From: ceh@leland.Stanford.EDU (Carey Heckman)
Subject: Re: Supreme Court and U.S. Constitution (was Re: Banned Computer Material 1992)
Keywords: Constitution, Judicial Review
Organization: DSG, Stanford University, CA 94305, USA
Date: Fri, 9 Oct 92 12:56:09 GMT

In article <Bvtr2s.EFx@chinet.chi.il.us> dhartung@chinet.chi.il.us (Dan Hartung) writes:
>jkp@cs.HUT.FI (Jyrki Kuoppala) writes:
>>In article <1992Oct5.203001.29827@eff.org>, mnemonic@eff (Mike Godwin) writes:
>>>I think it is probably not a good idea to insist that the Supreme Court's
>>>power of judicial review is not grounded in the Constitution, even though
>>>it is not explicitly granted there. Article III says that the judicial
>>>branch has jurisdiction over all cases and controversies that arise under
>>>the law and the Constitution of the United States. No other branch is
>>>granted this authority.
>
>Sort of.  The point Mike was making was that judicial review over
>laws passed by Congress and signed by the President was NOT explicitly
>granted, in the sense that the Court could strike them down as if they
>had not been passed.  This was a PRACTICE of the court started in the
>case Marbury v. Madison, around 1810 or so.  The first time, in short,
>that an actual LAW was challenged as being unconstitutional.  

An important but sometimes forgotten aspect of judicial review is known in
the trade as the Madisonian Compromise.  The Constitution intentionally
fails to eliminate the jurisdiction of the state courts to review the
constitutionality of laws and actions.  Of course, the Supreme Court can
overrule a state court, but refusal of the Supreme Court to act does not
necessarily immunize a law or action from being declared unconstitutional
(with the exception of a few narrow areas in which the Constitution gives
the federal courts exclusive jurisdiction).  Many of the Founding Fathers
were very nervous about the creation of the federal courts and a federal
common law (the law which results from the body of judicial decisions).
The scope of federal power was especially constrained and a delicate subject
until the Civil War (in particular, the post-Civil War amendments) re-
architected the federal-state balance to make the federal government
preeminent.  The balance of federal and state power is still at issue, of
course.  Before the Civil War, most people would have said that the states
were the primary governmental body and the federal government was the
exception to the rule.  Today, most people would probably reverse the
statement, or at least give the federal government a more equal footing with
the states.

The judicial review proclaimed in Marbury v. Madison has strong roots in
British judicial practice, but the concept of constitution differs considerably
in the British tradition.  In the United States, the federal constitution is
a limited written document which overrides the otherwise inherent powers of
the separate states as the sovereign descendents of the British king.  In
Britain what is known as the "constitution" comes closer to being a philosophy
and a state of mind created by centuries of statutes, court decisions, and
tradition.  While some might argue that the US Constitution says whatever
the Supreme Court says it says, in Britain it's more feasible to conceive
of the constitution as meaning what each individual believes it to mean.

>>OK, I probably wasn't very clear with the idea (in my head or in my
>>writing).  How about the issue of a jury or a government employee
>>interpreting the Constitution?  This is where it is important what the
>>Constitution means?  
>>
>>[When] the Constitution is mentioned, does this mean "Constitution as
>>interpreted by the Supreme Court" or "Constitution as interpreted by
>>each person having sworn the oath"?  What is the answer in US
>>Constitutional Law tradition, and in opinions of Mike or anyone else?
>
>Wouldn't we ALL like to know.  The truth is that the court has been
>quite happy to contradict itself on these matters as its membership,
>and the times, change.
>

I think the Supreme Court is quite consistent and clear about declaring
itself the final arbiter of what the Constitution means.  Certainly it
was unwilling to let Richard Nixon have his own interpretation of 
executive privilege in the Watergate tapes case.  The Court has claimed
since Marbury v. Madison that when the Constitution vested the judicial
power in the Supreme Court, ultimate authority for making final and
binding interpretations of the Constitution came with it.  I think it
safe to say that today, particularly after U.S. v. Nixon, neither the
Congress nor the President contests this.

But I don't mean to say that the other branches of government and the
states have no role in Constitutional interpretation.  Andrew Jackson
once responded to a Supreme Court decision by stating that the Supreme
Court had made its decision, now let's see it enforce it.  The President
can (and as we all know, has) changed Constitutional interpretation by
making careful selections of Supreme Court members (although this has
been known to backfire as or more often than it has worked).  As stated
above, the state courts can interpret the Constitution until the Supreme
Court gets around to rendering a different decision.  The Congress can
exert various controls over the Supreme Court:  modify its jurisdiction
(this was a key part of the Madisonian Compromise too), restrict funding,
alter membership (the number of Supreme Court justices has been
modified from time to time), or refuse to confirm judicial appointments.

>It is probably important to mention that many conservatives believe
>that the Constituion gives Congress the right to remove various
>kinds of cases from the court's jurisdiction, but that the public
>in general -- and more to the point, Congress -- feel that this is
>a Bad Idea and will lead to even worse kinds of jurisdictional
>fights than we have now.  (In other words, put hot potatoes in the
>hands of congressmen who don't want to deal with them, especially
>in reelection years....)

Actually, Congress has frequently modified the jurisdiction of the
Supreme Court and the inferior courts.  In some situations the Supreme
Court has begged Congress (and the President, since he has to sign the
bill into law) to change its jurisdiction.

But your observation has considerable practical truth as well.  Congress
and the President enjoy leaving it to the courts to resolve politically
touchy issues.  Then again, the courts are hardly politically insensitive.
Realizing that the power of the courts rests mostly in maintaining
political credibility, the courts are often trimming their sails one way
or another to avoid getting too far out of synch with the mainstream.
The judicial process has a lot of inertia, so this leads to an almost
predictable 30-year half cycle between being too liberal to being too
conservative or vice versa.  Like the Road Runner, the Supreme Court's
inertia takes it over the ledge leaving the Court to thrash in the air
without support for awhile.  So far the Court has managed to thrash its
way back onto firm political ground before the other two branches reached
the point of taking punitive action (the closest call was in the 1930s
when the President nearly convinced the Congress to pack the Supreme Court
with "left thinking" people).

---------------------------------------------------------------------------

Carey Heckman

ceh@leland.stanford.edu
Newsgroups: comp.org.eff.talk