Contra Chemerinsky on "Original Intent:" Why the Constitution’s Original Meaning Does Not Preclude a Female President

Explained Why the Constitution is Binding

Rejected "Original Intent" in favor of "Original Public Meaning"

Qualified to Be President Under Article II, Sec. 1, cl. 5

In a recent Op-Ed in the Sacramento Bee, Erwin Chemerinsky, the Dean of Berkeley Law School, criticizes Judge Brett Kavanaugh, President Trump's nominee for the U.S. Supreme Court, for his adherence to originalism as a method of interpretation.   Invoking Chief Justice John Marshall's statement that "the Constitution must be adapted for ages to come," Chemerinsky claims that "orginalism is bad for justice."  He elaborates as follows:

"If constitutional interpretation must follow the specific intentions of the framers, the results often will be unacceptable. . . . For example, Article II refers to the President and the Vice President as 'he.'  The framers undoubtedly intended that those holding these offices would be men."

Chemerinsky is wrong in three different ways.  First, he badly misdescribes the methodology of originalism.  Second, election of a female president would in no way contradict the original meaning of the Constitution.  Third, originalism does not prevent adaption of the Constitution to new circumstances. 

First, proponents of originalism expressly and repeatedly reject the "specific intentions of the framers" as the goal of interpretation. Instead, originalism seeks to discern and enforce the "original public meaning" of statutory and constitutional texts.  More than two decades ago, Justice Antonin Scalia (pictured above), delivering the Tanner Lecture at Princeton University, rejected the claim that judges should "give effect to the 'intent of the legislature.'"  Instead, he said, Judges should seek the objective meaning of the text that the legislature actually enacted.  Thus, he quoted with approval the statement by Justice Holmes, subsequently approved by Justice Robert Jackson, that "[w]e do not inquire what the legislature meant; we ask only what the statute means."   See Antonin Scalia, A Matter of Interpretation, 16, 23 (Princeton 1997).  See also Oliver Wendell Holmes, Collected Legal Papers, 207 (1920), quoted in Schegman Bros. v. Calvert Distillers Corp., 341 U.S. 384, 397 (1951) (Jackson, J., concurring).  In the same lecture, Justice Scalia endorsed the very same approach to constitutional interpretation.  See Scalia, A Matter of Interpretation, at 38 ("What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended.") (emphasis supplied).

The original meaning approach to Constitutional interpretation follows directly from the rationale for treating the Constitution as binding on future generations, a rationale that Chief Justice John Marshall (pictured above) articulated in Marbury v. Madison, 5 U.S. 137, 176-77 (1803).  According the Marshall:

"That the People have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness, is the basis upon which the whole American fabric has been erected.  The exercise of this original right is a very great exertion; nor can it nor ought it be frequently repeated.  The principles, therefore, so established are deemed fundamental.  And, as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government and assigns to different departments their respective powers.  It may either stop there or establish certain limits not to be transcended by those departments.

The government of the United States is of the latter description.  The powers of the legislature are defined and limited; and that those powers may not be mistaken or forgotten, the Constitution is written.  To what purpose are powers limited, and to what purposes are those powers committed to writing, if these limits may at any time be surpassed by those intended to be restrained?"

. . . . The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable whenever the legislature shall choose to alter it.."

Thus, the Constitution is binding because the People, the ultimate repository of sovereignty, adopted it, enacting permanent, fundamental principles that both empower but also limit the Congress, the President, and Judges.  Judges who invoke the Constitution as the source of their authority must adhere to the document as written, thereby enforcing the instrument's fundamental and permanent principles.  To do so, of course, Judges must discern what the document meant to those who possessed and exercised the authority to bind others, namely, the People. Refusal to enforce such principles because a judge considers them "unacceptable" repudiates the only legitimate source of judicial authority and is thus lawless.

Second, there may well be instances in which enforcing the original meaning of the Constitution produces results with which most Americans might disagree.   Happily, the gender of the President is not such an instance, with the result that outstanding candidates such as Nikki Haley, pictured above, are eligible.

It may well be that the Framers and Ratifiers assumed or even intended that Presidents and Vice Presidents would be male, Protestant landowners.  But they did not enact these assumptions or intentions into law.  Article II, Section 1, Clause 5 of the Constitution, aptly known as the "Qualifications Clause," defines the qualifications for holding the office of President.  

"No person, except a natural born citizen, or a citizen of the United States, at the time of the adoption of this constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and have been fourteen years a resident of the United States."

Under the "plain meaning" of this provision, women, Catholics, and/or merchants, all of whom are "persons," are eligible to be President.  Had the Framers and Ratifiers wished to exclude women, they could have included a clause limiting the Presidency to men, in the same way they precisely limited the office to certain citizens of the United States and persons 35 or older.  They did not, however, include any such restriction.  

What, though, about the use of the pronoun "he" to describe the length of the President's term in office, for instance?  ("He shall hold his office during the term of four years[.])"   Does this use create an additional qualification, outside the qualifications clause?  Of course not. 

It is standard English convention to employ purportedly "masculine" pronouns to refer to a category of persons that includes both men and women.  In these circumstances the apparently masculine pronoun in fact functions as a generic pronoun, akin to "they." See e.g. R.W. Burchfield, The New Fowler's Modern English Usage (3d ed. Oxford) ("From the earliest times until about the 1960s it was unquestionably acceptable to use the pronoun he (and him, himself, his) with indefinite reference to mean anyone, a person (of either sex)."); Oliver Strunk and E.B. White, The Elements of Style,  60 (1979) ("The use of he as pronoun for nouns embracing both genders is a simple, practical convention rooted in the beginnings of the English language. He has lost all suggestions of maleness in these circumstances.") (emphasis in original).  None of this is to say that "he" always functions as a generic pronoun.  The actual meaning will always depend upon context.  The most relevant context, of course, is the actual definition of the President's qualifications, which employs the generic term "person," instead of "man."  In short, use of the potentially and commonly generic pronoun "he" did not alter the plain meaning of "person" in the Qualifications Clause.

Indeed, Justice Scalia and Brian Garner addressed the original meaning of the pronoun "he" in Article II, in their leading text on legal interpretation:

"In the Constitution the President is referred to many times with the pronouns he, him, and his.  These references, by common grammatical understanding, refer to a President of either sex."

See Antonin Scalia and Brian Garner, Reading Law: The Interpretation of Legal Texts, 129 (2012).  They cite, for instance, Peter Bullions, The Principles of English Grammar (13th Ed. 1845) ("[T]he masculine term has also a general meaning, expressing both male and female, and is always to be used when the office, occupation, profession, etc., and not the sex of the individual, is chiefly to be expressed.").

In the same way, Latin employs masculine nouns or pronouns to refer to groups that include both men and women.  Indeed, the front page of Berkeley Law School's own website repeatedly refers to the school's "Alumni," the plural form of a Latin second declension masculine noun.  In so doing, the school presumably does not mean to exclude its female graduates!

Third, the original meaning approach to interpretation in no way prevents adaptation of the Constitution "for ages to come."   As previously explained on this blog, the Constitution does not necessarily enshrine particular results.  Instead, as Marshall explained in Marbury, the document often articulates fundamental and permanent principles. Thus, as the Supreme Court explained more than eight decades ago, changes external to the Constitution can compel courts to sustain legislation once deemed unconstitutional or invalidate legislation once thought perfectly constitutional.  

"While the meaning of constitutional guarantees never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within their field of operation.   In a changing world, it is impossible that it should be otherwise.  But although a degree of elasticity is thus imparted not to the meaning, but to the application of constitutional principles, statutes and ordinances which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution of course must fail."

See Village of Euclid v. Amber Realty, 272 U.S. 365 (1926).

More recently Justice Scalia explained that changes in technology, external to the Court, can require changed application of the Fourth Amendment's ban on unreasonable searches.  The common law principles that animate the Amendment remain constant and unchanged, e.g., police can only hold a suspect so long as reasonably necessary to bring the individual before a magistrate for a probable cause determination.  While that period may have been 72 hours in 1791, the reasonable period today, the Justice said "is obviously a function of helicopters and telephones" and thus, he said, 24 hours.  See County of Riverside v. McGlaughlin, 500 U.S. 44, 62 n. 1 (1991) (Scalia, J. dissenting). 

In short, Originalism survives Dean Chemerinsky's critique entirely unscathed. 

Should the ABA Mandate The LSAT?

Did Not Take LSAT

Ditto

For years, the American Bar Association has mandated that accredited American Law Schools require applicants for admission to take the so-called "Law School Aptitude Test" ("LSAT") or some other "valid and reliable admissions test."  The ABA also mandates that each school consider the results of such tests when making admissions decisions. Failure to comply with these requirements can result in the loss of a school's accreditation, in which case the school's graduates may not practice law in the vast majority of American states.  (Three states, California, Alaska and Tennessee allow students who have attended unaccredited law schools to practice law.)

Just last year, the ABA relaxed this requirement, allowing a school to waive the test for up to ten percent of its entering class for: "(1) students in an undergraduate program of the same institution as the J.D. program; and/or (2) students seeking the J.D. degree in combination with a degree in a different discipline."   Some law schools immediately took advantage of this exemption, and others followed suit.  St. John's, for instance, created a "Red Storm Scholars" program, whereby undergraduates at St. John's could  apply without first taking the LSAT.

Unfortunately the ABA has pulled the plug on what many viewed as a promising relaxation of the LSAT mandate, reimposing the requirement that each and every accredited law school require and consider this standardized test.  (There is no other "valid and reliable admissions test" on which a school could rely.)  Among other things, the ABA claimed that the new exemption was unfair to so-called "stand-alone" law schools, that is, schools with no connection to a larger university with undergraduate students.  The ABA also claimed that the rule was confusing and that regulated institutions were asking "so many questions" about how to implement the rule that "it was putting a lot of stress on the [ABA] staff."  (See this story, also linked above, quoting an ABA representative to this effect.)

Neither of these rationales for withdrawing the exemption withstands scrutiny.  For instance, one could deal with the unfairness concern by allowing stand-alone schools to accept students from one or more nearby undergraduate institutions.  (For instance, Hastings, a public stand-alone law school in San Francisco, could accept students from the nearby University of California at Berkeley.)  Or, one could simply open such programs to all applicants, and not just those who are undergraduates at the same institution as the JD program or seeking a J.D. degree in combination with with another advanced degree.  Moreover, one could deal with the purported confusion by crafting less confusing regulations!  The fact that a regulation is confusing, too stringent or stressful for the regulator does not ipso facto justify defaulting to an even more stringent regime, particularly when the rationale for the underlying regime is dubious at best (see below).

More fundamentally, the ABA's herky jerky approach to this issue should highlight a more fundamental question.  That is, should the ABA and 47 states consider themselves authorized to impose centralized Procrustean diktats such as the LSAT requirement on American law schools?  Yale Law Professor and author Stephen Carter answers this question with a resounding "no," chiding the ABA for "continu[ing] its ridiculous insistence that accredited Law Schools use the LSAT as an admissions criterion."

Professor Carter is absolutely correct.  Long before the ABA mandated the use of standardized tests, American law schools were selecting students for admission and providing such students with a legal education.  Neither John Marshall nor Thurgood Marshall, both pictured above, took the LSAT or, so far as this blogger is aware, any other standardized admissions test.  Neither did their classmates. More to the point, both matriculated at their respective Almae Matres before any centralized organization required the administration and consideration of standardized tests.  This blogger knows of no showing that American law schools are now producing better lawyers because of the ABA's LSAT mandate.

Of course, individual institutions should be free to require and consider standardized tests if they so choose.  However, as is often the case with the mandates imposed on Law Schools, there is no apparent rationale supporting a coercive one-size-fits all approach to this question. Instead, each institution should be free to experiment with its own methodology of evaluating applications for admission.  Law Schools are repeat players in the marketplace.   Simply put, law schools operate in a highly competitive market for students. Each school has every incentive to select the student body that will exhibit the best chance of academic and professional success, as such success will redound to the benefit of the school in question in various ways. There is no apparent market failure that conceivably justifies mandating that each such school employ a standardized admissions test.  Hopefully the ABA and the states that enforce its requirements will see the error of their ways and abolish this unjustified interference with the institutional prerogatives of the nation's law schools.

Marshall and Wythe "On Ice"

    Photo credit: J. Bellin

On The Lawless Indictment of Rick Perry

Will Beat the Rap

Commentators on both sides of the political spectrum are condemning the recent indictment of Texas Governor Rick Perry, and indictment claiming that Perry violated two different criminal statutes.  For instance, Harvard Professor Alan Dershowitz decried the indictment as unwarranted criminalization of political differences.  Moreover, writing at ThinkProgress, Ian Millhiser thoughtfully suggests that the prosecution of Perry unduly interferes with the Governor's constitutionally-conferred veto power and thus "raises serious separation of powers concerns," even if Governor Perry's actions otherwise violate Texas law.  While the legislature could constitutionally ban the Governor from threatening to use a veto as part of a scheme to solicit a bribe, Millhiser writes, there is no allegation that Perry did anything of the sort.  By contrast, he says, a law that purported to criminalize Perry's actual conduct likely "cuts too deep into the governor's veto power," contrary to the Texas Constitution that confers this power.  On the other side of the spectrum, Senator Ted Cruz has echoed Millhiser's separation of powers argument.  According to Senator Cruz:  "The Texas Constitution gives the governor the power to veto legislation, and a criminal indictment predicated on the exercise of his constitutional authority is, on its face, highly suspect."    

Dershowitz, Millhiser and Senator Cruz are right to question the indictment on the grounds they invoke.  There is, however, a more mundane reason that this prosecution should end.   Simply put, the Governor's conduct did not violate either statute that the indictment invokes.  Thus, continued pursuit of this prosecution contradicts a fundamental attribute of the Rule of Law, namely, that the State may only exercise coercion against its citizens, including political officials, pursuant to intelligible rules announced in advance. Bending Texas law after the fact so as to render innocent conduct "criminal" violates this core principle of a free society.

The indictment alleges that Governor Perry threatened to veto an appropriation to support the Texas Public Integrity unit overseen by Travis County District Attorney Rosemary Lehmberg, who had been convicted of driving while intoxicated, unless Ms. Lehmberg resigned her position.  When Lehmberg declined to resign, Governor Perry carried out the veto threat.  (For a summary of the allegations, go here.)

The indictment claims that Governor Perry's actions violated two different criminal statutes.

The statute invoked by the first count of the indictment penalizes any public official who:

"misuses government property, services, personnel, or any other thing of value belonging to the government that has come into the the public servant's custody or possession by virtue of the public servant's office or employment."

See Texas Penal Code -- Section 39.02

The statute invoked by the second count of the indictment penalizes any official who:

"influences or attempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influences or attempts to influence a public servant to violate the public servant's known legal duty[.]" 

The actual and threatened veto did not violate the ordinary meaning of either statute.   Take the first count first.  The funds that the legislature attempted to appropriate were no doubt valuable. However, Governor Perry did not "possess" or have "custody" of such funds and thus could not have misused them within the ordinary meaning of the statute.   Moreover, the power to veto a bill is obviously not "property, services, [or] personnel." Thus, Governor Perry's actions can only violate this statute if the veto power is a "thing of value belonging to the government . . .[in Governor Perry's] custody or possession[.]" This interpretation seems strained to say the least.  The veto power is not a "thing."  Nor does it "come into an individual's possession or custody" any more than it can depart from such possession or custody.  Instead, the veto power is constitutionally-conferred legal authority that a governor may exercise at his or her discretion.

Basic principles of statutory construction confirm that treating the veto power as "a thing of value" would stretch the meaning of the statute too far.   The canon of statutory construction ejusdem generis teaches that a general word or phrase that follows an enumeration of two or more things applies only to persons or things of the same general kind or class specifically mentioned.  See Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, 199 (2012).  Thus, a statute referring to an "automobile, automobile truck, automobile wagon, motor cycle or any other self-propelled vehicle not designed for running on rails" does not refer to airplanes.  See McBoyle v. United States, 283 U.S. 25, 26-27 (1931).

The term "any other thing of value" is "a catchall at the end of an enumeration of specifics" (Scalia and Garner, Reading Law, at 199). This enumeration consists of the terms "property," "services," and "personnel," terms that provide context and thus limit the meaning of "thing of value."  See id.  These three terms all refer to items that have a potential market value or use separate and apart from their public function, thus giving rise to a risk of abuse by public officials. Think, for instance, of a government-owned automobile ("property"), which an official might convert to personal use, or government employees ("personnel"), whom an official might order to paint her house on the weekend. None of these terms, by contrast, refers to the discretionary exercise of governmental authority, such as the veto power, which has no value separate and apart from official functions. Thus, application of ejusdem generis confirms that the power to veto legislation is not a "thing of value" within the meaning of the statute.

The canon noscitur a sociis --- related words bear on one another's meaning --- points in the same direction.  See generally Scalia and Garner, Reading Law, at 195.  A statute that refers to "tacks, staples, nails, brads, screws and fasteners" does not refer to fingernails ("nails") or reliable and customary food items ("staples"). See id. at 196 (employing this example).  In the same way, a statute referring to items ("property, personnel and services") that have value or use separate and apart from their governmental function does not refer to governmental powers that do not.  Indeed, the statute includes an explicit exception providing that, say, "frequent flyer miles," "hotel discounts" and "food coupons" that employees earn while conducting state business are not "things of value" within the meaning of the statute, but only for reasons of administrative convenience.  This exception is only necessary if such items are otherwise "things of value," thus further bolstering the contention that the statute is designed to prevent wrongful use of items that have value separate and apart from their public function.  

What about the second statute?  Here again the plain meaning of the statute does not prohibit Governor Perry's conduct. The Governor urged Ms. Lehmberg to resign.  While this demand was an attempt to influence Ms. Lehmberg to step down and thus vacate her office, the indictment nowhere alleges (aside from rote recitation of the statutory language) that Governor Perry sought to influence her "in a specific exercise of [her] official power," a "specific performance of [her] official duty," or any "known legal duty."  The statutory language simply does not prohibit Governor Perry's conduct.

Some readers may find the language of the statutes quoted above more ambiguous and perhaps susceptible to a strained interpretation that prohibits Governor Perry's conduct.  Others might urge the courts to interpret the statutes expansively, so as to ban conduct they believe to be improper.   However, it is a cardinal rule of statutory construction that criminal statutes are to be construed strictly, with ambiguities resolved against the prosecution and in favor of individuals. As Chief Justice John Marshall (pictured above) explained in United States v. Wiltberger, 18 U.S. 76, 95  (1820).

"The rule that penal laws are to be construed strictly is perhaps not much less old than construction itself.  It is founded on the tenderness of the law for the rights of individuals, and on the plain principle that the power of punishment is vested in the legislative, not in the Judicial Department.  It is the legislature, not the court, which is to define a crime and ordain its punishment."

Texas has long recognized this "rule of lenity" when interpreting criminal statutes.  As the Texas Court of Appeals explained in 1886:

"[B]efore a man can be punished, his case must be plainly and unmistakably within the statute, and if there be any fair doubt whether the statute embraces it, that doubt is to be resolved in favor of the accused."

Murray v. State, 21 Tex. App. 620, 633, 2 S.W. 757, 761 (1886).

Presumably the Texas courts will agree with Chief Justice Marshall and decisions such as Murray and decline the indictment's invitation to rewrite Texas law in a manner that expands criminal liability and offends the rule of the law.

Original Meaning or Something Else (and if so, what?)

The Institute of Bill of Rights Law here at the William and Mary School of Law has posted the video of a debate between your humble blogger (pictured above on the right) and Michael Klarman (pictured above on the left), the Kirkland and Ellis Professor of Law at Harvard Law School. Here is a link to the video, which is in several parts. (The photo of Professor Klarman and myself, taken in the Institute, served as promotional material for a prior debate. Note the painting of the Constitutional Convention in the background.) Not surprisingly, I took the position that, when interpreting the Constitution, courts should adhere to the original public meaning of the document, endorsing the argument for Constitutionalism and judicial review articulated by John Marshall (pictured above) in Marbury v. Madison and Alexander Hamilton in Federalist 78.

As John Marshall put it in Marbury:

"That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent." (emphases added).

According to Marshall, then, the Constitution is binding because the People --- the ultimate repository of sovereignty --- are empowered to exercise that sovereignty in a manner that establishes the authority and limits of their government. The principles thereby established, Marshall says, are "fundamental" and "designed to be permanent." That is, such principles bind future generations, the government officials they elect, and the judges that such officials appoint and confirm.

This rationale for why the Constitution is binding, I (and others before me) argue, has certain implications for how courts (and other governmental actors) should go about interpreting the Constitution when called upon to do so. Thus Judges, for instance, should not treat the Constitution and judicial review as a license to choose whichever interpretive theory they please. Instead, the embrace of judicial review implies certain limits on the manner in which such authority is exercised. That is, the Constitution, from which judges derive their entire authority, imposes upon judges (and other officials) a duty to enforce the document's original meaning; nothing more and nothing else. Failure to execute this duty by, for instance, sustaining a statute contrary to the document's original meaning contravenes Marbury's rationale for a written, binding constitution as well as the rationale for empowering judges (and other officials) to enforce that document. In my view, then, a judge who purports to exercise judicial review while intentionally ignoring the original meaning of the constitution is not exercising "judicial power" in the first place, but is instead purporting to exercise an extra-constitutional authority not contemplated by the document or its ratifiers.  (I have articulated this account of Marbury, along with some other implications of the decision, in a lengthy, previous post here.)

Watch the video to see Professor Klarman's response!

One final note.

I've had the pleasure of debating Professor Klarman four times --- three times here at William and Mary on Originalism and once at the University of Virginia on the soundness (or not) of the Supreme Court's decision in Bush v. Gore. He is an extraordinary scholar and person, and he has been a great friend to me over the years. I look forward to future debates!

On the Appropriate Scope of Judicial Review: Some Comments on Robert Lowry Clinton's "The Marbury Myth"

Dartmouth College Charter; Preserved Against Legislative Attack by Judicial Review

A friend and former student sent me the following article, from National Review, arguing that Marbury v. Madison, which articulated the principle of judicial review in 1803, does not stand for the proposition that the Supreme Court is the sole or supreme expositor of the Constitution's meaning. Indeed, the article goes a little further and seems to argue that neither Marbury nor any other decision in the first half of the 19th Century authorizes courts to strike down laws that do not purport to govern or direct courts themselves.

See Robert Lowry Clinton, The Rise of the Marbury Myth (May 7, 2010).

 

Here are some of the article's main points, followed by some commentary by your humble blogger. To summarize, I agree with some of Professor Clinton's points and disagree with others. For instance, I agree that neither Marbury nor the Constitution properly read supports "judicial supremacy" over the other branches when it comes to constitutional interpretation. At the same time, I respectfully suggest that Professor Clinton defines the appropriate role of courts too narrowly and also improperly equates any judicial role more expansive than he advocates with "judicial supremacy." Under my view (and the view of Lincoln, Madison, Antonin Scalia, Frank Easterbrook, Edwin Meese (no relation) as well as John McGinnis, Neal Devins, and many other leading scholars) each Department of Government is free to interpret the Constitution as it sees fit, without referring to views of other branches, so long as that Department is operating within the sphere of authority that the Constitution assigns to it. Under this approach, each branch is "supreme" within its own sphere, but no branch can control the constitutional interpretation of the other branches operating within their respective spheres. This approach, known as "Departmentalism" to some, finds support in the text and structure of the Constitution, the words of James Madison and the words and actions of Abraham Lincoln, among others. There are several examples of judicial review perfectly consistent with Departmentalism, that Clinton would apparently, and incorrectly in my view, equate with "Judicial Supremacy."

To reiterate, I will first summarize Clinton's argument, complete with some lengthy quotes from his article. I will then offer my own commentary on it. Note that, in summarizing Clinton's argument, I will sometimes elaborate on his points to clarify them, particularly by mentioning actual cases to which Clinton alludes or mentions by date but not by name.

A

1) While lionized today, Marbury was not, Clinton argues, deemed an important decision during the 19th century and was rarely cited for the proposition that Courts could strike down Acts of Congress or state legislatures. Indeed, the article says, the Supreme Court did not cite Marbury for this proposition until the late 19th Century, first in 1887 vis a vis a state law [Mugler v. Kansas, where the Court cited Marbury but then affirmed the Kansas statute under review] and then in 1895 [in Pollock v. Farmer's Loan and Trust Co., which struck down the income tax].

2) Marbury did not hold that the Supreme Court is the supreme or sole expositor of Constitutional meaning. Instead, Clinton says, the decision was much narrower than that. In particular, the decision simply declined to exercise jurisdiction over a case because the statute purporting to confer that jurisdiction exceeded the authority that Article III of the Constitution grants to Congress to create and define the appellate jurisdiction of the Supreme Court. To put things another way, Marbury was a sort of defensive decision, i.e., defended the Court from unlawful incursions by other branches and a decision that in one sense denied the Court power, because the Court declined to exercise adjudicatory power that Congress had attempted to give it. Marbury did not, Clinton says, purport to reach beyond the Court and interfere with Congress's substantive legislative choices, for instance. Nor, he says, did its rationale support such a judicial role. As Clinton puts it:

"In the final pages of his Marbury opinion, Chief Justice Marshall argued that a legislative act in conflict with the Constitution is void, and then carefully restricted the Court’s power to invalidate such acts to instances in which the Court is forced to ignore either the Constitution or the statute in order to decide a particular case. The only time this situation can arise is when the constitutional and statutory provisions involved are addressed to the Court itself, as in Marbury. In other words, under Marbury’s reasoning, the Court is not entitled to “reach out” and invalidate a legislative act simply because the Court doesn’t like it, or even because the Court believes that some other agency of government has done something unconstitutional. Thus, Marbury-style judicial review is very limited in scope. It is restricted to cases in which Congress has unconstitutionally meddled with the Court’s functions."

This is a strong claim (and by "strong," I do not mean "correct"), namely, that Marbury simply (and only) authorizes courts to invalidate Congressional statutes that purport to force Courts qua Courts to act in an unconstitutional manner.

3) During the last quarter of the 19th Century, elite lawyers for business interests bent on limiting the regulatory authority of states repeatedly invoked Marbury as justification for aggressive judicial review of state legislation that interfered with economic liberties. (Such liberties, it should be noted, included the right to contract, the right to set prices, and the right to pursue the occupation of one's choice.) At the time this campaign began, Clinton claims, courts had never exercised such power. As he puts it:

"This group of lawyers, in league with the captains of industry, opposed government regulation of economic activity. Since the state legislatures and Congress were passing regulations designed to mitigate the worst effects of the Industrial Revolution, the lawyers and their clients sought to employ the federal courts in an effort to counter the regulations. The problem was that the courts had never exercised such power, and the constitutional basis for it was doubtful at best. So the only way to get the job done was to find a precedent for judicial supremacy. But Marbury was too tame and Dred Scott was too notorious. The only thing left was to reinvent Marbury, reinterpreting its language to make it seem like an exercise in judicial supremacy." (emphasis added)

 

Courts ultimately agreed that the Constitution protects certain economic liberties from unjustified invasion by individual states and the national government. I should note that exemplars of such protection include Lochner v. New York (1905), which invalidated a state maximum hour law, and Allgeyer v. Louisiana (1897), which invalidated Louisiana's effort to regulate insurance contracts entered by its citizens in another state. I should also note that the Court exercised the same authority vis a vis Congress. For instance, in 1908, in Adair v. United States, the Court struck down Congress's ban on so-called "yellow dog" agreements, that is, contracts whereby employees agreed, as a condition of employment, not to join unions. Moreover, in Adkins v. Children's Hospital (1923), the Court struck down a minimum wage that Congress had imposed on employers and employees in the District of Columbia.

According to Clinton, these lawyers, and the courts that agreed with them, adhered to the philosophy of "Social Darwinism," which held that law and public policy should encourage economic survival of the fittest. Regulatory intervention in the marketplace, he says, was inconsistent with this vision, because it protected the weak from the depredations of the strong and thus stultified the process of social evolution. Here again, it is worth quoting a portion of his essay:

"These legal and economic elites were also believers in an ideology called Social Darwinism. They saw economic life in much the same way that Charles Darwin and his followers saw biological life — as an intense struggle for survival in which only the “fittest” deserve to survive and reproduce. Since economic regulation was usually in the interest of protecting those who could not protect themselves in this struggle, Social Darwinists believed that such laws were counterproductive in retarding economic progress, restricting the freedom of the “more fit,” and advancing the interests of those “less fit” people who constituted a “drag” on society. The Social Darwinists were ultimately successful in pressing their views on the courts, and these views held sway in the American legal community and the courts for about half a century."

To reiterate, Clinton argues that the Lochner era's protection for economic liberty exemplified the Supreme Court's assertion of judicial supremacy and reflected an approach to judicial review that was inconsistent with Marbury, or at least not not supported by Marbury.

4) Of course, in 1937, the Supreme Court reversed course and repudiated the Lochner era's protection for economic liberty. Still, Clinton argues that the Court, under the leadership of Earl Warren from 1954 until mid-1969, continued to embrace judicial supremacy, but simply reoriented its efforts toward the protection of a different set of substantive values. (Students of this era will of course recall the Warren Court's revolution in Constitutional Criminal procedure, which foisted upon the states various new rules governing the sort of evidence admissible at criminal trials, for instance.) Moreover, in 1958, Clinton says, the Court invoked Marbury for the proposition that judicial interpretations of the Constitution are themselves, like the Constitution, the Supreme Law of the Land and thus by their own force binding on other actors who must treat the Supreme Court's interpretation of the Constitution as equivalent to the Constitution itself. [Here Clinton is referring to the Court's decision in Cooper v. Aaron, which reiterated that Brown v. Board of Education required that admission decisions at state-run high schools be made irrespective of race and ordered the Governor of the State of Arkansas to refrain from interfering with a local school board's efforts to comply with the Brown decision, to which the school board had been a party.] Moreover, in the 1992 Casey decision, Clinton points out, the Court, when reaffirming Roe v. Wade, asserted that Americans' belief in themselves as a people committed to the Rule of Law "is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals.” Clinton might have added the same opinion's statement that the Court should adhere to Roe in part to reward those citizens who thought Roe was wrong, "when viewed outside of constitutional terms" but "who nevertheless struggled to accept it, because they respect the rule of law." Like the statement from Casey that Clinton quotes, this statement seems to rest on the assumption that the Court's resolution of a constitutional question thereby binds individual citizens whose disagreement with that decision must thereby be "outside constitutional terms" and whose failure to adhere to the principle announced in such a decision in their public lives would thereby contravene the rule of law.

5) Finally, it should be noted that Clinton claims that decisions such as Roe, and various unnamed Warren Court excesses, would not have been possible without what he calls "judicial supremacy." As explained earlier, he also characterizes various decisions from the Lochner era as premised upon such supremacy.

B

1) I don't take issue with Clinton's assertion that Marbury was rarely cited until late in the 19th Century. See Davison Douglas, The Rhetorical Uses of Marbury v. Madison: The Emergence of a "Great Case," 38 Wake Forest L. Rev. 375 (2003). Still, the paucity of citations of Marbury during the 19th century should not obscure the deeply-rooted status of judicial review. As John Yoo and Sai Prakash have shown, numerous participants in the Constitutional Convention assumed that the Constitution they were creating would empower federal courts to strike down unconstitutional state and federal laws. See Saikrishna Prakash & John Yoo, The Origins of Judicial Review, 70 U. CHI. L. REV. 887. Indeed, Anti-Federalist opponents of the Constitution cited the prospect of judicial review as a reason to reject the constitution. (Some of the papers of the Anti-Federalist Brutus provide an example of such criticism of judicial review.) In his famous Federalist 78, published in 1788, Alexander Hamilton offered a rousing defense of judicial review in response to such detractors, arguing that the existence of a written constitution implied that, when a court court decides a case or controversy before it, it must treat the Constitution as paramount and decline to give effect to ordinary statutes, for instance, that contradict that supreme law.

Indeed, even before the Constitutional Convention, several judges on the highest court in Virginia, including George Wythe, a signatory of the Declaration of Independence, expressly embraced the concept of judicial review, in what is known as the Case of the Prisoners, decided in 1782. Moreover, shortly after the Constitution was ratified, the Justices of the Supreme Court declined to enforce a Congressional statute purporting to require individual justices to receive petitions from veterans of the Revolutionary War for pensions, determine whether each petitioner was in fact entitled to a pension, and make a recommendation to the Secretary of War, who could reverse the court's determination. See Hayburn's Case (1792). Finally, in Calder v. Bull (1798), the Supreme Court entertained a challenge to a Connecticut statute overturning the judgment of a state court. While the Justices rejected the challenge, each assumed that the Court possessed the authority to void unconstitutional state enactments.

Finally, the First Congress apparently believed that the Supreme Court had the authority to determine whether, for instance, state legislative enactments were consistent with the Constitution. To be precise, the First Congress enacted the Judiciary Act of 1789, very shortly after the Constitution was ratified. Among numerous other things, that Act conferred upon the Supreme Court the authority to hear appeals in cases:

"where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity."

In other words, the First Congress --- acting 14 years before Marbury --- conferred upon the Supreme Court the authority to review decisions by state courts that had sustained state statutes against constitutional challenge. This, of course, is exactly the sort of review that the Supreme Court conducted during the Lochner era. Indeed, in Lochner itself, the Court reversed a judgment of the New York Court of Appeals that had narrowly sustained the state's maximum hour legislation against constitutional attack. If this sort of review was an example of inappropriate "judicial supremacy," then it's the sort of judicial supremacy endorsed by the same Congress that, for instance, proposed the Bill of Rights.

2) In sum, just as the Christian Church pre-dated the various books of the New Testament, in some cases by several decades, so too did the institution of judicial review predate Marbury v. Madison. Moreover, the logic supporting the institution of judicial review, expressed for instance in Federalist 78, was not limited to instances in which Congress sought to compel the courts to act in a manner that exceed their authority. Moreover, the First Congress contemplated that the Supreme Court would exercise judicial review in a manner that Professor Clinton would apparently regard as exemplifying judicial supremacy.

3) Professor Clinton also seems to understate the extent of judicial review early in the 19th century. For instance, during a ten year period, from 1810 to 1819, the Marshall Court struck down statutes in four different states on the grounds that such legislation offended the Contracts Clause found in Article I, Section 10 of the Constitution. None of the statutes purported to require Federal or even state courts to exercise jurisdiction in contravention of Article III or any other provision of the Constitution. In the famous Dartmouth College case, for instance, the Court struck down a New Hampshire statute that sought coercively to transform Dartmouth from a private to a public college, on the grounds that the statute offended the Contracts Clause because it altered the College's original royal charter, pictured above. In so doing, the Court conducted the same sort of review that courts would conduct during the Lochner era. To be sure, the opinion by John Marshall did not cite Marbury as authority for the sort of judicial review that the Court conducted. However, this omission seems beside the point. If anything, the omission could suggest that judicial review was so "taken for granted" by this time that there was no reason to justify the exercise of such review.

If, as Clinton asserts, "judicial supremacy" entails a court declaring a statute invalid "because the Court believes that some other agency of government has done something unconstitutional," then the Marshall Court, which decided Marbury in 1803, embarked on such a Supremacy campaign just seven years later, a campaign consistent with the Judiciary Act of 1789.

4) At the same time, I believe that Professor Clinton is absolutely correct when he asserts that Marbury does not support the sort of judicial supremacy suggested by the dicta of Cooper v. Aaron or the language in Casey quoted above. (I refer to the language in Copper as dicta because the actual question before the Court, as the Justices recognized, was whether the Governor of Arkansas could obstruct a local school board's compliance with the Court's prior mandate, issued pursuant to a case properly within the Court's jurisdiction. I also hasten to add that I believe Cooper and Brown to have been decided correctly on the merits.) That is to say, neither Marbury, its logic, nor its antecedents supports the notion that judges are the only actors authorized to interpret the Constitution or that other actors, e.g., the President, must treat Supreme Court precedent as definitive expositions of the Constitution when operating within their own sphere of authority. Indeed, at the Pennsylvania ratifying convention James Wilson, later a Supreme Court Justice, argued that a President could decline to enforce a law he believed to be unconstitutional and that, in the same way, judges could decline to enforce unconstitutional laws that came before them. Moreover, the logical structure of Marshall's justification for judicial review (and, for that matter, Hamilton's argument as articulated in Federalist 78), simply authorizes courts, when deciding cases properly before them, to determine whether a statute or regulation is constitutional. This could entail declining to enforce a statute that the Executive is seeking to enforce. Or, it could involve reversing a judgment by a state court sustaining a statute against constitutional attack.

None other than James Madison would have agreed with this assertion. In 1834 he wrote:

"As the Legislative, Executive, and Judicial departments of the United States are co-ordinate, and each equally bound to support the Constitution, it follows that each must, in the exercise of its functions, be guided by the text of the Constitution according to its own interpretation of it; and, consequently, that in the event of irreconcilable interpretations, the prevalence of the one or the other department must depend on the nature of the case, as receiving its final decision from one or the other."

And, of course, in his first inaugural address, Lincoln expressly reiterated what he had argued in his debates with Stephen Douglas a few years earlier, namely, that, while the Dred Scott decision was binding on the individual parties to the case, its overarching principle --- that African-Americans were not citizens and were instead property of their putative "owners," --- was not binding on actors in the political branches of government. Finally, as President, Lincoln directed Federal agents to grant passports and patents to African-Americans, thereby treating them as citizens.

5. I also agree with Clinton's assertion that the Warren and Burger Courts abused the power of judicial review, striking down various state and federal laws or judicial practices that were perfectly constitutional. Examples include Roe, Miranda v. Arizona and Mapp v. Ohio, the latter of which reversed 170 years of Constitutional Law to hold that evidence obtained in violation of the 4th Amendment MUST be kept from a jury in a criminal case, even if it means releasing a mass murderer so he or she may kill again. Other examples include the Burger Court's transmogrification of the 8th Amendment from a ban on Cruel and Unusual modes of punishment to a sort of roving commission empowering judges to determine what factors a jury must consider when deciding whether to impose the death penalty via the most humane method possible upon a defendant duly convicted of murder. At the same time, I would not attribute these errors to judicial supremacy, however defined, as such, but instead to willful judging.

6. "Departmentalism" as I have sketched it depends upon the existence of limits upon the judicial power. If anyone can at any time call upon courts to answer a constitutional question, and if such answers are treated as binding resolutions of cases or controversies, then the political branches will have a very small independent role in interpreting the Constitution. I would agree with Professor Clinton if he is arguing that courts have in some cases exceeded the appropriate judicial role by relaxing traditional limits on the sort of cases and controversies that judges can hear and resolve, thereby enlarging the judicial sphere at the expense of the political branches.

7. One final note that is not about the nature of judicial review as such, but instead about Professor Clinton's account of the Lochner era, particularly his claims that Lochner era judges were motivated by Social Darwinism and struck down legislation that was generally designed to protect the weak from the strong. Both assertions are controversial to say the least.

a) Lochner era judges found protection for liberty of occupation, liberty of contract and rights of property in the Due Process Clause of the 14th Amendment, one of the three "Civil War Amendments" adopted in the late 1860s. During the Civil War, Abraham Lincoln argued that the North and South were locked in a struggle over two definitions of Liberty. According to one definition, liberty included the ability to work at one's chosen occupation and retain the fruits of one's labors. The other definition, he said, protected the ability of one (white) person to own and direct the labor of another (black) person and to retain the fruits of that person's labor. The North, of course, won the Civil War, and the first definition of liberty prevailed, or so many thought. Still, despite emancipation, southern States sought to deprive African-Americans of various liberties, including economic liberties such as liberty of occupation and liberty of contract, via the so-called "Black Codes." Congress sought to preempt these codes via the Civil Rights Act of 1866 which, among other things, ensured African-Americans the same rights of contract as white persons and also prevented states from imposing occupational licensing requirements on African-Americans that were not imposed on white persons. The Act, however, exceeded any apparent power of Congress, which then proposed the 14th Amendment. When ratified, this amendment authorized Congress to enforce the Amendment's provisions, including the Equal Protection Clause, Due Process Clause, and the Priviliges or Immunities Clause, against the states.

Given the historical origins of the 14th Amendment, it's no surprise that, in the early 1870s, four Justices on the Supreme Court --- dissenting in the Slaughterhouse Cases --- argued that the Privileges and Immunities Clause as well as the Due Process Clause protected liberty of occupation from arbitrary abridgment, that is, regulation that did not fall within the police power. Of course, the five Justices in the Slaughterhouse majority took a contrary view, holding that the Amendment was motivated by and aimed at state racial discrimination. The opposite position, taken by dissenters like Justices Field and Bradley, for instance, had nothing to do with Social Darwinism. Indeed, it was the majority opinion in Slaughterhouse that smacked of Social Darwinism, ratifying the outcome of a Darwinian struggle in the political process that granted one firm a monopoly over slaughtering to the exclusion of hundreds of other small firms.

b) Nor am I aware of any data suggesting that most laws voided during the Lochner era protected the weak against the strong. Lochner itself, for instance, voided a law that likely disadvantaged labor-intensive small bakeries against larger, capital-intensive establishments. Small labor-intensive businesses could use constitutionally protected yellow dog contracts to prevent unionization that would raise their costs disproportionately compared to larger firms. At the same time, the Lochner era Court upheld certain forms of legislation, such as state and federal antitrust laws, that prevented large firms from cartelizing and thereby destroying wealth and harming consumers. See generally Alan J. Meese, Will, Judgment and Economic Liberty: Mr. Justice Souter and the Mistranslation of the Due Process Clause, 41 William and Mary L. Rev. 3, 25-44 (1999). Regardless of what one thinks of Lochner and its progeny as a matter of constitutional law, it seems difficult to square most Lochner-era decisions with the philosophy of Social Darwinism.