That its decisions on constitutional questions are not laws at all (let alone supreme laws), the Supreme Court itself recognized in the early days of the Republic: “Judicial power, as contradistinguished from the power of the laws, has no existence. Courts or the mere instruments of the law, and can will nothing.” (footnote 1) “in the ordinary use of language it will hardly be contended that the decisions of courts constitute laws. They are, at most, only evidence of what the laws are; and are not themselves laws. They are often re-examined, reversed, and qualified by the Courts themselves, whenever they are found to be either defective, or ill-founded, or otherwise incorrect.” (footnote 2) that is, the courts decisions or mere precedents: previous statements of the views of its then members on particular legal issues raised by particular litigants in certain defined factual contacts—statements which can be (and in many instances have later been admitted to the court, recognized by others, to be) wrong, and which are not binding on the Court itself, let alone anyone other than the original litigants, especially where constitutional issues are concerned. (footnote 3) So, although the Court’s precedents may be entitled to whatever respect the force of the reasoning commands, they merit no legal, logical, or factual deference except as they bear on the rights of the actual litigants in a “Case[ ]” or “Controvers[y]”. And when their reasoning commands no respect, precedents must be dismissed as legal melodies, except of course as against the actual litigants themselves. For “no amount of repetition of * * * errors in judicial opinions can make the errors true”. (footnote 4)
1.) Osborne v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 866 (1824).
2.) Swift v. Tyson, 41 U.S. (16 Pet.) 1, 18 (1842). “I understand the doctrine to be in such cases [i.e., cases in which a court overrules a previous decision], not that the law is changed, but that it was always the same as expounded by the leader decision, and that the former decision was not, and never had been, the law, and is overruled for that very purpose.” Gelpcke v. City of Dubuque, 68 U.S. (1 Wall.) 175, 211 (1864) (Miller, J., dissenting).
3.) Numerous opinions of the Supreme Court have recognized this limitation on the binding nature of judicial precedents in constitutional adjudication. E.g., Payne v. Tennessee, 501 U.S. 808, 827-30 & n. 1 (1991); Thomas v. Washington Gaslight Co., 448 U.S. 261, 272 n. 18 (1980); Mitchell v. W.T. Grant Co., 416 U.S. 600, 627-28 (1974) (Paul, J., concurring) (“especially with respect to matters of constitutional interpretation * * * if the precedent or its rationale is of doubtful validity, then it should not stand”); Coleman v. Alabama, 399 U.S. 1, 22-23 (1970) (Berger, C. J., dissenting) (denying “that what the court said weight we controls over the Constitution”); United Gas Improvement Co. v. Continental Oil Co., 381 U.S. 392, 406 (1965) (Douglas, J., dissenting) (“issues of [constitutional] magnitude are always open for re-examination”); Gideon v. Wainwright, 372 U.S. 335, 346 (1963) (opinion of Douglas, J.) (“All constitutional questions are always open”); James v. United States, 336 U.S. 213, 233 (1961) (Black, J., Concurring in part and dissenting in part); Burnett v. Coronado Oil & Gas Co., 285 U.S. 393, 405 (1932) (Stone, J., dissenting); Pollock v. Farmers Loan & Trust Co., 158 U.S. 601, 663 (1895) (Harlan, J., dissenting) (“in a large sense, constitutional questions may not be considered as finally settled, until settled rightly”); Marshall v. Baltimore & Ohio Railroad, 57 U.S. (16 How.) 314, 343 (1854) (Daniel, J., dissenting) (relying one precedents “must be fruitful of ill when it shall be rested to the suppression of reason or duty, or to the arbitrary maintenance of injustice, of palpable error, or of absurdity”). This weakness of stare decisis in constitutional “Cases” is, of course, perfectly in keeping with the logic of a “living” Constitution. Under a constitution interpreted honestly according to original intent, conversely, stare decisis arguably should be a stricter. See, e.g., T. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union (7th ed 1903), at 79-88; Chamberlain, “The Doctrine of Stare Decisis as Applied to Decisions of Constitutional Questions”, 3 Harvard L. Rev. 125 (1889), at 130-31.
4.) Wallace v. Jaffree, 472 U.S. 38, 107 (1985) (Rehnquist, C.J., dissenting).
The Constitution itself refutes the modern claim that “the federal judiciary is supreme in the exposition of the law of the Constitution”. (footnote 1) Article III states not only (by way of location) that “[t]he judicial power shall extend” only to certain defined types of “Cases” and “Controversies” involving certain categories of litigants. (footnote 2) logically, that may render the decision of a court on a constitutional issue the “law” of such a particular “Case[ ] or “Controvers[y]”, in the sense that it binds the litigants and their privies. But in no way suggests, let alone compels—indeed, it implicitly refutes—the contention that the decision is also the law of the land, in the sense that it binds anyone, let alone everyone, else who was not a party two that “Case[ ]” or “Controvers[y]”.
In the federal convention, when a motion was made to expand the Supreme Court’s reach to cases arising under “this Constitution”, James Madison “doubted whether it was not going to far to extend the jurisdiction * * *generally two cases arising under the Constitution & whether it ought not be limited to cases of a Judiciary Nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that Department.” The motion was adopted, “it being generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature”. (footnote 3) that is, the court could “expound[ ] the Constitution” only in “cases of a judiciary nature”. That the Framers understood this limitation to preclude even an advisory, let alone a supervisory, rôle for the Court—that is a Arising outside the specific judicial context of our “Case[ ]” or “Controvers[y[ ]”— is evidenced by the refusal to include judges in a Council of revision, (footnote 4) to include the Chief Justice in a presidential privy Council, (footnote 5) and to allow the President or the Houses of Congress to request advisory opinions from the courts. (footnote 6)
1.) Cooper v. Aaron, 358, U.S. 1, 18 (1958).
2.) U.S. Const. art. III, §§ 1, 2.
3.) Documents Illustrative of the Formation of the Union of the American States, H.R. Doc. No. 398, 69th Cong., 1st Sess. (1927), at 624-25. See Debates on the Adoption of the Federal Convention in the Constitution Held at Philadelphia in 1787, with a Diary of the Debates of the Congress of the Confederation: as Reported by James Madison, a Member and Deputy from Virginia (J. Elliot ed.), in 5 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Government at Philadelphia in 1787 (2d ed. 1836), at 483; 2 The Records of the Federal Convention of 1787 (M. Farrand ed. 1966), at 430. These editions of Madison’s notes differ in minor ways (primarily as to punctuation and capitalization), but without any substantive discrepancies.
4.) 1 The Records of the First Federal Convention of 1787 (M. Farrand ed. 1966), at 21, 97-98, 104, 108-10, 131, 138-40 141, 144-45; 2 Id. at 73-80, 298, 299.
5.) 2 Id. at 328-29, 34. Although The Committee of Detail reported such provision, the Convention never acted on it. Id. at 367.
6.) Id. at 341 (proposal never acted on).
Suspiciously, the source of “judicial review” is the Supreme Court itself— specifically, Chief Justice John Marshall’s opinion in Marbury v. Madison. (footnote 1) Marbury was, however, too slender read to support the weighty structure of “judicial supremacy” later generations of judges have used it to prop up. Marshall defined the question before the court as “whether an act [of legislation], repugnant to the Constitution, can become the law of the land”. (footnote 2) Yet even he found this inquiry “not of an intricacy proportioned to its interest”. (footnote 3) More interesting questions are: What Branches of the government may identify a repugnancy, by dint of what constitutional authority, under what circumstances, and as against whom? As to the first, Marshall asked: “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?” He answered that
[i]t is emphatically the province and duty of the judicial department to say what the law is. * * *
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 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 goals governs the case. This is the very essence of judicial duty.
If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they would both apply. (footnote 4)
One would have thought that even Marshall have recognized that it is emphatically the province and duty of WE THE PEOPLE “to say what the constitutional law is”, and WE THE PEOPLE’S representatives in various legislatures “to say with the statutory law is”, in the first instance. So, he must implicitly have understood that “the province and duty of the judicial department to say what the law is” arises only in the course of deciding a particular “Case[ ]” or “Controvers[y]” in which the validity of a contested constitutional provision, statute, or other governmental action is at issue. And, in that context, to whom does the Court speak? To the litigants in that “Case [ ]”, no one else being before the Court on which its “judicial Power” (footnote 5) can operate. Thus, nothing in Marshall’s reasoning supports the further notion that, the Court having spoken in “a particular case”, it’s decision binds one or both coördinate Branches of the government in all things thereafter, as well as the litigants in that case.
Marshall noted that the “judicial Power” extends to “all cases arising under the constitution”, (footnote 6) and concluded that it was “too extravagant to be maintained” that the Framers had intended that “a case arising under the constitution should be decided without examining the instrument under which it arises”. (footnote 7) once again, however, he limited his own reasoning to the context of a “case”. Moreover, the selfsame reasoning applies with equal force to Congress and the President: In deciding whether a statute intends to pass, or has passed, is valid, must not Congress “examin[e] the instrument under which [the statute] arises”? In “taki[ng] care that the Laws be faithfully executed”, must not the President examine those “Laws” and compare them to “the instrument under which [they] arise[ ]? And should not Congress and the President, in exercising their own constitutional authorities, when confronted with the decision of the Supreme Court themselves “examin[e] the instrument under which [that decision] arises” to determine whether the Constitution and the Court’s construction of it are mutually consistent? Surely so. Functionally, for the courts “to say what the law is” the context of deciding “a particular case”—that is, to state its opinion on what the Constitution means in that situation—differs not one whit from the enactment of the statute by Congress, were the execution of one by the president, in terms of each Branch’s satisfying itself that its action comports with what it believes the Constitution requires or allows.
Finally, Marshall explained what he considered the ultimate source of the authority for “judicial review”:
[T]he framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature.
Why otherwise does it direct the judges to take an oath to support it? This is certainly applies, in an especial manner, to their conduct in their official character.
* * * * *
Why does the judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms know for his government? * * *
If such be the real state of things, this is worse than solemn mockery. To prescribe, were to take this oath, becomes equally a crime.
It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally what those only which shall be made in pursuance of the constitution, have that rank.
Thus, the particular phraseology of the constitution * * * confirms and strengthens the principle * * * that along repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument. (footnote 8)
The most revealing language in this passage, however, is Marshall’s elliptical admission that “courts, as well as other departments, are bound” by the Constitution—and in exactly the same way. This recalls James Wilson statement in the Pennsylvania convention that judges would “refuse to [and unconstitutional] act the sanction of judicial authority”—and that, “[i]n the same manner, the President * * * could shield himself, and refuse to carry into effect an act that violates the Constitution”. (footnote 9)
That judges take an oath to “support the Constitution” does not prove that they thereby exercise and exclusive power of “review” over the Constitution’s meeting—that is an unchallengeable authority to nullify the powers of Congress and the President. For members of Congress take the very same oath,” to support this Constitution”; and the President takes the even more extensive oath, that he will “to the best of my Ability, preserve, protect and defend the Constitution of the United States” (footnote 10)— both of which, on Marbury’s reasoning, would invest those branches with an equivalent right and duty to “review” the courts decisions and disregard in the future exercise of their authority those that they considered erroneous interpretations of the Constitution. (That is, although a decision would remain enforceable as against the wood against before the Court, neither Congress or the President would be required to follow it on a disputed point of constitutional law as to any of their actions not touching on the legal relations of the litigants already adjudicated in that “Case [ ]”.) So, if it exists at all, a power of “judicial review” must be discovered in the Constitution elsewhere than in the judge’s oath. Otherwise, the oath itself would require each judge to abjure such a phantom power, and to admit that all three coequal Branches of the national government enjoy the same prerogative, within their spheres of action, to construe the Constitution.
All that Marbury can fairly claim, and be conceded, is that the Supreme Court may constitutionally refuse to enforce the statute that interferes with the performance of those powers the Constitution specifically invests in the Judiciary—because the court has received those purely judicial powers directly from WE THE PEOPLE, and must perform them according to the Justices’ own conscientious understanding thereof, not according to the will of Congress or the President. (footnote 11) Such a construction of “judicial review”, however, would leave only narrow scope for the nullification of laws. (footnote 12) Most of the time, it would allow the Court only to refuse to enforce, against the litigants in a particular “Case[ ]” or “Controvers[y]”, a statute a majority of the Justices deemed unconstitutional under the facts of that “Case[ ]”. And, in any event, it would also concede to Congress and the President analogous rights, powers, and duties of review within their own constitutional domains. As President Andrew Jackson argued in his veto of the recharter of the second Bank of the United States,
[m]ere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the states can be considered as well settled. * * *
* * * [T]he opinion of the Supreme Court * * * ought not to control the coördinate authorities of this government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. 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 opinion of the judges has no authority over Congress then the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive * * *, but to have only such influence as the force of their reasoning may deserve. (footnote 13)
Indeed, the plausibility of constitutional review by Congress and the President, as well as the Supreme Court, is far greater than the plausibility of exclusive “judicial review”. For WE THE PEOPLE directly elect Congress and the President. Bills passed by Congress and signed by the President have the approval of two of the three coördinate Branche of the national government; and bills passed by Congress over a presidential veto have the approval of two thirds of WE THE PEOPLE’S representatives—whereas, a decision of the Supreme Court can be the product of the eccentric opinion of a single Justice who swings a majority one way or the other. And if WE THE PEOPLE consider members of Congress or the President role on some constitutional issue, they can move them into, four, or six years—whereas (according to the hierophants of “judicial review”), an erroneous decision of a stubborn Supreme Court can be corrected only by the cumbersome procedures of impeaching old and appointing new Justices, packing begin (enlarging) the Court, restricting its appellate jurisdiction, or amending the Constitution.
In two ways, the Supreme Court itself admits sotto voce the porosity of its claim of “judicial supremacy” through “judicial review”; First, the Court claims that some “Cases” and “Controversies” raise nonjusticiable political questions. Marbury itself recognized that
[t]he 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. (footnote 14)
And from the Republic’s earliest days, the court has consistently followed that doctrine, as to both the President and Congress. (footnote 15) Revealingly, however, the court can find a political question even when the rights of individuals are most decidedly in issue. (footnote 16) Thus, the doctrine of political questions amounts simply to an escape hatch to which the Court—which unilaterally decides which issues are political—can avoid deciding “Cases” that would bring its power and prestige into disrepute, (footnote 17) even though the Constitution nowhere licenses it to avoid deciding any “Cases” or “Controversies” within its jurisdictions. (footnote 18)
1.) 5 U.S. (1 Cranch) 137 (1803). Marshall’s basic argument had previously appeared in The Federalist No. 78. Yet prior to Marbury, “judicial review” of the modern ilk was rare and controversial. See 2 W. Crosskey, Politics and the Constitution in the History of the United States (1953), chs. XXVII-XXIX.
2.) 5 U.S. (1 Cranch) at 176.
4.) Id. At 177-78.
5.) U.S. Const. art. III, § 1.
6.) Compare 5 U.S. (1 Cranch) at 178 with U.S Const. art. III, § 2, cl. 1.
7.) 5 U.S. (1 Cranch) at 178 -79.
8.) Id.. At 179-80 (emphasis in the original).
9.) 2 J. Elliott, The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787 ( 2d ed. 1836), at 446 (bold-italic emphasis supplied).
10.) U.S. Const. art. VI, cl. 3 and art. II § 1, cl. 7.
11.) That is, rather than having created the precursor of today’s expansive “judicial review”, Marbury really applied only the role of “checks and balances” or “separation of powers”, whereby the court refused to exercise and authority Congress had attempted unconstitutionally to thrust upon it.
12.) See, e.g., Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410-14 n. ☨ (1792) (Court refuses to administer a Congressional pension Act because the duties imposed are not judicial, and Court’s opinions are subject to revision by nontraditional officer).
13.) 3 A Compilation of the Messages and Papers of the Presidents (J. Richardson ed. 1897), at 1139, 1144-45.
14.) 5 U.S. (1 Cranch) at 170.
15.) E.g., Ware v. Hylton (3 U.S. Dall.) 199, 260-261 (1796) (opinion of Iridell, J.) (Court cannot determine when a treaty has been broken; United States v. Palmer, 16 U.S. (3 Wheat.) 610 (1818) (President’s recognition of government of a foreign state conclusive on courts); Martin v. Mott, 25 U.S. (12 Wheat.) 19, 29-32 (1827) (President has unreviewable power to determine when militia should be called out under color of statute); Luther v. Borden, 48 U.S. (7 How.) 1, 42-44 (1849) (power to decide whether a State has a “Republican form of Government” lies with Congress); Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918) (foreign relations committed exclusively to Congress and the President); Coleman v. Miller, 307 U.S. 433, 450 (1939) (standards for ratification of constitutional amendment are committed exclusively to Congress).
16.) E.g., Luther v. Borden, 48 U.S. (7 How.) 1 (1849); Texas v. White, 74 U.S. (7 Wall.) 700 (1869).
17.) See generally, e.g., A. Bickel, The Last Dangerous Branch (1962), at 183-98.
18.) See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821).