(Info Junkie) wrote:
:|"Perhaps the most basic of all the rules of constitutional construction (since
:|it is the rule which all other rules may be said to be designed to implement) is
:|the principle that a constitution is to be given the effect and meaning
:|contemplated by its framers and by the people who adopted it..."
:|(Vol 16 American Jurisprudence Sec. 91)
===========================================================
G. SOURCES FOR CONSTITUTIONAL ADJUDICATION:
Precedents
Intent of the framers of the Constitution.
The common law and the lessons of history
Interpretations given by nonjudicial agencies
Interoretations of state and foreign constitutions
Natural law and natrual rights doctrines
The shared eithical values of a culture
The broad philosophies of Supreme Court Justices
Studies in economics, sociology, and other disciplines
Concern for the impact of the decision and the rule upon society
Constitutional language and its arrangement
SOURCE: Modern Constitutional Law, The States and the Federal Government,
Vol II, Chester J. Antieau, Lawyers Co-op Publishing (1969) pp 706-747
===========================================
JUST FOR FUN:
Coke's advocacy of supremacist judicial review might have flown in the
fourteenth century, but it could not in the seventeenth. Coke wanted to
reopen a door that was already firmly shut. His colleagues on the bench
would not support his position.
Coke's ideas of supremacist judicial review conform to the tradition of the
U.S. Supreme Court rather than to the subsequent history of the common law
in England. In Marbury v Madison (1803), Chief Justice John Marshall wrote
the opinion declaring an act of Congress to be unconstitutional and
therefore void. It was a relatively trivial matter, but Marshall wanted to
use, the opportunity to get on the record the assertion of the power of the
federal Supreme Court to review and strike down not only acts of state
legislatures and courts but those of the federal Congress itself. There was
an outcry against Marshall's Coke-like position, not least from President
Thomas Jefferson, a relative of Marshall, who disliked him intensely on
both personal and political grounds.
Nevertheless the supremacist position on judicial review was asserted
again-disastrously, from a political point of view-in Chief Justice Roger
Taney's Dred Scott slavery decision in 1857, and has frequently been
practiced in the twentieth century, notably in the early 1930s by a
conservative Court against the New Deal and then in the liberal Court,
under Chief Justices Earl Warren and Warren Burger, from 1954 to 1973.
When the U.S. Supreme Court reviews and endorses acts of Congress, there is
no problem. Controversy erupts when the Court declares acts of Congress
illegal, which is what Coke wanted the English high courts to have the
power to do with parliamentary legislation.
Historians are divided on the question of whether Coke's opinion in
Bonham's Case migrated across the Atlantic and influenced Marshall, or
whether Marshall arrived at the same principle independently.
Characteristically, Marshall's opinion in Marbury is devoid of citations or
references. But those legal historians, like Barbara Black, who see the
giant figure of Coke lurking behind the U.S. Supreme Court, have a
plausible argument.
By putting forward his hard line on judicial review, Coke disturbed his
colleagues on the bench. It also did not make him popular with the activist
House of Commons. He appeared to be a political maverick, not the future
leader of the Commons against the Stuart monarchy. The leaders of the
Commons in the early seventeenth century were building on the medieval
doctrine of the king's two bodies to identify the rule of law with
parliamentary sovereignty. Coke's devotion to the common law around 1610
made him a dissenter from this extreme politicization of the common-law
tradition. He wanted to uphold the common law as superior equally to king
and Parliament, and therefore to sustain the position of the high-court
judges as interpreters of the constitution.
In that respect Coke anticipated the American definition of liberalism
rather than the modern English one. While A. V Dicey and other Victorian
juristic authorities talked about the rule of law as England's way, they
actually meant the rule of Parliament. In the American Republic, as it
developed, the Constitution and the Supreme Court's authority to interpret
it were held to be superior to the executive and the legislative
branches-the constitutional system Coke envisaged in Bonham's Case but
could not get anyone to support.
SOURCE: Imagining The Law, Common Law and the Foundations of the American
Legal System. Norman F. Cantor, HarperCollins, (1997) pp 306-07
***********************************************************************************
By the time Jefferson replied-he had spent three months in the south of
France, where he tried the healing effects of the mineral springs on his
broken wrist 32-he skipped over two of Madison's four points, endorsed one,
and objected to the other. He liked "the idea of separating the executive
business of the confederacy from Congress, as the judiciary is already in
some degree," and he reviewed his earlier efforts in creating a Committee
of the States to act in an executive capacity when Congress was not in
session. But he did not comment on Madison's "new system" that proposed to
transfer some significant powers from the states to the federal government
and to eliminate the intervention of the state legislatures. Nor did he
mention the proposed change in representation in Congress from the states
to the people.
Instead, he pounced on the proposed federal negative, something he had
not thought of before. "Prima facie," he said bluntly, "I do not like it.
It fails in an essential character, that the hole and the patch should be
commensurate." Instead of mending a small hole, the proposed patch would
cover the whole garment. As a substitute for such an inclusive negative, he
suggesttid judicial review: "Would not an appeal from the state judicatures
to a federal court, in all cases where the act of Confederation controuled
the question, be as effectual a remedy, and exactly commensurate to the
defect." 33
32. See Edward Dumbauld, Thomas Jefferson, American Tourist (Norman, Okla.,
1946), pp. 83-109.
33. TJ to JM, June 20, 1787
SOURCE: The Republic of Letters, The Correspondence between Thomas
Jefferson and
James Madison 1776-1826. Edited by James Morton Smith Volume I, 1776-1790.
W. W. Norton & Company (1995) pp 442.
&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&
James Madison to Thomas Jefferson
24 Oct. 1787Papers 10:207--15
http://press-pubs.uchicago.edu/founders/documents/v1ch17s22.html
Pay particular attention to the discussion of trhe negative in the above:
Letter to James Madison
Thomas Jefferson
December 20, 1787
Paris
http://teachingamericanhistory.org/library/index.asp?document=306
[Excerpt]
I am much pleased too with the substitution of the method of voting by
persons, instead of that of voting by states : and I like the negative
given to the Executive with a third of either house, though I should have
liked it better had the Judiciary been associated for that purpose, or
invested with a similar and separate power.
&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&
See also the Federalists Papers # 78, written by Alexander Hamilton who was
a member of the Constitutional Convention.
James Madison felt that the "federal head" should be armed "with a
negative IN ALL CASES WHATSOEVER on the local legislatures."
See letter from James Madison to Thomas Jefferson, March 19, 1787.
The Republic of Letters, The Correspondence between Thomas Jefferson and
James Madison 1776-1826. Edited by James Morton Smith Volume I, 1776-1790.
W. W. Norton & Company (1995) pp 442, 470
To Thomas Jefferson N. York. March 19th. 1787
http://www.constitution.org/jm/17870319_tj.htm
-----------------------------------------------------------------------------------------------
Thomas Jefferson, on the other hand, felt that as a substitute for such an
inclusive negative, he suggested judicial review.
See Letter from Thomas Jefferson to James Madison, June 20, 1787
The Republic of Letters, The Correspondence between Thomas Jefferson and
James Madison 1776-1826. Edited by James Morton Smith Volume I, 1776-1790.
W. W. Norton & Company (1995) pp 442-443, 480-81
Thomas Jefferson to James Madison, June 20, 1787
http://press-pubs.uchicago.edu/founders/documents/v1ch8s11.html
&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&
ARTICLE III
Section 1.
The judicial power of the United States, shall be vested in one Supreme
Court, and in such inferior courts as the Congress may from time to time
ordain and establish. The judges, both of the supreme and inferior courts,
shall hold their offices during good behaviour, and shall, at stated times,
receive for their services, a compensation, which shall not be diminished
during their continuance in office.
Section 2.
The judicial power shall extend to all cases, in law and equity, arising
under this Constitution, the laws of the United States, and treaties made,
or which shall be made, under their authority;--to all cases affecting
ambassadors, other public ministers and consuls;--to all cases of admiralty
and maritime jurisdiction;--to controversies to which the United States
shall be a party;--to controversies between two or more states;--[between a
state and citizens of another state;] (Note: changed by the Eleventh
Amendment)-- between citizens of different states;--between citizens of the
same state claiming lands under grants of different states, [and between a
state, or the citizens thereof, and foreign states, citizens or subjects.]
(Note: changed by the Eleventh Amendment.)
----------------------------------------------------------------------------------------------------------------
The need for Judicial review grew out of the Conventions adoption of the
first section of Article VI as shown below.
ARTICLE VI
"This Constitution, and the laws of the United States which shall be made
in pursuance thereof; and all treaties made, or which shall be made, under
the authority of the United States, shall be the supreme law of the land;
and the judges in every state shall be bound thereby, anything in the
Constitution or laws of any State to the contrary notwithstanding."
[Article VI also contained the following.]
"The Senators and Representatives before mentioned, and the members of the
several state legislatures, and all executive and judicial officers, both
of the United States and of the several states, shall be bound by oath or
affirmation, to support this Constitution;. . . "
________________________________________________________________________
JUDICIARY ACT OF 1789, passed into law September 1789 by the First federal
Congress as outlined in Article III of the Federal Constitution.
SEC. 25. And be it further enacted, That a final judgment or decree in any
suit, in the highest court of law or equity of a State in which a decision
in the suit could be had, where is drawn in question the validity of a
treaty or statute of, or an authority exercised under the United States,
and the decision is against their validity; or 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,
or where is drawn in question the construction of any clause of the
constitution, or of a treaty, or statute of, or commission held under the
United States, and the decision is against the title, right, privilege or
exemption specially set up or claimed by either party, under such clause of
the said Constitution, treaty, statute or commission, may be re-examined
and reversed or affirmed in the Supreme Court of the United States upon a
writ of error, the citation being signed by the chief justice, or judge or
chancellor of the court rendering or passing the judgment or decree
complained of, or by a justice of the Supreme Court of the United States,
in the same manner and under the same regulations, and the writ shall have
the same effect, as if the judgment or decree complained of had been
rendered or passed in a circuit court, and the proceeding upon the reversal
shall also be the same, except that the Supreme Court, instead of remanding
the cause for a final decision as before provided, may at their discretion,
if the cause shall have been once remanded before, proceed to a final
decision of the same, and award execution. Bur no other error shall be
assigned or regarded as a ground of reversal in any such case as aforesaid,
than such as appears on the face of the record, and immediately respects
the before mentioned questions of validity or construction of the said
constitution, treaties, statutes, commissions, or authorities in dispute.
--------------------------------------------------------------------------------------------------------------
The Judiciary Act of 1789 gave the Supreme Court the power to review
rulings of state courts (Section 25 of the Judiciary Act)
This Provision was subject to much criticism and numerous repeal efforts
over the next three decades. All failed and, as what follows shows, were
frequently a result of politics. One party trying to get the upper hand
over the other.
---------------------------------------------------------------------------------------------------------------
"The constitutional validity of the tax [carriage tax] so distasteful to
the South would supply an ongoing political issue for use against the
Federalists. Having lost in Congress, Republicans in Virginia, in now
time-honored political fashion, shifted their fight against the tax to a
different forum, the federal courts, where they repeated their argument
that the tax was direct and therefore invalid for having been imposed
without an apportionment among the states according to population, as
required by the Constitution."
"For Republicans, the commencement of such a suit constituted an anomaly.
The theory of their action depended on the assumption that federal courts
had the power of judicial review, for which, however, the Constitution had
made no provision. What constitutional argument could Virginia Republicans,
under the leadership of Madison and Jefferson, have made that federal
courts nevertheless had the power to set aside an act of Congress and
refuse to enforce collection of the tax! The power could arise only by
implication."
"Virginia Republicans were not compelled to make the argument, because
neither their adversary, the government of the United States, nor the
courts raised the issue. Eventually, and not surprisingly, the case was
decided on the merits against the tax-payers. The Supreme Court, to which
the case was appealed, sustained the constitutionality of the tax.'"
(Negotiating the Constitution, The Earliest Debates over Original Intent,
By Joseph M. Lynch. Cornell University Press, Ithaca and London (1999) pp
136)
----------------------------------------------------------------------------------------------------------
"Their immediate situation seemed grim. In their [Republicans]view, as
recent developments had proved, the Federalists were concerned with power,
with keeping control of Congress and the presidency, which--without
Washington--they had almost lost in the election of 1796. The Alien and
Sedition Acts, Republicans believed, had been principally conceived as
handy tools of political harassment with which to tarnish Republicans as
traitors and throw them in prison, while allowing the Federalists to parade
before the country as the party of patriotic fervor. Republicans
anticipated that the laws would be zealously justified as constitution,
whether in the name of implied powers. the Necessary and Proper Clause,
general principles of government, or a combination of all of these. For
Republicans, the Federalist copy of the Constitution was in effect
unwritten and without principled limits. The Bill of Rights would afford
them no protection."
" Events proved them correct: As they had expected, the mere adoption of
the Alien Act led to the exodus of many French aliens whom they counted as
their supporters; and the enforcement of the Sedition Act led to the
systematic prosecution of their leaders, their newspaper editors, and
pamphleteers. When Republican defendants, invoking the federal courts'
power of judicial review, challenged the constitutionality of the Sedition
Act, they quickly found that the courts, manned by Federalist judges,
systematically construed the Constitution in the same manner as the
Federalist majority in Congress and the president, and upheld the statute's
validity."
"Even before the adoption of the Sedition Act, the United States had
arrested Benjamin Bache, the publisher of the leading Republican paper in
Philadelphia, the Aurora, indicted him on a charge of common-law sedition
and scheduled his trial for late in the year." [Benjamin Bache, grandson
of Benjamin Franklin died in jail while awaiting trial.]
(Negotiating the Constitution, The Earliest Debates over Original Intent,
By Joseph M. Lynch. Cornell University Press, Ithaca and London (1999) pp
191)
-----------------------------------------------------------------------------------------------------
"While the Connecticut legislature simply disavowed the principles set
forth in the resolutions, the Vermont legislature repeated the criticism
of Massachusetts, terming the Virginia Resolutions "unconstitutional in
their nature, and dangerous in their tendency." In a statement of support
for the power of judicial review, the Vermont body announced its judgment
that the power to pass on the constitutionality of federal law devolved not
upon the individual state legislatures but upon the federal courts." The
legislatures of Delaware, New Hampshire, and Rhode Island similarly
disclaimed the idea of a power in the Virginia legislature to determine the
constitutionality of a federal statute; those of New Hampshire and Rhode
Island affirmed the power of federal judicial review."
" Pinckney then introduced a more fundamental constitutional question: the
power of the courts to exercise judicial review. It was, he said, the
particular duty of Congress to guard against judicial bias in favor of the
President "when we recollect that our Judges claim the dangerous right to
question the constitutionality of the laws; and either to execute them or
not, as they think proper; a right in my judgment as unfounded and as
dangerous as any that was ever attempted in a free government;
they however do exercise it. and while they are suffered to do so, it is
impossible to say; to what extent it might be carried."
"A president, Pinckney added, might try to rid himself of laws he found
obnoxious by persuading the judges that they were unconstitutional and
should not be executed." There is no report that this argument was either
pursued further or rebutted. It was one that Republicans would raise again
in the Seventh Congress."
" Questioning the power of judicial review was a new development. Earlier,
in mounting attacks against the constitutionality of the carriage tax and
the Sedition Act, the Republicans had been pleased to invite the federal
judiciary to set those laws aside. Apparently having seen that their
attacks did not bear fruit, they were now willing to doubt the power's
existence.Just as Republican dissatisfaction with the exercise of executive
power had led in the Second Congress to a constitutional challenge to the
existence of the power itself, so their dissatisfaction with the
performance of. the Federalist-appointed federal judiciary led in the Sixth
and Seventh Congresses to a denial of the power of judicial review. For the
moment, however,Pinckney"s initiative lost. The Senate as a body refused to
vote its rebuke."
(Negotiating the Constitution, The Earliest Debates over Original Intent,
By Joseph M. Lynch. Cornell University Press, Ithaca and London (1999) pp
211-120)
&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&
FEDERAL COURT ACTIONS
JUDICIAL REVIEW: [upheld]
Marbury v Madison, 1 Cr. 137, Decided without dissent, February 24, 1803.
Marshall wrote the Court's Opinion.
JUDICIAL REVIEW: [upheld]
Martin v Hunter's Lessee, 1 Wheat. 316. decided without dissent, March 6,
1819. Marshall wrote the Court's opinion.
JUDICIAL REVIEW: [upheld]
Cohens v Virginia, 6 Wheat. 264, decided without dissent, March 3, 1821.
Marshall delivered the Court's opinion.
-----------------------------------------------------------------------------------------------------------------
See also the Federalists Papers # 78, written by Alexander Hamilton who was
a member of the Constitutional Convention.
James Madison felt that the "federal head" should be armed "with a
negative IN ALL CASES WHATSOEVER on the local legislatures."
See letter from James Madison to Thomas Jefferson, March 19, 1787.
The Republic of Letters, The Correspondence between Thomas Jefferson and
James Madison 1776-1826. Edited by James Morton Smith Volume I, 1776-1790.
W. W. Norton & Company (1995) pp 442, 470
Thomas Jefferson, on the other hand, felt that as a substitute for such an
inclusive negative, he suggested judicial review.
See Letter from Thomas Jefferson to James Madison, June 20, 1787
The Republic of Letters, The Correspondence between Thomas Jefferson and
James Madison 1776-1826. Edited by James Morton Smith Volume I, 1776-1790.
W. W. Norton & Company (1995) pp 442-443, 480-81
--------------------------------------------------------------------------------------------------------------
Most scholars think that the members of the Constitutional Convention
intended the Court to exert this power [judicial review]. They point to the
various remarks during the convention debates--and during the ratification
conventions in the states--as indicating that many members of the
convention simply assumed that the Supreme Court would have this power.
The Supreme Court at work, Second Edition, Joan Biskupic & Elder Witt.
Congressional Quarterly (1997) pp 3
----------------------------------------------------------------------------------------------------------------
B. JUDICIAL REVIEW OF CONSTITUTIONAL
ISSUES--GENERALLY
§915:7. Generally
Judicial review of constitutional issues by the United States Supreme
Court dates from 1803, when, in Marbury v Madison, the court for the first
time declared unconstitutional an act of the Federal Congress.(11)
Declaring a legislative act unconstitutional, said the court, is "the
gravest and most delicate duty that this Court is called on to
perform."(12) Many years later, the Supreme Court explained: "The very
foundation of the power of the federal courts to declare acts of Congress
unconstitutional lies in the power and duty of those courts to decide cases
and controversies before them."(13)
There were, however, even before 1803, a number of significant instances
wherein state and federal courts had declared legislative acts to be
unconstitutional.(14) The doctrine of natural law generally prevailed in
the American community during the last quarter of the 18th century, and
there is no doubt that belief in a "higher law" facilitated the task of the
judiciary in invalidating legislation.(15)
The United States, of course, is not alone in having judicial review of
constitutional issues. Some legislative acts, at least, can be declared
unconstitutional by courts in Australia, Austria, Canada, Cyprus, Denmark,
Germany, India, Italy, Japan, Norway, the Philippines, Switzerland, Turkey,
and Yugoslavia. The United States Supreme Court does not have the exclusive
power of constitutional review, but shares this with the lower federal and
the state courts.
FOOTNOTES
(9). Shartel, Federal judges--Appointment, Supervision, and Removal-- Some
Possibilities under the Constitution. 28 Mich L Rev. 870 (1930).
(10). McAllister v United States (1891) 141 US 17-1, 188, 35 L Ed
693, 11 S Ct 949.
(11). Marbury v Madison (1803, US) 1 Cranch 137, 2 L Ed 60.
(12). Marbury v Madison (1803, US) 1 Cranch 137, 2 L Ed 60, 73, 74.
(13).United States v Raines (1960) 362 US 17, 4 L Ed 2d 524,
529, 80 S Ct 519.
(14). Early precedents are all accumulated in Haines, The American Doctrine
of Judicial Supremacy(2d rev ed 1959, Ny), esp Ch V.
(15). Compare, Corwin, The "Higher Law" Background of American
Constitutional Law. 42 Harv L Rev 149,365(1928).
(SOURCE OF INFORMATION: Modern Constitutional Law, The States and the
federal Government. Volume II, Chester J. Antieau. Lawyers Cooperative
Publishing, (1969) pp 606-07)
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