Constitutional Law Rests on a Myth

judgeNearly all of American constitutional law today rests on a myth. That myth, presented as standard history both in junior high civics texts and in advanced law school courses on constitutional law, runs something like this:  A long, long time ago, 1803 to be exact, in the famous case of Marbury v. Madison, the Supreme Court of the United States created the doctrine of “judicial review,” the power of the Supreme Court to decide the meaning of the Constitution and to strike down laws that the Court finds unconstitutional.

According to Michael Stokes Paulsen, the Briggs and Morgan Professor of Law at the University of Minnesota Law school, Marbury v. Madison did not create the concept of judicial review, but (in this respect) applied well-established principles. The idea that courts possess an independent power and duty to interpret the law, and in the course of doing so must refuse to give effect to acts of the legislature that contravene the Constitution, was well accepted by the time Marbury rolled around, more than a dozen years after the Constitution was ratified.” You can read Paulsen’s essay at this link.

Yet, Paulsen writes, the power of judicial review was “never understood by proponents and defenders of the Constitution as a power of judicial supremacy over the other branches, much less one of judicial exclusivity in constitutional interpretation.” Nowhere in the Constitution is the court given supreme authority over the other two branches. The Constitution itself, instead, was declared to be supreme, not the will of individuals holding federal office tasked with enforcing it.

“Chief Justice Marshall’s opinion on the Marbury case makes no claim of judicial supremacy.” Taking Marshall’s statements out of context misrepresents what he and others considered the power of judicial review, which Paulsen defines as: A coordinate, coequal power of courts to judge for themselves the conformity of acts of the other two branches with the fundamental law of the Constitution, and to refuse to give acts contradicting the Constitution any force or effect insofar as application of the judicial power is concerned.”

In other words, what Marshall and other justices were arguing in Marbury v. Madison wasn’t the idea of judicial supremacy; their argument was that the judicial branch of the federal government derived its authority to interpret and apply the provisions within the Constitution from the Constitution itself.  It did not derive its powers from the other two branches, but from the same document from which they received theirs.

Within the historical context of political science this was a new and revolutionary idea.  Marshall states that the Supremacy Clause “confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument” (emphasis added).

“The logic of Marbury implies not, as it is so widely assumed today, judicial supremacy, but constitutional supremacy, the supremacy of the document itself over misapplications of its dictates by any and all subordinate agencies created by it,” Paulsen writes.

As an example of distorted statements, he cites an oft-quoted statement from Marshall’s opinion that “It is emphatically the province and duty of the judicial department to say what the law is.” Taken by itself, it may sound like he is arguing for judicial supremacy but, Paulsen claims, not only does this quote ignore relevant statements in the same paragraph, but it is just paraphrasing Hamilton from Federalist No. 78 in which he says “[t]he interpretation of the laws is the proper and peculiar province of the courts.”

Marshall goes on to write “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.”

According to Paulsen this concept of judicial independence is wholly separate from judicial supremacy, in which the Supreme Court’s opinions are considered binding on all other branches of government, including the states. “It is merely a statement that, when performing the judicial task calls for deciding whether an act of Congress departs from the Constitution, the courts are up to the task. It is within the judicial province to make such a determination, and to make it independently of what Congress has determined.”

If this is the case, it bears little resemblance to the modern Supreme Court, which has joined hands with the other two branches of the federal government in violating the Constitution by issuing rulings that not only uphold their unconstitutional behavior, but go beyond even its own authority.

Correctly read, Marbury stands for constitutional supremacy rather than judicial supremacy,” Paulsen states. “And constitutional supremacy implies strict textualism as a controlling method of constitutional interpretation, not free-wheeling judicial discretion”

While Paulsen’s critique of the Marbury Myth is insightful and refreshing, it also indirectly demonstrates a fatal flaw in the federalist system without the power of the states to check unconstitutional authority via nullification: What if the Supreme Court, or any branch of the federal government, go beyond their constitutional authority and simply issue rulings based on their own beliefs and consider them binding on the whole nation? What if all three do so simultaneously or fail to check the others?

The fear of a tyrannical courts was expressed by anti-federalist “Brutus” (likely Robert Yates, a politician and judge) who wrote in Anti-Federalist 78-79 that there was nothing to prevent judges from supplanting the plain meaning of the text with their own misinterpretation.

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.

Fortunately, Jefferson and Madison foresaw this problem arising, as well. They understood that the obvious problems with giving the federal judiciary the exclusive authority of enforcing the limits of the Constitution. It was on this basis they crafted the Kentucky and Virginia Resolutions. In those resolutions, they declared that the states, which had created the federal government, were “duty-bound” to resist unconstitutional acts no matter which branch they originated from.

As Jefferson stated in the Kentucky Resolution: “That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; [t]hat the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers.”  

If the judiciary failed to defend the Constitution, Jefferson wrote, nullification was the “rightful remedy,” and the Myth of Marbury, which Paulsen’s paper attacks, is a perfect example of why.

Source: The Myth of Marbury v. Madison, Tenth Amendment Ctr.

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