The argument for the power of the judicial branch to rule acts of the legislature invalid under the Constitution is set out in The Federalist.
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution … The courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts.
John Jay was the third and often overlooked contributor to The Federalist. He was also the first Chief Justice of the Supreme Court under our Constitution.
Jay did not like the job at all. For all the fine language of The Federalist about the Court’s role, the reality was something else. Here are Jay’s own words in a letter he wrote to John Adams, who had just proposed that Jay should return to the position he had quit:
I left the Bench perfectly convinced that under a system so defective it would not obtain the energy, weight, and dignity which are essential … nor acquire the public confidence and respect which, as the last resort of the justice of the nation, it should possess.
Most take for granted today that the Supreme Court holds great and effective power: it can declare laws passed by the Legislature or orders of the Executive unconstitutional and so invalid. But throughout the first two presidencies, the Supreme Court did little of importance. When a constitutional issue was raised about the Sedition Act passed during the Adams administration, an act which was used to imprison people for criticizing the government, the final remedy was only found through executive action — Thomas Jefferson pardoned those convicted and saw that the law was no longer enforced.
Jefferson strongly held a view nearly absent today — that each of the three branches of government should decide the constitutionality of its own actions. He wrote, in objection to the Marbury decision that cemented the role of SCOTUS as final constitutional arbiter:
The Constitution intended that the three great branches of the government should be co-ordinate and independent of each other … As to acts therefore which are to be done by either, it has given no control to another branch.
Jefferson did not change on this point. His feelings about the Marbury opinion, and obliquely, its author, John Marshall, are obvious from these remarks:
This case of Madison and Marbury is continually cited to bench & bar, as if it were settled law, without any animadversion on its being merely an obiter dissertation of the Chief Justice.
It was not only Jefferson who took issue with the powers Marshall asserted through Marbury. President Andrew Jackson famously defied another Marshall Court ruling that the state of Georgia had to respect rights granted by treaty to the Cherokee tribe living there. The statement attributed to Jackson at the time accurately stands for what he thought: “John Marshall has made his decision; now let him enforce it.” He oversaw the expulsion of this people from their homes down the “Trail of Tears” into exile, Marshall’s decision be damned.
Jackson justified his actions, whether against the Cherokees, Spanish Florida, or the Bank of the United States, as responses to existential threats to the Republic. He wrote:
It has been my lot often to be placed in situations of a critical kind [that] imposed on me the necessity of Violating, or rather departing from, the constitution of the country; yet at no subsequent period has it produced to me a single pang, believing as I do now, & then did, that without it, security neither to myself or the great cause confided to me, could have been obtained.
Existential emergency was invoked by Abraham Lincoln at the very beginning of his presidency when he suspended the most basic of civil liberties, the writ of habeas corpus, in order to stop a plot in the Maryland legislature to secede from the Union, making Washington indefensible and the Union cause lost. The case came before Chief Justice Roger Taney, who ruled the suspension was illegal and demanded the prisoners’ release, which was denied. Taney then issued an opinion stating that only Congress had the constitutional right to suspend habeas corpus. Lincoln disagreed with that in a message to Congress:
Now it is insisted that Congress, and not the Executive, is vested with this power. But the Constitution itself, is silent as to which, or who, is to exercise the power; and as the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended, that, in every case, the danger should run its course, until Congress could be called together; the very assembling of which might be prevented … by the rebellion.
Lincoln continued to act during the rebellion under the authority he had successfully claimed for himself, despite Taney’s ruling. It is also worth noting that Taney was the first Chief Justice after Marbury to declare a federal law unconstitutional in the forever infamous Dred Scott case, which invalidated all legislation that limited slavery anywhere in America and thus greased the skids to the Civil War.
Jackson’s and Lincoln’s claims to extra-constitutional powers to deal with existential threats to the Republic excited strong emotion in their time and still do today. There is a wide consensus that the expulsion of the Cherokees in violation of a valid treaty was a shameful chapter in our history. It is hard to see the Cherokees as an existential threat; they were not the Florida tribes who wrought cross-border havoc in the South. There is not the seem feeling about Lincoln’s actions. No one has again defied a Supreme Court ruling using his precedent, but the Republic has never again been in such profound danger as in his day.
In more recent times, Harry Truman idolized Andrew Jackson and had much of Jackson’s appeal to the common people and distaste for powerful elites. Nonetheless, when the Supreme Court ruled his nationalization of the steel mills unconstitutional, he obeyed the Court, though not without some angry grumbling, especially against a justice whom he had appointed who had joined the decision against him.
Donald Trump’s populism is in the Jacksonian mode, and his record of political upset reminiscent of Truman’s. So is his knack for bold and controversial action supported passionately by staunch supporters and opposed fervidly by vehement enemies. He argues his most controversial positions largely on his sense of self-evident danger that the ruling class ignores but that very many “commoners” share.
So far, Trump has not come to full-out Jacksonian defiance of a Supreme Court decision. The closest he has come is doing nothing about a Salvadoran citizen imprisoned in El Salvador, whose return to the U.S. the Court decided Trump must “facilitate.” But the squiggly meaning of that word “facilitate” is given definition by the fact that El Salvador is a sovereign nation over which SCOTUS has no jurisdiction. Inasmuch as El Salvador does not decide to return the man to the U.S., and inasmuch as SCOTUS has no right by text or by precedent to determine American foreign policy, let alone declare war, Trump has not defied the Court, as did Jackson and Lincoln.
Lincoln’s decision remains the most compelling of the several decisions to ignore the Court and it offers both precedent and challenge.
First, the challenge. From the dawn of history, tyrants use emergencies, real or imagined, to insert themselves in power, claiming that necessity compels it. But the great prime minister William Pitt (the Younger) issued a devastating challenge to the idea that necessity must trump liberty:
Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.
Yet when faced with Lincoln’s dilemma of capitulating to the death of the Republic and the establishment of a permanent slave state, it is difficult not to say that his bold defiance was courageous and necessary and evidence of his greatness.
So the two great statesmen, Lincoln and Pitt, leave us with no pat answer. Instead, we must turn from mere abstractions to the reality of the world and see as best we can the truth of what we face.
Reality is stranger than fiction, as fiction must at least be plausible. Tyrants gain their power by the audacity to break through the plausible and do whatever it takes to gain their end. If we are incapable of effectively audacious opposition, we could lose everything. As Lincoln put it, for want of risking a wrong interpretation of one phrase of the Constitution, we would lose the Constitution in its entirety. It was with that same sense of responsibility that Churchill assumed intensely concentrated power and abrogated the normal liberties of his countryman in order to save Britain and the world from Hitlerism.
But Pitt, who turned back Napoleon’s bid to conquer Britain and the world, cautions us never to be comfortable with the claim of necessity. We must accept the challenge of reality and not run away to a world of abstractions divorced from the world of experience. We must preserve our liberties by seeing the actual nature of the challenge that confronts us. That truth alone enables us to prioritize the equally valid and complementary polarities that Lincoln and Pitt place before us. The stakes are our Republic’s survival.
READ MORE from Shmuel Klatzkin:
Wendell Berry’s Plea to Sustain Ourselves