On Sources

…continued from previous post…

The two preceding posts on judicial review, the Supreme Court, and the Constitution relied on several source materials.  Notations were kept to a minimum in order to keep with the flow of an Internet blog.

Primary Sources:

Jefferson, Thomas (Merrill D. Peterson, editor). Jefferson: Writings. New York, 1984.

Kealer, Charles R. and Rossiter, Clinton. The Federalist Papers: Hamilton Madison Jay. New York, 1961, 1999.

Ketcham, Ralph, editor.  The Anti-Federalist Papers and the Constitutional Convention Debates.  New York, 1986.

Madison, James. Notes of Debates in the Federal Convention of 1787. New York, 1966, 1987.

_____ (Jack N. Rakove, editor).  Madison: Writings. New York, 1999.

Marshall, John (Charles F. Hobson, editor). Marshall: Writings. New York, 1984.

Secondary Sources:

Amar, Akhil Reed.  The Bill of Rights.  Harrisonburg, Virginia, 1998.

_____.  America’s Constitution: A Biography. New York, 2005.

Beard, Charles A. An Economic Interpretation of the Constitution of the United States.  New York, 1913, 2004.

Breyer, Stephen.  Active Liberty: Interpreting Our Democratic Constitution.  New York, 2005.

Ellis, Joseph J.  American Creation. New York, 2007.

Epstein, Lee and Walker, Thomas G.  Constitutional Law for a Changing America:  Institutional Powers and Constraints.  Washington, D.C., 2007.

_____.  Constitutional Law for a Changing America:  Rights, Liberties, and Justice.  Washington, D.C., 2007.

Holton, Woody.  Unruly Americans and the Origins of the Constitution.  New York, 2007.

Irons, Peter.  A People’s History of the Supreme Court.  New York, 1999.

McDonald, Forrest.  Novus Ordo Seclorum:  The Intellectual Origins of the Constitution.  Lawrence, Kansas, 1985.

_____.  States’ Rights and the Union:  Imperium in Imperio.  Lawrence, Kansas, 2000.

Pagle, Thomas L.  The Great Debate:  Advocates and Opponents of the American Constitution. The Teaching Company course, Chantilly, Virginia, 2007.  Lecture Eleven:  The Supreme Court and Judicial Review.

Rakove, Jack N.  Original Meanings:  Politics and Ideas in the Making of the Constitution.  New York, 1996.

Wood, Gordon S.  Empire of Liberty:  A History of the Early Republic, 1789 – 1815.  New York, 2009.


Defining the Powers of the Supreme Court

…continued from previous post…

At stake in Marbury v. Madison (1803) was a conflict between the Federalists and the Democratic-Republicans. While they were not quite the kind of political parties common today, they were severely divided factions within the ruling elite. Federalists such as John Adams, Alexander Hamilton, and John Marshall, believed in strong central government. Democratic-Republicans like Thomas Jefferson and James Madison were concerned about many of the policies of the Federalists. Their political battles raged during the First Party System between 1792 and 1824.

In Marbury, the Supreme Court was asked to determine what was the nature of an appointment and commission by the President (in this case, John Adams), and if the Judiciary Act of 1789 allowed someone denied their commission the ability to obtain it when a new President (Thomas Jefferson) refused to deliver the delayed paperwork.  One of Adams’s last acts as President had been to make John Marshall the Chief Justice of the Supreme Court, who would oversee the case.  The Court was in a somewhat dangerous position.  If Marshall pressed too hard, the judiciary might be permanently handicapped in its dealings with the other two branches.  His decision reverberates down to today.  John Marshall’s decision first determined that the law did provide for Marbury to receive his commission, and that the Court had the right to order James Madison, as Secretary of State, to issue it.  Then he did something that was not quite expected: Marshall declared that the portion of the Judiciary Act of 1789 giving the Supreme Court jurisdiction was unconstitutional because it altered the jurisdiction given to the Court under Article III of the Constitution.  It is important to quote Marshall’s decision at length, as the decision set the stare decisis precedent for the Court:

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 the 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 decide that 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 case.  This is of the essence of judicial duty.

Marshall firmly established judicial review with those words. It was no longer an ambiguous abstract that might be in the Constitution but was not established law.  The Marshall Court was not finished with its work, however.  The Court then focused primarily on state laws, just as Madison had anticipated.  In United States v. Peters (1809), the Court declared that a state could not annul the decision of a federal court.  Article I Section 10 of the Constitution places strict limits on the powers of the states, and the Court decided in Fletcher v. Peck (1810) that a state could not interfere with private contracts because of Article I Section 10.  The Court expanded on Peters with Martin v. Hunter’s Lessee (1816).  In Martin, the court ruled that a state court could not rule on the constitutionality of a federal law – that it was the sole power of the federal judiciary to make such a ruling.

Expansive limits on judicial review were set by the Marshall Court in McCullough v. Maryland (1819).  The Court expanded the definition of the Necessary and Proper Clause of the Constitution to virtually grant the federal government the right to undertake nearly any action, so long as the Supreme Court insured that such actions did not violate the “spirit” of the Constitution.  Federal action is not limited to the enumerated powers.  Quoting Marshall’s decision at length:

The Constitution of our country, in its most interesting and vital parts, is to be considered; the conflicting powers of the government of the Union and of its members, as marked in that Constitution, are to be discussed; and an opinion given, which may essentially influence the great operation of the government…by this tribunal alone can the decision be made. On the Supreme Court of the United States has the Constitution of our country devolved this important duty. (Marshall, page 412)

[T]he question respecting the extent of the (federal government’s) powers actually granted is perpetually arising, and will probably continue to arise as long as our system shall exist. (Marshall, page 415)

[T]he government of the Union, though limited in its powers, is supreme within its sphere of action. (Marshall, page 415)

[T]here is no phrase in the (Constitution) which, like the articles of confederation, excludes incidental or implied powers (Marshall, page 416)

Marshall has set the stage.  The Constitution does not limit the federal government to powers only expressed in it.  Doing so would make the document too long and drawn out:

A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. (Marshall, page 416)

[A] government, entrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be entrusted with ample means for their execution. (Marshall, page 417)

The government which has a right to do an act, and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means. (Marshall, page 418)

[A]ny means adapted to the end, any means which tended directly to the execution of the constitutional powers of the government (are) in themselves constitutional. (Marshall, page 424)

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional. (Marshall, page 426)

The sovereignty of the state…is subordinate to, and may be controlled by, the Constitution of the United States. (Marshall, pages 429-430)

Marshall’s decision was not met with universal approval.  James Madison, in a letter to Spencer Roane, the chief justice in Virginia’s Court of Appeals, on September 2, 1819 took exception with how Marshall had expanded congressional power beyond the enumerated powers.  This is consistent with Madison’s views as a Democratic-Republican.  However, Madison (and no one since) has ever moved to limit the impact of McCullough.  It became law by stare decisis that the federal government has power not listed in the Constitution, primarily because the Constitution does not place limits on national powers like the Articles of Confederation did.  Further, the experience of the country under the Articles of Confederation revealed that the country needed a strong national government.

Finally, Thomas Jefferson was also writing back and forth with Spencer Roane.  In a letter to Roane dated September 6, 1819, he declined to take a position on McCullough.  He preferred relegating such decisions about what the Constitution meant “to the generation now in place.” (Jefferson, page 1428).  Jefferson believed that “[t]hey are wiser than we were (the Founders), and their successors will be wiser than they.” (Jefferson, page 1428)  It was firmly in Jefferson’s mind that the Constitution was a fluid document, to be interpreted by each succeeding generation.  The rest of the remaining Framers agreed, as none took action to change that perception.  The Constitution as a living document, to be renewed, reviewed, and reinterpreted by future Americans, is exactly what the Framers intended.

The Supreme Court and Judicial Review

The Supreme Court for the United States was established by Article III of the Constitution.  Section 1 reads, in part, “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.”  There is no other guidance for what the Court will do, other than to set an initial, generalized jurisdiction outlined in 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”.  That’s it.  There is nothing about the Court reviewing laws passed by Congress and signed by the President.  There is nothing about the Court reviewing the laws and judicial rulings of the states.  If someone was a “strict constitutionalist”, they would have to conclude that the Supreme Court does NOT have the right to review such things.  Judicial review stands in direct conflict with a literal, formulized view of the Constitution, and yet it is a concept accepted as implicit in the Constitution since the beginning of the Republic.


The vast majority of American legal concepts are based on English common law.  Prior to the Revolution, it was English common law that guided legal practices in the American colonies.  One aspect of common law was judicial review of people’s actions.  A judge could review a case and determine if any known laws were broken or followed, see how the case fit into the English constitution, and if necessary pronounce new laws.  The English constitution is not a single written document, like in the United States.  It is a collection of laws, charters, and legal precedents that are taken as a whole, with the underlying principles being the constitution that guides the country.  Legal precedents hold the force of law and can be summarized simply in the shortened Latin stare decisis, or the more complete stare decisis et non quieta movere, or “to stand by decisions and not disturb the undisturbed”.  Simply put, it means a judge is to follow the decisions already made in prior court decisions.  This guiding principle of English common law is also central to American law. It factors into Supreme Court decisions, and gives guidance to lower court interpretations of the law.

Stare decisis and judicial review were part of the American colonial experience, and they continued to be part of our legal culture under the Articles of Confederation after the Revolution.  When the convention gathered in Philadelphia in 1787, the delegates were well aware of the concept and accepted it as part of what a court did. They recognized that it was not perfect, but it was something they were familiar with.  It is clear from the Notes of Debates in the Federal Convention of 1787 that the delegates fully intended for the Supreme Court to be able to overturn laws it deemed unconstitutional.  James Madison had expressed the view as early as 1785 in a letter to Caleb Wallace when he wrote that an independent judiciary was necessary as it “maintains private Right against all the corruptions of the other two departments” (legislative and executive) (Madison, Writings, page 43).  Further, he let Wallace know that he believed any constitution had to be adaptable, by amendments and by judicial review, as conditions changed.

James Madison feared the legislative branch most of all in a national government.  He believed it might be too easily swayed by popular passions, and could be used to infringe on the rights of a political minority.  He pushed forcefully for independent judicial and executive branches to guard against the legislative branch.  In both a speech on June 6, 1787 on the Revisionary Power of the judicial branch and a speech on July 17, 1787 on Electing the Executive, he argued for the independent powers of the judiciary and the executive.  He was concerned that any legislature that would encroach on citizens’ rights could only end in revolution.  Madison expanded further on his position that the judiciary must be an independent branch of government with the power to overturn laws, even laws desired by the majority over minority rights, in Federalist 44, Federalist 48, and Federalist 49.  In a speech he gave to the Virginia Ratifying Convention on June 20, 1788, Madison expressly declared that the national judiciary was in a unique position to determine what was constitutional, both in the letter and the spirit of the law.

In that same speech on June 20, 1788, James Madison said the Constitution gave the federal judiciary power and jurisdiction that expressly limits the power of the states.  The Supreme Court’s authority was intended to establish universal and uniform justice throughout the entire country.  He agreed with Thomas Jefferson, when in a letter to Jefferson on October 24, 1787, he wrote that the judiciary will serve to “keep the States within their proper limits, and supply the place of a negative on their laws”. (Madison, Writings, page 148)  The power of judicial review was read into the Constitution by both the Federalists and the Anti-federalists as the country debated ratification of the new Constitution.  Federalist 78 by Alexander Hamilton clearly explains that the Court has the power to overturn laws, and he then goes further.  It also is the best guardian of minority rights against the tyranny of the majority.  This was not disputed by the Anti-federalists.  Their position was best explained by “Brutus” (probably Robert Yates, a judge and New York delegate to the Constitutional Convention).  In his writings, “Brutus” believes the Supreme Court’s ability to declare laws unconstitutional and to overturn jury decisions is something to be feared; but he does not believe the Court does not have that power.  He sees it perfectly, even holding that the Constitution allows for the Supreme Court to make its decisions based on the spirit of the Constitution and not simply on the letter of the Constitution.  He thought this was a possibility based on one understanding of “equity” as a legal term in the 18th century.  Neither side in the fight over ratification of the Constitution denied that the ambiguous wording of Article III would result in a Supreme Court with the power to “make law” once the document was adopted.  Their differences were over what impact that might have on the country.

During the course of the debates during the framing of the Constitution, some argued for the national government to have a veto power over state laws.  Their experience under the Articles of Confederation taught them that the state governments were weak, ineffectual, petty in their disputes with other states, and generally corrupt to the point that no country could be sustained under that form of government.  James Madison wanted both the federal judiciary and the executive to be able to declare state laws unconstitutional before they took effect.  Madison argued forcefully for the right because he believed that only a strong national government could hold together such a large country.  But once the issue was put to a vote, the delegates decided against giving the national government this direct power.  However, the very next day the delegates did approve the supremacy clause in Article VI, clause 2 of the Constitution:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or 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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The day after voting down a direct veto of state laws by the national government, the delegates accepted that the states had to follow national laws and be guided by national decisions.  As will be noted below in a Supreme Court decision, this was not a limit on the federal government but an expansion on its power and control over the states.  The delegates were being cautious.  They knew that to boldly grant the national government direct control over state laws would likely doom ratification.  Too many states would oppose such an explicit granting of power.  The supremacy clause, coupled with judicial review implied in Article III, would give the national government indirect control over state laws.


Exactly what were the rights the Supreme Court would guarantee was not entirely clear.  Some, including James Madison, the chief architect of the Constitution, believed that writing down a set of individual rights was unnecessary.  Doing so might even limit the rights individuals could exercise.  However, Thomas Jefferson convinced Madison that a Bill of Rights was in fact needed.  In a letter Jefferson wrote to Madison on March 15, 1789, he laid out the need for a Bill of Rights to give the federal judiciary a legal guide to serve as a check on the powers of the legislative and executive branches.  Jefferson was concerned mainly about the legislature, but also foresaw a time when the President would need restrictions placed on his power at some “remote period”. (Jefferson, page 944)  Madison had just been seated as a newly-elected member of the House of Representatives in the First Congress.  He had narrowly defeated James Monroe, at this time an opponent of the Constitution, in a district that had been drawn in Monroe’s favor.  It fell to Madison to propose a Bill of Rights, and the result of his efforts were the first ten amendments to the Constitution.

The stage was set for testing the powers of the Supreme Court and federal judiciary with the adoption of the Constitution, the beginning of the federal government, and the Bill of Rights.  The Supreme Court would have to rely on the legal concepts inherited from Great Britain and the new Constitution to guide its actions.  The first case to reach the Court concerning a constitutional question was Hylton v. United States (1796).  The decision in the case was not controversial because the Court upheld an act of Congress as constitutional.  However, this was not the case when the Court decided Marbury v. Madison (1803).

To be continued…