Today in Supreme Court History: December 24, 1798

12/24/1798: The Virginia Resolution, authored by James Madison, is published.

James Madison

Comments

[Rev. Arthur L. Kirkland]

The Volokh Conspiracy has an active Board of Censors but no quality control department?

Perhaps Santa could bring a remedy.

[Eddy]

I got the poison, I got the remedy

https://www.youtube.com/watch?v=MA_v0YMPN9c

[Rev. Arthur L. Kirkland]

'tis the season

[David Welker]

Definitely appreciate the reminder concerning the Virginia resolution, drafted by Madison, as a companion to the Kentucky resolution, drafted by Jefferson.

That the Sedition Act is unconstitutional seems quite clear to modern sensibilities, but apparently there were different views on the meaning of freedom of speech and press.

The passage of the Sedition Act despite the Declaration of Independence, despite the acts of We the People in creating a Constitution, and despite the explicit protection for freedom of speech and press in the Bill of Rights is perplexing and aggravating. I think it might be a good example of how power corrupts.

The Sedition Act was a fundamental challenge to the concept of self-government. A people who cannot debate freely among themselves cannot choose to govern themselves freely either.

Also illustrated by the Virginia Resolution is the idea that "We the People" can read and interpret the Constitution for ourselves. Can a federal government, or any government, for that matter, be the sole judge of its own powers? Can the plain meaning of rights be disregarded at the whim of powerful officials? Today, some may feel we have answered these difficult questions to the extent that we believe that the Supreme Court is "independent" and "separate" from the rest of government. The executive and legislative branches cannot be trusted to be the sole judge of the federal government's power, but the Supreme Court can, despite being part of that federal government.

But as our contentious confirmation hearings prove, the Supreme Court is not completely independent and separate from the rest of the federal government. And as the prosecutions overseen by Supreme Court justices themselves under the Sedition Act proves, Supreme Court justices cannot always be trusted to respect and protect even the most fundamental of rights.

Some also see in the Kentucky and Virginia Resolutions an early tendency towards secession and civil war. Perhaps it is the fear of such an outcome that has led many of us to trust the federal government, through the federal Supreme Court, to so often act as the final interpreter of the Constitution. According to this line of thinking, yes, it may be wrong in principle to allow the federal government to be the final judge of its own power, but the alleged risk of secession and civil war are worse.

But secession or civil war is only one risk or fear. The other risk or fear is losing fundamental rights because we have decided to give one institution the sole power to finally define and determine those rights in practice.

I believe that if the United States has an Achilles heel, this is it. Our country will never be conquered or dominated by a foreign power. But it might be torn apart from within in reaction to a federal government that disregards important fundamental individual rights.

[Eddy]

The trend to secession and civil war was not hindered - indeed, perhaps it was helped - by judicial supremacist ideas. The Dred Scott decision helped exacerbate the problem of slavery and racial caste, and the Democratic insistence that the Republicans were waging war on the Constitution because they contested the decision may have hardened the hearts of the Southern leaders.

Lincoln's First Inaugural showed that *he* certainly didn't see judicial supremacy as the antidote to secession:

"I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes."

https://avalon.law.yale.edu/19th_century/lincoln1.asp

[David Welker]

Yes, this is quite an excellent point. I do not think that judicial supremacy makes civil war less likely.

But I do wonder, why has the idea of judicial supremacy seemed to have gained so much force in the United States? The arguments I hear tend towards the idea that having multiple constitutional interpretations is a recipe for anarchy. But, perhaps as the Dred Scott decision illustrates, a "final" decision on constitutional meaning that people are not prepared to abide by is likely source of danger, not stability.

One problem (perhaps the problem) with the idea of making the Supreme Court the "final" decision-maker on constitutional issues is that it creates a "single point of failure." If you were flying on a commercial aircraft, you would want the plane to have two engines, not one.

Besides this very important practical concern, I just don't think that judicial supremacy is itself the best interpretation of the Constitution itself. The Constitution does not reserve for the courts, certainly not explicitly, the role of final interpreter. And the idea that they should be is counter-intuitive when the document purports to be created by "We the People" and not "We the Courts as your sovereign rulers."