Law at the End of the Day

Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.

Sunday, November 23, 2014

Chapter 16 ( The Doctrine of Judicial Review): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.

--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,

Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of the first chapter of Part IV ( The Role of the Courts: Judicial Review, Interpretive Techniques, and Legitimacy ) -- Chapter 16 (The Doctrine of Judicial Review).

PART IV -- The Role of the Courts:

Judicial Review, Interpretive Techniques and Legitimacy

Chapter 16

The Doctrine of Judicial Review―Judicial Authority to

“Say What the Law Is”

I. Introduction

With Part IV, “The Role of the Courts: Judicial Review, Interpretive Techniques and Legitimacy,” the student arrives at the heart of the course materials. The preceding materials have suggested the central role of the judiciary within the U.S. legal and governmental system. If that is the case, then an understanding of the way in which judges approach their tasks, and the institutional boundaries of that task, are critical elements of the study of the U.S. legal and political system. On an operational level, and for most students of law in the United States, the study of the practices and approaches of judges is important for another reason. Because we are lawyers, and we will spend a great deal of time defending the rights of our clients before tribunals set up for that purpose, it is critical to consider the role of courts and their relationship to law. Indeed, the law-courts relationship is at the heart of our common law system, though the power of that direct relationship has been softened in recent years. It follows that a lawyer ought to be intimately acquainted with the role of courts in law and its relationship to the legislative and executive power.

The section starts with the idea of judicial review and its limits, that is, the nature of the judicial authority to “say what the law is.” The focus is on institutional legitimacy and the evolution of principles of governance that have become the foundation of the American Republic. It also suggests the extent of the uniqueness of the premises that mark the boundaries of judicial power and their role in government and with law. To that end the student is introduced to the germinal decisions that set out the political theory on which the power of the American courts to serve not merely to interpret statutes (and apply them) but also to determine the scope of the authority of the actions of the other political branches of government, and to craft their legal effect. But that authority to legalize the enterprise of the application of the rules through which popular government is ordered, and empowered, by the people, remains a contentious issue.

II. Chapter Readings

· Marbury v. Madison,[1] 5 U.S. (1 Cranch) 137 (1803)

· Cooper v. Aaron,[2] 358 U.S. 1 (1958)

· Edwin Meese III, “The Law of the Constitution,” Tulane Law Review 61:979 (1987)

· Sanford Levinson, “Could Meese be Right This Time?”, Tulane Law Review 61:1071 (1987)

__________

WILLIAM MARBURY v. JAMES MADISON, SECRETARY OF STATE OF THE UNITED STATES.

SUPREME COURT OF THE UNITED STATES

5 U.S. 137; 2 L. Ed. 60
February 24, 1803, Decided

[Available at: http://www.law.cornell.edu/supremecourt/text/5/137]

Afterwards, on the 24th of February the following opinion of the court was delivered by the chief justice.

Opinion of the court.

* * * *

In the order in which the court has viewed this subject, the following questions have been considered and decided.

1st. Has the applicant a right to the commission he demands?

2dly. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?

3dly. If they do afford him a remedy, is it a mandamus issuing from this court?

The first object of enquiry is,

1st. Has the applicant a right to the commission he demands?

His right originates in an act of congress passed in February, 1801, concerning the district of Columbia.

After dividing the district into two counties, the 11th section of this law, enacts, "that there shall be appointed in and for each of the said counties, such number of discreet persons to be justices of the peace as the president of the United States shall, from time to time, think expedient, to continue in office for five years.

It appears, from the affidavits, that in compliance with this law, a commission for William Marbury as a justice of peace for the county of Washington, was signed by John Adams, then president of the United States; after which the seal of the United States was affixed to it; but the commission has never reached the person for whom it was made out.

In order to determine whether he is entitled to this commission, it becomes necessary to enquire whether he has been appointed to the office. For if he has been appointed, the law continues him in office for five years, and he is entitled to the possession of those evidences of office, which, being completed, became his property.

* * * *

It is therefore decidedly the opinion of the court, that when a commission has been signed by the President, the appointment is made; and that the commission is complete, when the seal of the United States has been affixed to it by the secretary of state.

Where an officer is removable at the will of the executive, the circumstance which completes his appointment is of no concern; because the act is at any time revocable; and the commission may be arrested, if still in the office. But when the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights which cannot be resumed.

The discretion of the executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases, where, by law, the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional, power of accepting or rejecting it.

Mr. Marbury, then, since his commission was signed by the President, and sealed by the secretary of state, was appointed; and as the law creating the office, gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable; but vested in the officer legal rights, which are protected by the laws of his country.

To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right.

This brings us to the second enquiry; which is,

2dly. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.

* * * * *

The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.

* * * * *

It is then the opinion of the court,

1st. That by signing the commission of Mr. Marbury, the president of the United States appointed him a justice of peace, for the county of Washington in the district of Columbia; and that the seal of the United States, affixed thereto by the secretary of state, is conclusive testimony of the verity of the signature, and of the completion of the appointment; and that the appointment conferred on him a legal right to the office for the space of five years.

2dly. That, having this legal title to the office, he has a consequent right to the commission; a refusal to deliver which, is a plain violation of that right, for which the laws of his country afford him a remedy.

It remains to be enquired whether,

3dly. He is entitled to the remedy for which he applies.

* * * *

This, then, is a plain case for a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be enquired,

Whether it can issue from this court.

The act to establish the judicial courts of the United States authorizes the supreme court "to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States."

The secretary of state, being a person holding an office under the authority of the United States, is precisely within the letter of the description; and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority, and assigning the duties which its words purport to confer and assign.

The constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present case; because the right claimed is given by a law of the United States.

In the distribution of this power it is declared that "the supreme court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the supreme court shall have appellate jurisdiction."

It has been insisted, at the bar, that as the original grant of jurisdiction, to the supreme and inferior courts, is general, and the clause, assigning original jurisdiction to the supreme court, contains no negative or restrictive words; the power remains to the legislature, to assign original jurisdiction to that court in other cases than those specified in the article which has been recited; provided those cases belong to the judicial power of the United States.

If it had been intended to leave it to the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial powers, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction. If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction, made in the constitution, is form without substance.

Affirmative words are often, in their operation, negative of other objects than those affirmed; and in this case, a negative or exclusive sense must be given to them or they have no operation at all.

It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it.

* * * * *

It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that paper, and therefore seems not to belong to appellate, but to original jurisdiction. Neither is it necessary in such a case as this, to enable the court to exercise its appellate jurisdiction.

The authority, therefore, given to the supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution; and it becomes necessary to enquire whether a jurisdiction, so conferred, can be exercised.

The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide 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.

This original and supreme will organizes the government, and assigns, to different departments, their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.

The government of the United States is of the latter description. The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

Between these alternatives 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 the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature illimitable.

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.

This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.

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; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. 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; if both the law and the constitution apply to a particular case, so that 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.

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions -- a written constitution -- would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favor of its rejection.

The judicial power of the United States is extended to all cases arising under the constitution.

Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?

This is too extravagant to be maintained.

In some cases then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey?

There are many other parts of the constitution which serve to illustrate this subject.

It is declared that "no tax or duty shall be laid on articles exported from any state." Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the constitution, and only see the law.

The constitution declares that "no bill of attainder or ex post facto law shall be passed."

If, however, such a bill should be passed and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavors to preserve?

"No person," says the constitution, "shall be convicted of treason unless on the testimony of two witnesses to the fame overt act, or on confession in open court."

Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?

From these, and many other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature.

Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!

The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on the subject. It is in these words, "I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as ________ according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States."

Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him?

If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.

It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.

The rule must be discharged.

__________

COOPER ET AL., MEMBERS OF THE BOARD OF DIRECTORS OF THE LITTLE ROCK, ARKANSAS, INDEPENDENT SCHOOL DISTRICT, ET AL. v. AARON ET AL.

No. 1

SUPREME COURT OF THE UNITED STATES

358 U.S. 1; 78 S. Ct. 1401; 3 L. Ed. 2d 5

September 11, 1958, Argued
September 12, 1958, Decided

[Available at: http://www.law.cornell.edu/supremecourt/text/358/1]

As this case reaches us it raises questions of the highest importance to the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court's considered interpretation of the United States Constitution. Specifically it involves actions by the Governor and Legislature of Arkansas upon the premise that they are not bound by our holding in Brown v. Board of Education, 347 U.S. 483.That holding was that the Fourteenth Amendment forbids States to use their governmental powers to bar children on racial grounds from attending schools where there is state participation through any arrangement, management, funds or property. We are urged to uphold a suspension of the Little Rock School Board's plan to do away with segregated public schools in Little Rock until state laws and efforts to upset and nullify our holding in Brown v. Board of Education have been further challenged and tested in the courts. We reject these contentions.

* * * * *

The constitutional rights of respondents are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and Legislature. As this Court said some 41 years ago in a unanimous opinion in a case involving another aspect of racial segregation: "It is urged that this proposed segregation will promote the public peace by preventing race conflicts. Desirable as this is, and important as is the preservation of the public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the Federal Constitution." Buchanan v. Warley, 245 U.S. 60, 81. Thus law and order are not here to be preserved by depriving the Negro children of their constitutional rights. The record before us clearly establishes that the growth of the Board's difficulties to a magnitude beyond its unaided power to control is the product of state action. Those difficulties, as counsel for the Board forthrightly conceded on the oral argument in this Court, can also be brought under control by state action.

The controlling legal principles are plain. * * * * In short, the constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted "ingeniously or ingenuously." Smith v. Texas, 311 U.S. 128, 132.

What has been said, in the light of the facts developed, is enough to dispose of the case. However, we should answer the premise of the actions of the Governor and Legislature that they are not bound by our holding in the Brown case. It is necessary only to recall some basic constitutional propositions which are settled doctrine.

Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, "to support this Constitution." Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' "anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . ." Ableman v. Booth, 21 How.506, 524.

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . ." United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a power to nullify a federal court order is similarly restrained. * * * * Sterling v. Constantin, 287 U.S. 378, 397-398.

It is, of course, quite true that the responsibility for public education is primarily the concern of the States, but it is equally true that such responsibilities, like all other state activity, must be exercised consistently with federal constitutional requirements as they apply to state action. * * * * *.

_________

Perspectives on the Authoritativeness of Supreme Court Decisions

THE LAW OF THE CONSTITUTION

Edwin Meese III

61 Tul. L. Rev. 979

Tulane Law Review

April, 1987

(footnotes omitted or renumbered)

__________

Perspectives on the Authoritativeness of Supreme Court Decisions

COULD MEESE BE RIGHT THIS TIME?

Sanford Levinson

61 Tul. L. Rev. 1071

Tulane Law Review

April, 1987

(footnotes renumbered or omitted)

_________

III. The Doctrine of Judicial Review―Judicial Authority to “Say What the Law Is”

With this class the students begin a consideration of Part IV of the materials. This Part rounds out and concludes our introduction to the theory of American Law. It considers in substantially more detail the specifics of the mediating role of the judiciary within American legal theory. To that end the student will be engaging in synthesis of the materials considered in the first three parts of the course, and in particular the application of the sensibilities of common law as they have emerged to produce the modern court as a nexus point for the production of customary law, the interpretation of statutory law and of regulations produced thereunder, and the enforcement under some circumstances, of the techniques of monitoring and assessment in their regulatory aspects. The student will consider as well the techniques embedded in the notion of “the judicial” through which courts ground law in the state even as they seek to preserve law’s autonomy from the state. Special attention will be paid to the way in which the courts have developed techniques to advance their role in the legalization of political organization the student has come to understand as an important aspect of Western constitutional law, something considered in detail in Part III. The focus of these materials, then, is on the character of the judicial institution and its role within Western constitutional states. More importantly (at least with respect to its transposability to other law courses in which the student will enroll) the materials consider the techniques developed by courts to serve in the various role of common law producer, statutory interpreter and referee for the structural division of authority among the institutions of the state. Mastery of an understanding of these techniques, of reading them, understanding their implicit meaning and deploying them in the service of clients’ interests that will distinguish a great from a mediocre lawyer (and jurist).

We start with the germinal case, Marbury v. Madison,[73] 5 U.S. (1 Cranch) 137 (1803). More has been written about this case than virtually any other, with the possible exception of Brown v. Board of Education of Topeka, It played a role in virtually every great conflict that sought to tear the Republic apart, from the issue of slavery and secession to taxation, economic regulation and the social and racial reconstructions of the 19th and 20^th centuries, discussed earlier. For our purposes here, we are neither interested in the quite sophisticated analysis or the polemical structures built on or through the case by generations of lawyers, politicians, statesmen, charlatans and others. Instead we will engage in the deceptively simple exercise of merely trying to understand what Chief Justice Marshall was trying to say.

The case was born of politics and represents one of the first cases in which the Supreme Court was asked to develop legal structural constraints on the operation of American politics (under the legitimizing umbrella of the federal Constitution). John Adams and the Federalist Party, losing the elections of 1801, sought to enact legislation favoring their positions as possible between the announcement of the election results and the assumption of office of their political rivals, Thomas Jefferson and the Democratic-Republican Party. Among these, the lame-duck[74] Congress enacted the Judiciary Act of 1801,[75] modifying the Judiciary Act of 1789[76] by establishing new district courts,[77] expanding the number of circuit courts,[78] and adding additional judges to each circuit. The Act also gave the President the power to appoint Federal judges and justices of the peace. The case arose from out of a petition to the Supreme Court[79] by William Marbury,[80] to seek enforcement of his appointment by President John Adams,[81] made at almost the very last possible moment of his waning Presidency, as Justice of the Peace[82] in the District of Columbia.[83] Because President Adams’ appointments were made late, the commission[84] was not subsequently delivered, a condition necessary for the commission to go into effect at that time. The incoming administration of Thomas Jefferson ordered that commissions still undelivered not be sent out. As a result Marbury could not assume his office. The new 7th Congress,[85] with Democratic-Republican majorities also voided the Judiciary Act of 1801,[86] restoring the 1789 Act under the Judiciary Act of 1802.[87] Marbury petitioned the Supreme Court to force the new Secretary of State James Madison[88] to deliver the documents.

The Court, with John Marshall[89] as Chief Justice, determined that Marbury had a right to his commission and that mandamus[90] was the appropriate means to seek a remedy for this wrong from the courts. But the Court than struck down the provision of the Judiciary Act of 1789[91] that enabled Marbury to bring his petition for mandamus directly to the Supreme Court finding that such a purported act of was beyond Congress’s power under the constraints of Article III of the federal Constitution, at least as a majority of the Court was then willing to interpret the scope of Article III. The Court concluded that the legislation at issue purported to extend the Court’s original jurisdiction[92] beyond that which the Court read into Article III, though it is not clear that this interpretation of the text of Article III was either necessary or the only plausible way of reading Article III. In any case, as a result of this conclusion about the constraining scope of Article III, Marbury was denied his petition for failure to seek the mandamus remedy in the appropriate court.

Our focus will be on the way the Court arrives at the answers to these three questions: the right to the commission, the right to seek a remedy through mandamus, and the whether the court may grant the remedy within its jurisdictional constraints. In the process we will concentrate on the development by this court of the foundational principles of judicial review that have since guided courts in their operation in the United States. We will also begin to unbundle the techniques within which judicial review is legitimated, not an the act of individual judges, but as the aggregate act of institutional courts, techniques derived from both functional and formalist approaches to the interpretation of text and case law in the forms of textualism (grounded in the specific words of law) and orginalism (grounded in the understanding of law). See, e.g., Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts[93] (St Paul MN: West 2013).

First, was Marbury entitled to the commission he demanded? The Court determined that he was. It determined that “when a commission is signed by the President, the appointment is made; and the commission is complete, when the seal of the United States has been affixed to it by the Secretary of State.” (Marbury, supra.). The Court determined while the issue of the completion of appointment is indeed irrelevant when an appointment is revocable at the will of the President. But where the appointment is irrevocable (except for cause) there is a different result; upon appointment all power to revoke disappears and all that is left is the right of the appointee to accept or reject appointment.

Mr. Marbury, then, since his commission was signed by the President, and sealed bythe Secretary of State, was appointed; and as the law creating the office, gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable; but vested in the officer legal rights, which are protected by the laws of his country.

Second, if Marbury has a right to his commission, do the laws afford him a remedy? Here, again, the Court answers in the affirmative. In language that has been echoed over the next two centuries, the Court suggested a basic premise of American law. “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.” (Marbury, supra). This premise is then tied to notions of governmental legitimacy and rule of law (understood as an avoidance of arbitrary government). “The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” (Ibid). Because Marbury had a legal right to the office of justice of the peace, the refusal to deliver the commission constituted a violation of legal right for which he ought to have a remedy.

Third, if Marbury is entitled to a remedy, is mandamus issued by the U.S.: Supreme Court the appropriate remedy for the violation of Marbury’s legally vested rights? It is here that things get a bit complicated. The court first considers whether the law provides for the issuance of mandamus in the original jurisdiction of the Supreme Court. It finds that, indeed, the Judiciary Act vests the Supreme Court with jurisdiction to issue writs of mandamus “in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.” (Ibid). Because the Secretary of State is such an officer, it is clear that such an action is permitted under the statute.

Yet that determination, born out of a simple effort at statutory construction might not have been the only plausible reading of the Judiciary Act. A fair reading of the provision at issue might as plausibly suggested that the Supreme Court had been vested only with appellate jurisdiction in mandamus cases. That reading was possible because the mandamus authority was conferred in a sentence that considered the scope of the appellate jurisdiction of the Supreme Court. Under that reading, that also proceeds from the plain language of the sentence in which the mandamus power was located, Marbury would have been unjustified in seeking to invoke the Supreme Court’s original jurisdiction in this case but would have had to seek mandamus in a lower court first with appeal from a denial of mandamus eventually available to the Supreme Court. That would have ended the litigation entirely.

But determining that the Judiciary Act of 1789 actually conferred jurisdiction on the Supreme Court opened a different set of interpretive issues. If the Supreme Court was granted jurisdiction over mandamus, was such a grant of authority permitted under the constraints on judicial power set in Article III? The Court then raises another and more important constitutional issue: “if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional and therefore absolutely incapable of conferring authority, and assigning the duties which its words purport to confer and assign:” (Ibid). To that end the Court found it necessary to construe Article III of the federal constitution,[94] and specifically whether Article III vested the Supreme Court with original jurisdiction in mandamus petitions. The relevant language of Article III provides that

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Court determined that mandamus was an action was of a character of an original rather than an appellate action. It considered whether the words of the constitution permitted Congress to vest the Supreme Court with original jurisdiction of mandamus petitions. To get there the Court indulged in an assumption of construction, one it made implicitly and without explanation―that Article III § 2 described the whole of the jurisdictional possibilities of the Supreme Court. The Court assumed that the Constitution defined the entire universe of mandatory authority, and by so defining the universe of mandatory jurisdiction, the Constitution would also foreclose any additional possibility of jurisdiction. Effectively it determined that (1) the constitution defined the jurisdiction of the Supreme Court in strictly mandatory terms, and (2) beyond the language of Article III, Congress was without power to vest the Supreme Court with discretionary authority. To support this reading, the Court chose to use a particular canon of construction to construe the meaning of that provision: “Affirmative words are often, in their operation, negative of other objects than those affirmed; and in this case, a negative or exclusive sense must be given to them or they have no operation at all.” (Marbury, supra).

That construction is plausible, but not necessarily the only plausible or the best construction of Article III. It might also have been possible to suggest that Article III provides the structures for the mandatory jurisdiction of the Supreme Court, jurisdictional boundaries that could not be moved by Congress. Thus, Article III prohibits Congress from depriving the supreme court of original and appellate jurisdiction described in Article III §2. But Article III has nothing to say about discretionary jurisdiction, that is of the power of Congress to extend the jurisdiction of the supreme court beyond the minimums expressed in Article III §2. Thus another plausible reading of that section would give Congress the authority to expand but not contract the jurisdiction of the courts. Under this construction it would follow that there would be no constitutional deficiency in the grant of original jurisdiction to the Supreme Court over mandamus petitions (as long as nothing was done to reduce the jurisdiction of that court beyond the minimums identified in that provision). That reading might have been justified by considering that many of the members of Congress that enacted the Judiciary Act (granting mandamus power) were also the members of the Constitutional Convention that drafted the constitution itself. The Act was signed into law by President George Washington without objection. Thus, if the Court had sought an inference of intent in drafting Article III, the Judiciary Act itself could have served that purpose. But the Chief Justice chose to avoid looking for legislative intent—he instead chose a textualist approach, relying on his sense of the meaning of the language within the text of Article III read as a whole. As a consequence, the authority “given to the supreme court, by the act establishing the judicial courts if the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution.” (Ibid).

It then “becomes necessary to enquire whether a jurisdiction, so conferred, can be exercise.” (Marbury, supra). That inquiry requires consideration of a related issue―“whether an act repugnant to the constitution, can become the law of the land.” (Ibid). To answer that question, it became necessary as well for the Chief Justice to unpack a set of basic principles of American constitutional law and political theory that has remained a part of the politico-legal landscape since.

The Chief justice starts from the basic principle of popular democracy organized as a territorially coherent state governed through an organized government whose characteristics and powers serve as the essential and primal act of self-constitution (that is of political being). Thus the popular character of the sovereign act of establishing an apparatus of government, as a contextually and quintessentially American exercise.

Within the American system, then, acts of popular sovereignty operate on a principal that mimics “fiat lux”―an act of germinal creation that once done sets the stage for a long time and produces the higher law structures through which the government is organized and the social order managed in the political sphere. The Biblical allusions are deliberate, they appear implicit in the analysis and would have been well understood at a time when the Christian versions of the Bible would have been well known.

Having created the world of the government of the United States, this “supreme will” (Ibid), the incarnation of the people, “organizes the government and assigns, to different departments, their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.” (Ibid). Thus, the people can either vest the government created with all of the popular power, or it may transfer to the government it organizes only a limited and specific set of power. In the United States, of course, the entire quantum of sovereign power has been transferred to a general government and to the states of the Union, which together exercise the entire power of government. In other states, for example the People’s Republic of China, only limited power may be transferred to the government, the rest to be exercised under the leadership of a party in power.[95]

The Chief Justice tells us that the general government of the United States is one of limited powers. “The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” (Marbury, supra). But these limitations are of no effect, the Chief Justice tells us, if these limits may be ignored by those who the limits are intended to restrain. “It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.” The “plainness” of this proposition is bound up in the fundamental premise that the Constitution (that memorialization of the self-constitutive moment) did not create a “higher law” to which all others are inferior.

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. . . . Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void. (Ibid).

The constitutional order necessarily produces a hierarchy of law by the very nature of the creation of the constitution itself. This, the Chief Justice asserts, is not just legal, but also political theory at the foundation of the organization of the United States, “one of the fundamental principles of our society.” (Ibid).

But this theory then raises an additional problem―if constitutional theory suggests that an act contrary to the constitution is void, then are the courts bound by that void act?

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; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. (Ibid).

Here, the Chief Justice turns from the power of the legislature, to the duty of the Court within a system of divided powers. And here, as well, the common law sensibilities about the business of judges in a world in which law is at once connected to but detached from the apparatus of government.

Here in this compact double paragraph, the Chief Justice invokes the core of the judicial power which the federal constitution has carved out for and assigned to the courts, the invocation of that power only within the context of the resolution of disputes brought by rights bearing individuals, the application of the principles of legal hierarchy to apply laws that appear to conflict, and the duty of the courts to apply the appropriate law where two laws conflict.

A contrary rule, the Chief Justice argues, would itself contradict the separation of powers at the core of the construction of constitutional government.

It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure. (Ibid).

It would, in effect, confer on the Parliament the sort of powers whose exercise by the Westminster Parliament after the 1750s was a leading cause of the American Revolution. “That it thus reduces to nothing what we have deemed the greatest improvement on political institutions―a written constitution―would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction.” (Ibid). To the generation of Americans living in 1803, the reference would have been unmistakable and its resonance to the usurpations of that Parliament (whose actions were not subject to review even if they might contradict the English constitution) would have provided a powerful legitimacy to this reasoning of the Chief Justice; that is if the analogy was accepted.

The Chief Justice then rounds out his argument with an appeal to the text of the Constitution itself―drawing principles from a reading of the text as a whole (what we will come to understand as a structural textual analysis). First, the Chief Justice noted the assignment of the entirety of the judicial power to the federal courts under the constitution; that power could not be curtailed by the assertion of a legislative power that might itself resist the conventional application of judicial power to resolve disputes, including disputes about the authority of a public body to act within its jurisdiction. “Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?” (Ibid). Further support is then extracted form a number of other provisions in the Constitution. “From these, and many other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature.” (Ibid). He ends with a reference to the oath of legislative office that itself was meant to acknowledge constitutional supremacy. “Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.” (Ibid).

The legal and political principles developed by Chief Justice Marshall in Marbury have both remained quite controversial and also roughly authoritative to the present time. (e.g., Kermit Roosevelt III, Judicial Supremacy, “Judicial Activism, Cooper v. Aaron and Parents Involved,”[96]St. Louis University Law Journal 52:1191-1210 (2008)). The implications of the opinion, with respect to the political role of the courts in the management of the structural divisions of authority within the general government of the United States and between that government and those of the states, received it broadest expression in Cooper v. Aaron,[97] 358 U.S. 1 (1958). The case was part of the national social and political turmoil proceeding from the judicial decision to void the power of states to segregate public education facilities on the basis of race and the subsequent resistance of states and localities to that decision. It centered on the efforts to desegregate schools at Little Rock, Arkansas[98] in the late 1950s. Its political importance as well as the role of the courts in refashioning the political issues into the language of the law for the management of the conflict between the parties was made clear by the Supreme Court:

As this case reaches us it raises questions of the highest importance to the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court’s considered interpretation of the United States Constitution. Specifically it involves actions by the Governor and Legislature of Arkansas upon the premise that they are not bound by our holding in Brown v. Board of Education, 347 U.S. 483. . . . We are urged to uphold a suspension of the Little Rock School Board’s plan to do away with segregated public schools in Little Rock until state laws and efforts to upset and nullify our holding in Brown v. Board of Education have been further challenged and tested in the courts. We reject these contentions. (Cooper, supra).

Here the Supreme Court was not being asked to interpret the Constitutional text directly; rather it was asked to interpret and apply its own interpretation of that text as it applied to the issue of the states’ power to segregate public education on the basis of race. And thus it was to the authority of judicial constitutional interpretation of text, rather than of the authority of the text itself, that the case revolved. In essence, the question considered the constitutional authority, and the binding nature of, judicial interpretation (grounded in the language of law) of the meaning and application of the Constitution (a political text cast as law).

The opinion starts with the invocation of constitutional text and then of its construction in Marbury.

Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that “It is emphatically the province and duty of the judicial department to say what the law is.” (Ibid).

From this the opinion extracted another principle, or, perhaps better put, refined a constitutional principle it extracted from Marbury: “This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.” (Ibid). So far there is nothing that suggests more than an application of a fairly routine reading of Marbury and of constitutional principle. It was what followed that appeared to extend the doctrine beyond its early 19th century interpretive scope:

It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, “to support this Constitution.” Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers’“anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . .” Ableman v. Booth, 21 How. 506, 524. (Ibid).

Thus, according to this court, both the constitutional text and the gloss of that text as determined form time to time by the Supreme Court, would have to be treated as equally authoritative and binding, not merely on the parties to the dispute that produced the interpretation (the narrowest possible reach of a judicial decision, even one constraining political action through law) but it binds all political actors as if each had been a party to the litigation that produced the result. The effect, then, is to turn judicial constitutional glosses into authoritative law without the need for application, in the particular context, by parties that might dispute that gloss or its application to their specific circumstances. Opinion becomes law, not in the sense that such law would be understood within the culture of common law, but now more in the character of instrumental legislation as one would expect to proceed from a legislature, or from the people. It is that aspect that has proven especially controversial.

By the 1980s, the resistance to this position had taken on its current form. It was perhaps well described by then President Reagan’s Attorney General, Edwin Meese III,[99]“The Law of the Constitution,”Tulane Law Review 61:979 (1987) . Embracing the fundamental political principles adopted in Marbury, Mr. Meese agrees both that the American system of law-politics is structured by legal instruments and that those instruments are arranged in a hierarchy at the top of which is the Constitution of the general government.

The Constitution is, in brief, the instrument by which the consent of the governed—the fundamental requirement of any legitimate government—is transformed into a government complete with the powers to act and a structure designed to make it act wisely or responsibly. Among its various internal contrivances (as James Madison called them) we find federalism, separation of powers, bicameralism, representation, an extended commercial republic, an energetic executive, and an independent judiciary. Together, these devices form the machinery of our popular form of government and secure the rights of the people. The Constitution, then, is the Constitution, and as such it is, in its own words, “the supreme Law of the Land.” (Ibid., pp. 981-82).

But Mr. Meese would draw a sharp distinction between the law that structures political organization and the powers of government, and the judicial glosses that may flow from it and that serve as the basis for applying that law ordering in cases brought before courts.

Constitutional law, on the other hand, is that body of law that has resulted from the Supreme Court’s adjudications involving disputes over constitutional provisions or doctrines. To put it a bit more simply, constitutional law is what the Supreme Court says about the Constitution in its decisions resolving the cases and controversies that come before it.

In its limited role of offering judgment, the Court has had a great deal to say. In almost two hundred years, it has produced nearly 500 volumes of reports of cases. While not all these opinions deal with constitutional questions, of course, a good many do. This stands in marked contrast to the few, slim paragraphs that have been added to the original Constitution as amendments. So, in terms of sheer bulk, constitutional law greatly overwhelms the Constitution. But in substance, it is meant to support and not overwhelm the Constitution from which it is derived. (Ibid., 982).

And in that distinction must lie a difference in authority and scope of application between the Constitutional text and the glosses of the courts. While judicial opinions interpreting, applying and sometimes voiding legislative, regulatory or executive actions are binding and law in its common law and dispute settlement sense, it is does not, by its pronouncement, acquire the character of generalized legislation. It cannot, if it is to retain its judicial character, and thus its authority under the limited grant of judicial authority to the courts (and no more). A judicial gloss “binds the parties in a case and also the executive branch for whatever enforcement is necessary.But such a decision does not establish a supreme law of the land that is binding on all persons and parts of government henceforth and forevermore.” (Ibid., 983).

To treat constitutional glosses as statutory rather than as common law of the constitution, Meese suggests, distorts the role of the courts and might well itself threaten the separation of powers principles on which the courts’ own authority rests.

The Supreme Court would face quite a dilemma if its own constitutional decisions really were the supreme law of the land, binding on all persons and governmental entities, including the Court itself, for then the Court would not be able to change its mind. It could not overrule itself in a constitutional case. Yet we know that the Court has done so on numerous occasions. . . . These and other examples teach effectively the point that constitutional law and the Constitution are not the same. Even so, although the point may seem obvious, there have been those throughout our history—and especially, it seems, in our own time—who have denied the distinction between the Constitution and constitutional law. Such denial usually has gone hand in hand with an affirmation that constitutional decisions are on a par with the Constitution in the sense that they too are the supreme law of the land, from which there is no appeal.(Ibid., 983-84).

To support his view of the necessary distinction between the judicial role of applying the constitution (the development of its common law of the constitution) and the legislative character of the constitutional text itself, Mr. Meese suggest the example of the Dred Scott case (60 U.S. 393 (1857)[100]). Mr. Meese quoted Lincoln for distinguishing between the legal effect of a constitutional case and its political effect.

Lincoln said that insofar as the Court “decided in favor of Dred Scott’s master and against Dred Scott and his family”—the actual parties in the case—he did not propose to resist the decision. But Lincoln went on to say:

We nevertheless do oppose [Dred Scott] . . . as a political rule which shall be binding on the voter, to vote for nobody who thinks it wrong, which shall be binding on the members of Congress or the President to favor no measure that does not actually concur with the principles of that decision. (Ibid., 984; quoting in part Lincoln/Douglas Sixth Joint Debate at Quincy (Oct. 13, 1858).

The limitations of the effects of judicial construction of the federal constitution, Meese then argues, applies as well to the legislative and executive power. Each ought to interpret and apply its understanding of the constitution in furtherance of the exercise of their respective powers. And the essence of checks and balances produces inter-branch checks to interpretations that may be viewed as exceeding the authority of a branch. But those checks and balances apply, Mr. Meese suggests, in equal measure to the judiciary―at least to the extent that judicial decisions have political effect as law. His principal point is that the American federal system does not create government by judiciary. For that reason, Mr. Meese criticized the underlying principles of Cooper v. Aaron, a case the reasoning of which Mr. disagreed.

Yet Mr. Meese’s arguments can also be as distorting to the understanding of the American system as he claims is the case under the reasoning of Cooper. First, it is unrealistic, and profoundly oblivious to the culture of common law to think that cases have effect only to the parties, as the law of the case. While that might have been true of civil law cases several generations ago, it has never been understood as part of the common law. The reason is that, while the specific holding of a case does authoritatively bind only the parties thereto, the reasoning of the case and the standards used to articulate and apply the law, become part of the web of cases that together must serve as the foundation and sources for the application of the law by future courts. To think otherwise is to disregard one of the most critical struts supporting the legitimacy of the judicial function (Larry Catá Backer, “Chroniclers in the Field of Cultural Production: Interpretive Conversations Between Courts and Culture,”[101] 20 Boston College Third World Law Journal 291 (2000)). Indeed, case glosses provide the distance necessary to separate the person of a single judge form the body of law that may be applied with a substantially reduced likelihood that its application will be understood as arbitrary or personal to the judge. In that sense, judicial constitutional glosses are law that extends beyond the four corners of the decision itself. But that extension applies with the greatest force to the judges who must apply the gloss, and with least effect to officials with their own constitutional duties and authority. It is in this sense that Mr. Meese might be understood as providing a reasonable caution about over-reading the thrust of cases like Cooper v. Aaron. While courts must respect the Supreme Court’s constitutional glosses, officials need not and individuals may not, though each runs the risk that when disputes arise that touch on those glosses, the courts may continue to apply it as the law relevant to the resolution of the dispute. At its limit, of course, the people may overrule judicial constitutional glosses through amendment of the text of the constitution itself, or by engaging in long term campaigns, through the courts, to change the thrust and content of even long held glosses. It is in this context that interest litigation has been born and now constitutes a critically important part of American politics through law.

Sanford Levinson, however, provides at least some support for Mr. Meese’s arguments- That support comes not so much form law as from politics. It reflects a sentiment, more powerful in the last third of the 20^th century, that grew troubled by the legalization of governance and its transformation from a political to a legal system. That is, Levinson worries that the traditional autonomy of law from government had shifted, not to the domination of law by the state, but in its inverse—that the language and systemicity of law had consumed government to the point that power had shifted from the people, as popular sovereigns, to the courts, as the mediators of the law.

IV. Problem

Is it the constitutional duty of state supreme court justices to decline to follow the holdings of the Federal Supreme Court in cases where the majority of a state supreme court determines that the federal Supreme Court’s holding or reasoning is in error? What recourse would the federal Supreme Court have where a state supreme court refuses to follow its holding s and order?

__________

Stephen R. GLASSROTH, Plaintiff–Appellee,

Roy S. MOORE, Chief Justice of the Alabama Supreme Court, Defendant–Appellant.

Melinda Maddox, Beverly J. Howard, Plaintiffs–Appellees,

Roy S. Moore, in his official capacity as Administrative Head of the Alabama Judicial System, Defendant–Appellant.

Nos. 02–16708, 02–16949.

335 F.3d 1282

United States Court of Appeals,

Eleventh Circuit

July 1, 2003.

CARNES, Circuit Judge:

The Chief Justice of the Alabama Supreme Court installed a two-and-one-half ton monument to the Ten Commandments as the centerpiece of the rotunda in the Alabama State Judicial Building. He did so in order to remind all Alabama citizens of, among other things, his belief in the sovereignty of the Judeo–Christian God over both the state and the church. And he rejected a request to permit a monument displaying a historically significant speech in the same space on the grounds that “[t]he placement of a speech of any man alongside the revealed law of God would tend in consequence to diminish the very purpose of the Ten Commandments monument.” Glassroth v. Moore, 229 F.Supp.2d 1290, 1297 (M.D.Ala.2002).

The monument and its placement in the rotunda create the impression of being in the presence of something holy and sacred, causing some building employees and visitors to consider the monument an appropriate and inviting place for prayer. Three attorneys who do not consider the monument appropriate at all and who do not share the Chief Justice's religious beliefs brought two separate lawsuits to have the monument taken out. Agreeing with them that it violated the Establishment Clause of the First Amendment, the district court ordered the monument removed. Glassroth, 229 F.Supp.2d at 1319; Glassroth v. Moore, 242 F.Supp.2d 1067 (M.D.Ala.2002). The Chief Justice appealed. We affirm.

Because “[i]n religious-symbols cases, context is the touchstone,” King v. Richmond County, 331 F.3d 1271, 1282, slip op. at 2552 (11th Cir.2003), we set out the relevant facts in some detail, most of which are pulled from the district court's opinion, but a few of which we have drawn from undisputed testimony or other evidence in the record.

Chief Justice Moore began his judicial career as a judge on the Circuit Court of Etowah County, Alabama. After taking office he hung a hand-carved, wooden plaque depicting the Ten Commandments behind the bench in his courtroom and routinely invited clergy to lead prayer at jury organizing sessions. Those actions generated two high-profile lawsuits in 1995 based on the Establishment Clause, one filed by a nonprofit organization seeking an injunction and the other brought by the State of Alabama seeking a declaratory judgment that then-Judge Moore's actions were not unconstitutional. Both suits were dismissed on justiciability grounds. Ala. Freethought Ass'n v. Moore, 893 F.Supp. 1522 (N.D.Ala.1995); Alabama ex rel. James v. ACLU, 711 So.2d 952 (Ala.1998); see Glassroth, 229 F.Supp.2d at 1293–94.

During his campaign for the Chief Justice position in the November 2000 election, *1285 then-Judge Moore's campaign committee, capitalizing on name recognition from the lawsuits, decided to refer to him as the “Ten Commandments Judge.” Although the Chief Justice says he never described himself that way, he did not disagree with his campaign committee's decision. As a result, most of his campaign materials, including billboards, television and radio commercials, telephone scripts, and mailings, described him as the “Ten Commandments Judge” or otherwise referred to the Ten Commandments. The central platform of his campaign was a promise “to restore the moral foundation of law.” Glassroth, 229 F.Supp.2d at 1294.

After he was elected, Chief Justice Moore fulfilled his campaign promise by installing the Ten Commandments monument in the rotunda of the Alabama State Judicial Building. Id. at 1294, 1303. That building houses the Alabama Supreme Court, the Court of Criminal Appeals, the Court of Civil Appeals, the state law library, and the state's Administrative Office of the Courts. The Chief Justice, as administrative head of the Alabama judicial system and as lessee of the Judicial Building, has final authority over the decoration of the rotunda and whether to put any displays in the building. See Ala. Const. Amend. 328, § 6.10; Ala.Code § 41–10–275. Chief Justice Moore placed the monument in the rotunda of the Judicial Building without the advance approval or even knowledge of any one of the other eight justices of the Alabama Supreme Court. All decisions regarding it were made by him. Glassroth, 229 F.Supp.2d at 1294. He did not use any government funds in creating or installing the monument. Id.

Thousands of people enter the Judicial Building each year. In addition to attorneys, parties, judges, and employees, every fourth grader in the state is brought on a tour of the building as part of a field trip to the state capital. No one who enters the building through the main entrance can miss the monument. It is in the rotunda, directly across from the main entrance, in front of a plate-glass window with a courtyard and waterfall behind it. After entering the building, members of the public must pass through the rotunda to access the public elevator or stairs, to enter the law library, or to use the public restrooms. A person walking to the elevator, stairs, or restroom will pass within ten to twenty feet of the monument. The Chief Justice chose the location of the monument so that everyone visiting the Judicial Building would see it. Id.

The 5280–pound granite monument is “approximately three feet wide by three feet deep by four feet tall.” Id. Two tablets with rounded tops are carved into the sloping top of the monument. Excerpts from Exodus 20:2–17 of the King James Version of the Holy Bible, the Ten Commandments, are chiseled into the tablets.

* * *

The monument was installed after the close of business during the evening of July 31, 2001. The Chief Justice has explained that it was done at night to avoid interrupting the normal business of the building. The installation of the monument that night was filmed by Coral Ridge Ministries, an evangelical Christian media outreach organization. Id. at 1294. The organization has used its exclusive footage of the installation to raise funds for its own purpose and for Chief Justice Moore's legal defense, which it has underwritten. Id. at 1304 n. 2.

At the public unveiling of the monument the day after its installation, Chief Justice Moore delivered a speech commemorating the event, and in that speech he talked about why he had placed the monument, which he described as one “depicting the moral foundation of our law,” where he did. He explained that the location of the monument was “fitting and proper” because:

this monument will serve to remind the appellate courts and judges of the circuit and district courts of this state, the members of the bar who appear before them, as well as the people who visit the Alabama Judicial Building, of the truth stated in the preamble of the Alabama Constitution, that in order to establish justice, we must invoke “the favor and guidance of Almighty God.”2

Id. at 1321–24 (App. C—reproducing the full text of Chief Justice Moore's remarks at the unveiling ceremony). During that speech, the Chief Justice criticized government *1287 officials who “forbid teaching your children that they are created in the image of Almighty God” and who “purport all the while that it is a government and not God who gave us our rights,” because they have “turned away from those absolute standards which form the basis of our morality and the moral foundation of our law” and “divorced the Constitution and the Bill of Rights from these principles.” Id. at 1322. Recalling his campaign “pledge to restore the moral foundation of law,” he noted that “[i]t is axiomatic that to restore morality, we must first recognize the source of that morality,” and that “our forefathers recognized the sovereignty of God.” Id. He noted during the speech that no government funds had been expended on the monument.

The Chief Justice described various acknowledgments of God throughout this country's history, some of which, he pointed out, are inscribed on the monument. He proclaimed that the unveiling of the monument that day “mark[ed] the restoration of the moral foundation of law to our people and the return to the knowledge of God in our land.” Id. at 1321. In closing, he told the audience that they would “find no documents surrounding the Ten Commandments because they stand alone as an acknowledgment of that God that's contained in our pledge, contained in our motto, and contained in our oath.” Id. at 1324.

During the trial the Chief Justice testified candidly about why he had placed the monument in the rotunda. The following exchanges between him and one of the plaintiffs' attorneys establish that purpose:

Q [W]as your purpose in putting the Ten Commandments monument in the Supreme Court rotunda to acknowledge GOD's law and GOD's sovereignty? ...

A Yes.

1st Supp. Rec. Vol. 2 at 100.

Q ...Do you agree that the monument, the Ten Commandments monument, reflects the sovereignty of GOD over the affairs of men?

A Yes.

Q And the monument is also intended to acknowledge GOD's overruling power over the affairs of men, would that be correct? ...

A Yes.

Q ... [W]hen you say “GOD” you mean GOD of the Holy Scripture?

A Yes.

1st Supp. Rec. Vol. 3 at 34.

The rotunda is open to the public, but it is not a public forum where citizens can place their own displays. Glassroth, 229 F.Supp.2d at 1303. Chief Justice Moore has denied the two requests that have been made to place other displays in the rotunda. He did so because he believed that those displays would have been inconsistent with the rotunda's theme of the moral foundation of law. An Alabama State Representative asked the Chief Justice if a monument containing the Rev. Dr. Martin Luther King Jr.'s famous “I Have a Dream” speech could be placed in the rotunda. The Chief Justice denied the request in a letter, stating that, “The placement of a speech of any man alongside the revealed law of God would tend in consequence to diminish the very purpose of the Ten Commandments monument.” Id. at 1297. He also denied an atheist group's request to display a symbol of atheism in the rotunda. Id.

The Chief Justice did add two smaller displays to the rotunda at some point after the Ten Commandments monument was installed. The first, a plaque entitled “Moral Foundation of Law,” contains a quotation from the Rev. Dr. Martin Luther King Jr.'s letter from the Birmingham jail speaking of just laws and “the moral law or law of God,” and a quotation from Frederick Douglass speaking of slavery as hiding *1288 man “from the laws of God.” Id. at 1324–25 (App. D—providing a full quotation of the plaque). That plaque, which the Chief Justice paid for with his own money, measures forty-two inches by thirty-two inches. Id. at 1296. The second display is a brass plaque that contains the Bill of Rights. That plaque, measuring thirty inches by thirty-six inches, had been found in a box in the building. The Chief Justice added both plaques because he thought that they “comported with the ‘moral foundation of law theme.’ ” Id. The two plaques are inconspicuous compared to the Ten Commandments monument. Each is not only much smaller than the monument, but also is located seventy-five feet from it. A person standing in front of the monument cannot see either plaque. Nothing about their location or appearance indicates that they are connected to the monument. Id.

The three plaintiffs are practicing attorneys in the Alabama courts. As a result of their professional obligations, each of them has entered, and will in the future have to enter, the Judicial Building. Because of its location, they necessarily come in contact with the monument. The monument offends each of them and makes them feel like “outsiders.” Because of the monument, two of the plaintiffs have chosen to visit the Judicial Building less often and enjoy the rotunda less when they are there. One of those two has avoided the building to the extent of purchasing law books and online research services instead of using the library, and hiring a messenger to file documents in the courts located in the Judicial Building. Id. at 1297.

II.

Pursuant to 42 U.S.C. § 1983, the three plaintiffs sued Chief Justice Moore in his official capacity as administrative head of Alabama's judicial system, claiming that his actions violated the Establishment Clause of the First Amendment as applied to the states through the Due Process Clause of the Fourteenth Amendment. They sought a declaratory judgment that his actions were unconstitutional and an injunction to force him to remove the monument. Prior to trial, Chief Justice Moore's counsel requested—it may have been done jointly, but it is unclear from the record whether the plaintiffs actually joined or simply did not object to the request—that the district court judge visit the monument. The judge did so, accompanied by the attorneys for both sides. Id. at 1295.

* * *

III.

As this Court recently explained, Establishment Clause challenges are not decided by bright-line rules, but on a case-by-case basis with the result turning on the specific facts. King v. Richmond County, 331 F.3d 1271 (11th Cir.2003). As we have already noted, the facts set out in this opinion are taken largely from the district court's findings. The Chief Justice attacks those findings on several bases.

First, he contends that the district court judge should not have made any factfindings based upon his viewing of the monument and its surrounds. The judge unquestionably made important factfindings as a result of what he saw when he viewed the monument and the rotunda in which it is located. That was error, the Chief Justice argues, because he had thought that the only purpose of the district court's view of the monument and the area around it was to provide the court with a physical context within which to assess the evidence admitted in the courtroom.

The sole decision cited by the Chief Justice in connection with the viewing issue is Lillie v. United States, 953 F.2d 1188 (10th Cir.1992), which involved a judge's uninvited viewing of the scene of the accident, outside the presence of counsel and without their knowledge. The Tenth Circuit concluded that was error because, “[w]ithout presence of counsel there is no way to be certain that the premises viewed are in the same condition as when the event occurred, or that the court does not view the wrong premises or objects.” Id. at 1191. That is not a problem in this case, because the district court judge undertook the view only after fully discussing the matter with counsel for both sides and scheduling the time of the viewing with counsel in advance. And he undertook the view in their presence. There was no procedural irregularity or lack of notice.

The district court told the attorneys early in the status conference that if the case was decided on summary judgment motions, the court would not be making any findings of fact from its view. That is, of course, correct. Courts do not find facts when deciding summary judgment motions, but this case was not decided on summary judgment. As we will point out shortly, counsel for both sides fully expected that the district court judge would be considering the facts and circumstances he observed during the view if the case was decided by trial, as it was, instead of on summary judgment.

To the extent the Chief Justice is arguing that factfinders should never find facts from what they observe at a view but should only use what they see to put into context the facts they hear in the courtroom, we agree with the Tenth Circuit that “such a distinction is only semantic, because any kind of presentation to the jury or the judge to help the fact finder determine what the truth is and assimilate and understand the evidence is itself evidence.” Id. at 1190; accord Snyder v. Massachusetts, 291 U.S. 97, 121, 54 S.Ct. 330, 338, 78 L.Ed. 674 (1934) (the “inevitable effect [of a view] is that of evidence, no matter what label the judge may choose to give it”), overruled on other grounds by Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); In re Application to Take Testimony, 102 F.R.D. 521, 524 (E.D.N.Y.1984) (“Authorities now generally agree that the view provides independent evidence.”); Foster v. State, 70 Miss. 755, 12 So. 822, 823 (1893) (“To say the jury cannot receive evidence by simply viewing the scene is to insult common sense. The most convincing evidence is made by the sense of sight. The juror, on the view, sees, and thinks he knows what he sees, with all the conclusions flowing therefrom.”); 6 John Henry Wigmore, Wigmore on Evidence § 1803 (James H. Chadbourn rev.1976) (the jury on a view is receiving evidence because “to view the thing itself in issue—i.e., the premises—is undoubtedly to consult a source of proof”); 2 Jack B. Weinstein, Weinstein's Federal Evidence (2d ed.) § 403.07[4] (2d ed. 2003) (“[T]he modern position is that the view does provide independent evidence.”). Just as pictures of *1290 the monument and the rotunda that were submitted as exhibits are evidence, so too is what the judge saw when he viewed the actual monument and its setting.

In any event, “[i]t is ‘a cardinal rule of appellate review that a party may not challenge as error a ruling or other trial proceeding invited by that party.’ ” United States v. Ross, 131 F.3d 970, 988 (11th Cir.1997) (quoting Crockett v. Uniroyal, Inc., 772 F.2d 1524, 1530 n. 4 (11th Cir.1985)). Counsel for Chief Justice Moore urged the district court judge to undertake a view. When the judge said at a status conference that if summary judgment was granted the issue of looking at the monument would be moot, counsel for the Chief Justice disagreed, protesting that: “I believe it's almost incumbent upon the Court to walk into the Judicial Building,” and “I still think it's almost necessary to take a look at this yourself because of the proximity and also because of just the manner in which the facts play out here.” Rec. Vol. 12 at 15.

The district court judge asked if the lawyers were going to make arrangements for him to see the monument and point out what he was to see. Counsel for the plaintiffs answered, without objection, that both sides had agreed: “you just walk in the front door and everything in the rotunda is fair game. And we believe that the lawyers shouldn't speak unless you've got a question for us. And the lawyers would be there, none of their clients would be there, and that would be it.” Rec. Vol. 12 at 17.

Counsel for the Chief Justice agreed with that statement about how the view should be conducted, and he made clear that the whole point was for the district court judge to be able to gather facts about the monument and its setting, saying:

But I think with either the summary judgment motion or response, and/or the pretrial briefs, that there's going to be a lot of facts in there that will probably give each side's impression of how they interpret the inside of the rotunda. But I agree with [plaintiffs' counsel] that you're a jury. You have to walk in and see what you see and then [sic] just like a juror would.

Rec. Vol. 12 at 16–17.

During argument about the cross-motions for summary judgment, and before the view took place, counsel for the Chief Justice contended that summary judgment was improper because the district court needed to view the monument as part of the necessary “inquiry into the facts and circumstances”:

[T]he issue with regard to how a reasonable person would view the monument would require an examination of what you might call social facts, which would require at least an examination of the monument itself. This is why we believe it's important for you to go into the rotunda and view that monument and view the setting itself. Unless you see it yourself, and since the reasonable person test is a test that's supposed to be applied by the judge, it would be difficult for the judge to apply that particular test unless there was an inquiry into the facts and circumstances with regard to this matter.

Rec. Vol. 13 at 43–44. So eager was he to have the district court judge conduct the view “just like a juror would,” that counsel for the Chief Justice volunteered his help in arranging parking for the district court judge at the Judicial Building. Any conceivable error was not just invited error, but invited error with a parking space.

The Chief Justice also complains that the district court did not state its findings from the view into the record so that the parties would have had an opportunity to *1291 challenge them before the court issued its opinion. He never asked the court to do that, and factfinders traditionally do not state facts into the record before deciding the case; juries never do. The parties were on notice that the court might make factfindings from what it saw during the view, and if either side had wanted those findings stated into the record before a decision was made, it should have requested that extraordinary procedure. Since neither side asked for that procedure, we need not decide whether it would have been necessary or appropriate if requested.

In a related challenge to the district court's findings, the Chief Justice argues that the district court judge should not have relied upon his subjective impressions from viewing the monument and its surrounding space. Recall that this same party's counsel had urged the district court judge to undertake a view in order to find the “social facts” about how a reasonable person would see the monument and its surroundings. When the district court described how the monument and its presentation in the rotunda gave one a “sense of being in the presence of something not just valued and revered (such as an historical document) but also holy and sacred,” Glassroth, 229 F.Supp.2d at 1295, the court was articulating findings about the impression the monument made on the viewer, and would make on a reasonable person viewing it. It was required to do that in order to apply the reasonable person test.

Apart from the factfinding issues arising from the view, Chief Justice Moore also argues that the district court made factfindings not supported by the record. We review district court factfindings only for clear error, and as we have explained, “[w]e cannot hold a district court's finding of fact clearly erroneous unless, in view of the entire record, we are ‘left with a definite and firm conviction that a mistake has been committed.’ ” Eng'g Contractors Ass'n v. Metropolitan Dade County, 122 F.3d 895, 904 (11th Cir.1997) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985)). We cannot reach the requisite definite and firm conviction that a mistake in factfinding has been made, the Supreme Court has told us, where the district court has chosen one of two plausible views of the evidence. Anderson, 470 U.S. at 574, 105 S.Ct. at 1511 (“If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.”) (citations omitted).

The specific factfinding relating to the merits of the constitutional issue that the Chief Justice challenges is the district court's finding that “visitors and building employees consider the monument an appropriate, and even compelling, place for prayer.” Glassroth, 229 F.Supp.2d at 1295. That is at least a plausible view of the evidence in light of the testimony of one of the plaintiffs that she had witnessed a group in prayer around the monument, and the testimony of a building employee that on several occasions he had prayed in front of the monument by himself and with other employees, silently and out loud.

* * *

Because of this country's “history and tradition of religious diversity that dates from the settlement of the North American Continent,” the Founders included in the Bill of Rights an Establishment Clause which prohibits any law “respecting an establishment of religion.” County of Allegheny v. ACLU, 492 U.S. 573, 589, 109 S.Ct. 3086, 3099, 106 L.Ed.2d 472 (1989). In the more than two centuries since that clause became part of our Constitution, the Supreme Court has arrived at an understanding of its general meaning, which is that “government may not promote or affiliate itself with any religious doctrine or organization, may not discriminate among persons on the basis of their religious beliefs and practices, may not delegate a governmental power to a religious institution, and may not involve itself too deeply in such an institution's affairs.” Id. at 590–91, 109 S.Ct. at 3099 (footnotes omitted). Some aspects of the Chief Justice's position in this case are aimed directly at that understanding. Take, for example, the one we address next.

The First Amendment does not say that no government official may take any action respecting an establishment of religion or prohibiting the free exercise thereof. It says that “Congress shall make no law” doing that. Chief Justice Moore is not Congress. Nonetheless, he apparently recognizes that the religion clauses of the First Amendment apply to all laws, not just those enacted by Congress. See Everson v. Bd. of Educ., 330 U.S. 1, 15, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947) (holding that the Establishment Clause applies to the states through the Due Process Clause of the Fourteenth Amendment). Even with that concession, his position is still plenty bold. He argues that because of its “no law” language, the First Amendment proscribes only laws, which should be defined as “rule[s] of civil conduct ... commanding what is right and prohibiting what is wrong.” Brief of Appellant at 19 (quoting 1 William Blackstone, Commentaries *44). Any governmental action promoting religion in general or a particular religion is free from constitutional scrutiny, he insists, so long as it does not command or prohibit conduct. The monument *1294 does neither, but instead is what he calls “a decorative reminder of the moral foundation of American law.” Brief of Appellant at 19.

The breadth of the Chief Justice's position is illustrated by his counsel's concession at oral argument that if we adopted his position, the Chief Justice would be free to adorn the walls of the Alabama Supreme Court's courtroom with sectarian religious murals and have decidedly religious quotations painted above the bench. Every government building could be topped with a cross, or a menorah, or a statue of Buddha, depending upon the views of the officials with authority over the premises. A crèche could occupy the place of honor in the lobby or rotunda of every municipal, county, state, and federal building. Proselytizing religious messages could be played over the public address system in every government building at the whim of the official in charge of the premises.

However appealing those prospects may be to some, the position Chief Justice Moore takes is foreclosed by Supreme Court precedent. Allegheny County, 492 U.S. at 612, 109 S.Ct. at 3110, which held unconstitutional the placement of a crèche in the lobby of a courthouse, stands foursquare against the notion that the Establishment Clause permits government to promote religion so long as it does not command or prohibit conduct. Id., 109 S.Ct. at 3110 (“To be sure, some Christians may wish to see the government proclaim its allegiance to Christianity in a religious celebration of Christmas, but the Constitution does not permit the gratification of that desire, which would contradict ‘the logic of secular liberty’ it is the purpose of the Establishment Clause to protect.”) (citation omitted). To the same effect is the decision in Lee v. Weisman, 505 U.S. 577, 587, 112 S.Ct. 2649, 2655, 120 L.Ed.2d 467 (1992), where the Supreme Court explained that, “[a] school official, the principal, decided that an invocation and a benediction should be given; this is a choice attributable to the State, and from a constitutional perspective it is as if a state statute decreed that the prayers must occur.” And in Jaffree v. Wallace, 705 F.2d 1526 (11th Cir.1983), prob. juris. noted and aff'd in part, 466 U.S. 924, 104 S.Ct. 1704, 80 L.Ed.2d 178, cert. denied sub. nom. Bd. of Sch. Comm'rs of Mobile County v. Jaffree, 466 U.S. 926, 104 S.Ct. 1707, 80 L.Ed.2d 181, and aff'd in part, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985), this Court concluded that “[i]f a statute authorizing the teachers' activities would be unconstitutional, then the activities, in the absence of a statute, are also unconstitutional.” Id. at 1533–35.

Another of the Chief Justice's broad-based attacks on the application of the Establishment Clause to his conduct involves the definition of religion. He insists that for First Amendment purposes religion is “the duty which we owe to our Creator, and the manner of discharging it”; nothing more, nothing less. Brief of Appellant at 11–12 (quoting Virginia Declaration of Rights Art. I, § 16 (1776)). The Chief Justice argues that the Ten Commandments, as he has presented them in the monument, do not involve the duties individuals owe the Creator, and therefore they are not religious; instead, he says, they represent the moral foundation of secular duties that individuals owe to society.

The Supreme Court has instructed us that for First Amendment purposes religion includes non-Christian faiths and those that do not profess belief in the Judeo–Christian God; indeed, it includes the lack of any faith. Allegheny County, 492 U.S. at 590, 109 S.Ct. at 3099 (“Perhaps in the early days of the Republic these words [of the Establishment Clause] were understood to protect only the diversity within Christianity, but today they are recognized as guaranteeing religious liberty and equality to the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism.”) (internal marks omitted); Wallace v. Jaffree, 472 U.S. 38, 52–53, 105 S.Ct. 2479, 2487–88, 86 L.Ed.2d 29 (1985) (“[T]he Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all.”) (footnote omitted); Torcaso v. Watkins, 367 U.S. 488, 495, 81 S.Ct. 1680, 1683–84, 6 L.Ed.2d 982 (1961). Chief Justice Moore's proffered definition of religion is inconsistent with the Supreme Court's because his presupposes a belief in God. We understand that the Chief Justice disagrees with the Supreme Court's definition of religion, but we are bound by it.

As for the other essential premise of Chief Justice Moore's argument—that the Ten Commandments monument depicts only the moral foundation of secular duties—the Supreme Court has instructed us that “[t]he Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact.” Stone v. Graham, 449 U.S. 39, 41, 101 S.Ct. 192, 194, 66 L.Ed.2d 199 (1980) (footnote omitted). The Stone decision did not hold that all government uses of the Ten Commandments are impermissible; they may be used, for example, in a secular study of history, civilization, or comparative religion. Id. at 42, 101 S.Ct. at 194. Use of the Ten Commandments for a secular purpose, however, does not change their inherently religious nature, and a particular governmental use of them is permissible under the Establishment Clause only if it withstands scrutiny under the prevailing legal test. As we discuss next, the use to which Chief Justice Moore, acting as a government official, has put the Ten Commandments in this case fails that test.

For a practice to survive an Establishment Clause inquiry, it must pass the three-step test laid out in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). The Lemon test requires that the challenged practice have a valid secular purpose, not have the effect of advancing or inhibiting religion, and not foster excessive government entanglement with religion. Id. at 612–13, 91 S.Ct. at 2111.

* * *

Applying Lemon, the district court concluded that Chief Justice Moore's purpose in displaying the monument was not secular. It based that conclusion on the Chief Justice's own words, on the monument itself, and on the physical context in which it appears. Glassroth, 229 F.Supp.2d at 1299–1300. The court found the case not as difficult as those in which the Ten Commandments display had “an arguably secular, historical purpose, for the evidence here does not even begin to support that conclusion, nor does the evidence support the conclusion that the Ten Commandments were displayed as sort of a secular moral code.” Id. at 1301. Instead, “[t]he Chief Justice's words unequivocally belie such purposes.” Id.

* * *

Chief Justice Moore testified candidly that his purpose in placing the monument in the Judicial Building was to acknowledge the law and sovereignty of the God of the Holy Scriptures, and that it was intended to acknowledge “God's overruling power over the affairs of men.” 1st Supp. Rec. Vol. 2 at 100; 1st Supp. Rec. Vol. 3 at 34. In his unveiling speech, the Chief Justice described his purpose as being to remind all who enter the building that “we must invoke the favor and guidance of Almighty God.” Glassroth, 229 F.Supp.2d at 1297, 1322 (App. C). And he said that the monument marked “the return to the knowledge of God in our land.” Id. at 1323. He refused a request to give a famous speech equal position and prominence because, he said, placing “a speech of any man alongside the revealed law of God would tend to diminish the very purpose of the Ten Commandments monument.” Id. at 1297.

Against the weight of all this evidence, Chief Justice Moore's insistence in his briefs and argument, and in part of his testimony, that the Ten Commandments as presented in his monument have a purely secular application is unconvincing. That argument is akin to the state's contention in Stone that the fine print about secular purpose on the Ten Commandments posters in that case gave them a constitutionally permissible purpose. 449 U.S. at 41, 101 S.Ct. at 193. At the bottom of each poster was a statement that: “The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the common law of the United States.” Id., 101 S.Ct. at 193. The Supreme Court said, “[u]nder this Court's rulings, however, such an ‘avowed’ secular purpose is not sufficient to avoid conflict with the First Amendment.” Id., 101 S.Ct. at 193–94. The same is true here.

* * *

The parties agree that our review of the district court's effect ruling is plenary. Having reviewed the matter de novo, and aided by the district court's meticulous findings of fact, we reach the same conclusion the district court did, which is to say that we also agree with the concession that Chief Justice Moore made in his testimony when he said that the monument “reflects the sovereignty of God over men.” 1st Supp. Rec. Vol. 3 at 34. The monument fails two of Lemon 's three prongs. It violates the Establishment Clause.

Chief Justice Moore contends that even if it cannot clear the Lemon test, the monument is saved by the Supreme Court's decision in Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). In that case, the Supreme Court considered a challenge to the Nebraska Legislature's practice of employing a chaplain to lead it in prayer at the beginning of each session. Id. at 784–85, 103 S.Ct. at 3332–33. Applying the Lemon test to the practice, the court of appeals concluded that the practice of beginning legislative sessions with prayer violated all three requirements of the test. Id. at 786, 103 S.Ct. at 3333. The Supreme Court, without applying Lemon, reversed on the ground that the challenged practice was “deeply embedded in the history and tradition of this country.” Id. at 795, 103 S.Ct. at 3333, 3338.

* * *

Chief Justice Moore has pointed to no evidence that the Ten Commandments in any form were publicly displayed in any state or federal courthouse, much less that the practice of displaying them was widespread at the time the Bill of Rights was proposed and adopted. However it may be applied in any other context and circumstances, we do not believe that Marsh saves the Ten Commandments monument in this case from the proscriptions of the Establishment Clause.

* * *

VI.

Finally, we turn to a position of Chief Justice Moore's that aims beyond First Amendment law to target a core principle of the rule of law in this country. He contends that the district court's order and injunction in this case contravene the right and authority he claims under his oath of office to follow the state and federal constitutions “as he best understands them, not as understood by others.” Brief of Appellant at 51. He asserts that “courts are bound by the Constitution, not by another court's interpretation of that instrument,” and insists that he, as Chief Justice is “not a ministerial officer; nor is he answerable to a higher judicial authority in the performance of his duties as *1302 administrative head of the state judicial system.”6 Brief of Appellant at 53.

The Chief Justice's brief reminds us that he is “the highest officer of one of the three branches of government in the State of Alabama,” and claims that because of his important position, “Chief Justice Moore possesses discretionary power to determine whether a court order commanding him to exercise of [sic] his duties as administrative head is consistent with his oath of office to support the federal and state constitution.” Brief of Appellant at 54. Article VI, clause 3, of the United States Constitution states: “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution....” Article XVI, section 279 of the Alabama Constitution requires state officials to take a similar oath or affirmation to support the federal and state constitutions. Chief Justice Moore's argument takes his obligation and turns it into a license. To say the least, there is nothing in law or logic to support his theory.

The clear implication of Chief Justice Moore's argument is that no government official who heads one of the three branches of any state or of the federal government, and takes an oath of office to defend the Constitution, as all of them do, is subject to the order of any court, at least not of any federal court below the Supreme Court. In the regime he champions, each high government official can decide whether the Constitution requires or permits a federal court order and can act accordingly. That, of course, is the same position taken by those southern governors who attempted to defy federal court orders during an earlier era. See generally, e.g., Meredith v. Fair, 328 F.2d 586, 589–90 (5th Cir.1962) (en banc) (enjoining Mississippi Governor Ross Barnett from interfering with the district court's order to admit a black student to the University of Mississippi); Williams v. Wallace, 240 F.Supp. 100, 110 (M.D.Ala.1965) (Johnson, J.) (enjoining Alabama Governor George C. Wallace from interfering with and failing to provide police protection for plaintiffs' march from Selma to Montgomery); cf. United States v. Barnett, 376 U.S. 681, 84 S.Ct. 984, 12 L.Ed.2d 23 (1964) (holding that the Governor of Mississippi was not entitled to a jury trial on a charge of criminal contempt for willfully disobeying a temporary restraining order of a federal district court).

Any notion of high government officials being above the law did not save those governors from having to obey federal court orders, and it will not save this chief justice from having to comply with the court order in this case. See U.S. Const. Art. III, § 1; id. Art. VI, cl. 2. What a different federal district court judge wrote forty years ago, in connection with the threat of another high state official to defy a federal court order, remains true today:

In the final analysis, the concept of law and order, the very essence of a republican form of government, embraces the notion that when the judicial process of a state or federal court, acting within the sphere of its competence, has been exhausted and has resulted in a final judgment, all persons affected thereby are obliged to obey it.

United States v. Wallace, 218 F.Supp. 290, 292 (N.D.Ala.1963) (enjoining Governor George C. Wallace from interfering with the court-ordered desegregation of the University of Alabama); accord, e.g., Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958); Sterling v. Constantin, 287 U.S. 378, 397–98, 53 S.Ct. 190, 195, 77 L.Ed. 375 (1932) (stating that if a state Governor could nullify a federal court order “that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases”).

The rule of law does require that every person obey judicial orders when all available means of appealing them have been exhausted. The chief justice of a state supreme court, of all people, should be expected to abide by that principle. We do expect that if he is unable to have the district court's order overturned through the usual appellate processes, when the time comes Chief Justice Moore will obey that order. If necessary, the court order will be enforced. The rule of law will prevail.

VII.

AFFIRMED.

[1] http://www.law.cornell.edu/supremecourt/text/5/137

[2] http://www.law.cornell.edu/supremecourt/text/358/1

[3] Address by President Reagan at the Investiture of Chief Justice William H. Rehnquist and Associate Justice Antonin Scalia (Sept. 26, 1986), reprinted in THE FEDERALIST SOCIETY: THE GREAT DEBATE: INTERPRETING OUR WRITTEN CONSTITUTION 55 (1986) (quoting James Madison’s Letter to Henry Lee (June 25, 1824)).

[4] Id. at 56 (quoting Daniel Webster); see generally 15 THE WRITINGS AND SPEECHES OF DANIEL WEBSTER 520 (1903).

[5] Gladstone, Kin Beyond Sea, 127 N. AM. REV. 185 (1878).

[6] Letter from Richard Henry Lee to Edmund Randolph (Oct. 16, 1787), reprinted in 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 503 (J. Elliot 2d ed. 1836) [hereinafter THE DEBATES].

[7] Schecter, The Early History of the Tradition of the Constitution, 9 AM. POL. SCI. REV. 707, 720 (1915) (quoting W. MACLAY, JOURNAL OF WILLIAM MACLAY 75-76 (1890)).

[8] U.S. CONST. preamble.

[9] Id. art. I, § 9, cl. 3.

[10] Id. art. I, § 10.

[11] THE FEDERALIST No. 51, at 336 (J. Madison or A. Hamilton) (Modern Library ed. 1941):

The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.

[12] U.S. CONST. art. VI, para. 2.

[13] 3 C. WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 470-71 (1923).

[14] 163 U.S. 537 (1896).

[15] 347 U.S. 483 (1954).

[16] 106 S. Ct. 1712 (1986).

[17] Swain v. Alabama, 380 U.S. 202 (1965).

[18] Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856).

[19] 3 THE COLLECTED WORKS OF ABRAHAM LINCOLN 142-43 (R. Basler ed. 1953) (Douglas’s Reply to Lincoln, Third Debate at Jonesboro (Sept. 15, 1858)).

[20] Id. at 243 (Douglas’s Reply to Lincoln, Fifth Debate at Galesbury (Oct. 7, 1858)); see also id. at 112, 267-68.

[21] Id. at 516 (Lincoln, Speech at Springfield (July 17, 1858)).

[22] Id. at 255 (Lincoln/Douglas Sixth Joint Debate at Quincy (Oct. 13, 1858)).

[23] Graves v. O’Keefe, 306 U.S. 466, 491-92 (1938) (Frankfurter, J., concurring).

[24] 5 U.S. (1 Cranch) 137 (1803).

[25] 358 U.S. 1 (1958).

[26] In Brown v. Board of Educ., 347 U.S. 483 (1954), the Supreme Court held that enforced racial segregation in the public schools of a state violates the fourteenth amendment. In an effort to comply with Brown, the Little Rock, Arkansas District School Board fashioned a desegregation plan that was approved by the federal district court. Yet other state authorities, including the Governor, sought to oppose school desegregation. On September 2, 1957, one day before nine black students were scheduled to be admitted to Central High School in Little Rock, the governor of Arkansas dispatched units of the Arkansas National Guard to the school grounds and placed the school “off limits”’ to black students. In subsequent proceedings, the district court granted a School Board petition seeking postponement of the desegregation plan. The Court of Appeals for the Eight Circuit reversed, however, and in Cooper v. Aaron, the Supreme Court affirmed the judgment of the Eighth Circuit, thus reinstating the orders of the district court enforcing the desegregation plan.

[27] Cooper, 358 U.S. at 18. I emphasize that my criticism is aimed at the dictum of Cooper, not the holding, with which I am in complete accord. Furthermore, in my judgment, officials in Arkansas and other states with segregated school systems should have changed those systems to conform with Brown.

[28] In addition to binding the parties in the case at hand, a decision is precedent in that it binds lower federal courts as well as state courts. Furthermore, Court decisions, as Abraham Lincoln once said, are “entitled to very high respect and consideration in all parallel cases”’ by the other departments of government, both federal and state. Lincoln’s First Inaugural Address (March 4, 1861), reprinted in G. GUNTHER, CONSTITUTIONAL LAW 23 (11th ed. 1985). Arguments from prudence, the need for stability in the law, and respect for the judiciary will and should persuade officials of these other institutions to abide by a decision of the court. Supreme Court decisions thus have applicability beyond the instant case, but they are not “the supreme law of the land.”D’

[29] C. HUGHES, THE SUPREME COURT OF THE UNITED STATES 120 (1928).

[30] Other critics of the Cooper dictum include University of Chicago Law Professor Philip Kurland. “The Court here was being carried away with its own sense of righteousness, if . . . it meant that a decision of the Supreme Court was supreme law in the way that a legislative act of Congress was supreme law.”’ P. KURLAND, POLITICS, THE CONSTITUTION, AND THE WARREN COURT 116 (1970). Kurland further noted:

I am not quarreling with the result that the Court reached in Cooper v. Aaron. Indeed, I applaud it. Certainly interference with the effectuation of a decree of a federal court, whether by a governor of a state or a president of a union or a civil rights marcher, is intolerable and cannot be condoned. My question goes only to the elevation of Supreme Court decisions to inclusion in the Supremacy Clause of the Constitution.

Id. at 185.

[31] 49 U.S. 39 (1980) (per curiam).

[32] Marbury, 5 U.S. (1 Cranch) 137, 179-80 (1803) (emphasis added).

[33] Id., at 178.

[34] See generally E. BURNS, JAMES MADISON, PHILOSOPHER OF THE CONSTITUTION 159 (1938).

[35] Letter to Wilson Carey Nicholas (Sept. 7, 1803), reprinted in 8 THE WRITINGS OF THOMAS JEFFERSON 247 (P. Ford ed. 1897).

[36] Lincoln’s First Inaugural Address (March 4, 1861), reprinted in ABRAHAM LINCOLN: A DOCUMENTARY PORTRAIT THROUGH HIS SPEECHES AND WRITINGS 157 (Signet ed. 1964).

[37] P. KURLAND, supra . . . at 186.

[38] CICERO, PRO CLUENTIO 146.

[39] 4 THE DEBATES supra note 4, at 543.

[40] See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (“The government of the United States has been emphatically termed a government of laws, and not of men.”’).

[41] THE DEBATES, supra . . . , at 543.

[42] [Address by President Reagan at the Investiture of Chief Justice William H. Rehnquist and Associate Justice Antonin Scalia (Sept. 26, 1986)] and accompanying text.

[43] 6 THE PUBLIC PAPERS AND ADDRESSES OF FRANKLIN D. ROOSEVELT 124 (S. Rosenman ed. 1941).

[44] Meese, The Law of the Constitution, 61 TUL. L. REV. 979, 981 (1987).

[45] 163 U.S. 537 (1896).

[46] Meese, supra note 2, at 983.

[47] 47 U.S. 483 (1954); 349 U.S. 294 (1955).

[48] Meese, supra note 2, at 985.

[49] Id.

[50] 358 U.S. 1 (1958).

[51] Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).

[52] Meese, supra note 2, at 988.

[53] Competition in Contracting Act of 1984, Pub. L. No. 98-369, 98 Stat. 1175 (codified as amended at 41 U.S.C.A. § 253 (West Supp. 1986)).

[54] aylor, Liberties Union Denounces Meese, N.Y. Times, Oct. 24, 1986, at A17, col. 1.

[55] Id.

[56] Ostrow, Meese: View that Court Doesn’t Make Laws is Scored, L.A. Times, Oct. 24, 1986, §1, at 27, col. 1.

[57] Taylor, supra.

[58] Id.

[59] Lewis, Law or Power, N.Y. Times, Oct. 27, 1986, at A23, col. 1.

[60] Id.

[61] Id.

[62] Brest, Meese, the Lawman, Calls for Anarchy, N.Y. Times, Nov. 2, 1986, at E23, col. 1.

[63] Taylor, supra.

[64] Id.

[65] The Irrepressible Mr. Meese, Wall St. J., Oct. 29, 1986, at 28, col. 1 (editorial) (quoting L. TRIBE, AMERICAN CONSTITUTIONAL LAW 33 (1978)).

[66] Why Give That Speech?, Wash. Post, Oct. 29, 1986, at A18, col. 1 (editorial).

[67] Id.

[68] Id.

[69] Id.

[70] C. GOODMAN, HOW SUPERIOR POWERS OGHT TO BE OBEYD 182 (1558).

[71] Id., 180-81.

[72] See The Supreme Court as Legislator, 46 NEW REPUBLIC 158 (1926) (unsigned article by Frankfurter).

[73] http://www.law.cornell.edu/supremecourt/text/5/137

[74] http://en.wikipedia.org/wiki/Lame_duck_%28politics%29

[75] http://en.wikipedia.org/wiki/Judiciary_Act_of_1801

[76] http://en.wikipedia.org/wiki/Judiciary_Act_of_1789

[77] http://en.wikipedia.org/wiki/United_States_district_court

[78] http://en.wikipedia.org/wiki/United_States_circuit_court

[79] http://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States

[80] http://en.wikipedia.org/wiki/William_Marbury

[81] http://en.wikipedia.org/wiki/John_Adams

[82] http://en.wikipedia.org/wiki/Justice_of_the_Peace

[83] http://en.wikipedia.org/wiki/Washington,_D.C.

[84] http://en.wikipedia.org/wiki/Letters_patent

[85] http://en.wikipedia.org/wiki/7th_United_States_Congress

[86] http://en.wikipedia.org/wiki/Judiciary_Act_of_1801

[87] http://en.wikipedia.org/wiki/Judiciary_Act_of_1802

[88] http://en.wikipedia.org/wiki/James_Madison

[89] http://en.wikipedia.org/wiki/John_Marshall

[90] http://en.wikipedia.org/wiki/Mandamus

[91] http://en.wikipedia.org/wiki/Judiciary_Act_of_1789

[92] http://en.wikipedia.org/wiki/Original_jurisdiction

[93] http://books.google.com/books/about/Reading_Law.html?id=B26UtgAACAAJ

[94] http://www.archives.gov/exhibits/charters/constitution_transcript.html

[95] See, e.g., Backer, Larry Catá, Party, People, Government, and State: On Constitutional Values and the Legitimacy of the Chinese State-Party Rule of Law System,[95]Boston University International Law Journal, Vol. 30, 2012).

[96] https://www.law.upenn.edu/cf/faculty/krooseve/workingpapers/52StLouisULJ1191%282008%29.pdf

[97] http://www.law.cornell.edu/supremecourt/text/358/1

[98] http://www.encyclopediaofarkansas.net/encyclopedia/entry-detail.aspx?entryID=718

[99] http://en.wikipedia.org/wiki/Edwin_Meese

[100] http://supreme.justia.com/cases/federal/us/60/393/case.html

[101] http://www.backerinlaw.com/Site/wp-content/uploads/2012/07/20BCThirdWorldLJ2912000Chroniclers.pdf

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At the end of the day, law?

. . . . Emperors and kings

Are but obeyed in their several provinces,

Nor can they raise the wind or rend the clouds;

But his domain that exceeds in this

Stretcheth as far as doth the mind of man.

A sound magician is a mighty god.

* * *

Cut is the branch that might have grown full straight,

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Faustus is gone; regard his hellish fall,

Whose fiendful fortune may exhort the wise

Only to wonder at unlawful things,

Whose deepness doth entice such forward wits

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