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.
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).
February 24, 1803, Decided
September 12, 1958, Decided
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 (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.
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.
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, and specifically whether Article III vested the Supreme Court with original jurisdiction in mandamus petitions. The relevant language of Article III provides that
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.
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.
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.
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?
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.
A contrary rule, the Chief Justice argues, would itself contradict the separation of powers at the core of the construction of constitutional government.
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 opinion starts with the invocation of constitutional text and then of its construction in Marbury.
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:
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.
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,” 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.