Elements of Law 3.0 Notes and Readings IV-B (The Role of the Courts: Judicial Review, Interpretive Techniques, and Legitimacy--How Courts Engage With Law: The Doctrine of Judicial Review--Judicial Authority to "Say What the Law Is")

(Pix (c) Larry Catá Backer 2013)

I have been posting about the development of a new course I have been developing for our first year law school students, "Elements of Law." (Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum). The SYLLABUS can be accessed HERE.

With this post I continue to share with the class and interested "others" summary study notes for the course readings.  For this post we consider the first part of section IV of the materials:  IV.B.The Role of the Courts: Judicial Review, Interpretive Techniques, and Legitimacy--The Doctrine of Judicial Review--Judicial Authority to "Say What the Law Is".   Comments and discussion most welcome.

The Table of Contents for all of the Lecture Notes may be accessed HERE: Elements of Law 3.0: Table of Contents for Lecture and Reading Notes for An Introduction to U.S. Legal Theory and Practice.

IV.B.The Role of the Courts: Judicial Review, Interpretive Techniques, and Legitimacy--The Doctrine of Judicial Review--Judicial Authority to "Say What the Law Is".

Notes for:

 --Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)

--Cooper v. Aaron, 358 U.S. 1 (1958)

--Edwin Meese III, "The Law of the Constitution,"  Tulane Law Review 61:979 (1987) .

The student has considered started this Part IV of the materials with a consideration of the way in which courts are embedded in the processes of application of law.  Students  noted the structures and habits of action that both embed law within particular jurisdictions and yet also preserve the autonomy of law beyond those jurisdictional borders.  Students also noted the extent to which custom and tradition serve as both a legitimating force for juridical pronouncement and as a standard against which law is applied or developed.   

Especially with the common law, students should consider the way that the judicial enterprise is both inherently conservative but also closely tied to the contextual  realities of the societies in which its pronouncements must be enforced and on whose respect for the courts the enterprise of the judiciary, as authoritative institution for dispute resolution, rests.  With both common law and statutory interpretation, students were also introduced to the importance of technique as a primary means of preserving judicial legitimacy--that is the idea that courts will invoke specific interpretive methodologies that create a distance between the judge as an individual asserting individual values in decision making.  As a consequence, to apply and develop the law, the judge does not engage in an individual exercise or struggle but instead invokes techniques that require her to discern, extract and apply (and in so doing extend and develop) the collective understanding and application of the judicial office (exercised by all judges across time) to the dispute before her.  Judges, then, at their best, might be understood as impersonal incarnations of the abstraction, "the judiciary".   While this theory has been subject to heavy criticisms among another abstraction--the American legal academic elite--and that criticism rehashed for the purpose of furthering ideologically motivated political agendas of both the American left and right, the theory ought to be well understood before assessing the value, if any, of the critiques.   

Lastly, students were introduced to the notion that curts not just apply law (statutory or common law) but that they also apply higher law to test the authority of statutes, common law and regulations, against the jurisdictional constraints built into the structures of constitutional government. That last function--the power of judicial review of the actions of the government apparatus against the higher law of the constitution--has proven to be controversial from the moment of its pronouncement in the Supreme Court of the United States at the inception of the Republic.  It remains controversial today as political systems have sought to either accept or reject this model with sometimes limited success, or to develop modifications ot the model (especially in Europe and Latin America) that have offered a related but quite distinct approach. For this class we will attempt to understand how it is that the ordinary courts of the American Republic could be vested with the authority to determine the legitimacy of the actions of either the co-equal branches of the federal government, or of the actions of inferior governmental units. The object is to look to the original source of that authority, still highly contested opinions of the United States Supreme Court, to extract the legal principals and foundational political theory that animated that decision that that still serves, to a large extent, to support the result.  The student will hopefully discover both the extent to which the decisions, quite logically ordered, represent a deep embedding within the political culture of the late 18th century and of the former American colonies distilled after a long war of independence and the squabbling that came after. The student will also hopefully come to see the way in which the decision is plausible within the context of the times, and especially within a legal context still deeply imbued with the legal cultures of the English common law in a union the political philosophy of which was in a formative period of gestation.  

We start with the germinal case, Marbury v. Madison, 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 20thcenturies.  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 Congress enacted the Judiciary Act of 1801, modifying the Judiciary Act of 1789 by establishing new district courts, expanding the number of circuit courts, 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 by William Marbury, to seek enforcement of his appointment by President John Adams, made at almost the very last possible moment of his waning Presidency, as Justice of the Peace in the District of Columbia. Because President Adams' appointments were made late, the commission 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, with Democratic-Republican majorities also voided the Judiciary Act of 1801, restoring the 1789 Act under the Judiciary Act of 1802. Marbury petitioned the Supreme Court to force the new Secretary of State James Madison to deliver the documents. 

The Court, with John Marshall as Chief Justice, determined that Marbury had a right to his commission and that mandamus 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 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 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 form both functional and formalist approaches to the interpretation of text and case law in the forms of textualism (grounded in the 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. .

Mr. Marbury, then, since his commission was signed by the President, and sealed byt he 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.

That should have been the end of the matter.  But 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

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 have found 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). But instead, Chief Justice Marshall suggested that this conforms an intent not to permit Congressional extension of discretionary jurisdiction; but many of the members of the Congress that enacted the Judiciary Act had been part of or associated with the Constitutional Convention that drafted the Constitution.  The Chief Justice chose not to discern their intent or meaning. 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 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.

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. (Ibid).

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.  (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, Boston University International Law Journal, Vol. 30, 2012).

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 constittuion 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. 

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. (Ibid).

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 fo 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 Justuce 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," 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, 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 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 litigaiton that produced the result.  The effect, then, is to turn judicial constitutional glosses into authoritative law without the need for application, in the pafticular 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 woudl 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, "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 poliitcal 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 generalizewd 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)). 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 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 fo 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 it s application will be understood as arbitrary or personal to the judge.  In that sense, judicial constitutional glosses are law that extend 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.