The judicial power, and duty, to invalidate unconstitutional laws wasn’t the work of one inventive judge.
The judicial power, and duty, to invalidate unconstitutional laws wasn’t the work of one inventive judge.
T he judicial role is controversial again, this time on the right, with Donald Trump and his allies fuming that the Supreme Court could strike down his “emergency” tariffs. Today is, as Sara Albrecht observes, the 223d anniversary of Marbury v. Madison. Chief Justice John Marshall’s opinion for the Court in that much-celebrated case announced and established the power of judicial review: that in the case of a conflict between an act of Congress and the Constitution, the Court could declare that the statute is unconstitutional and invalid. Marshall’s famous epigram summarized the judicial role: It is “emphatically the province and duty of the judicial department to say what the law is.”
Marshall’s opinion was both cleverly creative and path-breaking in a couple of ways. To start with, it was Marshall who instituted the practice of having the Court issue a single opinion, rather than just have each justice describe his own reasoning; Marshall managed to get the whole Court to sign unanimously onto his grandly worded opinion. He also managed to sidestep a conflict of interest that almost certainly should have prevented him hearing the case.
Marshall contrived to announce a vigorous defense of judicial review in circumstances where it was impossible for the political branches to defy his ruling. The Marbury case involved a commission for office for the plaintiff, William Marbury, which was signed by then-President John Adams and intended to be delivered by Adams’s secretary of state (Marshall himself), but which, after the turnover of the administration to Thomas Jefferson, was not delivered by the defendant, secretary of state James Madison. Marshall ruled that Jefferson and Madison had acted unconstitutionally by refusing to deliver the commission.
But, by striking down a portion of the Judiciary Act of 1789, Marshall also ruled that he lacked the power to order Jefferson or Madison to deliver the commission to Marbury. Jefferson and Madison would gladly have defied the ruling; they treated Marbury’s case with such contempt that they sent no lawyer to the Court to argue it, in the days when there were no legal briefs, so oral argument was your only chance to plead your case. Jefferson and Madison were left to fume impotently at what Marshall had said, because they could do nothing about what he had done — which was to throw out the case against them.
It was also shrewd for Marshall, like other early courts establishing judicial review, to begin with laws detailing the jurisdiction and powers of the courts themselves. Nobody would reasonably argue that courts have no business inserting themselves into the question of what cases are properly before them and what powers they have to issue relief.
But what Marshall didn’t do was invent judicial review. It was, from the beginning, implicit and inherent in the fact of a written Constitution that limited the powers of the lawmaker. It was also explicitly detailed in Federalist 78 by Alexander Hamilton:
By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority. . . . Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
Hamilton explained that this did not make the courts supreme over Congress, but rather that it made the people supreme over Congress:
Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. . . . Every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. . . .
The courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution . . . must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. . . .
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that 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 be governed by the latter rather than the former . . . accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.
Nobody who voted to ratify the Constitution after reading Hamilton’s explanation of the judicial power could have been surprised that Marshall read it exactly the same way. He started, as did George Washington in his Farewell Address (much of which was also written by Hamilton) with the fact that a constitution is hard to write or amend, and must therefore be defended from erosion over time unless and until the people themselves change it:
That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.
He then moved on to echo Hamilton’s analysis:
This original and supreme will organizes the government, and assigns to different departments their respective powers. . . . The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. . . . There is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. . . .
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? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory. . . . If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution. . . . the court must either 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 rules governs the case. This is of the very essence of judicial duty.
Both Hamilton and Marshall proceeded down the same logical track from arguing that courts routinely have to resolve conflicts between two competing laws, so of course they can do so when one of those laws is the Constitution.
Of course, it is true, as it was true of many things, that not everyone at the Founding thought this through. Madison, unlike Hamilton, was a professional legislator, politician, and political theorist rather than a practicing lawyer, which likely explains why he let Hamilton write the sections of The Federalist Papers on the judicial power, while Madison was explaining the Constitution’s balance of political forces. Even when drafting the Bill of Rights, Madison seems to have given little thought to their enforcement in court. But it was Hamilton’s vision that prevailed.
But it wasn’t just Hamilton. The states adopted written constitutions before 1787, and well before Marbury, state courts invalidated state statutes for constitutional conflicts, both with the state constitution and with the federal constitution. Lower federal courts, often staffed by Supreme Court justices riding the circuit, did the same before Marbury. Different scholars divide on exactly how many examples there are; in an exhaustive 2005 Stanford Law Review article, William Treanor counted “thirty-one cases in which a statute was invalidated and seven more in which, although the statute was upheld, one judge concluded that the statute was unconstitutional.”
As Treanor observed, the Supreme Court — or at least its justices — first faced a significant test in 1792 in another set of cases involving the limits of the judicial power. A statute, the Invalid Pensions Act, effectively assigned judges to act like administrative tribunals, reviewing pension claims to advise the secretary of war, with whom the final decision lay. The first test came before a circuit court with two of the justices (Chief Justice John Jay and Justice William Cushing), who considered this unconstitutional but agreed in advance to deem their review of the pensions a non-judicial role, so as to avoid a direct conflict. In Hayburn’s Case, two more of the justices (James Wilson and John Blair, both delegates to the Constitutional Convention) declared in oral rulings that the statute was unconstitutional. A Philadelphia newspaper described this as “the first instance, in which a court of justice had declared a law of Congress to be unconstitutional.” Madison expressed alarm. Wilson and Blair wrote to President Washington to explain themselves:
Because the business directed by this Act is not of a judicial nature: it forms no part of the power vested, by the Constitution, in the Courts of the United States: The Circuit Court must, consequently have proceeded without constitutional authority. . . . If, upon that business, the Court had proceeded, its judgments — for its opinions are its judgments — might, under the same Act, have been revised an [sic] controuled by the Legislature and by an Officer in the Executive Department. Such revision and controul we deemed radically inconsistent with the Independence of that judicial power, which is vested in the Courts, and, consequently, with that important principle which is so strictly observed by the Constitution of the United States.
Justice James Iredell, like Jay and Cushing, decided to head off a conflict on his circuit by similarly issuing a letter declaring that the law asked him to assume a “power not in its nature Judicial” in a structure “unwarranted by the Constitution.” That put five of the six justices on record; Congress blinked and repealed the statute in 1793.
In 1796, the Court heard the first direct challenge to the constitutionality of a federal statute. Hylton v. United States challenged whether a federal tax on carriages was a “direct tax” that was barred by the Constitution unless it was apportioned on the basis of population. The challengers were represented by Jared Ingersoll, the attorney general of Pennsylvania (previously a delegate to the Constitutional Convention and later the 1812 Federalist Party nominee for vice president) and Alexander Campbell, the United States attorney for Virginia and John Marshall’s law partner. To defend the law, Washington sent his attorney general, Charles Lee (not the former general, but the brother of “Light Horse Harry” Lee) and, more importantly, his former treasury secretary who had written the law: Alexander Hamilton. Hamilton won the case.
Only three justices were available to hear the argument. In the custom of the day, they announced their reasoning separately, with all three concluding that the carriage tax was constitutional and not a direct tax. None refused to consider the merits of the question. Iredell argued that the Court had to construe the tax as direct or not, so as to determine whether it was required to be apportioned, but concluded, “It is sufficient, on the present occasion, for the court to be satisfied, that this is not a direct tax contemplated by the Constitution. . . .” As Justice William Paterson, another delegate to the Constitutional Convention, framed it: “The question is, whether a tax upon carriages be a direct tax? If it be a direct tax, it is unconstitutional. . . .” Paterson explained at length what the Framers had intended by the apportionment clause (interesting side note: Paterson concluded his opinion with a two-paragraph quotation on consumption taxes from Adam Smith’s Wealth of Nations). Justice Samuel Chase had the most reservations about judicial review:
As I do not think the tax on carriages is a direct tax, it is unnecessary, at this time, for me to determine, whether this court, constitutionally possesses the power to declare an act of Congress void, on the ground of its being made contrary to, and in violation of, the Constitution; but if the court have such power, I am free to declare, that I will never exercise it, but in a very clear case.
The justices were still kicking around the question in 1800 when they decided Cooper v. Telfair, ultimately upholding a 1784 Georgia statute that subjected a Loyalist during the Revolution to banishment and the confiscation of his property. The case involved a state rather than a federal statute, as well as some questions about challenging a law’s effects before 1787. Nonetheless, the litigants on both sides agreed in general that if the Georgia law violated the Georgia constitution, it would be invalid. Cushing acknowledged that “this Court has the same power, that a Court of the state of Georgia would possess, to declare the law void,” while Paterson cautioned that “to authorise this Court to pronounce any law void, it must be a clear and unequivocal breach of the constitution, not a doubtful and argumentative implication.” Either way, both of them felt that the power to banish a citizen for treason was outside of judicial competence, with Cushing adding that “it is not within the judicial power, as created and regulated by the constitution of Georgia: and it naturally, as well as tacitly, belongs to the legislature.” Justice Bushrod Washington (George’s nephew and heir) was satisfied that “The constitution of Georgia does not expressly interdict the passing of an act of attainder and confiscation, by the authority of the legislature.” Chase, again, hesitated, but observed (referring to the Invalid Pensions Act controversy):
It is, indeed, a general opinion, it is expressly admitted by all this bar, and some of the Judges have, individually, in the Circuits, decided, that the Supreme Court can declare an act of congress to be unconstitutional, and, therefore, invalid; but there is no adjudication of the Supreme Court itself upon the point.
Three years later, that adjudication was finally ripe. Marshall’s opinion was joined by the other three justices to hear the case: Paterson, Chase, and Washington. All came around to the view that the justices had danced around for eleven years. It specifically referenced the Invalid Pensions Act brouhaha:
It must be well recollected that in 1792, an act passed, directing the secretary at war to place on the pension list such disabled officers and soldiers as should be reported to him, by the circuit courts, which act, so far as the duty was imposed on the courts, was deemed unconstitutional; but some of the judges thinking that the law might be executed by them in the character of commissioners, proceeded to act, and to report in that character. This law being deemed unconstitutional at the circuits, was repealed, and a different system was established. . . .
Marshall’s broadside at Jefferson and Madison attracted more attention than his assertion of judicial review; Hamilton’s own newspaper, the New-York Evening Post (now the New York Post), blared in its headline, “CONSTITUTION VIOLATED BY THE PRESIDENT.” With few acts of Congress being struck down before the 1890s (the next one would be in Dred Scott in 1857, under dubious circumstances), it was not until the 20th century that the legal profession began to treat Marbury as a milestone. Which it was: but it was not an act of creation ex nihilo.