Many Americans are puzzled and angry about the judicial assault on religion, morality, and common sense that has been going on for the past few decades. People wonder, for example, how the First Amendment (which guarantees freedom of religion as well as separation of church and state) could possibly require the expulsion of religion from public life, or outlaw prayers at high-school football games and graduation ceremonies. To answer questions like these, one must understand how federal judges got the power to make such controversial political decisions in the first place, and how the judges used that power to bludgeon the American citizenry into believing that their power was legitimate.
Plato tells us in the Republic that democracies will always succumb to tyranny. The Framers of our Constitution certainly troubled themselves to prevent that from happening here, but the anti-Federalist who wrote under the name Brutus did not believe they had gone far enough — especially when it came to the Supreme Court. Though Alexander Hamilton described the Court as the “least dangerous branch,” Brutus thought that the Court would eventually expand its own power and, in the process, enable the national government to expand its power at the expense of the states.
#ad#That Brutus was something of a prophet is beyond question. The Supreme Court is certainly more powerful than it was in the beginning. And so is the national government. In fact, during the past half-century, the Court and the country seem to have embraced the idea of judicial supremacy — the doctrine that the Court is the exclusive, ultimate authority on all constitutional issues. But the Constitution is very clear on the judicial role, and it does not authorize judicial supremacy. Judicial supremacy is an unwarranted extension of the power of judicial review — a power that allows the Court to disregard or invalidate laws in a limited range of cases. To see this clearly we need to examine some of the Constitution’s key provisions very carefully.
The Constitution establishes three main branches of government. In Article I, Section 8, specific lawmaking powers are assigned to Congress. These powers include taxing and spending, declaring war and raising armies and navies, regulating the value of money, establishing the post office and other federal agencies, and finally, making laws that are deemed “necessary and proper” for making all the other powers effective. In Article II, Sections 2 and 3, the president is assigned the power to command the Army and Navy, to appoint ambassadors and other government officials (including federal judges), to negotiate treaties with foreign nations, and to enforce federal law in general.
Judicial power is assigned to the Supreme Court (and lower federal courts that Congress chooses to establish) in Article III, Section 2. The judicial power is precisely stated to be the power to decide cases and controversies arising under the Constitution, laws, and treaties of the United States. This means that the decisions of federal courts are binding on the parties to the lawsuits. What it does not mean is that the decisions of these courts become laws in their own right or policies in the legislative sense.
After establishing and assigning powers to the national government, the Constitution places some limitations on how national power can be exercised. This is done first in Article I, Section 9, where the government is denied the power to pass ex post facto laws (criminal laws that apply retroactively) and bills of attainder (legislative acts criminalizing the conduct of particular individuals), and to suspend the judicial process for incarcerated persons (the writ of habeas corpus) except in times of rebellion or invasion — just to mention three examples. The following section, Article I, Section 10, places a similar set of limitations on the state governments.
#ad#After the Constitution was adopted, the First Congress proposed twelve amendments. Ten of them were adopted and became part of the Constitution in 1791. These amendments, now referred to as the Bill of Rights, were designed to impose additional limits on the national government. The First Amendment, for example, prohibits Congress from enacting any law “respecting an establishment of religion” or abridging “the free exercise thereof.” Other provisions in the Bill of Rights guarantee certain protections for persons accused of crime in federal courts, such as the right to trial by jury, the right to counsel, and the right not to incriminate oneself.
The final article in the Bill of Rights is the Tenth Amendment. This provision reserves to the states all powers not assigned to the federal government (e.g., in Articles I, II, or III) or denied to the states (e.g., in Article I, Section 10). Certain powers, usually called “concurrent powers,” granted to the federal government are obviously allowed to the states as well. These include, for example, the power to tax, the power to enact commercial regulations, the power to govern state militias, and the power to enforce the law generally. Powers that are assigned to the federal government but denied to the states are called “exclusive” powers. These include the power to declare war and make treaties with foreign nations, and other powers that require unified policy for the entire nation. Powers that are not assigned to the national government are deemed to reside solely in the states, and these are called “reserved” powers.
THE ROOTS OF JUDICIAL REVIEW
When concurrent powers conflict, Article VI of the Constitution grants supremacy to the federal government. State judges are instructed to invalidate conflicting state laws. If they fail to do this, Article III, Section 2, which extends national judicial power to all cases arising under the Constitution, empowers the federal courts to overrule the state courts. This is where the power of judicial review originates.
It is very important to make note of the precise constitutional language in these provisions, because the power and extent of judicial review hinges on the presence or absence of a single word.
The judicial power granted in Article III, Section 2, extends to all “cases and controversies, in law and equity, arising under the Constitution, Laws, and Treaties of the United States.”
The national-supremacy clause of Article VI, meanwhile, reads as follows: “This Constitution, the Laws Pursuant to it, and federal Treaties are the Supreme Law of the Land, anything in the constitution or laws of a state to the contrary notwithstanding.”
“Pursuant,” in this context, means “following from,” “in accordance with,” or just plain “constitutional.” Notice that the word is absent in the clause that gives the courts the right to decide cases, but present in the clause that instructs it as to what laws to apply. Since the federal courts have the power to hear all cases arising under federal law, but only laws pursuant to the Constitution are considered the supreme law of the land, a federal court deciding a case in which a national law applies must determine whether that law is pursuant to the Constitution.
#ad#Otherwise, the courts would be forced to apply unconstitutional laws when deciding cases. This would give us legislative supremacy, a doctrine no more intended by the Framers than was judicial supremacy. It is the absence of the word “pursuant” from Article III, Section 2, that extends the judicial power to unconstitutional as well as constitutional laws, thus authorizing the federal courts to disregard or invalidate acts of the national government.
In the Judiciary Act of 1789, Section 25, the First Congress enacted this understanding of the Constitution explicitly, authorizing the United States Supreme Court to reverse or affirm any judgment of a state’s highest court in which a national law is invalidated or in which a state law is upheld against a federal constitutional challenge. In other words, if a state court refuses to enforce (i.e., invalidates) a national law, then the Supreme Court is authorized to reverse or affirm that decision. If the federal court reverses the state court’s decision, it is effectively saying that the national law in question is pursuant to the Constitution (i.e., is “constitutional”), and that state governments have no right to ignore it. On the other hand, if the federal court affirms the state court’s decision, then it is effectively saying that the national law in question is not pursuant to the Constitution (i.e., is “unconstitutional”).
We may draw some important conclusions from this brief survey of constitutional provisions. First, judicial review is authorized in the Constitution, but only in a very restrictive form. It has nothing whatever to do with policymaking. Rather, constitutional judicial review is merely the power to disregard, or refuse to apply, a law that the court believes to be unconstitutional (not “pursuant” to the Constitution) when deciding a particular case. Strictly speaking, as Abraham Lincoln said of the notorious Dred Scott decision, the court’s decision applies only to the parties in that case — not to anyone else.
Second, the limited form of judicial review established in the Constitution is not an authorization for the courts to “strike down” or exterminate laws that the judges don’t happen to like. Rather, it is a device to prevent state courts from refusing to enforce valid national laws. Without such a device, it is unlikely that national law would ever have come to be enforced on a nationwide basis, and this means that there would never have been a “United States.”
‘CASES OF A JUDICIARY NATURE’
Finally, James Madison’s notes on the Philadelphia Convention reveal that the Framers had a particular understanding of Article III, Section 2. During the discussion of the phrase extending the federal judicial power to cases arising under the Constitution, laws, and treaties of the United States, this power was acknowledged to be limited to “cases of a judiciary nature.” These are cases involving laws directed to the courts themselves — for example, jurisdictional statutes or constitutional provisions directing the courts to perform particular functions in specific ways. This suggests that one important reason for judicial review is to give the courts a way to protect themselves from efforts by other branches of government to control their activities in ways not authorized by the Constitution.
#ad#One such effort took place in the 1790s, when Pres. George Washington asked the Supreme Court for advice on a legal matter. The justices declined to offer such advice, stating in a letter to Washington that becoming advisers to the executive without a case before the Court would violate Article III’s provision extending the judicial power only to “cases and controversies.” Another example of such an effort occurred a decade later, and it resulted in what is now the most famous case in American constitutional law — Marbury v. Madison.
What the Constitution does not do is establish the Supreme Court as the ultimate or exclusive arbiter of all constitutional questions, entitled to issue binding proclamations to other agencies of government on any constitutional issue whatsoever. Judicial supremacy, in this sense, was largely unknown throughout the first century and a half of our nation’s constitutional existence, and was not claimed even by the Court itself until 1958. In that year, the Court declared for the first time in its history that its constitutional decisions were the supreme law of the land, along with the Constitution itself, national laws, and federal treaties. This declaration effectively amended Article VI by judicial fiat, giving truth to the earlier remark of Chief Justice Hughes that “the Constitution is what the Court says it is.” Since that time, the Court has provided abundant evidence for the truth of Justice Scalia’s 1992 observation that “the imperial judiciary lives.”
So if Brutus’s dire prediction of ever-expanding judicial power was right, it is not because we have followed the Constitution. He was right because we have not followed it. Judicial supremacy is not the result of anything in the Constitution. It is the result of judges’ exercising powers not granted to them in the Constitution, and of cowardly politicians’ allowing them (and sometimes encouraging them) to get away with it. If Plato’s dire prediction about democracy is not to become true for us, we need to reclaim the Constitution from the Court.
– Robert Lowry Clinton is professor and chair of Political Science at Southern Illinois University, Carbondale. He was a James Madison Fellow at Princeton University in 2007–2008, and is the author of Marbury v. Madison and Judicial Review and God and Man in the Law.