The following is an opinion contribution and reflects the author’s views alone.
The Great Chief Justice, John Marshall, is so reverently titled for a variety of reasons. While his intellectual fortitude and analytical rigor have been nearly unmatched in the centuries since his service, his greatest impact on the Court is not found in these qualities, but in the most fundamental constitutional power he established for his institution: the power to decide cases of certain character. In the modern era, it is, as Marshall would say, “a proposition not to be controverted” that the power of the federal judiciary is vast, as to both form and substance, when it is engaged in its constitutional enterprise of deciding certain cases and controversies. But this seemingly obvious understanding of federal judicial power was not always so, and the Court’s power to perform its core constitutional duties has certainly not always been an incontrovertible proposition.
Over the course of his 34 years on the Court, Marshall heard and adjudicated many constitutional claims and arguments. Driven largely by the youth of the republic and the yet-to-be-expounded nature of its foundational charter, many of these claims were designed by the litigants, often collaboratively, to test the boundaries of the new national institutions erected by the Constitution. The Constitution vested in Congress enumerated legislative powers and the authority to pursue all necessary and proper means to carry them into effect. In the President resided the executive power of the United States, with such qualifications as the Constitution itself established. The federal judiciary, sparsely described and left for Congress to more fully establish, was given the authority to decide cases and controversies of particular varieties. But, beyond establishing the skeletal form of the national government and placing certain restrictions on the states, the Constitution itself gave little guidance on the particulars of day-to-day governance or the intricate, often messy, relationship among the various institutions of government on the national and state levels. What legislative means were “Necessary and Proper?” Indeed, how might one go about distinguishing between legislative “powers” and legislative “means” in the first place? What was the nature of the “executive” and “judicial” powers? With questions of such import left open and unsettled, the new nation embarked on an energetic pursuit of answers. The focus of this essay is Marshall’s understanding of one of these great constitutional principles: the scope, in form and in substance, of what the Constitution terms “the judicial Power of the United States.”
The two nodes from which we can derive a holistic understanding of Marshall’s view of federal judicial power — and the view around which he coalesced his Court — are his opinions for the Court in Marbury v. Madison and Cohens v. Virginia. In Marbury, Marshall expounded the fundamental nature of the judicial power and the pursuit of “Necessary and Proper” means into which its effectuation constitutionally extended. Marshall’s opinion for the Court in Cohens answered a series of arguments presented by lawyers for the state of Virginia — namely that the authority of the Supreme Court did not extend to review of judgments entered by state courts, even on matters of federal law. Marshall’s answers in both cases amounted to a vigorous, constitutionally grounded defense of federal judicial power.
Marshall’s opinion in Marbury is as widely misunderstood as it is famous; indeed, it is likely to its pervasive misconstruction that the opinion owes much of its fame in the first place. In exercising a power that has since come to be termed “judicial review,” Marshall ruled unconstitutional the portion of the Judiciary Act of 1789 that expanded the Court’s original jurisdiction to cases beyond the kind enumerated in Article III, Section 2, Clause 2. In expounding the constitutional and logical principles from which he derived the Court’s authority to set aside such a congressional enactment as unconstitutional, Marshall set forth a great deduction of the nature of this power.
It was, Marshall said, “emphatically the province and duty of the judicial department to say what the law is.” This province was not the Court’s because Marshall felt it should be or because it was an inventive instance of judicial assertion. Rather, as he went on to say in the following sentence, judicial review was legitimate because it was a logically necessary step in the exercise of the Court’s most fundamental duty of deciding particular cases and controversies. To know how the law applies to a particular set of facts, one must necessarily interpret the relevant body of law. But, what happens when two provisions of relevant law, both equally applicable to the case at hand, conflict?
It is a longstanding canon of legal interpretation, derived from the great traditions of the English common law, that recency controls in instances of statutory conflict. When two statutes cannot be reasonably reconciled as to avoid a mutual contradiction, this canon teaches that the more recent statute implicitly repeals the older, and therefore governs the case at hand. Useful as it may seem, this canon is, by virtue of its common law origins, premised on legislative supremacy. Since the English legal tradition is premised on the sovereignty of Parliament and the equal supremacy of its mandates, statutory conflicts could be resolved by this canon. In notable opposition to this premise of statutory supremacy is the written American constitution, the fundamental premise of which is that it is supreme over all statutes. No statute or government action, however recent, can survive a conflict with the Constitution. This leaves judges in a bind when the two do conflict. Marshall’s assertion, echoing Hamilton’s own in Federalist 78, was a simple one: “whenever a particular statute contravenes the Constitution, it [would] be the duty of [his court] to adhere to the latter and disregard the former.” Indeed, only federal laws “made in pursuance [of the Constitution]” — along with authorized treaties and the Constitution itself — were proclaimed by the Constitution to be the “supreme Law of the land.” It followed, then, that federal laws not made in pursuance of the Constitution were void and did not demand like allegiance. When an act of Congress conflicted with the Constitution, Marshall would consider himself obligated by the latter to set aside the former. And so was established the routine inevitability of judicial review — an unremarkable, deductively derivable necessity to which the judiciary would sometimes be forced to resort to decide particular cases and controversies before it. To the extent, then, that Marbury in any meaningful sense “established” judicial review, it established the mere exercise of a concept contemplated, approved, and, indeed, required by the Constitution.
If Marbury stood as a defense of the federal judiciary’s substantive powers, Cohens presented a question of form. Perhaps courts could constitutionally set aside legislative enactments, but could some cases be kept out of federal courts altogether? States, of course, had a vested interest in testing these uncharted waters. It was in the interest of every state to keep its cases in its own courts, where it could be shielded by its sovereign immunity, rather than be a party in the courts of another sovereign. In Cohens, this question came before Marshall through what the modern Court has come to crudely term a “perfect factual vehicle.” Did the Supreme Court have the authority to hear appeals from, and reverse the judgments and/or holdings of state courts of last resort when questions of federal law were raised, decided, or otherwise involved?
Whatever constitutional adventures he might have tolerated, Marshall could not abide the proposition that a state court had the final say on a matter of federal law. To accept such a proposition would be to countenance what Hamilton called a “hydra in government, from which nothing but contradiction and confusion [could] proceed.” One provision of federal law would, in theory, end up with as many meanings and applications as there were states, and this would compromise the very foundations of the instituted national government. The first principle of federalism was, as Marshall stated for the Court in Gibbons v. Ogden, that “the sovereignty of Congress, though limited to specified objects, is plenary as to those objects.” This sovereignty, and the principle of national uniformity under federal law following therefrom, would be meaningless if each state could determine for itself the meaning of, and its obligations under, the binding mandates of another sovereign. For Marshall, the qualified supremacy of federal legislative power had a judicial cousin. Just as Congress did not possess plenary legislative power and so could not legislate on any matter over which it had not been delegated authority by the Constitution, so too did the courts of the Union not possess plenary judicial authority. No case properly fell under their jurisdiction that did not possess a “federal” character set forth in Section 2 of Article III. The federal government, in all its organs, was indeed a government of delegated and enumerated powers; but as to those powers delegated and enumerated, its supremacy would be unyielding and absolute.
This strictly defined notion of federalism, thought to best straddle the blurry line between essential national governance and tyranny, would have been rendered structurally unsound if state courts had the final say over the meaning and application of federal law. This would return the Union to the disunion from which it had only just rescued itself. The Articles of Confederation had been a demonstrable failure in large part because, in the absence of a national government with necessary powers, each state became a nation unto itself. To the extent, then, that the Constitution of the United States formed a national union protective of liberty, such a union depended almost exclusively on a stubborn fidelity to the principle of federalism. Fidelity to federalism meant not only denying the federal government the powers it did not constitutionally have, but also accepting its supremacy as to those it did. In this regard, as Marshall stated for his Court in Cohens, states were “members of one great empire—for some purposes sovereign: for some purposes subordinate.” Federalism was thus properly understood as a two-way street, and Marshall’s Court would police all its lanes with equal attention.
Fully subscribing to this view of the relationship between the national government and its state counterparts, Marshall, and the Court for which he often spoke on constitutional matters, understood the jurisdiction of federal courts to be a descriptive corollary of federalism itself. The new system of government could, in theory, have been set up in such a manner as to have prevented federal questions from being litigated in state courts in the first place. But, as Marshall rightly saw in Cohens, this was not the judicial regime established by the Constitution. Clause 2 of Article VI provided that “the Judges in every State shall be bound” by “[the] 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.” If state judges had no jurisdiction over federal questions, it would make little sense to bind them by oath to the supremacy of federal law. Furthermore, Section 25 of the Judiciary Act of 1789, which set forth details concerning the Court’s appellate jurisdiction, included among those instances of appellate jurisdiction cases in which state courts of last resort had found against a provision of federal law. All this evidence taken in sum, it is yet another incontrovertible proposition that states can indeed hear cases that raise federal questions, whether under the federal constitution, federal laws, or treaties. But, as Marshall’s Court established in the name of the Constitution, federal courts would have the final word on federal law.
From Marbury and Cohens we gain a deep insight into how Marshall perceived his institution and the scope of its power. He did not believe its power to be absolute — certainly not anywhere near the point of supremacy, as has come to be misguidedly alleged. The institutional powers to which Marshall laid claim in both decisions are firmly grounded in constitutional text. While far too much has been made of Marbury, Marshall’s account of federal judicial power is, in reality, a humble one — that the Court lies just claim to no more, and no less power than is necessary for the performance of its core constitutional duty of deciding cases and controversies. And when cases involve questions of federal law, federal courts must have the last word. The Marbury–Cohens judicial regime is one we must all appreciate today, even in a normative sense. It secures the independence of the judiciary, ensures that a sovereign has the final say over its own laws, and guarantees a system of constitutional government that values that great tradition of American exceptionalism — the rule of law. All in all, the humility, analytical rigor, and affection for reason that defined Marshall define equally well his account of “the judicial Power of the United States.”
Graphic design by Grace Koh ’20.
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