A Satchel of Embarrassments: John Marshall and Marbury v. Madison

John Marshall

In the Federalist No. 78, Alexander Hamilton defended the proposed Judicial Branch, particularly the Supreme Court created in Article III of the Constitution. Hamilton contended that the Judiciary would be "the least dangerous branch" to the political rights of the People. With the long view of history, we can confidently conclude that Hamilton erred in that representation. Whether he lied, or underestimated the grasping desire for power, his reasoning, that Congress, which had the power of the purse, and the Executive, which bore the sword of the Nation, has proved wrong.

The Judiciary in our Nation has assumed powers far beyond any contemplated for it in the Constitution. Decisions described above give the reader some sense of how the Court's decisions have impacted the Nation, across the spectrum of human experience and relations. That this has happened could hardly be predicted from the robust debates held in the summer of 1787, when the delegates to the Constitutional Convention met in Philadelphia.

At the Constitutional Convention, on three separate occasions, the delegate debated and rejected a proposal to include the Judiciary in a panel that would review statutes enacted by Congress to determine constitutionality of them. Three times it was proposed that a Council of Revision be constituted and that the Council include representatives of the Judicial Branch. Three times the proposal was rejected. Ultimately, the Convention voted to adopt the Constitution as their proposal to the Congress. The proposed Constitution omitted the Council of Revision. The proposed Constitution left unmentioned any role for the Judicial Branch in evaluating statutes to determine their constitutionality.

Yet, as readers of this blog know, and as observers of the Supreme Court know, the Court claims to have that power, and exercises that power it claims to have. Indeed, in the face of court decisions that can only be described as exactly what decisions by a "Council of Revision" proceed from the Supreme Court, leaders of the other branches of the government too often, too consistently, retire from the field of civic battle, claiming that the Court's decision is final.

You might wonder how this outcome came from these preconditions, when the outcome was precisely rejected in the Constitutional Convention.

I propose, with no originality to the idea, that this happened by the deliberate accretion of power within the Judiciary. Case by case, decision by decision, either by direct taking of steps, or by laying the groundwork in its written explanations of the Constitution, the Supreme Court has built its base of strength and power.

That accretional process begins with Chief Justice John Marshall.

In Marbury v. Madison, a case on which I have previously blogged, William Marbury filed a suit in the Supreme Court seeking an Order that Secretary of State James Madison had violated his right to obtain a commission as a justice of the peace. Marbury had been nominated to the post by John Adams and confirmed by the Senate. Marbury's judicial commission had been drawn up. Acting as Secretary of State, John Marshall applied the Great Seal of the United States to the commissions. They were then left in the office of the Secretary of State when Jefferson succeeded Adams in the Presidency in 1800. Jefferson directed his Secretary of State, Madison, not to deliver up several commissions, including Marbury's.

Adams and Jefferson had been friends and correspondents, and would be again in the future. Adams, though, was a Federalist and Jefferson was not. Adams had supported the Alien and Sedition Acts. Jefferson had friends and acquaintances who were charged with violating the Acts. Jefferson would later say that the Revolution of 1800 (his description of the struggle that brought him to the presidency) was frustrated because the judiciary had been populated by lifetime appointed Federalist-sympathizing justices. He would not shoot his own foot by delivering even a single justice of the peace post to a Federalist.

Marbury brought his suit in the Supreme Court.

Congress had enacted a Judiciary Act. The Act authorized the Supreme Court to issue certain orders in cases before it. The order Marbury sought was a Writ of Mandamus. A Writ of Mandamus is an Order Mandating a government official to do something. That Judiciary Act did not, in fact, authorize the Supreme Court to allow Marbury to file his suit in the Supreme Court. [Article III of the Constitution creates the Judicial Branch of our federal government. It identifies certain categories of cases that may be filed as original matters there (suits between States are one example of such original actions). Article III also granted to Congress the power to create inferior federal courts, to provide for their jurisdiction, and to provide for appellate jurisdiction of the Supreme Court.] In resolving Marbury's suit, Chief Justice Marshall treated that Judiciary Act as though it authorized Marbury's suit, even though it did not do so.

As with Chief Justice Taney's decision in Dred Scott, Chief Justice Marshall's decision could have been brief. Because the Constitution did not say that Congress could, by statute, expand the categories of original jurisdiction cases, the Judiciary Act (as falsely interpreted by Marshall) had wrongly granted to Marbury the right to sue for his commission in the Supreme Court. Chief Justice Marshall could have written a brief opinion noting that the Court lacked jurisdiction over Marbury's cause and entered an Order dismissing the case.

Chief Justice Marshall did not choose the road less traveled, in which a justice simply does only that which is required to complete the task before him. Instead, he used the occasion of Marbury's suit to expound on the role and duty of the Supreme Court. On that topic, disregarding the utter silence of the Constitution on such a role for the Supreme Court, Marshall asserted that the Supreme Court had the power of "judicial review." He wrote:

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.

Marshall's deft move asserted a principle -- the pre-eminence of the Court in deciding the constitutionality of congressional acts -- in a case in which neither the Congress nor the President would be much inclined to take immediate corrective action. The Congress had passed out of the hands of the Federalists and the Presidency, too, with the election of Thomas Jefferson. So the decision -- rejecting Marbury's claim -- while it found fault with Jefferson and Madison for refusing the commission to Marbury, produced the result agreeable to Jefferson and Madison.

Still, that nugget of judicial review was laid into the law with Chief Justice Marshall's opinion in Marbury. That nugget provided a precedent on which he, and future justices of the Supreme Court, could lean in other, further expansions of the Judiciary. Those many expansions that transformed the Court from its original condition as "the least dangerous branch" to the political rights of the People, to the one it occupies today as "the most dangerous" one.

Eight Centuries And Counting: Thoughts on Magna Carta

This Monday, June 15, marks the 800th anniversary of the signing, by England's King John, of the Magna Carta.  For most of us, the usual method of celebrating this anniversary consists of waking up, having breakfast, spending the day at work, coming home, cooking and eating dinner, watching a bit of television, and going to bed. Well, at least, that's my routine. Perhaps you are planning something more in keeping with the momentous occasion.

This Nation won its independence from Great Britain in the Revolutionary War. It would be a gross error of history, however, to assert that, by our Revolution, we not only severed our political ties with England, but that we repudiated every part and parcel of the history and tradition that we received as colonies of the Crown, and as descendants of the colonists. Remember that colonists chiefly complained that they were being subjected to taxation by Parliament without being permitted representatives in Parliament. Had Crown and Parliament responded to American colonists' pleas, the situation might have turned out rather differently. Instead, as Jefferson remonstrated in the Declaration of Independence:

Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people. 

Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

Perhaps independence was inevitable. The Empire of Great Britain, upon which, at its height, "the sun never set," has contracted substantially. Yet, it would be unseemly to accuse Jefferson of alleging, disingenuously, that it was the failure of Crown and Parliament to respond to our complaints that forced the independence card.

Of course, some, including Thomas Paine, had concluded, by the time we declared independence from Britain, that the arrangement between homeland and colonies could not continue. In Common Sense, Paine put the case plainly:  "The authority of Great Britain over this continent, is a form of government, which sooner or later must have an end...." In Paine's geopolitical economy, America was destined to be a free trading port, and would best keep to that status if it dissolved bounds -- other than trade -- with all the kingdoms of Europe. Paine continued: "Europe is too thickly planted with Kingdoms to be long at peace, and whenever a war breaks out between England and any foreign power, the trade of America goes to ruin, BECAUSE OF HER CONNECTION WITH BRITAIN. "

Yet, with the exception of Louisiana, every State in the Union undertook a stunning act ratifying the bonds of our English connection upon admission to the Union. Each of them, and the original 13 upon independence, expressly adopted as the law the English Common Law. In almost every case, that adoption was accomplished by enacting a law, called a "Reception Statute," by which the common law of England, as it existed on a selected date (our independence, for example), was made the rule of law for the State until altered or amended by the legislature.

So, beyond our once intense fancy for Diana, the Princess of Wales, our enduring connection to England, is found in law. And, in English law, the Magna Carta, or "Great Charter" is, as it were, the great-grand daddy of charters establishing the rights of those that do not wear the crown as against the power of those that do. Down in the weeds, the details of the Magna Carta, are many provisions not terribly important to our current circumstances. Its overarching principles -- due process, rule of law, and the like -- are key components of our constitutional order. So Magna Carta is worth remembering, worth celebrating.

In fact, it is notable that Congress (at least temporarily) just rejected aspects of fast track trade authorization for Barack Obama on the eve of Magna Carta's anniversary. As with King John's habits of aggrandizing power to the Crown, Barack Obama's term in office has been marked by executive overreach and abuse, the most recent and stunning example of which was the demand that Congress vote on legislation that included a trade deal sealed from public knowledge, so that our elected representatives could not even answer our demands for information about the proposed trade deal.

As Barack has done with us, so King John had grated greatly on the English landed barons and princes. His habit of imposing confiscatory taxes and taking property and other wealth without asking, and without compensation, and without trial, would surely grate on us. (We recoil, after all, at two government processes that are hard to distinguish from King John's greedy grasping. Those two processes are eminent domain, whereby private property is taken by government for public purposes (although these days, "public purposes" often means "taken to give to a property development company that will turn the property into a facility that will generate a high tax flow") and civil asset forfeiture, a form of legalized government theft in which property and money are taken without trial, based on the possibility that the property is used in, or the product of, criminal conduct.)

For my Christian friends, there are biblical injunctions to bear in mind here:

“You must not move your neighbor’s boundary marker, established at the start in the inheritance you will receive in the land the Lord your God is giving you to possess."

Deutonomy 19:14

‘The one who moves his neighbor’s boundary marker is cursed.’ And all the people will say, ‘Amen!’

Deuteronomy 27:17

"Don’t move an ancient boundary marker that your fathers set up."

Proverbs 22:28

The "ancient landmarks" rules of the Old Testament served to insure that the rights of private property were respected by God's people. The principle of observing the ancient landmarks, however, serve larger purposes too.

Just as one should not remove the property boundaries, and thereby steal a neighbor's land, the biblical command against theft serves to protect the ownership of personal property. The command to do no murder protects the individual bodily integrity of each person. So while the "ancient landmarks" literal purpose was to prevent land fraud, but it has a subtextual injunction to recognize, respect, and abide by those things that fall within the notion of "the ancient landmarks."

Here in the USA, we are a republic of republics. That is, we are a single, representative, general government, created by 50 separate representative governments.

We have, during all our collective history, borne a rather consistent distrust of concentrated power. So the governments -- State and federal -- that we have set up via State Constitutions and the US Constitution are ones of separated powers. We have -- at both State and federal levels -- divided the essential powers of government into kinds, that is, legislative powers, executive powers, and judicial powers; we have assigned all responsibility for the powers of each kind to separated entities, either the State Legislature, the Governor, and the State Courts, or the Congress, the President, the Supreme Court.

George Will's commentary does a good job of explaining the role of Magna Carta, the "Great Charter," as one of our "ancient landmarks." It is worth the read, the history told in it worth recalling, and the principles of separated powers and distrust of concentrated power just as vital today to liberty as ever they were. But Will uses the opportunity to lay out his claim that a decision of the US Supreme Court -- in a 200 year old case called Marbury v. Madison -- perfected the work begun in Magna Carta by securing the "rights of minorities" against majoritarian rule.

Will's incomprehensible claim arises from his decision to celebrate the arrogation to itself by the Supreme Court of the power of judicial review, and by that power, to declare laws enacted by the Congress unconstitutional. Will apparently fails to comprehend that a power he finds worth celebrating -- the power of the Supreme Court to state with final authority against contrary views of the Congress or of the President -- is as dangerous to liberty as any power can be.

To clarify, Will correctly notes that it was only by subsequent interpretations of the Constitution, not its direct language, that the Judiciary came to possess ultimate authority to construe the meaning of the Constitution. That candor is appreciated. But what I question, what I do not appreciate, is the arrogation of that power by the Court, or the suspect history that is offered to support it. Will relies on Randy Burnett, a professor at Georgetown University Law School, for this selective history:

At the 1787 Constitutional Convention, Madison acknowledged that states would “accomplish their injurious objects” but they could be “set aside by the National Tribunals.” A law violating any constitution “would be considered by the Judges as null & void.” In Virginia’s ratification convention, Marshall said that if the government “were to make a law not warranted by any of the [congressional] powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. . . . They would declare it void.”

There is, however, something of a problem with both Randy Barnett's reflections on discussions had about the judiciary in the Constitutional Convention and Will's reliance on them.

The problem is that, the question is never, in the first instance, what might have been discussed, thought, or said by the delegates to the Convention. Asking such questions, seeking such answers, derails the discussion from the key question: What does the Constitution provide regarding the power of judicial review?

Article III of the Constitution is a quick read.

You will see that nothing in the Article proposed by the Convention, propounded by the Congress to the States, or ratified by the States expressly grants a power of judicial review of the constitutionality of federal or State legislation. The language does not appear in the Article.

There are rules for reading and construing legal documents. These reflect ancient and seasoned considerations about how we come to an agreement on some question, how we embody that agreement in a written document, and how we address subsequent disputes over the document or over disputes where the document provides guidance in resolution of those dispute. For example, one such rule is that where the writers of a document use a particular formula of language and make some rule by doing so, the omission of such a parallel provision as to other rules is evidence that the document's authors intended to omit that parallel provision. Again, let me clarify.

Suppose that the delegates to the Constitutional Convention concluded that only the President should appoint judges to the Courts created under Article III of the Constitution, and that the President's nomination of those judges was subject to the approval of the Senate, but not the House of Representatives. In fact, that is, precisely what the delegates agreed upon.

So we have Presidential nominations subject to the advice and consent of the Senate. If, tomorrow, the House of Representatives decided that its authority to enact laws on taxes, postal services, interstate commerce, etc., was ineffective without a voice in selecting judges that might, after all, eventually exercise judicial authority to strike down the laws they thought necessary and proper to the execution of their authority, why not conclude that the Necessary and Proper Clause gave them an equal voice in the selection and approval of judges?

The Constitution's language clearly and directly limits involvement in the process to appointment by the President subject to the advice and consent of the Senate. That other approaches were discussed in the Convention are interesting. They are, perhaps, even relevant and informative. But the Constitution omits all those other approaches and adopts just the one. The silence of the Constitution on the House's role in the process is not countenance thereof.

Well, that rule of construction of written documents tells us how to treat such a claim by the House. Applying that rule, we should reject the claim of power by the House. The express written rule providing power to the President and the Senate as to judicial appointments proves that those that wrote the Constitution, those that propounded it to the States, and those that ratified it, knew how to write a provision of law giving power to make judicial appointments. Because they did, and because they did not use that skill to create a role for the House in the Constitution, that rule requires the conclusion that the Constitution does not give the House such a power.

On top of that rule, there is another important and overarching consideration: our federal government is different than our State governments. When States come into existence, they possess all the powers and authorities of any independent sovereign. From that vast residual body of powers, the States have donated a set of limited, expressly stated, powers for the federal government.

Taken together, these rules help us to understand that our Constitution does not re-write itself according to the whims of interest groups, according to the preferences of political factions. It is fixed and determinate in meaning. That it is so, in part, is because we are heirs to the meaning and consequences of Magna Carta.

So for Will and Barnette, the problem is that there is an express provision of the Constitution on the Judiciary.

What Barnett leaves unstated is that the Constitutional Convention, on three separate occasions, considered, discussed, and rejected a proposal to include representatives of the Judiciary in a commission of review that would pass on the constitutionality of federal legislation before it became effective. So, while there were, certainly, delegates that contemplated such a role for the judiciary, the Convention taken as a whole declined to extend such a role by express terms in the Constitution. In other words, this arrogation of judicial power is not quite the same issue as if the House decided to assume a role in the nomination and confirmation of judicial nominees, because the Convention expressly considered, and expressly rejected, provisions for the Constitution affording to the Judiciary such a role in reviewing the legislation enacted by Congress.

If such a power was extended to the federal judiciary, that power must be derived from something other than an express provision of that power in the Constitution. Perhaps that power is an inherent affect of the "judicial power" ceded to the federal government by the States. Perhaps. Indeed, the argument is made by others that such power was understood to be included within the English concept of judicial power, and therefore those delegates were simply expressing a view of judicial power that was already acceptable to Englishmen. The only argument to make sensibly against such an approach is that, in fact, agreeing to adopt that aspect of English judicial power is directly contrary to the decision of the Convention on three separate occasions to grant the Judiciary such a role.

So, here we are, on the eve of the eight hundredth anniversary of Magna Carta, by which, in certain respects, the divine right of King John was brought to its knees before the demands of the English barons, and by which, rights of due process came to be recognized as important, integral rights of Englishmen. Yet we face now, as the Barons and the people of England did then, an extending, grasping and self-aggrandizing power, there the monarch, here the Judiciary.

For us the question remains, who will come to Runnymede?

Shall We, Under the Constitution, Govern Ourselves? Or, Shall We Be Ruled Under Tyranny?

 (This is Part II of a Blog evaluation of the recent federal appeals court decision holding that the tax imposed for failing to purchase health insurance did not violate the Origination Clause of the Constitution. You can read Part I, in which the decision is summarized, here.  Here, I raise old questions about the nature of our government and about the existence of a putative duty of citizens to respect decisions of a federal court that purport to interpret and apply one of the fundamental documents of the Nation, the United States Constitution.)

As previously explained, the DC Circuit has rejected a constitutional challenge to the tax imposed by the Patient Protection and Affordable Care Act.  That challenge asserted that the tax violated the Origination Clause of the Constitution because the legislation imposing it originated in the Senate, rather than the House of Representatives.  In my previous post, I concluded:  “For now, it would seem that the Origination Clause theory is in trouble.”

Perhaps it is in bad form to open a conversation with a litany of questions.  Nonetheless, we face the consequences of a lazy Congress, a tyrannical president, and an unhistorical court decision.  A few questions are, I think, a good way to frame our circumstances.

Should the Origination Clause challenge to the tax imposed for failing to purchase health insurance fail?

Should the decision of three appointed judges bind a Nation and its People to their determination of these intertwined issues?

Should the Origination Clause be understood to apply only to those bills about which the Congress entertained “raising revenue” as its animating purpose and intention? 

These questions, how we examine them, how we answer them, decide more than the constitutionality of the Act.  Rather, what we say about these questions, the principles we bring to bear on them, reveal much about how we, as a People, have progressed under the Constitution, how we have learned the lessons of the setting up of, and governance of, our Nation.

Are we bound to bow to the conclusions reached by three judges in this matter? Do a federal court’s neat machinations around the Origination Clause literally command the heartfelt obedience and respect of us all?  To that decision, as free people under this Constitution, do we owe some kind of fealty?

The answer to each of these questions might be “yes,” but I think the proper answer to each is “no.”

By saying “no,” I join Abraham Lincoln in rejecting a judicial power to set policy for the Nation, and in rejecting the notion that construction and interpretation of the Constitution is the sole province of the Judicial Branch.

In his First Inaugural Address, Lincoln concluded that the Supreme Court, if its decisions resolved questions of national policy conclusively, would supplant the People as their own governors.  As a People, have we actually come to the place that Abraham Lincoln forecast over 150 years ago?  Then, as the nation reeled from its battles over regulation or prohibition of slavery and over the legal theory of secession from the Union, the Supreme Court took a swipe at the policy-making and legislative power of the People, exercised through the Congress, when it decided Dred Scott versus Sanford. 

Dred Scott had lived most of his life in the service of a military doctor and his wife. In the course of that service, Scott had lived in States that recognized the right to own slaves and in States that prohibited slavery and rejected the idea of ownership of one man by another.

In Dred Scott, the Court rejected Scott’s claim that, because he had resided in Free States while under the ownership of his master, he had, in fact, become a free man.  So, in essence and in fact, the Court rejected Scott’s claim to freedom.  The Supreme Court -- ever the beacon of human rights and liberty -- concluded that Africans in America were not citizens of the United States, could not, in fact, be citizens of this Nation.  Consequentially, the Court concluded that Scott lacked standing to sue in federal court.  On the substantive question, the Court concluded that restrictions on owning and importing slaves -- imposed on federally administered territories prior to their admission to the Union as States – had been beyond the power of the Congress to impose. 

The upshot of the matter:  Scott’s case was dismissed.  More importantly, the decision resolved two important questions of constitutional construction.  As a consequence important policy questions arising from the dispute among the States over slavery were, seemingly, placed beyond the power of the People, through their Legislatures, to address.

That result, of great moment to People who would govern their own affairs, inspired Lincoln’s observation of an eminent tribunal, the Supreme Court, displacing the People in the affairs of policy making.  In his Address, faced with resolutions of secession and threats imminent to federal offices and officers within the Southern States, Lincoln would not avoid addressing these same central issues of policy purportedly put beyond republican amelioration by the Dred Scott decision.

Lincoln observed the none-too-subtle shift of the locus of power accomplished by settling upon the Court a legitimized power to impose policy by simply deciding case: 

A majority, held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it, does, of necessity, fly to anarchy or to despotism. Unanimity is impossible; the rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left.

I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit; as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be over-ruled, and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink, to decide cases properly brought before them; and it is no fault of theirs if others seek to turn their decisions to political purposes.

As Lincoln observed, in its deciding of Dred Scott, by arrogating to itself the power to interpret the Constitution as its exclusive province, the Supreme Court denied to the Congress a power to regulate slavery in federally administered territories.  In doing so, it stripped the People of the United States of the power to be their own governors in this particular.  Thus, as he said, to that extent the People will have surrendered that power into the hands of that “eminent tribunal.” 

Lincoln, ever a gentleman, did not call out the justices of the Court as fabricators.  In fact, his address portrays the Court as having no choice in the matter but to decide the cases before it:  “Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink, to decide cases properly brought before them; and it is no fault of theirs if others seek to turn their decisions to political purposes.”   Without imputing to Honest Abe a lack of candor regarding his views on the Court’s obligations, his words suggest a mechanical, preference-free, dispensation of justice.  Lincoln’s caution in the moment has not restrained others to make more candid observations.

Mark DeWolfe Howe, attorney and historian, rendered one of the most disturbing indictments of the Supreme Court’s decision making process with which I am familiar.  Howe, lecturing at Harvard Law School, responded to the Court’s decisions on religion and the law.  The lectures, given in the early 1960’s, became the basis of his book, “The Garden and the Wilderness.” As Howe set the stage for his exploration of the Court’s Religion Clause cases, he first addressed the roles played by the justices in deciding cases. 

Of course, their principal roles were as judges of the Nation’s highest tribunal.  In reaching their decisions, Howe noted, the justices often also took on the role of historians.  In his view, however, the justices as historians often subverted history in service of intended outcomes. 

Howe began his consideration of the Religion Clause decisions by demonstrating that the Court’s choice to pick a metaphor – the wall of separation between church and state – was, in fact, the Court’s choice to pick an outcome.  More, by focusing on Jefferson’s Wall of Separation, the Court put its historical and juridical focus on the history of the struggle for religious freedom in Virginia. By doing so, the Court imported to the meaning of the Religion Clause the peculiarities of Virginia’s struggle.  Indeed, the Court vaunted the Virginia struggle for religious liberty over every other possible source of meaning for the Religion Clauses.

Howe examined the intersection of those two roles played by Supreme Court justices:

Among the stupendous powers of the Supreme Court of the United States, there are two which in logic may be independent and yet in fact are related.  The one is the power, through an articulate search for principle, to interpret history.  The other is the power, through the disposition of cases, to make it.  Phrased somewhat differently, the contrast which I have in mind is that between the scholar’s capacity to conduct a groping search for past even and initial purpose and the statesman’s talent for making the decisive choice of a rule of conduct which he believes to be suitable for the government of the future.

Howe suggests that a justice may be a scholar and a statesman of a kind, but that, in rendering decisions, the risk is real that a justice can, in fact, become a policy-maker designing our lives under the framework of law.  He continues:

It is the common-law tradition, perhaps, which leads the Court and those who study its processes to assume (or had I better say “pretend”?) that the history which is made by the Court’s decisions is merely the realization of the past which the learning of the justices and their clerks has uncovered.  The judge as statesman, purporting to be the servant of the judge as historian, often asks us to believe that the choices that he makes –the rules of law that he establishes for the nation—are the dictates of a past which his abundant and uncommitted scholarship has discovered.

From these thoughts, Howe contemplates that a reasonable reader will have sensed in his words doubt of the Court’s adequacy in interpreting our nation’s history.  If the reader has done so, Howe explains, it is likely the product of the reader realizing the intention of the writer:

I believe that in the matters at issue the Court has too often pretended that the dictates of the nation’s history, rather than the mandates of its own will, compelled a particular decision.  By superficial and purposive interpretations of the past, the Court has dishonored the arts of the historian and degraded the talents of the lawyer.  Such dishonoring and degrading may not be of large moment when the history that the Court manipulates is merely “legal history”—the story, that is, of the law’s internal growth and development.  When, however, the Court endeavors to write an authoritative chapter in the intellectual history of the American people, as it does when it lays historical foundations beneath its readings of the First Amendment, then any distortion becomes a matter of consequence.

That is, indeed, a telling indictment of Supreme Court decision-making processes in the Religion Cases from the late 1940s forward.  The indictment applies, I think, with equal weight to Judith Rogers’ opinion for the DC Circuit on the Origination Clause, and her application of her construction of the Origination Clause to Matt Sissel’s challenge to the tax imposed under the individual mandate.  

There is no clause of the Constitution assigning to the Supreme Court the power or duty to construe the Constitution in a manner conclusive of constructions given to that document by the Congress or by the President. If you doubt it, read Article III of the Constitution for yourself. Today, of course, few dispute the Court’s pre-eminent authority to do so, even in the absence of an express designation of such a duty or power.  That outcome might have surprised some delegates at the Constitutional Convention of 1787, but would not have surprised Alexander Hamilton, the author of the Federalist No. 78.

Although the delegates to the Constitutional Convention agreed to conduct their sessions in secret, several attendees took notes, and a number of speeches, in addition, were rendered from written manuscripts.  Together the notes and speeches give us the opportunity to listen in as the Convention considered how to make “a more perfect Union.”

Early in the Convention, James Madison’s proposal, “The Virginia Plan,” was offered for the consideration of the delegates then present.  Among the points proposed was one to create a council that would, essentially, sit in judgment of congressional acts to determine their constitutionality and wisdom.  This text explains the point proposed:

“Resolved that the Executive and a convenient number of the National Judiciary, ought to compose a Council of revision with authority to examine every act of the National Legislature before it shall operate, and every act of a particular Legislature before a Negative thereon shall be final; and that the dissent of the said Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by — of the members of each branch.”

Note that Madison expressly proposed including members of the federal judiciary on a Council to provide a pre-operative clearance for federal legislation. This proposal was rejected, not just once, but on three separate occasions.  The only provision of the Constitution that approached it was the grant of the veto power to the Executive, itself subject to override by two thirds votes of each Chamber of the Congress.

Unfortunately, for truth and for history, the delegates to the Constitutional Convention pledged themselves to secrecy regarding their proceedings.  As a consequence, no general awareness existed amongst the People and the States that this idea – a “super-legislature” that could sit in judgment of the constitutionality of the Acts of the Congress and the laws of the States – had been rejected three times in the considerations of the Convention.  Despite the rejection of the idea of a “council of revision,” delegates did argue that the structure of the Constitution supported the notion that the federal courts would have authority to decide such questions of constitutionality, and the idea of such a power was also the subject of debate in the Ratification Conventions of the States.

I would not want to leave you with the notion that this power, the judicial power to declare an act of Congress void, or to interpret the meaning of the Constitution, was novel and never considered by the Convention that framed the Constitution, or the State Conventions that ratified it.  Rather, it is sufficient to note that there is a history to this question of the power of constitutional interpretation, and to note that wiser minds than mine have disputed that it is the sole or exclusive province of the Courts to do so.

Beyond the veil of secrecy for the Convention, there was also the campaign of propaganda related to the debates in the States over ratification.  That propaganda war, principally consisting of published letters by opposing factions of Federalists and Anti-Federalists, served to educate the People as to the proposed meaning of the Constitution, its purpose, its strengths, its weaknesses and its dangers. 

One Constitutional Convention delegate, Robert Yates, took the Antifederalist position during the debates of the States on ratification.  In his eleventh essay opposing the Constitution, writing under his nom du plum “Brutus,” explained the danger of depositing the sole power of construing the Constitution in the Judicial Branch:

“[I]n their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal.” 

Arguing for the Constitution, and seeking to mollify fears that a power of judicial review would make the Judicial Branch central and powerful to the federal government, Alexander Hamilton expressed the view that, to the contrary, the Judiciary would least likely present threats to the rights and liberties of the people:

“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have 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.”

Among those wiser minds, in addition to Lincoln, and delegate Robert Yates, Jefferson is particularly notable.  His thoughts on this power of the judiciary and his conclusion of its danger to self-government he expressed in a letter to William Jarvis, written in 1820.  Jarvis had provided to Jefferson a copy of his book, “Republican.”  Having given the book a cursory examination initially, Jefferson chose to address the question of the power of judicial review in his letter of appreciation for the book.  He wrote: 

“You seem … to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is ‘[a good judge expands his power],’ and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.

The constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. []

[T]he constitution, in keeping three departments distinct and independent, restrains the authority of the judges to judiciary organs, as it does the executive and legislative to executive and legislative organs. The judges certainly have more frequent occasion to act on constitutional questions, because the laws of [private property] and of criminal action, forming the great mass of the system of law, constitute their particular department. When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough.

I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.”

Still, while maintaining the respect of those who studied the records of the Convention, of the Ratification Conventions and of the public dialogue of the Federalist and the Anti-Federalists, one could yet hold the view that the Judicial Branch did not own the Constitution, nor possess the sole power to construe it, nor the power to declare the Acts of the Congress or of the State legislatures null and void. Ultimately, such a view notwithstanding, the Supreme Court, in a series of decisions, arrogated to itself the power to interpret the Constitution as the final arbiter of its meaning, and the powers to declare federal and state laws unconstitutional.

Professor Howe, in the lectures mentioned above, nonetheless counsels us that we are not the mere pupils of a history drafted and crafted by judges.  Instead, as to the general history of our People, of our government, and of our founding, we have judgment equal in significance to that of judges.  What remains, then, is for we, the People, to consider whether Judge Judith Rogers and her colleagues correctly construed the Origination Clause and correctly applied that Clause to the challenge to the individual mandate penalty under Obamacare.