Part 2

Marbury v. Madison: Clinton Is Both Right and Wrong

Alan J. Meese

I agree with some of Robert Lowry Clinton’s points in “The Marbury Myth” and disagree with others. For instance, I agree that neither Marbury nor the Constitution supports “judicial supremacy” over the other branches when it comes to constitutional interpretation. At the same time, I respectfully suggest that Clinton defines the appropriate role of courts too narrowly and also improperly equates any judicial role more expansive than he advocates with “judicial supremacy.”

In my view, each department of government (including the judicial department) may interpret the Constitution as it sees fit, without referring to views of other branches, so long as that department is operating within the sphere of authority the Constitution assigns it. Under this approach, each branch is “supreme” within its own sphere, and no branch can control the constitutional interpretation of the other branches operating within their respective spheres. This approach, known as “Departmentalism,” finds support in the text and structure of the Constitution, the words of James Madison, and the words and actions of Abraham Lincoln. There are several examples of judicial review perfectly consistent with Departmentalism that Clinton would apparently—and incorrectly in my view—equate with “judicial supremacy.” Finally, Clinton overstates the role that “Social Darwinism” played in Supreme Court decisions protecting economic liberty.

After summarizing Clinton’s argument, complete with some quotes from his essay, I will then offer my reaction.

Marbury v. Clinton

While lionized today, Marbury was rarely cited for the proposition that Courts could invalidate legislative acts. Indeed, the article says, the Supreme Court did not cite Marbury for this proposition until the late nineteenth century, first in 1887 vis-à-vis a state law (apparently Clinton is referring to Mugler v. Kansas, where the Court cited Marbury but then affirmed the Kansas statute under review) and then in 1895 (in Pollock v. Farmer’s Loan and Trust Company, which struck down the income tax).

Marbury did not hold that the Supreme Court is the sole expositor of constitutional meaning. In particular, the Marbury Court simply declined to exercise jurisdiction over a case because the statute purporting to confer that jurisdiction exceeded the authority that Article III of the Constitution grants to Congress to create and define the Supreme Court’s appellate jurisdiction. Thus, Marbury was a defensive decision, protecting the Court from unlawful incursions by other branches, thereby denying the Court power that Congress tried to foist upon it. Marbury did not, Clinton says, purport to reach beyond the Court and interfere with Congress’s substantive legislative choices, for instance. As Clinton puts it:

[Marbury] carefully restricted the Court’s power to invalidate such acts to instances in which the Court is forced to ignore either the Constitution or the statute in order to decide a particular case. The only time this situation can arise is when the constitutional and statutory provisions involved are addressed to the Court itself, as in Marbury. In other words, under Marbury’s reasoning, the Court is not entitled to “reach out” and invalidate a legislative act simply because the Court doesn’t like it, or even because the Court believes that some other agency of government has done something unconstitutional. Thus, Marbury-style judicial review is very limited in scope. It is restricted to cases in which Congress has unconstitutionally meddled with the Court’s functions.

During the last quarter of the nineteenth century, Clinton says, lawyers for business interests invoked Marbury to justify (novel) judicial review of state legislation interfering with economic liberties, judicial review that exemplified judicial supremacy.

Since the state legislatures and Congress were passing regulations designed to mitigate the worst effects of the Industrial Revolution, the lawyers and their clients sought to employ the federal courts in an effort to counter the regulations. The problem was that the courts had never exercised such power, and the constitutional basis for it was doubtful at best.

Courts ultimately agreed that the Constitution protects certain economic liberties from unjustified invasion by states and the national government. I should note that exemplars of such protection include Lochner v. New York (1905), which invalidated a state maximum hour law. The Court also exercised the same authority vis-à-vis Congress, invalidating a minimum wage that Congress had imposed on employers and employees in the District of Columbia. According to Clinton, these anti-regulation lawyers and judges were “Social Darwinists” who believed that law should encourage economic survival of the fittest.

The Supreme Court repudiated the Lochner era’s protection for economic liberty in 1937. Still, Clinton argues that the Warren Court (1954–69), continued to embrace judicial supremacy but in furtherance of different substantive values. Moreover, in 1958, Clinton says, the Court invoked Marbury for the proposition that judicial interpretations of the Constitution are themselves, like the Constitution, the supreme law of the land and thus by their own force binding on other actors who must treat the Supreme Court’s interpretation of the Constitution as equivalent to the Constitution itself. (Clinton is apparently referring to Cooper v. Aaron, which properly enforced Brown v. Board of Education’s requirement that admission decisions at state-run high schools be made irrespective of race, ordering the governor of Arkansas to refrain from interfering with a school board’s efforts to comply with Brown, to which the board had been a party.)

Moreover, in the 1992 Planned Parenthood v. Casey decision, Clinton points out, the Court, reaffirming Roe v. Wade, asserted that Americans’ belief in the rule of law “is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals.” Clinton might have added Casey’s statement that the Court should adhere to Roe in part to reward those citizens who disagreed with Roe, “when viewed outside of constitutional terms” but “who nevertheless struggled to accept it, because they respect the rule of law.” Both statements from Casey seem to rest on the assumption that the Court’s constitutional views bind individual citizens whose disagreement must thereby be “outside constitutional terms.”

Finally, it should be noted that Clinton claims that decisions such as Roe, and various unnamed Warren Court excesses, would not have been possible without what he calls “judicial supremacy.”

Judicial Review before Marbury

I agree with Clinton’s assertion that Marbury was rarely cited until late in the nineteenth century. Still, the paucity of citations of Marbury during the nineteenth century should not obscure the deeply rooted status of judicial review. Numerous participants in the Constitutional Convention assumed that the Constitution would empower federal courts to strike down unconstitutional state and federal laws.[1] Indeed, Anti-Federalists cited the prospect of judicial review as a reason to reject the constitution, leading Alexander Hamilton to offer a rousing defense of judicial review in Federalist No. 78, arguing that the existence of a written constitution implied that, when a court decides a case before it, it must treat the Constitution as paramount and decline to implement ordinary statutes, for instance, that contradict that supreme law.

Indeed, even before the Constitutional Convention, several judges on the highest court in Virginia, including George Wythe, expressly embraced judicial review in the Case of the Prisoners (1782). Moreover, shortly after the Constitution was ratified, the Supreme Court declined to enforce a congressional statute purporting to require individual justices to evaluate petitions from Revolutionary veterans for pensions.[2]

Finally, the First Congress apparently believed that the Supreme Court had the authority to determine whether, for instance, state laws were constitutional, enacting the Judiciary Act of 1789. Among other things, the act empowered the Court to review state laws whose validity was challenged “on the ground of their being repugnant to the constitution, treaties or laws of the United States[.]” This, of course, is exactly the sort of review that the Supreme Court conducted in Lochner and, for that matter, Roe. If this sort of review was an example of inappropriate “judicial supremacy,” then it’s the sort of judicial supremacy endorsed by the same Congress that proposed the Bill of Rights.

In sum, just as the Christian Church pre-dated various books of the New Testament, so too did judicial review predate Marbury v. Madison. Moreover, the logic supporting the institution of judicial review, expressed for instance in Federalist No. 78, was not limited to instances in which Congress sought to compel the courts to act in a manner that exceed their authority.

Judicial Review in the Early Nineteenth Century

Clinton also seems to understate the extent of judicial review early in the nineteenth century. For instance, from 1810 to 1819, the Marshall Court invalidated statutes in four different states on the grounds that such legislation offended the Constitution’s Contracts Clause found in Article I. None of the statutes interfered with the operation of courts as such. In the famous Dartmouth College case, for instance, the Court invalidated a New Hampshire statute that coercively transformed Dartmouth from a private to a public college, because the statute altered the college’s original royal charter. In so doing, the Court conducted the same sort of review that courts would conduct during the Lochner era. While Chief Justice John Marshall did not cite Marbury as authority for this sort of judicial review, the omission simply suggests that judicial review was “taken for granted” by this time.

If, as Clinton asserts, “judicial supremacy” entails declaring a statute invalid “because the Court believes that some other agency of government has done something unconstitutional,” then the Marshall Court, which decided Marbury in 1803, embarked on such a supremacy campaign just seven years later.

Marbury Supports “Departmentalism,” Not Judicial Supremacy

I completely agree with Clinton that Marbury does not support the sort of judicial supremacy suggested by the dicta of Cooper v. Aaron or the language in Casey quoted above. (I refer to the Cooper language as dicta because the actual question before the Court was whether the governor of Arkansas could thwart local compliance with the Court’s mandate in Brown. The Court properly ruled against the governor.)

Neither Marbury nor its logic supports the notion that only judges are authorized to interpret the Constitution or that other actors (e.g., the President) must treat Supreme Court precedent as definitive when operating within their own sphere of authority. Instead, Marbury and Federalist 78 support so-called “Departmentalism,” whereby courts (the “Judicial Department”), when deciding cases before them, must decline to enforce unconstitutional statutes. Indeed, at the Pennsylvania ratifying convention, James Wilson, later a Supreme Court Justice, argued that a president (the “Executive Department”) could decline to enforce a law he believed to be unconstitutional and that, in the same way, judges could decline to enforce unconstitutional laws. Presidents and senators owe fidelity to the Constitution, not to the Supreme Court.

As James Madison put it in 1834:

As the Legislative, Executive, and Judicial departments of the United States are co-ordinate, and each equally bound to support the Constitution, it follows that each must, in the exercise of its functions, be guided by the text of the Constitution according to its own interpretation of it; and, consequently, that in the event of irreconcilable interpretations, the prevalence of the one or the other department must depend on the nature of the case, as receiving its final decision from one or the other.

And, of course, in his first inaugural address, Lincoln expressly reiterated what he had argued in his debates with Stephen Douglas—namely, that while the Dred Scott decision was binding on the individual parties to the case, the political branches could ignore its rationale. Thus a president, for instance, can veto or decline to enforce legislation on constitutional grounds, even if he knows courts would uphold it.

Willful Judging by the Warren and Burger Courts

I also agree with Clinton’s assertion that the Warren and Burger Courts abused the power of judicial review, striking down various state and federal laws or judicial practices that were perfectly constitutional. Examples include Roe, Miranda v. Arizona, and Mapp v. Ohio, the latter of which declared for the first time that reliable evidence obtained in violation of the Fourth Amendment must be kept from a criminal jury, even if it means releasing a murderer who may kill again.

Other examples include the Burger Court’s transmogrification of the Eighth Amendment from a ban on cruel and unusual modes of punishment to a blanket license empowering judges to determine what factors the sentencer must consider when deciding whether to impose the death penalty upon a defendant duly convicted of murder. Still, I would not attribute these errors to judicial supremacy but instead to willful judging.

Protection for Economic Liberty Did Not Reflect “Social Darwinism”

One final note is not about the nature of judicial review as such but instead about Clinton’s account of the Lochner era, particularly his claims that Lochner-era judges were motivated by Social Darwinism and struck down legislation that was designed to protect the weak from the strong. Both assertions are controversial to say the least.

Lochner-era judges found protection for liberty of occupation, liberty of contract, and rights of property in the Due Process Clause of the Fourteenth Amendment, ratified in 1868. In so doing they embraced the conception of liberty propounded by Abraham Lincoln during the Civil War: namely, the ability to work at one’s chosen occupation and retain the fruits of one’s labors. Still, despite emancipation, Southern states had continued to deprive African Americans of various economic liberties via the so-called “black codes.”

Congress sought to preempt these codes via the Civil Rights Act of 1866, ensuring African Americans the same rights of contract and occupational liberty as whites. The act, however, exceeded any apparent power of Congress, which then proposed the Fourteenth Amendment. Section 5 of the amendment authorized Congress to enforce the amendment’s provisions—including the Equal Protection Clause, the Due Process Clause, and the Privileges or Immunities Clause—against the states. It should be no surprise, then, that the Supreme Court would ultimately find protection for economic liberties in the Fourteenth Amendment.

Nor am I aware of any data suggesting that most laws voided during the Lochner era protected the weak against the strong. Lochner itself, for instance, voided a law that likely disadvantaged labor-intensive small bakeries against larger, capital-intensive establishments. At the same time, the Lochner-era Court upheld certain forms of legislation, such as antitrust laws, that prevented large firms from cartelizing and thereby destroying wealth and harming consumers. Regardless of what one thinks of Lochner and its progeny as a matter of constitutional law, it seems difficult to square most Lochner-era decisions with the philosophy of Social Darwinism.

[2] See Hayburn’s Case (1792).

NEXT: Winfield H. Rose responds to Alan J. Meese.