Judicial Monopoly Over the Constitution; C. Carson

The judges act as if they have a monopoly of the interpretation of the Constitution. Members of Congress usually make it clear that they be lieve the opinions of the Federal courts, especially the Supreme Court, are determinative. Presidents in creasingly leave to the courts the questions they may have about the constitutionality of laws that come Dr. Carson has written and taught extensively, spe cializing in American intellectual history. He is the author of several books, his most recent being Orga nized Against Whom? The Labor Union in America. He is working at present on A Basic History of the , United States to be published by Western Goals, Inc. before them. The academic world generally supports this view, and many legal scholars make pro nouncements that suggest they do not think it worthwhile to consider any other view. In recent decades, the press, or the media, have mightily assisted the courts in maintaining this position.

For example, when the courts began compelling states to reapportion legislative seats on the basis of pop ulation, the Washington Post de clared that these rulings have unquestionably become the law of the land. It is not the function of Congress to set aside that law, or to thwart its operation. The spectacle of Congress trying to use its legislative power to deny or temporarily nullify con stitutional rights which the Supreme Court had clearly upheld is such a seri ous encroachment upon the orderly divi sion of powers that even extraordinary measureswouldbe justifiedto defeatit. There is much controversy, to be sure, over the soundness of the Constitution's edict that both houses of the state legis lature must be apportioned on the basis of population .... The next Congress will he free, if it wishes, to propose a consti tutional amendment ... ; however, Con gress should not seek to shortcircuit ju dicial decisions. 2 605 606 THE FREEMAN October The editorial assumes that the courts have a monopoly of the inter pretation of the Constitution. It en joins the Congress against in termeddling in such matters. It asserts that the decisions are "the law of the land." More, it appears to add the court decisions to the body of the Constitution itself, for it holds that these are edicts of the Consti tution. If it was not commonplace to make this last identification at the time, it has become so since, for wri ters and speakers frequently refer to the decisions of the court as if they were an integral part of the Consti tution itself. In any case, the view prevails that the Federal courts have a monopoly of the interpretation of the Constitution.

It is not equally clear, however, that the view has triumphed that the courts are the "ultimate arbiters of all constitutional questions." There is at least a shadow of doubt about this, as yet. The Washington Post noted that a constitutional amend ment could be adopted to change the courts' rulings. If so, the courts are not the ultimate arbiters, or perhaps it would be more accurate to say that they are not the penultimate arbi ters, since such amendments are ex tremely rare. By my reading of it, the 16th Amendment, adopted in 1913, was the last amendment passed to resolve a constitutional question. More important, perhaps, there is now strenuous public resistance, at least from opInIon makers, to re versing a court decision in this way. Nor is it clear, given the current mood, how the courts might respond to such a direct restraint on their powers. But for now, at least, there appears to be the remote possibility of amending the Constitution as an arbiter beyond the courts.

Questioning the Monopoly There are several reasons for rais ing the question of the court's mo nopoly of interpreting the Constitu tion. The first is to make clear that in the version in which it now pre vails the monopoly is of recent vin tage. The second is to emphasize that the Constitution does not allot the interpretation of the Constitution to any particular branch of govern ment, any special tribunal, or any class or order of men. The main rea son, however, is to explore the view of Thomas Jefferson, both because of its contrast with the contemporary one and because it was more or less in accord with a widely held view for much of the 19th century. And last, I want to point up some of the incon gruities, tendencies, infelicities, and dangers of the current view. None of this is meant to suggest that the courts do not have a role in the interpretation of the Constitu tion, that they have not always claimed and acted upon a role, or that this was unexpected by the makers of the Constitution. On the contrary, 1983 JUDICIAL MONOPOLY OVER THE CONSTITUTION 607 many of the Founders anticipated that the courts would have a role in applying the laws and establishing the supremacy of laws made in pur suance of the Constitution vis a vis the states especially. That they would do so was mentioned a number of times in the Constitutional Conven tion. 3 Moreover, Hamilton argued in The Federalist, number 78, that it was the duty of "courts ofjustice ...

to declare all acts contrary to the manifest tenor of the Constitution void. Without this," he said, "all the reservations of particular rights or privileges would amount to noth ing."4 But it should be emphasized that the Constitution grants no special powers of interpretation of it to the courts. Specifically, it· grants no power of judicial review of legisla tion to the courts. The President is grantea a power of the review of leg islation, and he may veto bills on constitutional or other grounds. The Convention considered more than once the advisability of having the Supreme Court review legislation in conjunction with the executive. The proposal was rejected. "Judicial Review" In fact, the courts do not "review" acts of Congress to determine whether or not they are in accord with the Constitution. Any literal minded person might suppose that is what they do, or have done, by the use of the dubious phrase, "judicial review," to describe their proce dures. In the course of applying the law to particular cases, courts some times adjudge an act of the legisla ture to be in conflict with the Con stitution. They may then refuse to give the force of law to the legisla tive act. That is the basis of the tra ditional claim of the courts to make decisions, binding on themselves, regarding the constitutionality of acts. The power is not mentioned in the Constitution.

Jefferson was the first President to challenge the extent of the powers of the Federal courts. Indeed, he raised the challenge even before he attained the highest officein the land and continued to express various concerns in letters to individuals long after he retired to private life. Also, he was the most outstanding public figure in his day to confront directly the question of a judicial monopoly of the interpretation of the Consti tution. From the confrontations he developed a coherent view of the matter. Jefferson became embroiled in this question for both broad and general as well as particular considerations. From the outset, he was a strict con structionist of the Constitution. The first major constitutional question that came up for him was about the Bank of the United States. Jefferson was Secretary of State and Presi dent Washington asked for the opin608 THE FREEMAN October ions of his heads of departments. He wrote Washington that ours is a government of delegated powers.

"The incorporation of a bank," he said, "and the powers assumed by this bill, have not, in my opinion, been delegated to the United States by the Constitution."5 He went on to explain the case by an examination of the powers enumerated and to recommend that the bill be vetoed. Jefferson's Concern for Liberty Jefferson's insistence on the strict construction of the Constitution was based on two broad and enduring concerns which lasted the whole of his adult life. One was his commit ment to individual liberty. On one occasion, he .wrote: "I have sworn upon the altar of God eternal hostil ity against every form of tyranny over the mind of man."6 As to a def inition "of liberty," he explained, "I would say that, in the whole pleni tude of its extent, it is unobstructed action according to our will, but rightful liberty is unobstructed ac cording to our will within limits drawn around us by the equal rights of others."7 Jefferson subscribed to the natural rights theory, holding that man has certain God-given rights. Although there are many listings of these rights,· he thought those most often threatened were "the rights of thinking and publish ing our thoughts by speaking or writing; the right of free commerce; the right of personal freedom."8 His second broad concern was to restrain and limit government so that people might enjoy their rights.

"The natural progress of things," he said, "is for liberty to yield and gov ernment to gain ground."9 It was not safe, he thought, to confide over much power in government. "I own," Jefferson said, "I am not a friend to a very energetic government. It is always oppressive. It places the gov ernors indeed more at their ease, at the expense of the people."l0 It was to hold governments in their place and restrain them in their activities that he was so concerned with strict construction of the Constitution. "In questions of power, then," Jef ferson declared in his draft of the Kentucky Resolution, "let no more be heard of confidence in man but bind him down from mischief by the chains of the Constitution."ll Fur ther, "Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty making power as boundless. If it is, then we have no Constitution. If it has· bounds, they can be no others than the definitions of powers which that instrument gives."12 Although Jefferson wrote boldly and frequently without equivoca tion, it may be well to point out that he was not by temperament a con1983 JUDICIAL MONOPOLY OVER THE CONSTITUTION 609 troversialist. He did not like to debate, and avoided public confron tations before crowds. Though he was trained in the law, Jefferson did not like the courtroom clashes and only practiced it briefly. He relished intellectual exchanges· among peo ple of a questing disposition and much preferred the search for truth to any contest of wills for domi nance.

All that is a way of saying that Jefferson did not enjoy political con troversy, nor was he long a member of Washington's cabinet before he was thinking of some way to retire. He wrote James Madison that he had devoted more than 20 years to the public service and that he thought he ought to be able to leave it with a clear conscience, having paid his debt to society, so to speak. He wrote the President in 1792 that he looked forward to his early retirement "with the longing of a wave-worn mariner, who has at length the land in view, and sha.ll count the days and hours which still lie between me and it."13 As he prepared to step down the next year, he wrote Madison that "The motion of my blood no longer keeps time with the tumult of the world. It leads me to seek for happi ness in the lap and love of my fam ily, in the society of my neighbors and my books, in the wholesome oc cupations of my farm and my af fairs, in an interest or affection in every bud that opens, in every breath that blows around me.... "14 It was in this frame of mind, so far as we can know, that he left public life in 1793, hoping never to return to it.

Return to Public Office But however strong his resolve to stay out, Jefferson was drawn, al most inevitably, back into the polit ical maelstrom within two or· three years. He was a man still in the full vigor of his middling years, among the most prominent men in Amer ica, and the concern he felt for re straining the government by strict construction and thus protecting in dividuallibertydid not diminish out of office. A political party was abuilding in the mid-1790s, the Re publican Party, Jefferson called it, which opposed Hamilton's banking and taxing policies, and Jefferson became its leader. He was elected Vice President in 1796, but this did not alter the course of the govern ment, which was controlled by the Federalists, with John Adams at the head. Although there were other issues, Jefferson's concern about how the Constitution was being interpreted had been increasing from the early 1790s. These concerns provided him with the particulars of the case. As already noted, Jefferson opposed Hamilton's broad construction of the Constitution to justify the charter ing of the bank. Indeed, that Ham ilton won Washington to his side may 610 THE FREEMAN October have precipitated Jefferson's resig nation from the cabinet as early as he thought he decently could.

The manner of the imposition of the whiskey and other similar taxes in the course of the 1790s disturbed Jefferson just as much. The Consti tution required that direct taxes be apportioned among the states on the basis of their populations. To J effer son, and to many others, these were clearly direct taxes. But Hamilton and the Federalists called them ex cises, thus evading the constitu tional requirement. That aside, however, Jefferson was bothered by the intrusion of revenue agents in the affairs of citizens in order to col lect these taxes. The Alien and Sedition Acts But it was the Alien and Sedition Acts, passed in 1798, that really aroused Republicans in general and Jefferson in particular. It certainly appeared that the Federalists were bent on riding roughshod over con stitutional limitations, to say noth ing of what they were prepared to do to their Republican opponents. The Alien Acts were bad enough, partic ularly for their ignoring due pro cess, required by the 5th Amend ment, in authorizing the President to deport aliens without even the semblance of a trial. Good John Ad ams, however, was no enemy to lib erty, or even aliens, and he never exercised the authority.

The Sedition Act, however, was another matter. It prohibited people to defame or slander high govern ment officials either in speech or in writing. Jefferson drew up what be came known as the Kentucky Reso lution in which he declared that these acts violated constitutional prohibi tions, and he called on other states to join in opposing it. Madison fol lowed suit in a somewhat milder Virginia Resolution. The Sedition Act was no idle threat to Republicans and particularly newspaper publishers. Government attorneys and the courts began to bring them to trial and punish them for their alleged seditious acts. Only Republicans, it should be added, were prosecuted. The Jeffersonian suspi cion of the courts dates from the late 1790s, if not before. Indeed, judges did seem to try such cases with in ordinate zeal, charging juries some times in such a way as to assure guilty verdicts, and meting out tough sentences. Even Supreme Court jus tices who, in those days, rode circuit and tried cases, were high handed in conducting their courts.

By the time he became President in 1801, then, Jefferson had incen tive aplenty for limiting the govern ment by a strict construction of the Constitution. He had a theory for how it could be done and was determined to do it. Meanwhile, another devel opment had occurred which aroused his fears about a judicial monopoly 1983 JUDICIAL MONOPOLY OVER THE CONSTITUTION 611 of the interpretation of the Consti tution. Before leaving office, the Federalists had created new courts, new judgeships, positions for gov ernment attorneys, and the like. The outgoing President Adams filled these positions with Federalists, so that Federalists were solidly en sconced in the courts with lifetime appointments. The stage was set for a confrontation between the J effer sonians and the courts, if ever there was to be one. But Jefferson was not a. man in clined to engage in confrontations. He was quiet and thoughtful, even philosophical, in demeanor, not given to attempting to ride roughshod over anyone. He always professed to re spect the independence of the other branches in their proper spheres, and there is evidence to support his claims. He simply acted with the powers of the President and encour aged Congress to act with its powers so as to prevent any monopoly by the courts over the Constitution. He took care, generally, to see that if there were a confrontation it would be instituted by one of the other branches, not by himself. Nor did he engage in public declamations on the question, as a rule; most of what we know of his views comes from pri vate correspondence-and what may be deduced from his acts.

First, do the courts have a monop oly of the interpretation of the Con stitution? Jefferson did not equivocate on his answer. He answered the question most emphatically in a let ter written in 1820, long after he had left office. "You seem ... to consider the judges as the ultimate arbiters of all constitutional questions," he wrote to a correspondent. But that, Jefferson said, 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 be come despots."15 Who Decides? Who, then, does decide constitu tional questions? Let us leave to the side for the moment how they may be ultimately decided, so far as they ever are, in order to get to Jeffer son's intermediate answer. So far as the Federal government is con cerned, each of the branches-and in the Congress, each of the houses decides for itself in matters that come before them. "The constitution has,"

Jefferson pointed out, "wisely made all the departments co-equal and co sovereign within themselves."16 He explained how it works this way: "Questions of property, of character, and of crime being ascribed to the judges through a definite course of legal proceeding, laws involving such questions belong of course to them, and as they decide on them ulti612 THE FREEMAN October mately and without appeal, they of course decide for themselves. The constitutional validity of the law or laws again prescribing executive ac tion and to be administered by that branch ultimately and without ap peal, the executive must decide for themselves also.... So also as to laws governing the proceedings of the legislature, that body must judge for itself the constitutionality of the law and equally without appeal or con trol from its coordinate branches. And, in general, that branch which is to act ultimately and without ap peal on any law is the rightful ex positor of the validity of the law, un controlled by the opinions ofthe other coordinate authorities."17 On first reading of the above it may appear that Jefferson has evaded the issue or begged the question. It may be given that appearance, I think, because he used the qualifying phrase, "without appeal," and that may have a legal ring to it, suggest ing an appeal to the judiciary. But that was not his meaning, or not his only meaning. Of course, in a case taken and decided in a lower court there may be an appeal to a higher court. But Jefferson was referring to something much broader than this.

Many of the powers of the govern ment are jointly exercised by or in tertwined with other branches. In that case, usually there is no appeal from a negative decision of one of the other branches. For example, if the Senate refuses to approve an ap pointment of the President, there is no appeal, and the decision is final. Checksand Balances In order to understand Jefferson's view it is necessary to view it in the context of the constitutional provi sion of checks and balances and the separation and partial indepen dence of powers, not in the judicial framework to which we have be come accustomed. The powers of government are divided among the branches, Jefferson was maintain ing, and with that division goes the power of determining the constitu tionality of what they do. To put it in its strongest form, none of the branches may force the others to act on its view of the Constitution. Jef ferson said, "If the legislature fails to pass laws for a census ... ; if the President fails to supply the place of a judge , the judges cannot force [them] "18 How these checks and balances work, how each branch interpreting the Constitution for itself limits and restrains government, may best be illustrated with actual examples.

When Jefferson became President, he pardoned those who had been con victed under the Sedition Act. He explained his action in letters to Ab igail Adams: "I discharged every person under punishment or prose cution under the Sedition Law be cause I considered, and now con1983 JUDICIAL MONOPOLY OVER THE CONSTITUTION 613 sider, that law to be a nullity .... The judges, believing the law consti tutional, had a right to pass a sen tence of fine and imprisonment, be cause the power was placed in their hands by the Constitution. But the executive, believing the law to be unconstitutional, was bound to re mit the execution of it, because that power has been confided to them by the Constitution. That instrument meant that its coordinate branches should be checks on one another."19 Marburyvs. Madison Chief Justice John Marshall also wisely avoided a confrontation with the President by his opinion in the celebrated case of Marbury vs. Mad ison. William Marbury had been ap pointed justice of the peace by Pres ident Adams, but the appointment was so late that the commission was not delivered. James Madison, the incoming Secretary of State, refused to deliver it under orders from Jef ferson. Marbury sued in the Su preme Court for a writ of mandamus that would force Madison to deliver the commission.

Marshall held that Marbury was indeed entitled to a commission and force was appropriate, but, unfortu nately, by his reading of the Consti tution' he had applied to the wrong court. Thus, petition denied, and no mandamus was issued. It was just as well, too, for the general view has been that Jefferson would not have honored it, and the court would have been powerless to enforce it. By J ef ferson's interpretation of the Consti tution the court could no more force him to act than he could force it to render a decision in accord with his wishes. Marshall got his opportunity to try force on the President again in the Burr trial for treason in 1807. He issued a subpoena, on motion of de fense, for Jefferson to appear in court. Jefferson declined, though he did send some papers, and gave the court a lecture on the separation of pow ers. 20 Marshall took no further ac tion. But before either of these cases came before the courts, Congress had begun to move to rein in and re strain the courts. In 1802, it re pealed the Judiciary Act of 1801, taking away a number of new of fices. Shortly after, it passed a new act returning Supreme Court jus tices to riding circuit and restricting the Supreme Court to one session each year. Then, gently prodded by J efferson, it zeroed in on the most notorious of the judges.

District judge John Pickering, ill famed for his drunken, if not insane, carrying on in court, was impeached by the House and removed from of fice by the Senate. Supreme Court justice Samuel Chase was im peached by the House for his intem perate behavior in court, but the Senate failed of the two-thirds ma614 THE FREEMAN October jority required for conviction. Jeffer son was disappointed and thereafter maintained that impeachment was very nearly an empty threat. That was surely an overly pessimistic as sessment, however, for it appears that the behavior of judges im proved perceptibly for quite a while after the Pickering and Chase cases. The broader point is this. As Jef ferson held, the House of Represen tatives, the Senate, and the Presi dent, as well as the courts, are empowered to act in ways that de pend upon interpreting the Consti tution. They take oaths to uphold and defend the Constitution, and if its meaning could only be divined by the courts this would amount to nothing more than oaths to obey the courts.

Happily, however, the Constitution is written in English, and the other branches have powers that enable them to act upon their own interpre tations and even restrain the courts if they get out of line. All legislative power is vested in the Congress and executive power in the President. If the courts invade the legislative domain of the Con gress by their constructions of the Constitution, as they have most cer tainly done in recent years, Con gress has the power to set them straight. The Constitution autho rizes Congress to define and limit (or expand) the appellate jurisdiction of the courts. The President can refuse to enforce court orders he believes in con flict with the Constitution. (The courts have no enforcement ma chinery, i. e., prosecuting attorneys, police, armies, prisons, or electric chairs, of their own.) As Andrew Jackson is alleged to have said, "John Marshall has made his decision; now let him enforce it."

Judges can be impeached and re moved from office, though lawyers rail impotently that they can only be removed for indictable crimes. It happens that when the Senate acts as such a high court, there is no ap peal from its decisions. As a last re sort, Congress can refuse to appro priate money for the operation of the courts. In short, not only can the other branches interpret the Consti tution, but they are also in as good position as the courts to make their interpretations stick. A Systemof LimitedGovernment What I have been describing is a system of checks and balances, a system in which no branch has a monopoly of interpretation, in which any branch with a will can work to restrain the others. It is a system of limited government, limited toward the branch which most strictly con strues the Constitution. Jefferson hoped that clashes between the branches over the Constitution could be avoided. To that end, he recom mended that each branch refrain from approaching too near to the 1983 JUDICIAL MONOPOLY OVER THE CONSTITUTION 615 bounds of its powers. That would tend to limit government even more and give room for the liberty of the peo ple, which he thought was the greater end of government.

Jefferson did not believe, how ever, that all the branches of gov ernment together are the final arbi ters of constitutionality. Not even the Federal and state governments, to whom he would certainly provide some place, are the ultimate arbi ters. Government is too dangerous, too bent on aggrandizing its own powers, to leave to it or them the final decision. "I know of no safe de pository of the ultimate powers of the society but the people themselves," he said. 21 In the final analysis, he thought, that was where the power of interpreting the Constitution re sides. The people may turn out members of Congress who displease them on constitutional issues. They can refuse the re-election of a Presi dent. If all else fails, or if the branches of government cannot agree, the constitution can be amended by the consensual process prescribed. There is great danger, Jefferson thought, in a court monopoly of the interpretation of the Constitution.

Any monopoly would be fearsome, but that of the courts would be the most dangerous. The members of the court are appointed for life, are dif ficult to remove, and hold perilous power over the populace. Although Jefferson's nose was undoubtedly finely tuned to sniff the threat of despotism in every tainted breeze, he meant no exaggeration when he said that it would be an oligarchic despotism. , -FOOTNOTES1Edward Dumbauld, ed., The Political Writ ings of Thomas Jefferson (New York: Liberal Arts Press, 1955), p. 153. 2Quoted in L. Brent Bozell, The Warren Rev olution (New Rochelle, N. Y: Arlington House, 1966), p. Ill. 3For example, see Elbridge Gerry's remarks in Charles C. Tansill, ed., Formation ofthe Union of the American States (Washington: Govern ment Printing Office, 1927), p. 147. But there were objections to this view as well; see pp. 548-49. 4Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (New Rochelle, N. Y.: Arlington House, n. d.), p. 466.

5Henry S. Commager, ed., Documents of American History, vol. I (New York: Appleton Century-Crofts, 1962), p. 159. 6Dumbauld, Ope cit., p. 76. 7Ibid., p. 55. 8Ibid., p. xxvi. 9Adrienne Koch and William Peden, eds., The Life and Selected Writings of Thomas Jefferson (New York: Modern Library, 1944), p. 447. 10Ibid.,p. 440. l1Dumbauld, Ope cit., p. 16l. 12Kochand Peden, Ope cit., p. 573. 13Ibid.,p. 520. 14Ibid.,p. 523. 15Dumbauld, Ope cit., p. 153. 16Ibid. 17Ibid.,p. 151. Emphasis by Jefferson. 18Ibid.,p. 153. 19Ibid.,p. 154. 20S ee Claude G. Bowers, Jefferson in Power (Boston: Houghton Mifftin, 1964), p. 410. 21Dumbauld, Ope cit., p. 154.