The Court Defines Itself

By John Moore, Professor Emeritus of History, California State Polytechnic University, Pomona CA

From the beginning, many observers saw the Court as novel in political history. Frenchman Alexis de Tocqueville, in a detailed and popular study of the United States (Democracy in America, published in two volumes in the 1830s and 1840s) said that "The representative system of government has been adopted in several states of Europe, but I am unaware that any nation of the globe has hitherto organized a judicial power in the same manner as the Americans.... A more imposing judicial power was never constituted by any people." There are two reasons that explain Tocqueville's awe. One was the unique independent status of the court and the other was the authority of Judicial Review.

Separation of Powers

Article III of the Constitution established the independence of the Court and underscored the new system of Separation of Powers. We should think about the Court within the framework of Separation of Powers. The writers of the Constitution worried that if power were concentrated in one branch that would represent, as James Madison said in Federalist 47, "the very definition of tyranny." Of course, in the abstract, we want justice to be provided to all equally--to individuals, such as ourselves, and to minorities, to which we may belong, as well as to the majority. Yet it is conceivable that the many (let us say, represented in the legislative branch) or the powerful (as those in the executive branch) might not be so interested in applying justice to the few or the one. Legislatures are expected to make law (legislate), executives (or Presidents) seek to "execute" or carry out the law. But while all political entities must have the ability to make laws and carry them out, there is a third primary duty for any government. That is to decide what is right when there is disagreement over the law. All governments have these three responsibilities: to legislate, to execute the laws, and to dispense justice. In many, if not most previous governments, the dispensing of justice came from either the legislative or, more often, the executive branch (up to then, usually a monarchy). The American Founders determined to establish three coequal, independent branches to address these three responsibilities.

Thus, the national court system--and the justices who serve in it--is not answerable to, nor dependent on the other branches, apart from justices being nominated by the President and confirmed by the Senate; after being confirmed, a justice becomes an independent actor. The nomination and confirmation process clarifies the Constitution's "checks and balances," which are complementary to the system of Separation of Powers. That is, each of the three branches--by virtue of being accorded its discrete powers in specific articles of the Constitution--is an independent part of a coequal interrelationship. The President (the "executive') nominates justices; the Senate (part of the "legislature") may approve or reject the nomination, and the courts (the "justice" branch) may check both of the other branches, who, in turn, could move to amend the Constitution to check the courts (as the 13th and 14th Amendments contradicted the Dred Scott decision).

Article III of the Constitution grants "The judicial Power ... 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...." This is a large ceding of power. To further enhance the muscle of the court system, the Constitution provides that "[t]he 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." This means that justices serve for life (unless impeached and removed from office) and that neither the Congress nor the President can try to influence or punish judges by lowering their salaries.

Judicial Review

Judicial review refers to the ultimate authority of the Supreme Court to judge whether 1) a state law or 2) a national law is or is not consonant with the Constitution. (This is a rare practice by the court, and in most instances a case must be brought up through a lengthy appeals process from lower state or federal courts before the Supreme Court will entertain it. Most laws and government practices go on without any review by any court.)

Prior to 1789, state courts had overturned legislative acts that conflicted with state constitutions, affording precedent for judicial review. As we have seen, the Constitution granted independence to the court system in Article III, and Article VI declared the Constitution to be "the supreme Law of the Land...the Laws of any State to the Contrary notwithstanding," implying that the Supreme Court could strike down state laws found inconsistent with the Constitution. In Federalist 78 Alexander Hamilton further explained that the court could nullify any unconstitutional laws. These are Hamilton's words: "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 superiour to the people themselves." For Hamilton, judicial review ensured that the "will" of the whole people, as expressed in the Constitution (which was originally ratified by votes within each state) was supreme over the desire of a legislature, whose laws could convey only the momentary wants of a part of the people.

Hamilton's view became convention in the case Marbury v. Madison (1803), when the Supreme Court, led by Chief Justice John Marshall, established the principle that the Court could strike down national laws found contrary to the Constitution.

One may be able to discern in this complex reading that the power conferred on the federal courts rested on a differentiation of fundamental law (as prescribed by the Constitution) and statutory law (statutes--or laws--passed by the Congress, state legislatures, city councils, school boards, etc.). Theoretically, statutory laws cannot violate fundamental law. And, although very few cases are ever brought before the Supreme Court, it occasionally strikes down a statute deemed unconstitutional. It does so on the basis of the precedents established in the Constitution, the Federalist Papers, and key early Supreme Court decisions, most particularly Marbury v. Madison.

We may think more clearly about the role of the courts as early defined by making a comparison of the fundamental law of the Constitution with the "fundamental" law announced in August, 2005, in the draft constitution of Iraq. These are phrases from the latter: "PREAMBLE: In the name of God, the Compassionate, the Merciful; 'Verily we have honored the children of Adam' (Quran 17:70) ... Islam is a main source for legislation.... No law may contradict Islamic standards.... This constitution guarantees the Islamic identity of the Iraqi people..."

Alternately, these are the opening words of the U.S. Constitution: "We the People of the United States...do ordain and establish this Constitution for the United States of America." Article VI, Paragraph 3 says, in part, "no religious test shall ever be required as a qualification to any office or public trust under the United States." Hamilton said in Federalist number 1: "It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force." [Italics added]

In the long haul of history, people have tended to depend on kings, hierarchies, important families, ethnic loyalties, and, above all, gods to guide them. The American Founders expressly recognized this role as belonging to the "people" of the United States. Thus, the "people" created the fundamental law of the Constitution (by their own "reflection and choice," not in conformity to a particular ideology, religion, or king). That fundamental law of the Constitution then became the basis upon which independent judges would be required to issue opinions in the most controversial of cases.

The Court System and Federalism

To understand fully the way the Court was defined in its early history, we should also note that the Constitution gave the Congress the authority to create the full national court system. Thus, the Judiciary Act passed by Congress in 1789 produced the three-tiered national court system we have today, with District Courts at the lowest level (to handle federal cases of "original jurisdiction," that is cases dealing with issues specifically mentioned in Article III), Courts of Appeals, and at the top of the hierarchy, the Supreme Court. The act created thirteen judicial districts organized into three circuits. (Today, we have 12 regional districts plus a 13th in the District of Columbia; there is a circuit court of appeals for each district). At the same time, each state had (and has) its own court system, conforming to the principle of Federalism (or "dual sovereignty," whereby we are citizens of both a state and the nation; this was another invention of the American Founders). Sometimes, a state decision of national importance is carried to the Supreme Court, the court of final judgment. Typically the state litigation would be appealed to the highest state court, from where it may be appealed to the Supreme Court.

In addition to substantiating Judicial Review, the Marshall Court early on illuminated the nature of Federalism, and boosted the power of the national government (and, in the event, the clout of the Supreme Court) in the innovative new dual sovereignty system. Two legendary cases clarify this development. McCulloch v. Maryland (1919) established the doctrine of implied powers. In 1816 the Second Bank of the United States received a federal charter. It opened a branch bank in Baltimore. The state of Maryland then enacted a law taxing the branch bank's bank notes--an attempt to drive it out of business. The bank's cashier--James McCulloch--refused to pay the tax and was sued by the state and the case went into the federal courts, arriving in 1819 before the Marshall Court. Article I, Section 8 of the Constitution accords no specific power to Congress to charter a bank. However, the Court ruled that because the U.S. government had a right to exist and a right to collect money (the Constitution does specify the authority to tax), it should have a place to put that money; that is, the Congress could reasonably determine that the establishment of a national bank was "necessary and proper" (words from Article I, Section 8, paragraph 18) for carrying out its constitutional functions. Such a power was not spelled out in the Constitution but was implied. The unanimous decision went on to declare Maryland's tax on bank notes unconstitutional, using Judicial Review to strike down a state law. Thus, the national government, by implication, had more power than those listed in the Constitution and the states could not interfere with those powers.

By Gibbons v. Ogden (1824), the Marshall Court made use of the "interpretation" of express constitutional powers to extend the power of the national government. For example, Congress can tax and thus supposedly spend money, even for reasons as vague as "to promote the general welfare" (words contained in the Preamble to the Constitution). Also, Congress can "regulate commerce among the several states" (Article I, Section 8, paragraph 3). This so-called Commerce Clause became a source of immense power for the national government by way of Gibbons v. Ogden, in which the Supreme Court ruled that such "commerce" included all forms of commercial intercourse. Drawing on this early precedent, the Congress has enacted enumerable laws dealing with matters not specified in Article I, Section 8 (such as minimum wages and maximum hours laws, laws regulating child labor, environmental laws, and much more).

The Early Court

The Supreme Court first met in the Merchants Exchange Building in New York City on February 1, 1790. There were five Associate Justices and one Chief Justice (John Jay, who served until 1795, when he retired to become Governor of New York). Because of transportation difficulties, however, the full court did not convene until the next day, February 2. Congress determines the number of Supreme Court justices and the number was changed a half-dozen times before settling on nine in 1869. It has remained at that number since.

The Court had no building of its own until 1932 when the present edifice was completed. When the national government moved from New York to Philadelphia, the Court met in the State House (best known as "Independence Hall"). After 1800 it met in various spaces in the Capitol building until moving into its own quarters.

Until John Marshall became Chief Justice in 1801, the position was not considered all that important. As we saw, John Jay resigned to take over the governorship of New York. John Rutledge of South Carolina served barely half a year and then became the first nominee to be rejected by the Senate. President Washington then nominated Oliver Ellsworth, who served until the end of 1800. Samuel Chase became the only justice ever to be impeached, when Thomas Jefferson's political party was in power and desirous of removing Federalist judges from the court system. But the Jeffersonians could not muster enough votes in the Senate to remove Chase from office, and no other justice has ever faced such a charge.

With the appointment of John Marshall the Court assumed its constitutionally potent form. The Court, and its fundamental traditions, were in place. Marshall would be Chief Justice for over 34 years and leave perhaps the most lingering imprint on the institution. By the early 19th century the Supreme Court was acknowledged as:

--being an independent branch of government, with inferior courts established throughout the country

--having the right of judicial review of state and national laws and actions

--the court of final judgment deciding vital national questions

--the arbiter of the relationship between national and state authority within the federal system

For a lesson dealing specifically with the landmark case, Marbury v. Madison, click here.

Selected Bibliography

Ackerman, Bruce. The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy. Cambridge: Harvard University Press, 2005.

Amar, Akhil Reed. America's Constitution: A Biography. New York: Random House, 2005.

Beard, Charles A. The Supreme Court and the Constitution. Englewood Cliffs: Prentice Hall, 1962 (original, 1912).

Corwin, Edward Samuel, and J. W. Peltason. Understanding the Constitution. 14th ed. Forth Worth: Harcourt Brace, 1997.

Currie, David P. The Constitution in the Supreme Court: The First Hundred Years, 1789-1888. Chicago: University of Chicago Press, 1985.

Elkins, Stanley, and Eric McKitrick. The Age of Federalism. New York: Oxford University Press, 1993.

Garraty, John A. (ed.). Quarrels That Have Shaped the Constitution. Rev. ed. New York: Perennial Library, 1987.

Hamilton, Alexander, James Madison, and John Jay. The Federalist. New York: Mentor, 1999 (original 1787-88).

Hobson, Charles F. The Great Chief Justice: John Marshall and the Rule of Law. Lawrence: University Press of Kansas, 1996.

Johnson, Herbert A. The Chief Justiceship of John Marshall, 1801-1835. Columbia: University of South Carolina Press, 1997.

Kelly, Alfred H., et. al. The American Constitution: Its Origins and Development. 7th ed. New York: Norton, 1991.

Marcus, Maeva (ed.). Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789. New York: Oxford University Press, 1992.

McLaughlin, Andrew C. A Constitutional History of the United States. New York: Appleton-Century, 1935.

Rehnquist, William H. The Supreme Court. New York: Vintage, 2002

Story, Joseph. Commentaries on the Constitution of the United States. Durham: Carolina Academic Press, 1987 (original, 1833).

Swindler, William F. The Constitution and Chief Justice Marshall. New York: Dodd, Mead, 1978.