The Activist

by Lawrence Goldstone

  In this, Justice Scalia’s argument is very powerful. The Constitution proclaims itself the “supreme law of the land,” and so the text of that document is, to use the justice’s term, “a super-law.” And who more than those who represent the pinnacle of legal knowledge and achievement, the justices of the Supreme Court, should be entrusted to administer and evaluate this law?

  Once again, however, the argument teeters on whether or not the Court and the sitting justices are seen as judicial or political beings. Justice Scalia would certainly assert himself to be the former, one who therefore exercises judgment objectively—or as objectively as possible—basing decisions only on law and precedent, removed from the grime of power politics. In this, the justice would get no argument from virtually every other justice, law school professor, and legal scholar, regardless of location on the conservative/liberal continuum. After all, responsibility to “say what the law means” certainly implies the elimination of point of view or partisanship. Justice Scalia quite rightly decries any judge who rules on a case simply based on his or her opinion of what the law should be, in other words, makes up law on the fly to suit personal taste. It is the very essence of originalism to avoid such tortured subjectivity. If this is true, it would seem to make perfect sense that the Constitution would implicitly and inarguably grant the power of interpretation to the Court.

  But the Constitution is, after all, not only America’s supreme legal instrument, but also its preeminent political document. It is used not only to determine questions of justice, but also of power. It provides not only rules whereby one party can prevail over another in a court of law, but also at the ballot box, and ultimately the councils of government. Thus the question of whether or not the Supreme Court has the right to inject itself into the political process becomes intertwined with its post-Marbury role of applying the law.

  It is not uncommon for one person or group of persons—originalists, for example—to decide that their understanding of the text is objectively true while their adversaries are merely “interpreting” or “extrapolating.” At that point, originalism ceases to be a legal term and becomes a political one. If Supreme Court justices, regardless of ideology, cannot help but function as political beings—to “legislate from the bench”—it would seem inconceivable that the framers, who took such enormous pains to create a government based in elections and on mutual accountability, would have granted the overarching power to define the Constitution to an unelected, unaccountable body.

  Yet Americans are regularly told, not only by most of those who study government, but also by journalists and commentators, that the executive and legislative are the two “political” branches of government, thereby implying that the judicial branch is somehow above politics. This definition obviates the need for political control, thus allowing the judiciary to function without significant checks in a checks-and-balances system.*

  Vital, then, is to disentangle the political and the judicial qualities of both the Constitution and the Court, both in the present and in historical context. A determination of to what extent Marbury v. Madison was a judicial act and to what extent political will provide great insight into what extent originalism is a judicial doctrine and to what extent political.

  Tracing the evolution of the Court and the judicial branch from their formation at the Constitutional Convention in 1787, then proceeding through the events leading up to the case, examining the outcome and Marshall’s opinion—and doing so through a textualist’s eye, subjecting Marbury to the test Justice Scalia advocates for other questions before the Court—is the best way in which to reach such a determination. Only if tangible evidence exists that Convention delegates, ratification delegates, senators and representatives who passed judiciary legislation, and even other justices, saw the courts as textualists do, will it be possible to determine whether or not, as Justice Scalia says, judicial review is a self-evident aspect of the Supreme Court’s power.

  So, with Marbury goes textualism. Either it is a philosophy on how to view the law, or it is simply a different sort of rationalization that allows its proponents to grab for political power.

  * “John Adams’s Federalists” is something of a misnomer, since there were large numbers of Federalists under the spiritual leadership of Alexander Hamilton, often called “High Federalists,” who detested Adams almost as much as Jefferson and plotted actively for his defeat. Under the circumstances, that Adams did as well as he did was amazing.

  † Without the electoral bulk that slave states achieved through the 3/5 compromise, Adams would have been re-elected, 63–61.

  * It was not Adams who finished second, but rather Jefferson’s vice presidential candidate, Aaron Burr.

  † The District of Columbia was originally a ten-mile-square city with sections on either side of the Potomac. In 1801, the Maryland side was designated Washington County (“Washington, D.C.”) and the Virginia side Alexandria County (which was called “Alexandria, D.C.”), and citizens of each county were allowed to vote in the appropriate state. In 1846, Alexandria County reverted to Virginia, and Washington was all that remained of the District.

  * Jefferson eventually relented and accepted all but seventeen of Adams’s appointments.

  † Marbury, who was from Baltimore, was an especially attractive target. A fervent Adams supporter, he made no secret that he favored a change in the way presidential electors were selected in Maryland. If Marbury had had his way, it might have tipped the balance of the election and returned Adams to the White House for a second term.

  * Two decades later, another Marshall antagonist, Andrew Jackson, would state famously, “The chief justice has made his ruling. Now let him enforce it.”

  * Impeachment being a difficult, unwieldy, and therefore rare alternative.

  PART I

  CREATING A JUDICIARY

  TWO

  CONVENTION: A FEW GOOD MEN

  FROM MAY 25 TO SEPTEMBER 17, 1787, a federal convention met in secret on the ground floor of the State House in Philadelphia with the aim of refashioning the Articles of Confederation by which the fledgling United States had been governed since 1781.1 Congress had petitioned all thirteen states to send representatives to this meeting, and eventually fifty-five men from twelve states did take part, only Rhode Island refusing to participate. While a few of the men who attended, most notably James Madison, saw the convention as an opportunity to scrap the Articles entirely and start from scratch, most had assumed that the Philadelphia conclave would be just another in a string of feeble attempts at reform. As a result, many of the delegates exhibited a marked lack of enthusiasm and contributed next to nothing during the four months. Attendance, even among the committed, could generously be described as spotty, and no more than ten of the fifty-five were present for all of the sessions.* A small percentage of delegates dominated the debates; although thirty-nine of them eventually signed the Constitution, in a very real sense fewer than twenty could truly be called “framers.”† Perhaps the less zealous members did not realize the role that history had staked out for them, since most expected to retain both the form of the existing government and the power and prerogative of the individual states. Figuring out how to give a central government more power without sacrificing any themselves did not promise to be a gratifying exercise.

  The men who came to Philadelphia were an appropriate group to create a document that would be “the supreme law of the land.” Of the fifty-five, fully thirty-five have been described as “lawyers” or having “some legal training.”2 The percentage is higher still in the group that did most of the talking. Of those roughly seventeen, thirteen had substantial legal training or experience. Even so, pragmatic trial lawyers like South Carolina’s John Rutledge or Luther Martin of Maryland had little in common with legal theorists like Madison.

  Under the Articles of Confederation, the government of the United States consisted of only one branch, the legislative, with only a single house of Congress. There was no executive
and no national judiciary;3 general agreement existed that if the government was to be strengthened, both would be required. Deciding how to establish each of these new departments and what powers to give them, however, was a thornier matter.

  With the executive, the chief stumbling block was a lack of consensus among the delegates on even the fundamental definition of a head of state. Should the executive be one man or three? How long should he serve? Should he be eligible for reelection? How should he be elected? What powers should he exercise? What should be the limitations on those powers? Should he be called “Your Excellency”? All of these were brought to the floor, discussed, voted on, then scrapped, only to have the process begin again. More than sixty separate votes were ultimately required to complete Article II of the Constitution. The delegates were forced to spend such time and energy working through these permutations because, although the need for some form of head of state was unquestioned, no institution was in place that might serve as a model. State executives, where they existed, would not do.4 These offices were deemed either too parochial or too arbitrary to fit into a checks-and-balances system. There was no alternative for the delegates but to grind it out.

  A national judiciary faced a different set of obstacles. Although the need for some form of national court was apparent, many delegates opposed a national court system. Each state already had a functioning legal apparatus whose power and responsibility would necessarily be diminished as those of a national judiciary were enhanced. The delegates, therefore, were reluctant to grant any national court too broad a scope. Moreover, state courts were seen by many as tools of the rich, the instrument by which creditors enforced their claims on debtors—often struggling farmers—and helped centralize first economic and then political power.5 Placing a high court in the national capital or lower courts in state population centers (where federal courts were likely to sit) would further disenfranchise and disillusion the common man.

  Federal courts offered other troubling scenarios. Ceding local or state control over the judiciary to a national court that might not contain a single member from one’s own state promised to raise a significant howl. As the powers granted a national court increased, the fear that federal judges would act despotically toward individual state governments increased as well. South Carolinians or Virginians justifiably wondered whether a supreme court would undercut the rights of slaveholders, while New Englanders feared an active judiciary limiting rights to commerce. Add to that the projected cost of a federal court system to a virtually bankrupt nation, and it is not difficult to understand why the delegates in Philadelphia were inclined to tread lightly in empowering the national judiciary.

  As a result, after the delegates agreed on a national tribunal—a “supreme court”—vast disagreement remained on whether the new government should include a national court system at all. An alternative was to empower state courts to simply expand their jurisdictions and hear federal cases, with the Supreme Court exercising appellate power over their decisions. Yet in some cases, such as maritime claims or those involving ambassadors or other foreign officials, many delegates were not willing to entrust jurisdiction to state courts. Because of all this uncertainty, details of the actual structure of the court system seemed far less urgent—and less advisable—to define than those of the legislature or the executive.

  Thus, compared to the protracted negotiations over the other two branches, the makeup of the judiciary was hardly debated. Even the descriptions in the Virginia Plan and New Jersey Plan* were remarkably similar.

  Madison’s resolution in the Virginia Plan began: “that a National Judiciary be established to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature, to hold their offices during good behaviour; and to receive punctually at stated times fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution.”6 The only changes William Paterson made in the New Jersey Plan, submitted later, were to eliminate the provision for “inferior tribunals” and stipulate that judges be appointed by the executive rather than the legislature.7

  As to powers, there was significant overlap as well. Madison gave the inferior federal tribunals original jurisdiction and the Supreme Court appellate jurisdiction over all federal cases. Paterson favored having federal cases originate in state courts, heard by state judges (who, in these cases, would be required to adhere to federal law), with the Supreme Court again holding appellate jurisdiction. Both plans provided the Supreme Court with final authority over “all piracies & felonies on the high seas,” “captures from an enemy,” and “the collection of the National revenue.” Paterson granted the Supreme Court original jurisdiction over impeachments of “National officers,” while Madison kept original jurisdiction in the “inferior tribunals.” Whereas Paterson gave the Supreme Court jurisdiction over “acts for regulation of trade,” Madison proposed a sweeping power under which the Supreme Court could rule over “questions which may involve the national peace and harmony.” Neither plan specified the size or composition of the Supreme Court, nor did either address—or anticipate—granting the Court the power to nullify laws passed by Congress.

  Debate on what was to become Article III, Section 1, which laid out the structure of the national court system, was cursory. The only two issues of contention, both of which were raised before Paterson submitted the New Jersey Plan, had been a minor disagreement as to whether the legislative or the executive branch should appoint judges, and whether or not to create “inferior tribunals.”* The first was settled without debate in favor of the executive, and the second was not settled at all.

  John Rutledge, the ardent proponent of states’ rights from South Carolina, insisted, as did Paterson, that state courts should hear federal cases first and they should “decide . . . the right of appeal to the supreme national tribunal.” Creating distinct lower federal courts would be “an unnecessary encroachment on the jurisdiction of the States and create unnecessary obstacles to their adoption of the new system.”8

  But Madison replied that without lower federal courts “dispersed throughout the Republic,” which could render final judgments, “appeals would be multiplied to a most oppressive degree.” Madison saw risk precisely where Rutledge saw virtue—that state courts would interpret federal law as they saw fit. He added, “An effective Judiciary establishment commensurate to the legislative authority, was essential. A Government without a proper Executive & Judiciary would be the mere trunk of a body, without arms or legs to act or move.”9

  In the end, the delegates decided to allow for “such inferior Courts as Congress may from time to time ordain and establish.” This was less compromise than abdication. With any number of incendiary issues to resolve, they seemed reluctant to add the judiciary to the mix, especially when vagueness appeared to solve the immediate problem nicely. It was a decision that would have serious ramifications in the months ahead.

  James Madison

  An additional debate ensued over what would become Article III, Section 2, which laid out the power of the federal courts, but even here the delegates eventually chose to keep the wording broad and the definitions general.10 The sense of the Convention that the Supreme Court should be primarily an appellate body, having only original jurisdiction in cases “affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party,” was accepted without significant debate.

  Although neither Section 1 nor Section 2 mentions judicial review, most legal scholars have agreed with Justice Scalia that the formal power of a supreme court to overturn acts of the legislature or executive orders was tacitly accepted by the delegates as an obvious and understood power of the federal courts.11 This assertion is generally supported in two ways. First, a number of the delegates made statements in the Convention that seem to indicate either that they favored judicial review or that they considered it implici
t in the judicial function.12 Second, various state provisions seem to indicate that judicial review, as an enunciation of separation of powers, was already an integral part of state government and could therefore logically be expected to be extended to any national system.

  Indeed, with twenty-first-century eyes, separation of powers seems to have become a generally accepted notion by 1787. The Virginia Declaration of Rights, for example, in Article V, stated quite plainly:

  The legislative and executive powers of the State should be separate and distinct from the judiciary; and that the members of the two first may be restrained from oppression, by feeling and participating the burdens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all, or any part of the former members, to be again eligible, or ineligible, as the laws shall direct.13

  Nonetheless, not at all clear is whether Virginians meant that the courts could negate laws passed by the legislature, for plainly stated in Article VII (which is understandably quoted less frequently by partisans of judicial review) is that “All power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.”14