Making Our Democracy Work (3 page)

How did the framers explain this expectation of judicial review? Hamilton, in
The Federalist
numbers 78 and 81, argued that the Constitution must trump any ordinary federal law. The Constitution is fundamental, it represents the will of the people, and it is the source of lawmaking authority. A statute, by contrast, represents the exercise of constitutionally delegated authority and reflects the will of the people only indirectly, through their legislators. Thus, says Hamilton, “where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges … ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”
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Hamilton, then, assumed that conflicts between statutes and the Constitution could not be resolved by leaving the matter to the public. Some members of that public would recognize the need to strike down a statute that violates the Constitution. After all, those whom unconstitutional laws help today may be hurt tomorrow. But others might well
favor immediate self-interest over constitutional principle. Indeed, public instability in the 1780s such as Shays’s Rebellion pointed directly to that risk.

Hamilton argued against placing final authority to interpret the Constitution in the hands of the president, because the president could then become too powerful. After all, the “executive not only dispenses the honors but holds the sword of the community.” He also argued against placing final authority to interpret the Constitution in the hands of the legislature, because the legislature would too rarely enforce the Constitution if this invalidated a law it had recently passed. How, he asked, can it “be expected that men who had infringed the Constitution in the character of legislators, would be disposed to repair the breach in the character of judges?”
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That left the judiciary. The “interpretation of the laws,” said Hamilton, “is the proper and peculiar province of the courts.” Judges enjoy comparative expertise in the matter. They frequently reconcile apparently conflicting statutes; they study precedents; they are “skill[ed] in the laws,” whereas legislators are “rarely … chosen with a view to those qualifications which fit men for the stations of judges.” Indeed, “there is no liberty” unless the “power of judging” be “separated from the legislative and executive powers.”
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Moreover, to place the power to resolve constitutional/statutory conflicts in the judiciary’s hands would not threaten the public. That is because the judiciary, lacking both “purse” and “sword,” is the “weakest of the three departments of power.” Hamilton said the “nature” of the judicial power, how it is exercised, the comparative weakness of the judges, and their inability to “support” any “usurpation[] by force,” reduced the “supposed danger of judiciary encroachments on the legislative authority” to a “phantom.”
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Hamilton saw a greater risk in the opposite tendency, namely, that judges would fail to faithfully guard the Constitution when “legislative invasions of it had been instigated by the major voice of the community.” To stand up against the force of public opinion would require an “uncommon portion of fortitude.” It would require that judges be appointed for lengthy terms and receive constitutional guarantees as to their compensation. For all these reasons, the judiciary was the safest as well as the most natural place to lodge the power of judicial review.
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Another member of the founding generation, the Supreme Court justice James Iredell, elaborated on Hamilton’s argument. In a concurring opinion written in a 1798 case,
Calder v. Bull
, Iredell assumed the need for an institution that would have the power to strike down an unconstitutional law. Otherwise the legislature could simply ignore the Constitution.
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Iredell must have recognized that the people themselves might help to keep the legislature within constitutional bounds. They could elect new members, petition for repeal of an unconstitutional law, and refuse to carry out such a law. But even if we ignore the instability inherent in such a system, these methods could at most “secure the views of a majority.” What if the legislature enacts a law that is unconstitutional but popular? As Iredell explained in a letter he wrote in the 1780s, every citizen

Thus, as between court and legislature, it is the court that must have the last word. Individual liberty “is a matter of the utmost moment.” If there be

Iredell concluded that the courts must have the power of judicial review. They may abuse that power, but one can find safeguards against abuse in the transparency of the judicial process, which allows the public to assess the merits of a judicial decision, and in the judges’ own desire to maintain a strong judicial reputation.
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Still, what if the Court abuses that power? Or what if the Court simply gets it wrong? The Court certainly got it wrong in
Dred Scott
(see Chapter Four). Franklin Roosevelt believed the Court abused its power
when it invalidated New Deal legislation he thought essential to the nation’s recovery from the Great Depression. And many believe that a wide variety of individual decisions are very wrong indeed.

When the Court proceeds down a wrong track too long, as the pre-New Deal Court did in the early twentieth century, the public can become aware and react. The reaction can take the form of legislation, say if the Court has misread a statute. Or voters can elect a president and senators who will appoint and confirm judges who have different basic attitudes from the judges with whom they disagree. In President Roosevelt’s case, he pushed for legislation that allowed him to “pack” the Court, a battle he lost. But he ultimately won by virtue of being in office long enough to appoint eight of the nine justices on the Court.

And although judges are guaranteed life tenure in order to withstand the force of public opinion, they cannot help but be aware of the public mood. Criticism of judges and judicial decisions traces back to our founding. It is a healthy thing in a democracy. Judges read the newspaper, they read academic critiques of their decisions, and they read briefs urging them to decide a case one way or the other. They realize they can be wrong. That is why they sometimes reconsider earlier decisions and in rare cases overrule them.

Nonetheless, we Americans have, over the past two hundred plus years, absorbed the notion that in order to be protected by the rule of law, we must follow the law even when we disagree with it. And many, perhaps most, Americans would now likely agree with Hamilton that it is better to give independent judges, rather than the executive or legislative branches, the power of judicial review.

The arguments for judicial review, as Hamilton and Iredell set them out, come down to saying that some power of review is necessary, particularly to protect unpopular minorities; judges are reasonably well qualified to undertake review, which is basically a legal job; and the review power is less dangerous and more effective if lodged in the judicial branch than if lodged elsewhere. One can find widespread support for this view among the founding generation. But questions remain.

For one thing, what exactly does “judicial review” mean? The term refers generally to the fact that the Court has the power to strike down a statute as incompatible with the Constitution in a particular case. But
does that mean that Congress or the president must agree with the Court in later, similar instances? Do other institutions have an independent obligation to determine whether a statute is consistent with the Constitution? Can they ignore a Supreme Court decision to the contrary? These matters remained ambiguous for many years, not resolved until the mid-twentieth century.

More important, the arguments for judicial review do not answer the puzzling question of why the public would accept as legitimate and follow the decisions made by the inoffensive, technical, and comparatively powerless body that Hamilton and Iredell described. Where political emotions run high, few accept a technician’s choice as clearly valid. Where public feelings are strong, a technician lacking “purse” and “sword” may find it difficult to assuage them. Why doesn’t the public just ignore a constitutional decision that a majority believes is both important and wrong? And if they do ignore the Court’s decisions, has the whole objective of Hamilton’s argument not been rejected? None of the framers answers that question. Yet it is a question that, during our nation’s history, has cried out for an answer.

I
N
S
HAKESPEARE’S
H
ENRY
IV, Hotspur listens to Owen Glendower boast, “I can call spirits from the vasty deep.” Hotspur then replies, “Why, so can I, or so can any man,
but will they come when you do call for them?”

This basic question unites and underlies this book’s discussion.

I
N
1803
IN
Marbury v. Madison
, Chief Justice John Marshall established the Court’s authority to invalidate laws that conflict with the Constitution through a judicial tour de force. Marshall wrote the Hamiltonian theory of judicial review into law. And in doing so, he overcame major institutional and political obstacles.
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The federal judiciary was a weak institution, and the number of lower-court federal judges was small. State courts enforced federal law, but there was no guarantee they would follow federal court interpretations of that law. Nor was there any guarantee that local officials would carry out federal court orders. The Supreme Court itself had little to do. Its caseload was unimportant, and its judges badly paid, and they had to spend considerable time “riding circuit”—traveling over bad roads to hear cases arising throughout the new nation. The first chief justice, John Jay, resigned in 1795 to become governor of New York; he later refused reappointment because the position lacked “energy, weight and dignity.” A major newspaper referred to the position as a “sinecure.” Lacking its own courtroom, the Court met in the Senate clerk’s office.
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The position of the judiciary also became an important and controversial issue between mobilized political parties. The Republicans, led by Thomas Jefferson, had beaten the Federalists in elections, winning the presidency (in 1801) and taking control of Congress. Party rivalry
was fierce. The Federalists feared Jefferson as a dangerous radical “visionary” intent on undoing Federalist efforts to create a strong federal government. The Republicans thought the Federalists were seeking a central government so strong as to threaten ordinary citizens’ liberties. And the Republicans particularly disliked the judicial branch, with its judges, appointed by presidents of the opposition party, who had enforced unpopular laws forbidding seditious libel; had found ways to prosecute popular rebels such as the leaders of Pennsylvania’s Whiskey Rebellion; and had, from time to time, spoken out against the Republican Party and in favor of the Federalists. As far as Jefferson was concerned, the less powerful the Supreme Court, the better for the country.
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Furthermore, Jefferson was less willing than was Hamilton to give judges ultimate power to resolve constitutional/statutory conflicts. As he later wrote,

Other Republicans went further, denying that the Court had any power to overturn an act of Congress as contrary to the Constitution.
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Moreover, the Republicans correctly understood that the judiciary was the only branch of government that after 1801 would remain in Federalist hands. And they feared that the Federalists would make use of their control of the presidency and Congress during the 1801 lame-duck period between the elections and the March swearing in to reinforce their judicial power. Their fears proved justified when the Federalist Congress passed the new Judiciary Act, which cut the number of Supreme Court justices from six to five on the next resignation (thereby putting off the evil day when Jefferson might be able to make a Court appointment). The act extended federal court jurisdiction, making it easier for litigants to bring cases in federal court as opposed to state court; abolished the requirement that justices ride circuit; and created new judgeships, including sixteen new lower-court judgeships,
thereby permitting John Adams, the lame-duck president, to make new appointments.
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Once in office, the Republicans began a legislative counterattack. They repealed the 1801 Judiciary Act, thus withdrawing new federal court powers to hear more cases and abolishing the new circuit courts of appeals. Once again the Supreme Court justices had to travel across the country to hear cases. Eventually, the Republicans tried to use the power that the Constitution gave Congress to impeach federal officials to rid the government of Federalist-appointed judges—for example, John Pickering, a New Hampshire federal judge (who had a drinking problem and was convicted), and Samuel Chase, a Supreme Court justice (whom the Republicans opposed primarily on philosophical grounds and who was acquitted by a narrow vote). Congress also postponed the Supreme Court’s next meeting time until 1803—thereby delaying the Court’s consideration of the constitutionality of their actions.
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