In defense of judicial equality

Another debate on the proper role of the judiciary has broken out on the interweb. Last time, the debate was over "judicial deference" vs. "judicial engagement." This one is about "judicial supremacy." Michael Paulsen kicked off this round right here with his blog post The myth of judicial supremacy in which he claimed that what he called "the recurrent myth of 'judicial supremacy' in constitutional interpretation" was "wrongly ascribe[d] to the framing generation and to Marbury v. Madison." Then came Ed Whelan, who began his review of Paulsen's book this way: "We live in a legal culture besotted by the myth of judicial supremacy. According to this myth, the Constitution means whatever five Supreme Court justices claim it means, and all other governmental actors are duty-bound to abide by that supposed meaning." Responding to this has been excellent posts by Michael Ramsey, Ilya Somin and Evan Bernick. Ed then replied here and here.

I won't reproduce the debate here, and merely wish to make a conceptual point and offer a a bit of the historical evidence that I presented in my 2004 article, The Original Meaning of the Judicial Power.

Judicial Equality not Supremacy. First the conceptual point. In some respects "judicial supremacy"-like "judicial activism"-is a deliberately loaded pejorative term. I agree entirely with the "departmentalist" vision identified by Paulsen and Whelan that each constitutional actor has a duty to adhere to the written Constitution that is independent of the opinions of other constitutional actors. So, if the Congress independently decides that a particular measure is beyond its enumerated powers or violates the rights of the people, it may decline to pass such a law regardless on whether the Supreme Court would uphold it. I made this argument to the Senate Judiciary Committee in its hearing about the constitutionality of the Affordable Care Act (video of my opening statement is here). Likewise the President may veto a measure that he believes is unconstitutional, independent of the views of Congress or the courts, as Andrew Jackson did with the bill rechartering the second national bank (his veto message is here). In this respect, the other branches are not "bound" by the views of the judiciary.

So, under this departmentalist vision, the Congress and President must agree that a measure is constitutional before it can become law (unless a supermajority of Congress overrides a veto). Conversely, either the Congress or the President may prevent a law from being applied to the citizenry if either thinks the law is unconstitutional. But if the Congress and President both agree that a measure is constitutional, must the judicial branch defer to that assessment? In my view the answer is "no."

As a separate and co-equal branch of government, the judiciary gets to render its opinion on the constitutionality of a law, but only if the other branches first decide the measure is constitutional. Because, as Evan Bernick points out, the judiciary's concurrence that a law is constitutional is a function of its equality to the other branches not its supremacy. And the judiciary only has the option to nullify or invalidate a law, it does not have the power to enact it. This is why judicial nullification is not "legislating from the bench." Judicial negation is not legislation. Only Congress has the "legislative power" to enact the law in the first instance. Should it refuse to enact it, the other branches have no proper constitutional power to do it in their stead. (This is why some of the recent "phone and pen" exercises of executive power are so constitutionally problematic.)

In short, the judicial power to invalidate a law because it is unconstitutional is a manifestation of judicial equality, not judicial supremacy. But this necessarily means that the law is void unless the judiciary concurs, and this judgment is then "binding" on the other branches, just as the other branches refusal to enact or sign a law is binding on the judiciary. But is this view a modern invention? Hardly.

Evidence from the Founding. As Philip Hamburger demonstrates in his book Law and Judicial Duty, the term "power of judicial review" is an anachronism. At the founding it was thought that judges had a duty to follow the law, and that the Constitution was a law that was higher than any statute, however popular. The term "power of judicial review" was not used in Marbury v. Madison, but was invented by progressives in the Twentieth Century, as they sought to undermine the legitimacy of the duty of judges to invalidate unconstitutional laws. Unlike our duties, our "powers" should be exercised with "discretion" and "restraint." But that is another and longer story.

To this, let me add some of the evidence I present at greater length in my article:

Several members of the Constitutional Convention in Philadelphia explicitly assumed that the power to nullify unconstitutional legislation resided in the judiciary even before they settled on the particular wording of the various clauses. Several statements were made in the context of a proposed power of Congress to nullify state laws. Roger Sherman of Connecticut argued that a such a power was "unnecessary, as the Courts of the States would not consider as valid any law contravening the Authority of the Union…." James Madison of Virginia favored such a negative because states "will accomplish their injurious objects before they can be . . . set aside by the National Tribunals." He then cited the example of Rhode Island, where "the Judges who refused to execute an unconstitutional law were displaced, and others substituted, by the Legislature…." Gouverneur Morris of Pennsylvania argued that the legislative negative was unnecessary because "A law that ought to be negatived will be set aside in the Judiciary department." No one in this discussion disputed the power of the judiciary to set aside unconstitutional laws passed by states.

Nor did anyone question that federal judges would have the same power to set aside unconstitutional legislation from Congress. Much is made by critics of judicial review of the Convention's rejection of the proposed council of revision, inferring from this refusal an intention of the framers that the judiciary defer to legislative will. They rarely mention, however, that the most discussed and influential reason for rejecting the council of revision proposal was the existence of a judicial negative on unconstitutional legislation. So powerful is this and other evidence that it strongly supports the conclusion that judicial nullification was included within the original public meaning of the "judicial power."

During a debate concerning whether judges should be included with the executive in a council empowered to revise laws, the comments of several delegates revealed their assumption that federal judges had the inherent power to hold federal laws unconstitutional. Luther Martin of Maryland stated that "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 of Virginia observed that "in their expository capacity of Judges they would have one negative…. They could declare an unconstitutional law void." While he favored the idea of the council, James Wilson of Pennsylvania 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."

The assumption that judges possess the inherent power to nullify unconstitutional laws crops up in a variety of other contexts during the Convention. For example, 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 of North Carolina argued that an express prohibition on ex post facto laws by states "may do good here, because the Judges can take hold of it."

What is striking in light of these statements is that, throughout the duration of the Convention, I could find no one who disputed the existence of a judicial power to nullify unconstitutional laws. No one.

I did find one delegate, John Mercer, who didn't like the idea. But then delegate John Dickenson of Delaware replied that, although he was "was strongly impressed with the remark of Mr. Mercer as to the power of the Judges to set aside the law," he said that he was "at a loss to know what expedient to substitute." Gouverneur Morris took issue with Mercer more sharply, stating that he could not agree that the judiciary "should be bound to say that a direct violation of the Constitution was law. A control over the legislature might have its inconveniences. But view the danger on the other side."

What concerned the framers most was not the existence of the judicial power of nullification, but the likely weakness of the judiciary in holding the line. In this concern, they were prescient. As we saw with the challenge to the ACA, courts more often find a way to "defer" to the majoritarian branches than to stand in the way. For example, James Wilson thought that Congress should have the power to nullify state laws because "[t]he firmness of Judges is not itself sufficient." As I chronicle in my article, the framers' view of the power of the judiciary was manifested in state ratification conventions as well.

So, the "myth of judicial supremacy" is itself a myth. The "judicial power" to nullify unconstitutional laws was no invention of John Marshall in Marbury but was well accepted at the time the Constitution was adopted. All assumed that courts could render a law "void"-indeed that this was their duty-and their judgment would necessarily be binding on the other branches. Nor does this power make the judiciary "supreme." It merely recognizes the concurrence of a coequal judiciary as the last line of defense of the rights retained by the people.