that this

5 5 form of judicial review was a creation of legislatures themselves, which chose in certain enactments (and not in others) to subject subordinate administrative decision-makers to some form of judicial check, and set the scope and limits of each of these instances of judicial control. It took a conceptual leap beyond the context of administrative law to assert that such review extended to the statutes themselves, especially those enacted by Congress. On the Supreme Court, the analogy of reviewing administrative decisions under statutes to reviewing legislation itself under the Constitution was resisted throughout the nineteenth century. Only once does the phrase appear before the Civil War, 18 and just a little more than twenty mentions of judicial review appear in the opinions of the justices over the next half century. In each instance, the expression is either clearly embedded in an administrative-law context, or it refers (rarely) to nothing more than an opportunity for appellate consideration of legal questions already adjudicated, or and this is the most interesting a member of the Court will use the phrase to distinguish the administrative from the constitutional context, by denying that certain matters are subject to judicial review precisely because they have been decided by a legislature and not by someone acting under an authority it has delegated. 19 The first unequivocal use of the phrase by a justice of the Supreme Court to refer approvingly to a power to judge the constitutionality of a legislative act comes in an opinion of Justice William Day for the Court in 1909 coincidentally, just months before Edward Corwin first began to use the phrase in this way. 20 The statute in question was the act of a state legislature, not of Congress. But did Corwin pick it up from this ruling? Or from one of the few earlier uses in law review articles? Of course, the older, administrative-law meaning of judicial review persisted through this period of conceptual change; it persists even today in countless rulings about the statutory authority for actions of administrative agencies, and the phrase

6 6 appeared in the standard American law dictionary for many years, until quite recently, with a definition that refers only to the administrative-law context, and not at all to a constitutional-law meaning. 21 But whatever prompted Edward Corwin to begin using judicial review as a shorthand expression for the power of courts to rule on the constitutionality of legislation, he started a steady stream of the phrase s use in the constitutional context that, now nearly a century later, has become an unstoppable flood. Within several years of the publication of Corwin s several seminal articles on the subject by no means the first on the subject but hugely influential the phrase became the standard way of expressing the thought in as few words as possible. Legal scholars, political scientists, historians all began to talk about judicial review over the course of the next decade as though they had never been talking about anything else. The widespread adoption of the new terminology was not an overnight sensation: the authoritative three-volume Cyclopedia of American Government published in 1914, to which Corwin among many other luminaries contributed (and which was co-edited by his erstwhile teacher Andrew C. McLaughlin), contained no entry for judicial review, nor did the expression appear in any of the entries where one would expect to encounter it today. 22 But the phrase soon made its reappearance on the Supreme Court in the constitutional context, at first most commonly in the opinions of the now-obscure Justice Joseph McKenna, 23 and gradually in the opinions of other justices as well, with accelerating frequency as the twentieth century wore on. So what, one may ask? Does the phrase not serve perfectly well? And does it not aptly describe the power proclaimed by Marshall in Marbury v. Madison? 24 Well, no, far from it. First, it is a good idea to resist an expression, until its utility is proven, that does not at all appear in the vocabulary of the framers and ratifiers of the Constitution. Second, it is useful to repeat a fact indicated in the story just told: that the phrase was unknown to the justices of the Supreme

7 7 Court in any context until just a few years before the Civil War, and that it never bore the meaning for constitutional law that it now bears until the turn of the twentieth century. This naturally raises the question, what was going on in the constitutional jurisprudence at that time that made the adoption of judicial review a congenial choice for the justices, and for the scholars who studied their work? The shift of contexts from administrative to constitutional law is a momentous one. When a court is authorized to review the factual accuracy, the legal sufficiency, or the statutory permissibility of an administrative decision, judicial discretion is almost invariably wide-ranging. The courts are, in effect, enlisted as adjuncts of the legislature, harnessed to the legislature s purposes as the junior member of a team whose joint purpose is to control the discretion of executive officials who perform the front-line administration of the law. The legislature states an end to be accomplished and the means to accomplish it, sets the executive to work on the use of those means for the sake of that end, and directs the judiciary to monitor the proper performance of the executive in using the prescribed means in reasonable pursuit of the desired ends. By authorizing such judicial monitoring, the legislature explicitly or implicitly creates a cause of action a right possessed by those affected by the law s administration, to come into court complaining that this or that administrative decision has been rendered on a factually inadequate basis, or was an unreasonable action given the ends to be pursued, or was just plain ultra vires, beyond the administrative authority given by statute. But does such a description of judicial power necessarily hold in the arena of constitutional law? If so, what or who is the legislator to whose purposes the judiciary is harnessed as an adjunct or helper? And what textual support for a wide-ranging supervisory power of courts is there in the Constitution that can match the explicitness of the typical statutory authorization of

8 8 administrative judicial review given to courts by legislatures? Let us take the last of these questions first. The problem of textual support for some version or other of a power to quote our standard modern reference again to determine whether the acts of other branches of government are in accordance with the Constitution, has plagued constitutional scholarship for more than a century. We would do well to begin again at the beginning, mindful of the difference between a federal court holding an act of a state legislature unconstitutional and so holding in the case of an act of Congress. Article VI of the Constitution plainly states that the Judges in every State shall be bound by various applicable forms of federal law, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. By these words the state courts are enjoined to declare their own states laws null and void when they conflict with federal law. Should they neglect to do so in a proper case, Article III, 2 declares that [t]he Judicial Power [of the United States] shall extend to all Cases... arising under this Constitution, the Laws of the United States, and Treaties made by the United States the very forms of federal law also named in Article VI. And the first Congress, in the first Judiciary Act, underscored the importance of enforcing state consistency with federal law by providing (in 25) for appellate review by the Supreme Court of rulings on such questions by the highest court of each state. 25 Within fairly light restraints having to do mostly with appellate procedure, therefore, the federal judicial power over the validity of state laws or other official actions is complete. Judicial power to judge the validity of acts of Congress (or of putatively constitutional, that is, nonstatutory, exercises of executive power) is another matter. This too arises from the conjunction of certain elements of Articles III and VI. Article VI declares the unqualified supremacy of the Constitution as the law of the land, but of acts of Congress it says only that

9 9 those which shall be made in Pursuance of the Constitution share that status. (Occasional quibbles about this language have been long since laid to rest, and it is a settled understanding that in Pursuance thereof necessarily means consistent therewith, and not merely those laws that come after the Constitution in time, which would render the language virtually meaningless.) Acts of Congress inconsistent with the Constitution are, well, unconstitutional. But who has the rightful power to say so with conclusive effect? The answer to that is not so clear as rote incantations of judicial review might make us think. Article III gives the federal courts the power to hear certain kinds of Cases, in Law and Equity, as well as other specified sorts of legal Controversies a word chosen in context here as an exact synonym interchangeable with cases, which means that the frequent mention we see in judicial opinions of cases and controversies is a redundancy. What is a case that comes before a court of law? The common-law background of our constitutional language gives the answer: it is a legal controversy in which a party claims an injury to a right and seeks a remedy from the court. As William Blackstone, the great English teacher of early American lawyers, put it, the primary and principal objects of the law are RIGHTS, and WRONGS. 26 He could well have added that these are the exclusive objects of the law as it is adjudicated in courts. And so we come to John Marshall, and to Marbury. That opinion contains, as we all know, the famous statement that [i]t is emphatically the province and duty of the judicial department, to say what the law is. 27 But nowhere in Marbury or elsewhere does Marshall say or imply that say[ing] what the law is is exclusively, finally, or authoritatively the province and duty of the judiciary in all circumstances. That it is emphatically the work of the judiciary is what he does say, and what he means, in the fullness of Marbury s context, is that in cases properly

10 10 before it, entailing issues about which the judiciary is capable (in James Madison s words) of liquidat[ing] and ascertain[ing] the sometimes obscure and equivocal meaning of the law, it will undertake to do so. 28 But this must involve, for Marshall, no arrogation of the right of the other co-equal branches to place their own stamp on the meaning of the Constitution, often in authoritative ways, as they go about the business of their own functions. Marshall seems to have come to a fuller understanding of the limits of judicial authority, and of the coordinate authority of other institutions to say what the Constitution means, over a period of about a decade prior to his ascension to the bench. At the Virginia ratifying convention in 1788, it fell to Marshall, as one of the state s leading lawyers, to defend the design of the judicial branch contemplated by the Constitution. Many have seen his Richmond speech of June 20 as presaging the thought of the chief justice to whom an attachment to judicial supremacy is commonly attributed. Here is what he said on that occasion: If [Congress] were to make a law not warranted by any of the powers enumerated, it would be considered by the Judges as an infringement of the Constitution: They would not consider such a law as coming under their jurisdiction. They would declare it void.... To what quarter will you look for protection from an infringement on the Constitution, if you will not give the power to the Judiciary? There is no other body that can afford such a protection. 29 Whatever one makes of the first remark above (prior to the ellipses), it is difficult to regard the second remark as anything short of hyperbole uttered in the pressure of a debate where the fate of the Constitution s adoption was still a dicey thing in a critical state. Marshall s agenda on this day was to vindicate the Constitution with all the vigor he could muster, and to reassure

11 11 wavering members of the convention that the new government would be kept safely within the bounds of its delegated authority. There is no reason to doubt Marshall s sincerity in saying what he says here, but the remark is too facile. To say that no other body than the judiciary can afford... protection from violations of the Constitution is far more than he said in Marbury or in any other case in his long judicial career. And lest his words here become a gloss on his subsequent judicial opinions, we should note that in 1788 Marshall had yet to face the very different kind of pressure of living, working, and deliberating under the Constitution he defended here. When that opportunity and duty arose twelve years later, he found himself engaged in more mature deliberations (in Madison s phrase) in the effort to apply the Constitution to a set of practical circumstances before him. The occasion was a debate in the House of Representatives over a Republican resolution concerning the fate of Jonathan Robbins (or Thomas Nash), who had been extradited at the president s behest to British authorities and executed for mutiny and murder aboard a Royal Navy vessel. Republicans accused President John Adams of undue interference with the South Carolina federal court responsible for Nash s detention in the United States an interference resulting, so they said, in the judicial murder by the British of an American citizen. (Nash was almost certainly who the British said he was: a British naval deserter of Irish origins, not an impressed American native-born citizen named Robbins.) On February 20, 1800, Edward Livingston of New York introduced resolutions censuring the president s conduct, charging in part that Adams had trespassed on the province of the federal judiciary, which alone, Livingston alleged, could have spoken for the general government on the matter of Nash s extradition. Marshall rose to respond to the (ultimately defeated) resolutions on March 7, saying that the question of an alien s custody when a foreign sovereign sought his extradition under the terms of

12 12 such a compact as the Jay Treaty of 1795 was a case for executive and not judicial decision. He continued: [I]t would not be improper to notice a very material mis-statement [of the Constitution] in the resolutions offered by the gentleman from New York. By the constitution, the judicial power of the United States is extended to all cases in law and equity arising under the constitution, laws and treaties of the United States; but the resolutions declare the judicial power to extend to all questions arising under the constitution, treaties and laws of the United States. The difference between the constitution and the resolutions was material and apparent. A case in law or equity was a term well understood, and of limited signification. It was a controversy between parties which had taken a shape for judicial decision. If the judicial power extended to every question under the constitution it would involve almost every subject proper for legislative discussion and decision; if to every question under the laws and treaties of the United States it would involve almost every subject on which the executive could act. The division of power... could exist no longer, and the other departments would be swallowed up by the judiciary.... By extending the judicial power to all cases in law and equity, the constitution had never been understood, to confer on that department, any political power whatever. To come within this description, a question must assume a legal form, for forensic litigation, and judicial decision. There must be parties to come into court, who can be reached by its process, and bound by

13 13 its power; whose rights admit of ultimate decision by a tribunal to which they are bound to submit. 30 Later in this lengthy speech, in response to the arguments of other Republican members that this was a case proper for the decision of the courts, because points of law occurred, Marshall replied: It is true, sir, these points of law must have occurred, and must have been decided: but it by no means follows that they could only have been decided in court. A variety of legal questions must present themselves in the performance of every part of executive duty, but these questions are not therefore to be decided in court.... [The gentleman from Pennsylvania s] observations have the appearance of endeavouring to fit the constitution to his arguments, instead of adapting his argument to the constitution. 31 In these lines from his brief congressional career just three months before he became the leading figure in the Adams cabinet as secretary of state and a year before he began his tenure on the Court Marshall displays far more care and sophistication in his account of the scope and limits of the judicial power than he had done in The conclusion is unavoidable, from his March 7 speech, that for Marshall it was quite conceivable indeed an inevitable consequence of the division of power among the three branches of government that the executive in these circumstances might misconstrue either the treaty governing extradition, or the Constitution s own principles governing the president s conduct of his duties (such as his obligation faithfully to execute the laws), and the entire situation would remain beyond the reach of judicial redress. To say otherwise would involve the courts not merely in the cases in law and equity allotted to

14 14 them by the Constitution, but in every question of constitutional meaning, and the other departments would be swallowed up by the judiciary. 32 It is interesting to note that Marshall s response to the New York Republican Edward Livingston in 1800 also serves to rebut the views expressed in 1788 by the New York Anti- Federalist Brutus, who warned his readers that the federal judges would be authorised to determine all questions that may arise upon the meaning of the constitution in law, and that for this reason among others they would be independent of the people, of the legislature, and of every power under heaven. 33 Brutus, like Livingston, conflated cases in law and equity under the Constitution with all questions thereunder the only difference being that Brutus had feared what Livingston appeared to welcome. Marshall answers both of them by pointing out a distinction each had missed, but he recoils, as Brutus had done, from any reading of the Constitution that would aggrandize the power of the judiciary. Marshall s Marbury opinion is fully consistent with the views he expressed three years earlier as a congressman. As is well known, he framed the issues in the case in this way at the outset: 1st. Has the applicant a right to the commission he demands? 2d. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? 3d. If they do afford him a remedy, is it a mandamus issuing from this court? 34 In the last century, the greatest attention has been paid to Marshall s treatment of the third question. But in considering the first two questions which took up more than two-thirds of his opinion Marshall did as much constitutional law as in the final third devoted to his famous holding that in some cases the Court could treat an act of Congress as no law at all. The

15 15 questions of Marbury s right and of the availability of a remedy prompted a sensitive and careful discussion on Marshall s part of the separation of powers, and of its intersection with the principle of the rule of law. The withholding of Marbury s commission (or a copy thereof), to an office from which he was not removable at the will of the executive, was violative of a vested legal right. 35 But could such a violation be considered as within the power of the executive, so as not to be remediable in courts of law? Is the act of delivering or withholding a commission to be considered as a mere political act belonging to the executive department alone, for the performance of which entire confidence is placed by our constitution in the supreme executive, and for any misconduct respecting which the injured individual has no remedy? That there may be such cases is not to be questioned; but that every act of duty to be performed in any of the great departments of government constitutes such a case is not to be admitted. 36 There may be such cases, indeed. Marshall proceeded to mark carefully the boundary of constitutional responsibility between the executive and the judiciary: [T]he question whether the legality of an act of the head of a department be examinable in a court of justice or not must always depend on the nature of that act. If some acts be examinable and others not, there must be some rule of law to guide the court in the exercise of its jurisdiction.... By the constitution of the United States, the president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character

16 16 and to his own conscience.... In such cases,... there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and, being entrusted to the executive, the decision of the executive is conclusive.... But... when the rights of individuals are dependent on the performance of [his] acts; he is so far the officer of the law, is amenable to the laws for his conduct, and cannot, at his discretion, sport away the vested rights of others. 37 The reasoning in these passages leads to a pivotal statement of principle on Marshall s part, that [t]he question whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial authority. 38 Strictly speaking, it is only when the vested rights of other parties are involved that the exercise of executive power becomes amenable to the judicial enforcement of legal (and thus of constitutional) principles. Responding a few pages later to the view some might express that a court would thus intermeddle with the prerogatives of the executive, Marshall writes: It is scarcely necessary for the court to disclaim all pretensions to such a jurisdiction. An extravagance so absurd and excessive could not have been entertained for a moment. The province of the court is solely to decide on the rights of individuals, not to inquire how the executive or executive officers perform duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court. 39

17 17 It is too readily overlooked how heavily the discussion of the first two questions in Marbury, including the exploration of the separation of powers, conditions the treatment of the final question. Consider one of the opinion s most famous passages: It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So, if a law be in opposition to the constitution, if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution, or conformably to the constitution, disregarding the law, the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. 40 What exactly are these particular cases to which a court must apply the rule, and in so doing, decide on the operation of conflicting statutory and constitutional provisions? If the first twothirds of the opinion are not to be regarded as a simple mockery, or as a political cover for a power grab by Marshall in the final third, the answer must be that the very essence of judicial duty is solely to decide on the rights of individuals, and only to that extent to take up questions of the limitations on the powers of other branches of government. After all, Marshall had begun his transition, from the axiomatic conclusion that laws contrary to the Constitution are void, to his discussion of the judiciary s role in saying so with any binding effect, by asking this question: does [a law repugnant to the constitution], notwithstanding its invalidity, bind the courts, and oblige them to give it effect? 41 Those schooled in the modern notion of judicial review will think Marshall s question either simply

18 18 rhetorical or downright foolish. It is neither. He says the question would seem, at first view, an absurdity, but then immediately promises to give it a more attentive consideration. 42 Perhaps on a second view it is not so absurd. This is, after all, the same judge who declared earlier in the same case that [t]he province of the court is, solely, to decide on the rights of individuals, and that constitutional [q]uestions, in their nature political... can never be made in this court. 43 Can he have forgotten those statements by the time he writes that the courts are to say what the law is? Surely they are to say what the law is only insofar as it bears on the rights of the parties, unless Marshall is taken for a very stupid judge who cannot recall what he said seven pages earlier. And of course Marshall was not at all stupid; his very next sentence after the oftquoted say what the law is is this: Those who apply the rule to particular cases, must of necessity expound and interpret that rule. 44 That is, the settlement of a particular legal case a controversy in which a right is claimed, an injury alleged, a remedy prayed for requires a court to say what the law is as it bears on the claims of right at issue between the parties. In this context alone can a court pronounce authoritatively that an act of Congress is unconstitutional. Statutes impinging on judicially vindicable rights under the Constitution, including those statutes affecting access to or the operation of the judicial process itself, give rise to the sorts of cases courts can decide on constitutional grounds. Statutes, on the other hand, that exercise, or even merely purport to exercise, powers granted to Congress without implicating specific rights, or other restraints amounting to prohibitions on particular uses of the power (which may imply a right on the part of those harmed by the breach of a prohibition), do not give rise to a case within the power of the judiciary under Article III certainly not a constitutional case, anyway. In such matters, the judiciary has no more authority to say what the law is than does Congress or the president.

19 19 Only a clear view of the vital distinction Marshall always maintained between rights and powers can make sense of his subsequent remark on the Court s purview: 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? 45 The some cases are those involving vested legal rights adjudicable by courts. Not all so-called cases will meet such a description. But in those that do (only those that do), once having opened the Constitution to look into it, judges may have to read and obey constitutional provisions ordinarily addressed to other branches such as the appointment power of presidents inasmuch as the exercise of legislative and executive powers can give rise to vested rights in myriad ways. To put it as succinctly as possible: rights questions under the Constitution are judicially answerable, and the answers courts give to them have an obligatory legal effect on the other branches of government (which is not the same as always commanding their respect in practice). Absent any associated rights questions raised by specific textual restraints, however, power questions regarding what the other branches may do under the Constitution are not judicially answerable with any obligatory legal effect on those branches. This is the only way to make sense of the founding generation s common understanding that legal cases in courts are about rights and wrongs. It is also the only way to make sense out of Marshall s opinion in Marbury (and the rest of his judicial career, for that matter), which otherwise collapses in a shambles of contradiction and collapse it must if it is to be taken as a precedent for the modern understanding of judicial review. There are two other things that make sense only under this more limited understanding of the judicial power. The first is the text of the Constitution itself. In the absence of any plain declaration in that Constitution of a general, supervisory power of the judiciary... to determine

20 20 whether the acts of other branches of government are in accordance with the Constitution (our modern reference book again), it becomes extremely difficult to account for where such a broad authority could come from. From the flat-out usurpation of the power by the judges, Marshall in Marbury chief among them? Such a thesis has been advanced by a few scholars, but it fails when we notice that the conjunction of Articles III and VI must produce some measure of authority in the courts to interpret the Constitution s meaning with a binding effect. But if we must conjoin Articles III and VI to get somewhere, because no plain single statement hands a general power of constitutional supervision to the judiciary, then it is unreasonable to leap to the conclusion that that kind of constitutional piecework accomplishes what the direct language that is lacking would accomplish. Far more sensible is paying attention to what the text of the Constitution does say, rather than what we wish it to say. It doesn t say judicial review anywhere; it does say that the Constitution is the supreme law in the adjudication of cases in the sense that everyone two hundred years ago meant cases. The other thing that makes sense with such an interpretation is the separation of powers. A while ago, after observing that in administrative law, a power of review in the courts entails their enlistment as adjunct to the legislature s purposes, I raised the question, what or who is the legislator in constitutional law to whose purposes the judiciary is harnessed as an adjunct or helper? The only possible answer the legislator of the Constitution is the sovereign people, whose choices in making the Constitution may be said to be vindicated by judicial decisions defending it in the face of unconstitutional legislative acts. But it simply will not do to assert, without support in the text or in the common understandings of the founding generation, that the judiciary possesses a special, unique, or exclusive capacity to defend the law of the Constitution that there is a constitutional principle of judicial paramountcy, to use Edward

21 21 Corwin s short-lived expression. All three branches of government are answerable to the people for what they do with, for, and to the Constitution, and while it is vital to the survival of constitutional government that what the Constitution says be obeyed and not flouted, it is essential that we come to a correct understanding about who, under what circumstances, is entitled to say with the binding authority of principle that the Constitution has been obeyed or flouted. Marshall maintained, throughout his career on the bench, a healthy awareness of the separateness and equality of the branches of government when it came to giving effect to the Constitution s meaning. Keith Whittington has recently argued that, while in Marbury the Court had begun modestly enough, in McCulloch v. Maryland 46 Marshall positioned [the Court] as the authoritative interpreter of the Constitution, making it, if not the exclusive interpreter of its meaning, at least the ultimate one. According to Whittington s reading of McCulloch, [t]he Constitution s function is to specify political authority, and the Court s role is to enforce those specified boundaries. 47 I have argued elsewhere that this is a misreading of Marshall s McCulloch opinion, which is fully consistent with his modest position in Marbury. 48 At the conclusion of the portion of the opinion devoted to the Maryland s challenge to the constitutionality of the national bank, Marshall noted that the degree of [the Bank s] necessity, as has been very justly observed, is to be discussed in another place. Should congress, in the execution of its powers, adopt measures which are prohibited by the constitution, or should congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say

22 22 that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department and to tread on legislative ground. This court disclaims all pretensions to such a power. 49 Marshall has sometimes been criticized for demurring, in McCulloch, from a full-blown inquiry into just what made the Bank necessary and proper to the accomplishment of any object entrusted to the general government. For after all, judging the degree of its necessity is a constitutional judgment. But his answer in the lines above is complete. Such an inquiry is not within the power of the judiciary, unless and until a case requiring such a decision come[s] before it. And the pattern of Marshall s jurisprudence over the course of his whole career informs us of what such a case would look like: it would involve an invasion of a vested right possessed by someone capable of pressing its vindication in a court of law competent to vindicate it. No one has a right to defeat the creation of a Bank of the United States by the Congress certainly not the state of Maryland, which as to this first question in the case possessed no adjudicable rights at all. Only the second question in McCulloch involved in any way an issue regarding such rights, since James McCulloch, the cashier of the Baltimore branch of the Bank of the United States, in effect claimed a right not to pay the Maryland stamp tax in the course of circulating U.S. bank notes. And more to the point, the second question in McCulloch entailed the Court s consideration, not of the powers of a coordinate branch of the general government, but of the

23 23 powers of a state, where the judicial power to give authoritative answers to constitutional questions is complete under the supremacy principle. But why, if the first question posed in McCulloch did not present any issues regarding adjudicable rights, did Marshall need to devote two-thirds of his opinion to that question? That the question could not be altogether avoided was owing in part to the terms of section 25 of the Judiciary Act of 1789, which provided for Supreme Court review under a writ of error of any ruling of a state s highest court against the validity of a federal law. But could not Marshall have simply referred to Congress s decision to charter the Bank as authoritative, and had done with it? Both in private and in public (albeit under a pseudonym), Marshall provided a somewhat rueful answer to this question. Within a few weeks of the decision, writing to Bushrod Washington, he noted that the politicians of Virginia... have no objection to a decision in favor of the bank,... but they required an obsequious, silent opinion without reasons. 50 As he again put it some weeks after that to Joseph Story, [t]hey would have been more merciful had we said simply that it was for the legislature to decide on the necessity & not the court &c. 51 This is in essence what the Court did say, at least in part, as we have seen above. But it said more: it did not give a silent opinion without reasons to support such an exercise of congressional power. It is clear that Marshall was sensitive to the charge that the Court had travell[ed] out of the case for the purpose of delivering, extrajudicially, its opinion on the validity of the Bank charter. 52 His response to this charge evinces an awareness on Marshall s part of the Court s duty to another, third party in every case of major importance: public opinion. As he said in one of his essays defending the McCulloch ruling, Suppose the court had said: Congress has judged of the necessity and propriety of this measure, and having exercised their undoubted functions in

24 24 so deciding, it is not consistent with judicial modesty to say there is no such necessity, and thus to arrogate to ourselves the right of putting our veto upon a law. Or suppose the court, after hearing a most elaborate and able argument on the constitutionality of the law, had said: It is not our intention to bring that subject into discussion.... Would this reasoning have satisfied, or ought it to have satisfied the publick? 53 It would not, says Marshall, because such an opinion, leaving the Bank charter entirely undefended but for a bare assertion of Congress s plenary authority to judge of its necessity, would insinuate an opinion that Congress had violated the constitution. 54 Far better for public opinion s sake for the Court to do as Marshall did in his McCulloch opinion refute the arguments against the Bank that so fundamentally misconstrued the letter, spirit, and foundations of the Constitution, and in so doing explain the reasons why Congress must remain unfettered by the judiciary as it legislates for the nation according to its own ideas of necessity and propriety. Any reading of McCulloch that finds hints of judicial supremacy in Marshall s opinion must come to grips with Gibbons v. Ogden, decided five years later. 55 While the case is commonly understood to represent a clash between the competing power claims of New York and the United States to regulate navigation in the waters of the state, the arrival of that contest before the Supreme Court for resolution required a controversy between individuals claiming conflicting rights acquired under the two jurisdictions. Aaron Ogden, an assignee of the Fulton- Livingston monopoly on steam navigation sanctioned by the New York legislature, claimed a right to operate his ferry in the state s waters free of competition from Thomas Gibbons, whose

25 25 boats were duly enrolled and licensed, according to the act of Congress, to carry on the coasting trade of the United States, and who therefore insisted on his right, in virtue of that license, to navigate the waters between Elizabethtown [New Jersey] and New York, the acts of the Legislature of New York notwithstanding. 56 Ogden had won an injunction from Chancellor Kent of New York, which was affirmed by the state s highest court. Marshall s Court reversed the decrees of the New York courts, settling the dispute over rights between the parties, and only as a consequence of its performing that duty, took up the competing claims of power by the state and the nation. Indeed, while Marshall was careful in Gibbons to say that only those acts of Congress made in pursuance of the Constitution 57 could justly prevail over conflicting acts of state legislatures, and careful as well to state his understanding of the extent of Congress s power over commerce, which may very properly be restricted to that commerce which concerns more states than one, 58 he took equal care to deny that the exercise of congressional power over commerce was subject to the restraining power of a court concerning itself with whether a particular use of this power was or was not in pursuance of the Constitution: If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its Constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States. The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are, in this, as in many other instances, as that, for example, of

26 26 declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments. 59 In short, while Marshall took the trouble in Gibbons, as in many of his other great opinions, to instruct his readers in a proper understanding of the Constitution s division of authority between the nation and the states, the only real issue for the Court, in his view, was whether Gibbons was possessed of a right to ply the coasting trade despite a state law s protection of another s exclusive right. What was not truly at issue in the case was whether Congress could accord Gibbons such a right. Congress had done so, and its power to do so was solely to be restrained or affirmed by the processes of national politics. Presumably, the only restrictions on the exercise of the power... found in the Constitution that could be enforced authoritatively by a court would be those that state a judicially vindicable right. And no one has a vested right, adjudicable by a court of law, to the non-abuse of the general grant of power over commerce given to Congress by the Constitution. Marshall s view of the scope and limits of judicial power was shared by his colleague Joseph Story, who similarly expressed a hardheaded respect for the prerogatives of the other branches of government, which is worth quoting at length: [I]n many cases the decisions of the executive and legislative departments... become final and conclusive, being from their very nature and character incapable of revision. Thus, in measures exclusively of a political, legislative, or executive character, it is plain, that as the supreme authority, as to these questions, belongs to the legislative and executive department, they cannot be re-examined elsewhere. Thus, congress having the power to declare war, to