American Civil War/ Reconstruction amendments

[Northern_Piper]

@Exapno_Mapcase

Nobody expected that the Court would further rule that the Act of Congress in question was unconstitutional. That, as I’ve been saying, was the piece that was unprecedented and indeed revolutionary.

I’m afraid I disagree. @Hari Seldon and I had a discussion on this very point about 5 years ago, and I pointed out that there were, in fact, precedents for judicial review, prior to Marshall CJ being appointed to the Court. In addition to the Privy Council cases, the issue of judicial review had been raised and debated in some of the ratification conventions, particularly in Virginia, where Marshall was an observer. Hamilton and Madison both supported the concept, and prior to Marshall’s appointment, all six of the justices of the Supreme Court had held, individually on circuit, that the the federal Invalid Pensions Act was unconstitutional.

Here’s my initial comment from that thread:

@Northern_Piper

@Hari_Seldon

My question is could congress simply remove the court’s jurisdiction over acts of congress?

I point out that the court’s right to do so is somewhat watery. As far as I can tell it rests solely on the phrase “In Pursuance thereof” in the supremacy clause:

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;

I would say no, because the function of judicial review is the core of the judicial power. The Congress can make particular exceptions by subject matter, as in McCardle’s case, but to take away the Court’s power of judicial review would gut the court of its core constitutional function.

The supremacy clause is important, but the starting point is the opening words of Article III:

Article III, s. 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.

Article III, s. 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…

It is that delineation of the judicial power which is the source of the Court’s power of judicial review, because a question whether a law is consistent with the Constitution is a case “arising under this Constitution, [and] the Laws of the United States”.

That is the core function of the judiciary, just like enacting laws is the core function of the Congress, and taking “care that the laws be faithfully executed” is one of the core duties of the President. One branch can’t take away the core functions of another branch.

The Supremacy clause (Article VI) is important to that analysis, because it clearly states that the Constitution itself is a law, and the supreme law, at that. That was the key foundational distinction between the Constitution and the Articles of Confederation: the Articles were a treaty alliance between sovereign states, but the Constitution was the result of the sovereign law-making function of the people of the United States. That was why Madison in particular insisted on ratification of the Constitution by individual state conventions (Article VII), rather than by the state governments. The Constitution drew its authority directly from the people, unlike the Articles, which drew their authority from the state governments. The Constitution is a law, not a political agreement.

And that leads to the core of Chief Justice Marshall’s statement in Marbury v Madison:

It is emphatically the province and duty of the Judicial Department to say what the law is.

What he is saying is that between the different types of laws listed in Article III and in the supremacy clause, it is the core function of the courts to determine how those laws relate to each other, and in case of conflict, which one governs. He concluded that in case of a conflict between the Constitution itself, and a law “made in pursuance of” the Constitution, the Constitution had to govern. Otherwise, laws “made in pursuance” of the Constitution would be exceeding the authority granted by the people to the federal government in the Constitution.

It’s sometimes said that Marshall CJ just made judicial review up out of whole cloth, and there’s no basis for judicial review in the Constitution, but it is there, in those provisions. And, he didn’t make it up. It was foreseen by the drafters of the Constitution.

For example, in Federalist 78, Alexander Hamilton clearly states that judicial review is implicit in the judicial branch:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.
…
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Since the it is the core function of the courts to determine the relationship between the Constitution and laws passed by the Congress, an attempt to strip the Supreme Court and the federal courts of all jurisdiction to do that would be unconstitutional, in my opinion.

Now, could the Congress strip the Supreme Court of that power by means of reducing its appellate authority, but leave the inferior courts the power of judicial review? After all, in that model, the “judicial power” under Article III would still be able to review the constitutionality of laws. Maybe. But my bet would be that the Supreme Court would rule that since the judicial power is vested in both the Supreme Court and inferior federal courts, there would be limitations on stripping the Supreme Court of judicial review in general.