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The Judicial Power – Article 3 of the Constitution reads: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
Federalism – The concept of Separated and Divided Powers
Three branches of Government – Legislative (Art. 1), Executive (Art. 2) and Judicial (Art.3)
Three levels of Government – Federal, State and Local
Reason for separate and divided powers – Power corrupts and Absolute Power corrupts absolutely. ~ Baron Acton.
What world view does this arrive from? Rousseau?
Question: If there is a difference in understanding the Constitution, who controls the final word on the Constitution? Who is given that power according to the Constitution?
Marbury v. Madison (1803). Facts:
In the elections presidential elections of 1800, Thomas Jefferson, an Anti-Federalist (or Republican) defeated John Adams, a Federalist to become our nation's third president. In January 1801, the departing President Adams nominated his Secretary of State, John Marshall, to be the fourth Chief Justice of the United States Supreme Court. Interestingly, Marshall assumed the office of Chief Justice on February 4, 1801, but continued as the Secretary of State through the end of John Adams' presidency.
During February 1801, the departing Federalist Congress passed the Circuit Court Act which doubled the number of federal judges and also passed the Organic Act which authorized the appointment of 42 new justices of the peace for the District of Columbia. President Adams appointed virtually all Federalists to these open judicial positions and they were all confirmed by the United States Senate on March 3, 1801. Their commissions were signed by Adams and sealed by Acting Secretary of State Marshall. However, due to the shortness of time (Thomas Jefferson assumed the presidency on March 4, 2011), several of the justices of the peace appointments were left undelivered. President Jefferson told his Secretary of State, James Madison, to withhold delivery.
William Marbury, one of the Justices of the Peace whose appointment was left undelivered by Madison, sued for a Writ of Mandamus in the Supreme Court to compel the appointments to be delivered. A Writ of Mandamus is an order from the court to a public officer to force him to perform his duty. The court ordered Madison to show cause why the writ would not issue and set the arguments for the 1802 term.
Here are the questions addressed by Chief Justice John Marshall:
1. Does William Marbury have the right to his position as Justice of the Peace?
2. If he has the right, do the laws of this country provide a remedy that allows William Marbury to get his position as Justice of the Peace?
Does Marbury have the right to the particular remedy that he sued for, i.e., a Writ of Mandamus to be issued by the United States Supreme Court? That depends on (1) the nature of the Writ and (2) the power of the court.
The nature of the writ: This is a writ being asked to be granted against the Secretary of State ordering him to do something. What concerns does that raise?
The Power of the Court: Given all of the foregoing, does the United States Supreme Court have the power to issue writs of mandamus under this circumstance? Marshall first goes to the Judiciary Act of 1789 which is the act which is the law passed by the first Congress to create the judicial courts and give them their power. Marshall then compares that to the power given to the Supreme Court by the Constitution:
In the distribution of this power it is declared that 'the supreme court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the supreme court shall have appellate jurisdiction.'
Marshall says that the court was not given power by the Constitution to issue writs of mandamus while the Judiciary Act of 1789 gives that right to the court creating a conflict: if Congress grants power to the Court that is not given in the Constitution, what is the court to do? Can an act that is repugnant to the Constitution become the law of the land?
1. The US Constitution is a document of limited powers. If the power is not granted by the Constitution, then the power cannot be exercised.
2. The Constitution is the supreme law of the land. It is the base by which the exercise of authority by the government is measured to see if it exceeds that power.
3. And if the act is inconsistent with the Constitution?
“If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. 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. [5 U.S. 137, 178] 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.”
4. Also, the court takes an oath to uphold the Constitution.
Some Critique:
1. What role does Justice Marshall play in this affair?
2. Note that the act that is in question is the Judiciary Act of 1789. What makes Marshall’s answer to what the Constitution means any more authoritative than the people who were in the first Congress?
“The section of the Act of 1789 which Marshall declared unconstitutional had been drawn up by Ellsworth, his predecessor as Chief Justice, and by others how a short time before had been the very members of the constitutional convention that had drafted its judicial provisions. It was signed by George Washington who had presided over the deliberations of that Convention. Fourteen years later, John Marshall by implication accused his predecessor on the bench, the members of Congress such as James Madison, the Father of the Constitution, and President Washington of either not understand the Constitution (which some of them had drawn up), or else willfully disregarding it.” ~ Morris Cohen
3. What about the oath?
4. Compare Marshall’s use of the Constitution with the Constitution.
Did others agree?
Thomas Jefferson: “The instrument meant that its coordinate branches should be checks on each other. But the opinion which gives to the Judges the right to decide what laws are constitutional, and what not, no lonely for themselves in their own sphere of action, but for the Legislative and Executive also in their spheres, would make the Judiciary a despotic branch.”
Andrew Jackson: “It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. * * * The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.”
This was not expected. Consider the following from Brutus in the Anti-Federalist papers:
“[The authors of the constitution] have made the judges independent, in the fullest sense of the word. There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.”
What does all of this mean?
1. The Court has claimed the power of judicial review.
2. The Court has almost no check on that power.
3. The Court decides cases politically.
Wallace v. Jaffree (1985), dissent by Justice Rehnquist:
It would seem from this evidence that the Establishment Clause of the First Amendment had acquired a well-accepted meaning: it forbade establishment of a national religion, and forbade preference among religious sects or denominations. Indeed, the first American dictionary defined the word "establishment" as "the act of establishing, founding, ratifying or ordaining," such as in "[t]he episcopal form of religion, so called, in England." 1 N. Webster, American Dictionary of the English Language (1st ed. 1828). The Establishment Clause did not require government neutrality between religion and irreligion nor did it prohibit the Federal Government from providing nondiscriminatory aid to religion. There is simply no historical foundation for the proposition that the Framers intended to build the "wall of separation" that was constitutionalized in Everson.
“Notwithstanding the absence of a historical basis for this theory of rigid separation, the wall idea might well have served as a useful albeit misguided analytical concept, had it led this Court to unified and principled results in Establishment Clause cases. The opposite, unfortunately, has been true; in the 38 years since Everson our Establishment Clause cases have been neither principled nor unified. Our recent opinions, many of them hopelessly divided pluralities,(6) have with embarrassing candor conceded that the "wall of separation" is merely a "blurred, indistinct, and variable barrier," which "is not wholly accurate" and can only be "dimly perceived." Lemon v. Kurtzman, 403 U.S. 602, 614, 91 S.Ct. 2105, 2112, 29 L.Ed.2d 745 (1971); Tilton v. Richardson, 403 U.S. 672, 677-678, 91 S.Ct. 2091, 2095-2096, 29 L.Ed.2d 790 (1971); Wolman v. Walter, 433 U.S. 229, 236, 97 S.Ct. 2593, 2599, 53 L.Ed.2d 714 (1977); Lynch v. Donnelly, 465 U.S. 668, 673, 104 S.Ct. 1355, 1359, 79 L.Ed.2d 745 (1984).”
The court decides cases politically. That is why there are so many 5-4 decisions today: four “originalist” justices (Scalia, Thomas, Roberts and Alito) versus four “living constitution” justices (Sotomayor, Ginsburg, Breyer, Kagen) with one justice (Kennedy) in the middle.
