A response to Harlow Giles Unger’s National Constitution Center appearance
In this commentary, David A. Drachsler, a former Labor Department attorney and past vice chairman of the Virginia Council on Human Rights, clarifies some statements made at a recent National Constitution Center event.
With all due respect to Mr. Harlow Giles Unger, his December 15, 2014 interview at the National Constitution Center in connection with his book “John Marshall: The Chief Justice Who Saved the Nation” contains a number of factual errors and historical misconceptions.
To begin with, the decision in Marbury v. Madison was issued in 1803, not in 1808 as asserted by Mr. Unger. (See Marbury v. Madison, 5 U.S. 137 (1 Cranch 137)(1803).[1])
More importantly, Mr. Unger declares that Chief Justice John Marshall “invented” and “created” the principle of judicial review. This is, at best, a blinkered view of legal history. To begin with, before the Constitution was written, at least seven state supreme courts had exercised judicial review under their state constitutions and had invalidated state laws as inconsistent with their constitutions. At the Constitutional Convention in 1787, several of the delegates had personal experience as lawyers with these state examples of judicial review.
Furthermore, several delegates at the Constitutional Convention explicitly referred to the power of the federal courts that were to be established under the Constitution as having the power of judicial review. James Madison himself said: “A law violating a constitution established by the people themselves, would be considered by the Judges as null & void,” echoing the language of Chief Justice Marshall in Marbury v. Madison that “an act of the Legislature repugnant to the Constitution is void.”
At least 25, and as many as 40 delegates to the Constitutional Convention (different scholars have reached different counts) spoke before, during or after the Convention of their interpretation that the federal courts would have the power of judicial review. Ratifying conventions in seven states discussed the power of judicial review, none contravening the concept that the federal courts would have this power. Indeed, several opponents of ratification of the Constitution raised judicial review as an argument against ratification.
Five years before Marbury v. Madison, Justice James Iredell, in a concurring opinion in Calder v. Bull, 3 U.S. 386 (1798), noted that “If any act of Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void; though, I admit, that as the authority to declare it void is of a delicate and awful nature, the Court will never resort to that authority, but in a clear and urgent case.”
Assertion by Chief Justice Marshall of the power of judicial review was unremarkable at that time and in light of the extensive recognition that the Constitution implicitly granted such power to the federal courts. The aspect of Marbury v. Madison, in the early 19th Century and for decades thereafter, that attracted the most attention was the assertion of the power of a federal court to order a high official of the executive to take or refrain from taking an action- that a writ of mandamus could be issued by a federal court to an official in the executive branch.
Scholars of constitutional law and history have noted that “Public comment at the time revolved around other questions raised by the case [other than judicial review], most notably the chief justice’s assertion that the courts could monitor and correct how cabinet members conducted their duties.” (“Making a Mountain Out of a Molehill? Marbury and the Construction of the Constitutional Canon,” by Keith E. Whittington and Amanda Rinderle.[2] )
Whittington and Rinderle also paraphrase Cooley’s “General Principles of Constitutional Law” (1880) that “Marbury was treated as a case about judicial oversight of the executive.” Thomas M. Cooley was a respected lawyer, Chief Justice of the Michigan Supreme Court and noted legal scholar of the late 19th Century.
Thomas Jefferson, of course, disagreed with Chief Justice Marshall’s most famous declaration in Marbury v. Madison, chiseled in marble next to his larger than life statute in the Supreme Court building, that “It is emphatically the province and duty of the Judicial Department to say what the law is.” Jefferson’s disagreement with Marshall’s pronouncement that the courts, in particular the Supreme Court, have the power to determine whether a conflict exists between a statute and the constitution and the power to strike down a law repugnant to the constitution went to the very core of the democratic republic Jefferson believed the constitution established. (Contrary to Mr. Unger’s assertion, Jefferson did not believe the president was in effect a king and could do no wrong. See discussion of amending the Constitution below.)
From the time Marbury v. Madison was issued to the end of his life, Jefferson disputed Marshall’s prescription for resolving conflicts between acts of Congress and the constitution. Just a year after the decision, Jefferson wrote Abigail Adams, “”The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.” (Thomas Jefferson to Abigail Adams, 1804. )
Jefferson expressed the same opinion to many others: “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. . . . The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.” (Thomas Jefferson to William C. Jarvis, 1820; )“This member of the Government [the Supreme Court] was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt.” (Thomas Jefferson to Edward Livingston, 1825.)
Jefferson believed that resolution of a conflict between two branches of government was provided for in the Constitution itself. Jefferson said in a letter to Justice William Johnson, “the Chief Justice says, ‘there must be an ultimate arbiter somewhere.’ True, there must; but does that prove it is either party [the Supreme Court or Congress]? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress, or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our constitution, to have provided this peaceable appeal, where that of other nations is at once to force.”
But Jefferson, as a good lawyer, directed his most withering criticism of Marbury v. Madison at all other aspects of the decision, and many legal scholars over the years have agreed. The section of the Judiciary Act of 1789 granting original jurisdiction to the Supreme Court to entertain applications for writs of mandamus was unconstitutional because it conflicted with Article III, Section 2, clause 2, which established those types of cases over which the Supreme Court had “original” jurisdiction. If that were the case, Jefferson said “The court determined at once, that being an original process, they had no cognizance of it [Marbury’s petition]; and therefore the question before them was ended. But the Chief Justice went on to lay down what the law would be, had they jurisdiction of the case, to wit: that they should command the delivery.” Jefferson commented, “Yet this case of Marbury and Madison is continually cited by bench and bar, as if it were settled law, without any animadversion on its being merely an obiter dissertation of the Chief Justice.” (June 12, 1823 letter to Justice William Johnson.)
A number of lawyers and scholars over the years have leveled the same criticism at Marshall’s decision, including Professor James Bradley Thayer, Royall and Weld professor of law at the Harvard Law School in the late 19th Century and Senator Henry Cabot Lodge. Jefferson and other critics of Marbury v. Madison asserted that Marshall approached the issues in reverse order: a court’s first consideration in any case is whether it has jurisdiction. When the Court found it had no original jurisdiction of a petition for mandamus, it should have refrained from discussion of the other issues and simply dismissed the petition. All other aspects of the decision were, to use the legal term, obiter dicta.
A modern summation of this analysis is Justice Louis Brandeis’ oft-cited concurring opinion in Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring), enunciating what has come to be called the principle of constitutional avoidance or judicial restraint. Chief Justice, then Judge, John Roberts himself wrote a pithy aphorism on judicial restraint that a “cardinal principle of judicial restraint [is]— if it is not necessary to decide more, it is necessary not to decide more.” (PDK Labs., Inc. v. Drug Enforcement Admin., 362 F. 3d 786, 799 (DC Cir. 2004) (Roberts, J., concurring in part and concurring in judgment).
As the congressionally chartered institution with the mission of “disseminat[ing] information about the United States Constitution . . . in order to increase awareness and understanding of the Constitution among the American people,” I suggest that the National Constitution Center take steps to correct these misimpressions of the history, origins and role of judicial review in American history and constitutional law.[3]
David A. Drachsler is a retired U.S. Department of Labor attorney and past vice chairman of the Virginia Council on Human Rights. He is Volunteer Senior Counsel for the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. (The views expressed in this letter are those of the author only and should not be attributed to the Washington Lawyers’ Committee.)
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[1] I have been unable to find any historical information indicating that President Jefferson “dissolved” the Supreme Court or that it did not sit until 1808. (The President, of course, has no power to “dissolve” the Supreme Court.) Indeed, as Charles Warren noted in his definitive history of the Supreme Court, just six days after Marbury v. Madison, Justice Paterson issued a decision in Stuart v. Laird, 1 Cranch 299 (1803) (mis-cited by Warren as Stuart v. Baird), upholding the constitutionality of the of the Repeal Act of 1802, which repealed provisions of the Judiciary Act of 1801 that had established many judgeships that Adams filled during the waning days of his administration. The practical result of this decision was to return the Supreme Court Justices to their duty of “riding circuit,” although the Act of 1802 made this practice optional.
[2] 39 Hastings Const. L.Q. 824 at 842 (2011-2012).
[3] We are contacting Mr. Unger for a response.
