The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I can't believe that this is the hill that Ed Whelan and Greg Weiner really want to fight on, but I am prepared to defend the high ground: the original meaning of the "judicial power" included the power to declare laws "null and void" and, as a co-equal branch of government, the concurrence of the judiciary on the constitutionality of a law is needed when the law is properly challenged by a member of We the People.
In my view, when one does originalism, one must report all the evidence one finds in a particular source, so in my 2004 article, The Original Meaning of the Judicial Power, I presented all the evidence I found on this subject in Madison's notes of the Philadelphia, including the one person-John Mercer-who did not like this power (though he never denied its existence). I then presented Gouverneur Morris's reply that he could not agree with Mercer that the judiciary "should be bound to say that a direct violation of the Constitution was law."
According to Morris, "A control over the legislature might have its inconveniences. But view the danger on the other side." A "control over the legislature" does not imply that only the parties before the court are bound by its decision, as Whelan continues to maintain. And Morris was the man credited with drafting the actual words of the Constitution.
Whelan was also not persuaded by these quotes:
- Roger Sherman: A congressional power to nullify state laws was "unnecessary, as the Courts of the States would not consider as valid any law contravening the Authority of the Union…."
- James Madison: favored such a negative because states "will accomplish their injurious objects before they can be . . . set aside by the National Tribunals."
- Gouverneur Morris: the legislative negative was unnecessary because "A law that ought to be negatived will be set aside in the Judiciary department."
- Luther Martin: including judges in a council of revision of federal laws was improper because "as to the Constitutionality of laws, that point will come before the Judges in their proper official character. In this character they have a negative on the laws."
- George Mason: judges should not be on such a council because "in their expository capacity of Judges they would have one negative…. They could declare an unconstitutional law void."
- James Wilson: Favored a council, but conceded that there "was weight in this observation" that "the Judges, as expositors of the Laws would have an opportunity of defending their constitutional rights."
- Gouverneur Morris: favored ratification of the Constitution by the people in convention because legislative ratification of the new Constitution was prohibited by the terms of the Articles of Confederation. "Legislative alterations not conformable to the federal compact, would clearly not be valid. The Judges would consider them as null & void."
- James Madison: argued that a difference between a league or confederation among states and a constitution was precisely its status as binding law on judges. "A law violating a treaty ratified by a pre-existing law, might be respected by the Judges as a law, though an unwise or perfidious one. A law violating a constitution established by the people themselves, would be considered by the Judges as null & void."
- Hugh Williamson: an express prohibition on ex post facto laws by states "may do good here, because the Judges can take hold of it."
Whelan contends that when these people say "the judges would consider" laws "null and void," their decidion only legally binds the parties before the court. "[N]one of this speaks with clarity or force to the judicial-supremacist claim that other governmental actors must abide by a federal judge's view that a law is unconstitutional." Even if this was a defensible reading of "null and void"-which I deny-it does not apply to statements like Morris's that the judicial power constitutes "a control over the legislature."
But what about the state ratification conventions? As it happens, both federalist and antifederalist delegates viewed the "judicial power" the same way.
- James Wilson: "If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void; for the power of the Constitution predominates. Any thing, therefore, that shall be enacted by Congress contrary thereto, will not have the force of law." Wilson thought that such exercising such power was a duty of judges: "What House of Representatives would dare to impeach, or Senate to commit, judges for the performance of their duty?"
- Oliver Elsworth (the second Chief Justice): "This Constitution defines the extent of the powers of the general government. If the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void. On the other hand, if the states go beyond their limits, if they make a law which is a usurpation upon the general government, the law is void; and upright, independent judges will declare it to be so.
- John Marshall (the third Chief Justice): If the government of the United States "were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. They would not consider such a law as coming under their jurisdiction. They would declare it void.
In North Carolina:
- William Davie: "Every member will agree that the positive regulations ought to be carried into execution, and that the negative restrictions ought not to [be] disregarded or violated. Without a judiciary, the injunctions of the Constitution may be disobeyed, and the positive regulations neglected or contravened." He then argued that, should states impose duties on imported goods, "the Constitution might be violated with impunity, if there were no power in the general government to correct and counteract such laws. This great object can only be safely and completely obtained by the instrumentality of the federal judiciary." May "be disobeyed" by whom? By the other branches.
Even opponents of the Constitution conceded the existence of judicial nullification, though as at the Philadephia convention some again questioned its efficacy:
- In Maryland, Luther Martin thought that the constraints of the constitution were objectionable because whether "any laws or regulations of the Congress, any acts of its President or other officers, are contrary to, or not warranted by, the Constitution, rests only with the judges, who are appointed by Congress, to determine; by whose determinations every state must be bound."
- In Virginia, Patrick Henry thought the federal judiciary would be too weak to stand against Congress and the President: "The honorable gentleman did our judiciary honor in saying that they had firmness to counteract the legislature in some cases. Yes, sir, our judges opposed the acts of the legislature. We have this landmark to guide us. They had fortitude to declare that they were the judiciary, and would oppose unconstitutional acts. Are you sure that your federal judiciary will act thus? Is that judiciary as well constructed, and as independent of the other branches, as our state judiciary? . . . I take it as the highest encomium on this country, that the acts of the legislature, if unconstitutional, are liable to be opposed by the judiciary. [As it happens, Henry was prescient.]
- Also in Virginia, William Grayson, another opponent of the Constitution, observed that "If the Congress cannot make a law against the Constitution, I apprehend they cannot make a law to abridge it. The judges are to defend it."
This evidence illustrates how the original meaning of the text transcends disputes between contending political parties. Both sides typically used the same words to describe the same thing. I could find no dissent from this interpretation of the "judicial power" in any of the ratification debates.
The power to declare an unconstitutional law "null and void" is a power to nullify or "set aside" unconstitutional laws. All these examples show that this power had the effect of voiding a law, like voiding a contract. It ceases to be binding. When Grayson said that Congress "cannot make a law against the Constitution," he meant that it "cannot make a [valid and binding] law against the Constitution." And so too are states "bound" by the rulings of the judiciary. It is simply a pernicious myth that John Marshall invented the power of judges to nullify unconstitutional laws (which he never called a "power of judicial review").
Perhaps the best example of evidence supposedly to the contrary was Madison's objection to this judicial power expressed in his Observations on the "Draught of a Constitution for Virginia," written in 1788. Madison proposed that vetoed or nullified bills reenacted by specified supermajorities in either or both houses should become law over the objection of either the executive or the judiciary stating: "It sd. not be allowed the Judges or the Ex to pronounce a law thus enacted, unconstitul. & invalid." Nevertheless, notice how he equated a judicial pronouncement of unconstitutionality with the presidential veto (then assumed to be limited to constitutional objections). And Madison acknowledged that in the Constitution then pending ratification, only the executive veto may be overridden by a supermajority of both houses. As a result,
In the State Constitutions & indeed in the Fedl. one also, no provision is made for case of a disagreement in expounding them; and as the Courts are generally the last in making their decision, it results to them, by refusing or not refusing to execute a law to stamp it with its final character. This makes the Judiciary Dept paramount in fact to the Legislature, which was never intended, and can never be proper.
As I expressed in my previous post, I disagree with Madison here. Being last does not make the judiciary in any sense "paramount" but merely equal to the other branches. After all, Congress may refuse to enact a law because it deems it to be unconstitutional and, because it is first, the bill never reaches the courts who may disagree. This does not render Congress paramount to the courts. By the same token, if the president vetoes a bill and his veto is sustained, the courts do not get to reverse that decision and uphold the bill as constitutional. Instead, in our system, absent a legislative supermajoritarian override of a presidential veto, all three branches must concur before it is found constitutional. Any one branch may scuttle a law because it alone deems it unconstitutional. If the judiciary deferred to Congress, this would double count the opinion of legislative branch.
But Madison changed his mind about this. Not only did he strongly assert the power of the judiciary to enforce the express constraints on legislative power in his Congressional speech proposing a bill of rights ("independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights"), he later criticized the reasoning of Marshall's opinion in McCulloch v. Maryland upholding the constitutionality of the second national bank, a bill that Madison had signed into law as President.
Madison protested that Marshall's interpretation of "necessary" takes the Clause outside the province of the courts, asking rhetorically, "does not the court also relinquish, by their doctrine, all control on the legislative exercise of unconstitutional powers?"Madison objected to interpreting "necessary" as merely expedient or convenient, in part, because doing so would place the matter "beyond the reach of judicial cognizance."' Ultimately, he questioned, "by what handle could the court take hold of the case?"
This is consistent with Madison's bank speech as a congressman responding to the suggestion that "necessary" meant "expedient": "[W]e are told, for our comfort, that the Judges will rectify our mistakes. How are the Judges to determine in the case; are they to be guided in their decisions by the rules of expediency?"
I do not believe that the Constitution means what the Supreme Court says it means (and for this reason I am skeptical of adhering to precedents that are contrary to the text of the Constitution). And I tend to agree with Madison that the justices should render their opinions seriatim or individually. John Marshall's innovation of adopting "opinions of the Court" has served to unduly elevate the wording of judicial opinions into rules of law or super statutes, and is yet another reason why he is among my least favorite justices.
But I do believe that, when the Supreme Court finds that a law is unconstitutional, under our system of government, that law is rendered null and void. It ceases to be binding on the citizenry and the executive branch would literally be acting lawlessly by continuing to enforce it. Just as Congress may reenact a law that has been vetoed by the president, under the separation of powers, the Supreme Court may not enjoin Congress from either reenacting a previously invalidated law, or from enacting other laws in defiance of the Court's reasoning, but a law that has been nullified is no longer the law of the land, and the executive may no longer enforce that law. End of story.
A null and void law is like a dead parrot (if you have read this far, you deserve a reward).
In his blog post Whelan invokes Lincoln's opposition to the Dred Scott case. As it happens, I have spent several years closely studying the antislavery constitutionalism that led to the formation of the Republican party (which you can read here and here). But this post is already too long, and I must confine myself to the evidence of original meaning that I have presented.
Of all the controversies about original meaning, this one is not even close. If all this evidence of original meaning is not enough to persuade you, then you are simply not persuadable by evidence.