Supreme Court Judicial Review Not Absolutely Binding

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John Marshall has made his decision; now let him enforce it.

Many have spoken – rightly, I believe – against some Americans’ attachment to provisions of a paper constitution which neither have real force nor conduce to the good of the American people. Not infrequently is it also alleged that the US Constitution teaches a harmful concept of judicial review. Nowhere, however, does the Constitution say or imply that the courts have exclusive right to review a law or executive order’s constitutionality; no more does it establish that the Supreme Court of the United States has supreme right to interpret the law unchallenged and with absolutely binding force. The Supreme Court did articulate a certain principle of judicial review in its opinion on Marbury v. Madison (1803), but in vain would we search for any such principle in Article III, which lays out the powers of the judicial branch of the US fœderal government.

Section 1 is brief and does not tell us all that much.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

In this section, the only relevant point is that the Supreme Court is primary in institution, and that the inferior courts are secondary thereto, the individual existence of each being subject to the will of the Congress.

Section 2 is longer. We can look at each paragraph in turn.

1. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; – to all Cases affecting Ambassadors, other public Ministers and Consuls; – to all Cases of admiralty and maritime Jurisdiction; – to Controversies to which the United States shall be a Party; – to Controversies between two or more States; – between a State and Citizens of another State; – between Citizens of different States, – between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

This paragraph spells out the cases of law and æquity to which the judicial power extends. It can tell us nothing about the power of judicial review.

2. 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.

This paragraph establishes that the Supreme Court now has original jurisdiction in cases affecting diplomats and in cases in which a state is either the plaintiff or the defendant. All other cases of the kinds spelled out in Paragraph 1 go to the Supreme Court only by appeal. In judging appeals, the Supreme Court has the power to sustain or overturn the judgements of the inferior courts in both matters of the law and matters of fact. That is to say, it holds supremacy over the inferior courts in the judgement of two things:

  1. how to interpret and apply the law, with the authority to declare an inferior court mistaken in its judgement of the principles in the law;
  2. the facts of the cases already tried, with the authority to declare an inferior court mistaken in its judgement of the events and what those events mean.

This paragraph also establishes, however, that even this appellate jurisdiction of the Supreme Court is in some respects restrained by the Congress: the Congress has the right to make exceptions to what appeals the Supreme Court may hear and to make regulations on how it may handle the appeals it does hear.

3. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

This paragraph, the last in Section 2, has nothing relevant to the concept of judicial review.

Section 3 treats of cases in which the courts must try persons for treason against the United States. It says nothing about judicial review, but only specifies in what way a person may be convicted of treason, and what limits must be observed in any attainder of treason.

1. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

2. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

The paper constitution, then, in fact says nothing to imply that only the Supreme Court, with the inferior courts subject to it, has the exclusive legal power to judge what is and what is not constitutional. Indeed, given the conventional limits – for example, that a case must be ripe for being judged in court by virtue of an ambiguous law’s having actually been applied and not merely enacted – it is clear that someone else has to interpret the law before it has ever reached a court, and that a consensus on interpretation would keep it from ever appearing before the courts. Both President Jackson and President Lincoln have in fact openly defied the will of the Supreme Court, and the rational observer will judge their acts not by their submission to the judgement of the Supreme Court but by the criteria of justice itself.

From these facts we can infer that the real constitution is bigger than the paper constitution, and that the application of the paper constitution is always contingent on power. The paper constitution, such as it is, does not make the Supreme Court’s constitutional judgements absolutely binding; nor, as can be seen by those who are not committed to corrupt customs, does it exclude those who have power and true justice from rejecting that court’s opinions when they are neither just nor persuasive.

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