Ⅵ. Supplementary reading.

Where Does the Supreme Court Get the Authority to Interpret the Constitution？

The issue of how the Supreme Court interprets the Constitution is vitally important because of the Court's power of judicial review. The Court has the final say on what the Constitution means and how it applies in a particular case. （Every court, federal and state, has the responsibility and the authority to render decisions on constitutional issues, but all of those other decisions can ultimately be reviewed by the U.S. Supreme Court. ）

We have become so used to judicial review that it seems a natural, inevitable, and even necessary part of our government structure. But note how sweeping the power is. The President, Congress, state legislatures, governors, state courts, state and federal administrative agencies, public officials, and all ordinary citizens are subject to the commands of the nine justices on questions of constitutional law. At the time of the drafting of the Constitution a power this broad was unknown anywhere else, and even today it is unusual among judicial systems around the world.

Remarkably, the power of judicial review is not given to the Supreme Court in the Constitution itself. ArticleⅢ states that“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, ”and it extends that power to“all Cases, in Law and Equity, arising under this Constitution”and to other categories. These provisions are organizational and jurisdictional. They create the Supreme Court, but“supreme”means only“highest, ”designating a place in the hierarchy but not the Court's authority. The power to hear cases arising under the Constitution is likewise a grant of jurisdiction to hear certain kinds of cases, but not a grant of authority to exercise constitutional review in hearing them. Article Ⅵstates that“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof. . . shall be the supreme Law of the Land. ”This provision does not tell us either that the Constitution takes precedence over other“laws of the United States”—in other words, that the Constitution is superior to acts of Congress—nor that the Supreme Court, rather than the Congress, the President, or the states, has the authority to conclusively determine what the Constitution means. The power of judicial review was established by the Court's decision in the 1803 case of Marbury v. Madison. Constitutional scholars, by consensus, regard Marbury as the most important case the Court ever has decided, and its story bears retelling. As with so many important legal events in our own time, the story involves important personalities, partisan politics, and a little intrigue to go along with the law. Toward the end of George Washington's presidency national politics came to be dominated by two groups:the Federalist Party, which elected John Adams President and controlled the Congress from 1796 until 1800, and the Democratic Republican Party（predecessor of today's Democratic Party）, which would gain a majority in the Congress and elect Thomas Jefferson in 1800. When it became apparent to the Federalists that they would lose control of the executive and legislative branches, they moved to consolidate their power in the judiciary. President Adams nominated his Secretary of State, John Marshall, to be Chief Justice. The Federalist Congress also passed legislation to increase the number of lower federal judges, reduce the number of members of the Supreme Court（to prevent the incoming Republicans from filling a vacancy）, and authorize forty-two new justices of the peace in the District of Columbia.

In the last days of his administration President Adams nominated faithful party 52 members to the new positions, and the Senate confirmed them. On the night before Jefferson was to become President, John Marshall—still serving as Secretary of State for the last month of Adams's term—performed the Secretary's traditional duty of affixing the Seal of the United States to the commissions of the new judges. Through inadvertence, a few commissions were not delivered to the new office holders that night, and the next day the newly inaugurated President Jefferson directed his Secretary of State, James Madison, to withhold the remaining commissions, including one belonging to the soon to be famous William Marbury, who had been appointed as a justice of the peace.

Marbury sued for his commission, bringing what was known as a writ of mandamus in the Supreme Court. Although he brought his action in 1801, the new Republican Congress had abolished the 1801 and 1802 terms of the Supreme Court, and therefore the case was not decided until 1803. Finally, the Court decided the case in an opinion by Chief Justice Marshall who, consistent with the ethical sensibilities of the time, saw no conflict between his roles as participant in the drama and judge of its resolution.

In deciding Marbury, Marshall and his Court faced a dilemma. If Marshall failed to rule that Marbury was entitled to his commission, he would be acquiescing in an assumption of power by the executive branch, contrary to his Federalist principles and his belief in the need to assert the power of the judiciary. But the authority of the Supreme Court was not yet well established, so if he ordered that the commission be delivered, Jefferson and Madison might simply refuse to comply, provoking a constitutional crisis. Marshall's ingenious response was to sidestep the controversy by claiming the power of judicial review for the Court but exercising it in a way that denied Marbury his commission.

Marshall's opinion for the Court first held that Marbury's appointment was complete when his commission was signed by the President. At that point the Secretary of State's duties in sealing and delivering the commission were ministerial details and failing to carry them out did not affect Marbury's status. Next, because Marbury had a right to his commission, the appropriate remedy under law was mandamus directed to the Secretary. The catch arose at the third step. Was the Supreme Court the proper forum in which to seek this remedy？

ArticleⅢ granted the Supreme Court original jurisdiction in cases in which a foreign diplomat or a state was a party; in all other cases, it only had the authority to hear appeals from lower courts. The Judiciary Act of 1789 had expanded the Court's original jurisdiction to include the power to issue writs of mandamus against federal officials. Marbury asserted that the Court had jurisdiction of his suit against Madison under the Judiciary Act. In the opinion tour de force, Chief Justice Marshall ruled that the Judiciary Act had impermissibly extended the Court's original jurisdiction beyond that granted by Article Ⅲ and therefore the Court could not grant relief to Marbury because it did not have jurisdiction of the case. This satisfied the immediate concerns of the Republicans, but the great significance of the case lay in the Court's assumption to itself of the final authority to determine if the Judiciary Act or any other act of Congress was constitutional. Thus the opinion ceded the immediate issue while profoundly enhancing the Court's authority.

For Marshall, whether the Court had the power to review the constitutionality of legislation was an easy question. The people created the Constitution to be fundamental, supreme, and permanent law. Part of the constitutional scheme is that the federal government is a government of limited powers. The branches may exercise only the authority that the people have delegated to them in the Constitution. Therefore, any act that is contrary to the Constitution or beyond the powers enumerated in it is void. ArticleⅢ's grant of limited jurisdiction was exclusive, so Congress had no constitutional authority to expand the Court's jurisdiction to include mandamus actions.

So far, so good. The key comes at the next stage of the argument. The Constitution is fundamental law so it is law, and the interpretation and application of law is the traditional domain of the courts.

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide the case conformably to the law disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the cases. This is of the very essence of judicial duty.

Thus Marshall neatly concludes the syllogism. The Constitution is law. Courts interpret law. Therefore courts interpret the Constitution. But what was obvious to Marshall was not obvious to others. The law that the courts traditionally interpret and the law embodied in the Constitution may be two entirely different things. If the Constitution is fundamental law perhaps it should not be treated the same as ordinary statutes and cases. Precisely because it is fundamental, constitutional interpretation might just as easily be left to the other branches of government. Congress can make a judgment about the constitutionality of a statute when it enacts one, as with the Judiciary Act, and it would not be obviously inconsistent with the constitutional scheme for the courts to consider that judgment to be definitive.

Despite the lack of logical rigor in Marbury v. Madison, it was the first strong pronouncement of the principle of judicial review. Although the Court exercised sparingly its power to declare congressional enactments unconstitutional in the decades after Marbury—it didn't invalidate another federal statute until the Dred Scott case in 1857—the power had been asserted and initially acquiesced by the other branches. Or perhaps it was because the power was exercised sparingly that it took root, since the Court was frequently under attack in the early years of the nineteenth century.

The Court consolidated its power of judicial review by asserting a similar authority over state law. In 1810 the Court first invalidated a state statute in Fletcher v. Peck on the grounds that the statute, an attempt to rescind title to land that had been fraudulently conveyed, violated the contract clause. Then in Martin v. Hunter's Lessee in 1816, another case involving a land dispute, the highest court in Virginia had ruled for one party but the U.S. Supreme Court, on appeal, had ruled differently. The Virginia court refused to obey the Supreme Court's mandate, asserting that it could decide the issue for itself and that the federal Judiciary Act, which granted appellate jurisdiction to the Court, was unconstitutional. When the case returned to the Supreme Court, the Court, in an opinion by Justice Joseph Story, reasserted its constitutional authority. In adopting the Constitution the states had ceded some of their sovereignty to the federal government. The federal judicial power included all cases involving constitutional interpretation, and the supremacy clause made the federal law preeminent. Finally, in Cohens v. Virginia（1821）the Court extended its power to encompass the review of state criminal proceedings. Unless state proceedings were subject to review in the federal courts, the states could thwart federal law and policy by punishing individuals who asserted valid constitutional rights.

Thus by the end of John Marshall's tenure as Chief Justice in 1834, the foundation had been laid for Supreme Court review of the constitutionality of the acts of state and federal legislative bodies and executive officials. The other branches and levels of government have not always been happy with the Court's assumption of authority, but by now the principle is firmly established.

Consider two illustrations of attempted and potential resistance and its ultimate futility. The Court's decision desegregating public schools in Brown v. Board of Education was met in many Southern states by official and unofficial resistance. Some Southern legislatures, for example, enacted resolutions“nullifying”the decision and tried to avoid its effects by schemes such as refusing to fund desegregated schools. Nevertheless, the federal courts pursued the enforcement of the decision in one state after another. In Cooper v. Aaron（1958）the Court rejected all of these efforts and reasserted the principle of Marbury, that“the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. ”The Southern states' defiance of the Court's power was so challenging to the constitutional order that all nine justices took the extraordinary step of attaching their names to the opinion individually.

In the Watergate era, the courts were faced with a number of cases arising from the investigations into the illegal activities of President Nixon and his cronies. In United States v. Nixon（1974）for example, the Court held that the courts, not the President, could determine whether evidence sought by the Watergate special prosecutor was validly subject to the President's claim of executive privilege. Review of evidence like this was a judicial function that Article Ⅲ had committed to the courts, and the President was subject to their judgment on the issue. More remarkable than the Court's pronouncement was President Nixon's acceptance of it. Even though the chain of events would lead to his resignation in disgrace, the President could not challenge the established practice of judicial review.

（Jay M. Feinman,2000. Law 101:Everything You Need to Know about the American Legal System, New York:Oxford University Press）

Answer the following questions according to the passage you have just read.

1. Who has the authority to determine how the constitution is interpreted and applied to a particular case? Among those who are entitled to such authority, which one has the final say？

2. Does the Constitution vest judicial review on the Supreme Court? How will ArticleⅢ of the Constitution be interpreted in this respect？

3. How was the power of judicial review established？

4. Why did Chief Justice Marshall think that the court had the power to review the constitutionality of legislation? What did Marshall reason？

5. What is the supremacy clause? What will be the result if the court decides that a law is unconstitutional？