From chapter ten, "How Judicial Supremacy Began"
Federal judges and law professors all say that the most important legal case in American history is the U.S. Supreme Court case of Marbury v. Madison (1803). They assert that this case established the principle of judicial review and made it central to our legal and political system.
Marbury v. Madison was, in fact, a narrowly decided case. It became significant because of the way that later judges have used it. The facts were simple, but the opinion is convoluted. Thomas Jefferson called it "merely an obiter dissertation of the Chief Justice."
In the last days of his administration, President John Adams appointed William Marbury to the minor office of justice of the peace, but the formal commission was never delivered to him. After Thomas Jefferson became president, Marbury sued, asking the court to issue a writ of mandamus ordering Secretary of State James Madison to deliver Marburyís commission. Chief Justice John Marshall ruled that the congressional law authorizing the Supreme Court to issue writs of mandamus to public officers was unconstitutional, so the Court could not issue the writ and Marbury didnít get the job.
One sentence in John Marshallís decision articulated the power of judicial review and the Courtís authority to declare laws unconstitutional: "It is emphatically the province and duty of the judicial department to say what the law is." Ever since, judges and law professors have promoted the power of judicial review even though it was not spelled out in the U.S. Constitution itself.
There is no quarrel with judicial review in the way it was carried out in Marbury. If a law is clearly unconstitutional, the courts should not enforce it. Judicial review is a long, long way from the judicial supremacy we suffer from today.
Marbury v. Madison was actually a model of judicial restraint, not an activist decision. Marshall narrowly construed the Courtís own powers and refused to accept what he thought was an unconstitutional grant of power by Congress to the courts. Marshall then refused to interfere with the presidential appointments.
The two sentences that immediately follow the famous line quoted above show that Marshall simply meant that the courts should apply the law in particular cases and resolve any conflict between two laws as necessary to decide the case. Later in Marbury, Marshall wrote that the Constitution is "a rule for the government of courts, as well as the legislature" and that "courts, as well as other departments, are bound by that instrument." Marbury v. Madison, therefore, did not give us judicial supremacy. Marbury did no damage to our separation of powers.
It was fifty-four years before the Supreme Court declared another federal law unconstitutional. During all those years, our nationís leaders understood the proper role of the judiciary, and they never espoused any theories of judicial exclusiveness. For example, President Andrew Jacksonís veto of the bill to recharter the Bank of the United States (July 10, 1832) stated: "The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others."
Jacksonís often-quoted remark in regard to another controversy, "John Marshall gave his opinion, now let him enforce it," may be apocryphal. But if he didnít say it, he might have said it because presidents and justices in those years knew and accepted their proper role under the separation of powers, recognizing that we should not permit one court opinion to decide major policy questions.
An Embarrassment for Supremacists
The judicial supremacists like to cite Marbury v. Madison because it is just too embarrassing to cite the case that really started judicial supremacy: Dred Scott v. Sanford (1857), the first case in which the Supreme Court tried to expand its power over other branches of government. It was for many reasons one of the most disastrous court decisions in history.
Dred Scott was a black slave who traveled to free territories and then sued for his freedom. Instead of simply deciding the controversy, the Supreme Court handed down an aggressively activist, judicially supremacist, pro-slavery decision. It dismissed Dred Scottís complaint, saying that he didnít even have the right to be a plaintiff in a lawsuit: blacks "had no rights which the white man was bound to respect," and even the free blacks in the Northern states didnít have the right to be citizens. The Court declared unconstitutional the federal law, passed in 1820 as part of the Missouri Compromise, forbidding slavery in most of the Western territories. It was only the second federal law in history declared unconstitutional.
The Constitution limits the jurisdiction of the federal courts to "cases and controversies." Federal courts are not supposed to give advisory opinions about issues that are not before them as a case or controversy. Dred Scott is a good example of the Court trying to decide issues that were not necessary to its decision, and the Court ended up causing gross injustices. Abraham Lincoln refused to accept that the Supreme Court could set public policy, and he endured much criticism for attacking the Dred Scott decision. But Lincoln was absolutely correct in identifying not only the intrinsic wrongness of the decision, but also its terrible consequences in upsetting our form of government.
In his First Inaugural Address (March 4, 1861), Lincoln admitted that the Supreme Court decision was personally binding on plaintiff Dred Scott, but Lincoln expressed the hope that its "evil effect" would be "limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases." In other words, Lincoln accepted judicial review as binding in the case, but he rejected judicial supremacy-the notion that the Supreme Court was supreme in creating new laws for the nation-because that would abolish self-government and submit us to the rule of judges. Lincoln identified the evil of judicial supremacy: "If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."
Precisely. Lincoln agreed that the Supreme Court could decide the fate of Dred Scott. But he rejected the notion that an "eminent tribunal" should be allowed to make public policy. That would mean submitting to the rule of judicial supremacists rather than to the Constitution and the rule of law.
Lincoln defied the Dred Scott opinion by issuing passports to blacks and otherwise treating them as citizens, and he signed legislation to place limits on slavery in the Western territories. The Dred Scott decision exacerbated the conflict over efforts to restrict slavery and pushed our country toward a terrible war to correct the injustice wrought by the power-grabbing Supreme Court.
Unfortunately, later generations forgot the principles of our Constitution that Lincoln so clearly understood. Itís time we listened to his wisdom.
Anyone who thinks that we need judicial supremacy to protect the rights of minorities must accept that judicial supremacists gave us the injustice of the Dred Scott decision. Anyone who thinks we need judicial supremacists to protect civil rights should remember George Washingtonís warning that we should permit the Constitution to be amended only in the way that the Constitution provides: "Let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed."