Article Three Judicial Review: History and Modern Impact

We are currently discussing Article Three of the Constitution, which pertains to the judiciary. Our focus has been on judicial review, the authority and obligation of judges to decline to enforce laws they deem unconstitutional, even if these laws have been duly enacted by Congress and signed by the President or passed over a presidential veto.

Understanding Judicial Review

Judicial review is not explicitly detailed in the Constitution but is considered an inherent part of its overall text and structure. It's not a unique power reserved solely for the Supreme Court. While Supreme Court justices can overturn decisions of lower courts, this power to deem something unconstitutional and refuse to enforce it extends to all federal judges and state judges. At the founding, some even believed jurors possessed this power.

This power is also shared by other branches of government. The House and Senate can refuse to vote for a law they believe is unconstitutional, even if courts might uphold it. Presidents can veto laws they consider unconstitutional, as exemplified by Andrew Jackson's veto of a bank bill despite John Marshall's Supreme Court upholding the constitutionality of a federal bank in McCulloch v. Maryland. Presidents can even refuse to enforce certain bills they deem unconstitutional until a court case materializes, a concept known as executive review. Presidents are independent of the legislature, with an independent electoral college system and an unalterable salary during their term, ensuring their autonomy. Thomas Jefferson, for instance, pardoned individuals convicted under the Sedition Act, even after Supreme Court justices had upheld its constitutionality.

The fundamental argument for judicial review stems from two core principles:

1. The Constitution as Supreme Law: The Constitution is the supreme law of the land, superseding ordinary statutes, whether congressional or state. This supremacy arises from its more authentic origin from the people, making it a more democratic law than those passed by an ordinary Congress. Amendments, being more difficult to adopt, are also harder to change, reflecting a broader and more deliberate process of popular consent. Therefore, ordinary statutes rank lower in their democratic pedigree.
2. Judges Enforce Law: Judges are obligated to follow the law. If a statute conflicts with the Constitution, judges must uphold the Constitution. Similarly, if a valid federal law conflicts with a state statute, judges must follow the federal law, as stipulated by the Supremacy Clause (Article Six) of the Constitution. This establishes a democratic hierarchy of law, with the Constitution at the apex, followed by constitutional congressional statutes, and then state constitutions and statutes. Judicial review, therefore, is simply the recognition of the Constitution's supremacy and the judges' duty to enforce it.

This argument was articulated in Federalist No. 78 and later echoed in John Marshall's 1803 opinion in Marbury v. Madison.

The Modest Vision of Judicial Review at the Founding

At the time of the founding, the framers likely envisioned a more modest role for judicial review. Several factors support this view:

• Unspecified Supreme Court Size: The Constitution does not specify the size of the Supreme Court. If the Court were intended to frequently invalidate acts of Congress, its size would likely have been more precisely defined, similar to the detailed provisions for the apportionment of the House and Senate or the structure of the Electoral College. This suggests that Congress was given significant power over the Court's structure, treating it as an organ of national power to monitor states, much like how Congress would structure other departments.
• Judicial Monitoring of States: The idea of the judiciary monitoring states dates back to the colonial era, where the Privy Council could invalidate colonial laws. The framers intended the new central government to provide oversight for state legislatures. Early on, John Marshall's court frequently struck down state laws that violated federal statutes and the Constitution, but only invalidated one congressional statute (Marbury v. Madison).
• Vulnerability to Political Influence: The unspecified size of the Supreme Court made it vulnerable to political manipulation. Due to the Three-Fifths Clause, Congress and the presidency tilted towards the South, allowing pro-slavery presidents like Andrew Jackson to appoint pro-slavery judges. By the time of the Dred Scott case in the 1850s, the Supreme Court was malapportioned, with a majority from the slaveholding South despite its smaller free population.
• Even Number of Justices: The original Supreme Court had six members, an even number. This is peculiar if the Court was meant to resolve all important constitutional issues, as an odd number would facilitate clear majorities. This further suggests that the framers did not anticipate the Supreme Court becoming the powerful force it is today.
• Lack of Mandated Written Opinions: While presidents were required to provide written reasons for vetoing bills, there was no constitutional requirement for judicial opinions to be written or for a single "opinion of the court." Before John Marshall, individual justices often delivered their opinions from the bench, which were not always collectively published. This indicates a less robust role for judicial pronouncements compared to presidential vetoes, which were seen as a significant mechanism of constitutional oversight.
• Limited Invalidation of Federal Statutes: During Marshall's entire tenure, the Supreme Court invalidated only one federal statute (Marbury v. Madison), and that statute concerned the judiciary itself, specifically an improper expansion of the Supreme Court's original jurisdiction. This contrasts sharply with the numerous state laws invalidated by Marshall's court and the many presidential vetoes based on constitutional grounds.

The Evolution of Judicial Power

The judiciary has become significantly more powerful over time due to several post-founding factors:

• Increased Number of Judges: At the founding, there were only 15 lower court judges, compared to about 105 members of the House of Representatives. Today, there are approximately two federal judges for every member of the House, a fifteen-fold increase in the ratio. This expansion of the judiciary, with the Supreme Court at its apex, has led to a larger and more influential judicial system.
• Control Over Docket (Certiorari): Judges gained control over their docket through certiorari, allowing them to choose which cases to hear. This effectively gave them the power to shape a legislative agenda. In the early period, many significant constitutional issues were resolved outside the judiciary.
• Expanded Jurisdiction: Restrictions on the judiciary's jurisdiction gradually diminished, allowing them to hear more cases. The Supreme Court now presides over a vast pyramid of federal judges, who act as "lieutenants" enforcing its mandates.
• Judicially Enforceable Rights: A series of amendments, particularly after the Civil War, were designed to create judicially enforceable rights against both states and the federal government. Courts became vigilant in enforcing these rights.
• Emergence of Divided Government: In the 20th century, the rise of divided government (where different parties control Congress and the presidency) created an environment where courts could act more freely. In such a scenario, any judicial decision is likely to be favored by either the president or Congress, making it difficult for either branch to retaliate against the judiciary. In contrast, a unified government could more easily challenge judicial actions.
• Public Perception of Courts: Post-Watergate and Vietnam, there was a growing public perception that political branches had been untruthful. Courts, through cases like the Nixon tapes and Pentagon Papers, positioned themselves as being above partisan politics, further enhancing their authority.

Today, the Supreme Court invalidates acts of Congress approximately two to three times a year, a stark contrast to the single instance before 1850.

Article Three and Juries

Article Three grants judges the power to hear all federal cases, and it is not clear that Congress can entirely remove this power from federal courts. While Congress can reallocate cases among federal courts, its ability to completely strip federal courts of certain types of cases is limited, as established in Martin v. Hunter's Lessee.

For the framers, juries were a crucial component of the judiciary, akin to a "lower house of a bicameral judiciary." Article Three mandates jury trials for criminal cases. However, Anti-Federalists argued for more robust jury protections, including civil juries and specific requirements for jury selection. The debate surrounding the Bill of Rights was partly fueled by criticisms of Article Three's perceived inadequacy in protecting jury rights and other criminal procedure safeguards. The treason clause in Article Three, which defines treason narrowly, can be seen as a proto-Bill of Rights provision, protecting free speech by preventing prosecution for mere criticism of the government. The jury provisions and the treason clause served as "seed crystals" that precipitated the demand for a more comprehensive Bill of Rights.

The Legacy of John Marshall

John Marshall, the great early Chief Justice, transformed the Supreme Court from a practically impotent body into a powerful institution. Before Marshall, the Court lacked a unified voice, with individual justices delivering opinions. Marshall established the practice of the "opinion of the court" and mandated written opinions, creating a judicial counterpart to the president's veto message.

Marshall's court frequently invalidated state laws that conflicted with federal schemes but generally avoided direct confrontations with Congress, recognizing the judiciary's initially less powerful position. As a former congressperson and diplomat, Marshall was a popular figure who helped establish judicial review in Marbury v. Madison but exercised it cautiously. His court consistently upheld federal power, such as the federal bank, and invalidated state laws that interfered with it.

Marshall also established the tradition of life tenure for judges, demonstrating that "good behavior" meant serving until the end of one's life, unlike his predecessors who often left early. This solidified the judiciary's independence and long-term influence.

Marshall embodied three key themes of the early Constitution:

• Democracy: A popular politician from Virginia, he wrote opinions accessible to ordinary people, demonstrating a mastery of democratic politics.
• Slavery: Although from a slaveholding state, Marshall was a critic of slavery, similar to George Washington and Thomas Jefferson.
• National Security: A hero of the American Revolution and a leading diplomat, Marshall understood national security and wrote famous opinions upholding federal government powers, such as the national bank.

Marshall's legacy, however, was followed by a shift. Just as Washington, a slaveholder who freed his slaves, was succeeded by the more pro-slavery Andrew Jackson, Marshall was succeeded by Roger Taney, whose constitutional vision was far more pro-slavery. Taney, an appointee of Andrew Jackson (whose presidency was influenced by the Three-Fifths Clause), presided over the Dred Scott case. This case, and the ensuing confrontation between Lincoln's vision and Taney's, ultimately led to the Civil War and a transformation of the Constitution.