It's Not Magic
Writings of a techie wizard
Mon, 11 Jul 2011
A Living Constitution?
After I posted my independence day post, I spent some time browsing around the Charters of Freedom site at the US national archives, which is where the transcript of the original Declaration of Independence is hosted. I noticed that, along with the pages on the Declaration, the Constitution, and the Bill of Rights, they have a page there on the Marbury v Madison Supreme Court case. That reminded me of an article on courts and majorities that I read years ago on Jonathan Tweet's website, and a discussion I had online with Tweet as a result, where we reached a conclusion that is probably not quite what the writers of the Charters of Freedom page were thinking when they wrote that "the U.S. Supreme Court has...resolved some of the most dramatic confrontations in U.S. history."
Jonathan Tweet was one of the designers of D&D 3rd Edition, which is how I first found his website, but he likes to range all over the map in his web posts, and since I do too, I've had several interesting exchanges online with him. His main thesis in the article I have just mentioned was that the US courts provide a much-needed counterweight to the tyranny of the majority in a democratic system:
This sounded good to me when I first read it, but as it happened, soon after that I read a book, The Living U. S. Constitution, by Saul K. Padover, which talked about major Supreme Court decisions and showed how the viewpoint of the Court has evolved over time. And, as I pointed out in a discussion thread on Tweet's message forums (unfortunately the exchange appears to have vanished from the web, which is one reason why I'm writing this post now), what I saw in the book was quite different from what Tweet's article portrayed. There are certainly cases in which the Supreme Court has upheld our ideals against popular prejudice (Brown v. Board of Education is probably the canonical example). The problem is that the Court does a lot more than that, and not all of it is in harmony with those same ideals.
In the aforementioned discussion thread, I gave a number of examples culled from the book (and I'll discuss some of them below), but at the time it never occurred to me to wonder just how far back I could go and still see signs of the pattern I was describing. Later on, thinking over the question again, I realized that I could make a case that the pattern goes all the way back to the very Marbury v. Madison decision that the Charters of Freedom page talks about.
You're probably familiar with the facts of the case, but let me recap them briefly. John Adams lost the presidential election of 1800 to Thomas Jefferson. In what remains a firm tradition of the American presidency, Adams spent his last days in office getting a bunch of people from his party appointed to Federal positions and confirmed by the Senate, hoping to hamstring his successor. (It always amazes me how people complain, as if it were some huge new issue that needs to be fixed right now, when current Presidents do things that just about every President has done since the country was established.) Once confirmed, each appointee was supposed to receive a commission, which had to be delivered in person. However, some were not delivered prior to the expiration of Adams' term at noon on March 4, 1801, and they ended up in the hands of the new Secretary of State, James Madison.
One of the appointees who didn't get his commission, William Marbury, sued Madison. However, he did so in a rather unusual way; at least, it seems unusual to me, particularly in the light of the outcome. He filed a petition directly with the Supreme Court for a writ of mandamus, which is legalese for asking the Court to order Madison to deliver his commission. What seems unusual to me about this is that: (a) he did not petition for the United States, itself, to deliver his commission, but for Madison, as an individual, to do so; and (b) he nevertheless brought the petition directly to the Supreme Court, instead of to a lower Federal court. And, of course, the whole case turned on whether the Supreme Court actually had original jurisdiction (an issue which would not have arisen had the petition been brought in a lower court, and then possibly come to the Supreme Court on appeal). I wonder if Marbury's lawyer was either not very competent, or perhaps had some ulterior motive for adopting a strategy that was open to such a simple objection. (As we'll see below, there was legal support for this strategy in the Judiciary Act of 1789, but that support proved to be illusory.)
Of course we all know what happened. Chief Justice John Marshall wrote and delivered the opinion of the Court, which said three things. First, Marbury did have a legal right to his commission; Madison was in the wrong by not delivering it to him. Second, Marbury did have the right to seek a legal remedy against Madison (and a petition for a writ of mandamus was a perfectly acceptable remedy to seek). But third, filing the petition directly in the Supreme Court was not the correct legal remedy, because the Supreme Court did not have original jurisdiction in the case. (I'm hard pressed to think of a better example of giving with one hand, then taking away with the other. I would love to have seen Marbury's face, and that of his lawyer, while the opinion was being read.) Marbury never did get his commission.
This case is so important in the history of Constitutional law because of the argument Marshall made in support of the third item above. Marbury had used the Judiciary Act of 1789 as justification for submitting his petition directly to the Supreme Court, since that Act stated that the Supreme Court had original jurisdiction over writs of mandamus. However, the Court found that that provision of the Judiciary Act was unconstitutional. The Constitution simply does not give Congress the authority to add to the Supreme Court's original jurisdiction; it only gives Congress the authority to make "exceptions" and "regulations" to the Court's appellate jurisdiction. (Technically, there is a small matter of interpretation involved, since the section in question in Article III could, by a very tortured interpretation, be construed such that the "exceptions and regulations" clause applies to the whole section, rather than just to the part concerning appellate jurisdiction, as a normal reading of the language would indicate. As far as I know, nobody since Marbury's lawyer has seriously tried to defend such a tortured interpretation.) And, Marshall argued, since the Constitution is the supreme law of the land, if there is any conflict between the Constitution and a law passed by Congress, the higher law, the Constitution, must govern. Otherwise there would be no point to having a Constitution at all.
(Another legal point about the case is also worth noting. Some critics argued that the Court had original jurisdiction over the case even without the Judiciary Act of 1789, since Article III grants original jurisdiction over "all cases affecting...public ministers and consuls", and Madison, as Secretary of State, was such a public minister or consul. However, that raises the question of why Marbury's suit named Madison individually, not in his capacity as a public minister or consul. Again, I wonder what Marbury and his lawyer could have been thinking, not to avail themselves of these obvious strategic moves.)
When I first learned about this decision (in government class in high school, if you must know), a particular quotation was given as a sort of "tag line" to Marshall's opinion:
Taken in context, it is clear what Marshall means by "say what the law is". Indeed, he goes on to amplify that very point:
And, of course, the latter option is the only acceptable one, since the Constitution is supposed to be the supreme law of the land, superior to laws passed by Congress.
But there is another, quite different meaning that could be placed on the phrase "say what the law is." Consider another case that is often cited as an example of the Court upholding our ideals against popular prejudice: Roe v. Wade. The Court ruled that a woman's right to choose was included in the rights guaranteed by the Constitution. (There is an interesting point about this, though: the lower court decision had been based on the Ninth Amendment, but the Supreme Court preferred to base its decision on the Fourteenth Amendment.) There were strong dissenting opinions by Justices White and Rehnquist (though the latter was later the Chief Justice when the Court upheld Roe v. Wade in several decisions in the 1980's and 1990's), arguing that, as White's dissent put it, there was "nothing in the language or history of the Constitution to support the Court's judgment." But the majority ruled in favor of Roe, and that ruling still stands today (though the interpretation of it has evolved, as we'll see below).
So far, what the Court did was well in line with what Marshall's opinion in Marbury v. Madison described. But the Court did not stop there. Rather than just say that the law under review (a Texas state law) was unconstitutional, the Court erected a whole framework of what was, in effect, new law, setting down rules for how states could regulate abortion. This is not just "saying what the law is" in the form of determining what law shall govern when existing laws conflict. This is "saying what the law is" in the form of making new laws. Yes, they're written as "opinions", and states can try to write laws that differ from what the "opinions" say is allowable. And when they do, and it comes to court, those laws get struck down, just as though the words in the Court's "opinion" were part of the Constitution. (To be fair, as I noted above, the Court's interpretation of its own words has evolved over time, so that, for example, the trimester framework laid out in the Roe opinion is no longer really applicable. But the primary criterion, viability, is still in force, and even Justice Blackmun, who wrote the Court's opinion, admitted that that criterion was "arbitrary".)
Of course I know that, in terms of the long-running debate over how to interpret the Constitution, I have just labeled myself as a "strict constructionist". But I'm not saying, as the dissenters in Roe v. Wade did, that if the Constitution doesn't explicitly say that it covers, for example, abortion, then it simply doesn't cover it at all. I know the Court has to interpret; no body of written law can possibly cover all cases, or even anticipate all possible types of cases that might have to be covered. There is nothing explicitly about abortion, or even about marriage or parenting, in the Constitution, but that doesn't mean those things somehow aren't covered by the Constitution, as Justice Scalia, for example, likes to claim. My objection is simpler: interpretation of existing laws is not the same thing as writing new ones. The latter is supposed to be the job of the legislative branch, not the judicial. And yet we allow the Supreme Court to "say what the law is" in both senses, not just the first. (One could argue, in connection with my mention of Justice Scalia just now, that his dissent in Planned Parenthood v. Casey, which is worth reading if for no other reason than as an example of judicial humor, was making the same point I just made. But even there, where I think he was justified in saying that the Court is not supposed to just make up rules like the trimester system or viability out of whole cloth, he tried to make his argument prove too much: he tried to show that the Court simply can't regulate abortion at all.)
This sort of thing casts a very different light on this statement from the Charters of Freedom page:
This seems all right if the Court is only going to "say what the law is" in the narrow sense that Marshall described. But that's not what the Court has evolved into. For example, take the long history of the Court's rulings on the Commerce Clause, the clause in Article I, Section 8 that gives Congress the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." An early case that turned on this clause was Gibbons v. Ogden in 1824. The Court ruled that the State of New York could not prevent Gibbons from operating a steamboat service on the Hudson River, even though the State had, by act of the legislature, granted exclusive rights to navigation on all waters within the State to Livingston and Fulton (who licensed that right to Ogden), because the Constitution gave Congress the power to regulate interstate commerce, and Gibbons' service ran between New Jersey and New York. In itself, this seems reasonable enough, but it opened the door to an evolution of jurisprudence that had the Court ruling, in Wickard v. Filburn in 1942, that the growing of food on one's own property for one's own personal consumption came under the heading of "interstate commerce" in terms of Congress' power to regulate it. In fact, it seems at this point that practically anything comes under the heading of "interstate commerce", apparently on the theory that just about anything might somehow, by some process, possibly, by some amount even if it's small, in at least one case even if it's rare, affect interstate commerce. Perhaps this isn't "saying what the law is" by writing completely new law, but it certainly goes beyond what I, at least, would call a reasonable interpretation of the law that was actually written.
As another example with a different twist, consider Missouri v. Jenkins in 1995. The question at issue was a desegregation program that a district court ordered the school district in Kansas City to undertake. The Supreme Court in this case actually overturned the district court's ruling ordering various measures, such as salary increases and remedial education programs. This in itself seems reasonable enough; the district court had for almost two decades been micromanaging the school district's desegregation program, and the Supreme Court simply said that the district court had been exceeding its authority, as indeed it was. So it looks here like a lower court was trying to "say what the law is" in too broad a sense, and the Supreme Court called them on it.
But two things complicate the picture. First, in striking down a desegregation program, the Court was not, apparently, upholding our ideals against popular prejudice. Why wasn't the Court as willing to "say what the law is" in the broad sense here, when it obviously has been in so many other cases? Second, when you dig into some of the nuances of the Court's opinion, you find that the rationale for striking down the district court's ruling may not be quite what you expect. With reference to the district court's imposition of a tax, for example, the Court ruled that, as the Wikipedia page on the decision puts it, "while direct imposition of taxes is indeed beyond judicial authority, it would be permissible for the district court to order the school district to levy the same tax". The Court went on to say (and I have to quote this directly from the opinion because it's so revealing) that:
In other words, the problem wasn't that the district court was micromanaging the school district, but that it wasn't doing so properly.
So the Court can't even be depended on "say what the law is" in the broad sense when it would uphold our ideals. Not only that, but they can't even be depended on not to go against our ideals. (One could say that regulating everything in sight under the Commerce Clause isn't really upholding our ideals, but that's not nearly as clearcut as the example I'm about to give.) Take the Kelo v. New London decision in 2005. Here the Court ruled that taking private property from individuals and handing it over to a private corporation as part of a "redevelopment" project qualified as "public use", so it was a constitutional use of the eminent domain power. It's worth noting that the expected "community benefits" the Court relied on in its argument never materialized: the land that was taken is an empty lot today. But the Court should not have had to prophesize that outcome (although it wouldn't have been hard to prophesize; the track record of such "redevelopment" projects is spotty at best) in order to see the problem with the City of New London's argument. Would any reasonable citizen really think that this was a justified interpretation of the phrase "public use"?
As I confessed at the end of the discussion thread I referred to at the start of this post, I'm actually hard pressed to find any kind of a reliable pattern to the Court's rulings. They look to me like a hodgepodge of ideologies, personal preferences, and yes, sometimes upholding our ideals. The only common thread I can find is that, once Marshall said that the Court could "say what the law is," sure enough, it's done so. The fact that the Court has evolved into doing so in a way that Marshall and the Framers never envisioned is apparently not a significant issue; after all, if something needs fixing, someone has to fix it, and if legislators aren't doing it, doesn't the Court have to step in?
But this viewpoint ignores the fact that the Constitution has separation of powers, and checks and balances, for a reason. They are not just inconveniences to be worked around; they are there so that when we are ready to charge ahead and fix something, but we find that to do so we would have to compromise a founding principle, we don't just ride roughshod over the principle; instead, we're supposed to stop and think. If "fixing" the issue requires bending (or breaking) the Constitution, maybe we ought to step back and examine whether our fix, at this time and place, is really a good idea. Maybe it would be better in the long run to play by the rules, even though it means that particular issue takes longer to resolve. The rules are bigger than any individual issue, and they're not supposed to be ignored. If they really need to be changed, well, the Constitution has been amended twenty-seven times. It can be done, if you do the work of convincing enough people that it's worth doing.
Postscript: It's Not Just the Court
It's worth noting that the pattern I describe here is not limited to the Supreme Court, or even to the US courts in general. (Did anyone really think it was? I hope not.) To take just one relatively minor example, consider the kerfluffle a few years back over getting official voting representation in Congress for the District of Columbia. I should make clear that I am in complete sympathy with that objective; the original theory that justified not giving representation to D.C. is clearly no longer operative. (The idea was that the people living in D.C. would all be involved with government in some way, either as elected representatives or civil servants, and so their lack of direct voting representation would be compensated by having other avenues for getting their views heard. Clearly this does not apply to almost all of D.C.'s current inhabitants.) So given that we have a desirable objective in view, there are, broadly speaking, two ways to get there:
(1) A Constitutional Amendment: the obvious route. D.C. already has non-voting representatives in the House, so the mechanics should be fairly easy. The main question would be whether D.C. should get no, one, or two Senators; I would lean towards one, which would have the advantage of eliminating ties, but any of the three could work. But of course getting an Amendment drafted, passed, and ratified is a lengthy process.
(2) Retrocession: simply return most of the land currently within the boundaries of D.C. to the State of Maryland. (It's worth noting that the original boundary of D.C. included Arlington and Alexandria in Virginia, but they were long ago returned to Virginia, so this has been done before.) We would probably want to keep the main government buildings within D.C. itself, but it should be possible to draw a line (though it might not be a very straight one) that did a pretty good job of separating the core government buildings (and monuments, etc.) from the residential areas, in order to make sure that basically no one except the President actually resides in D.C. (The President already gets to vote in his home state, as does his family, so they aren't even affected by the lack of representation; though if the original justification for the lack of representation applies to anyone more than the President, I don't know who it would be.) This could in principle happen much more quickly than an Amendment, since it would only require an act of Congress, though the mechanics would be more difficult to work out; for example, imagine switching half a million license plates from D.C. to Maryland, rewriting a bunch of real estate deeds, working out property taxes, and so on.
So, of course, when a solution was actually proposed in Congress, it was...neither of the above. Instead, a bill was introduced that would simply make the current D.C. representatives into voting representatives, even though the Constitution specifically uses the word "States" when it says who gets to elect voting representatives, and specifically calls D.C. a "District" formed "by Cession of particular States", i.e., not a State. (Note also that an Amendment was required, the 23rd, to allow residents of D.C. to appoint Electors to vote for President.) Someone actually asked Nancy Pelosi if this was really constitutional and whether it might require an Amendment, and if I remember correctly, her answer was "Are you kidding me?" So the courts are certainly not the only ones taking a rather cavalier view of the role the Constitution is supposed to play.
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