Strengthening Constitutional Self-Government

About Us

Thomas J. Moyer

Transcript of Constitution Day Lecture

Ashland University – September 17, 2003

Peter, thank you for the introduction and for inviting me to speak here this evening.

It is an honor to participate in a program that carries the name of Judge Robert Henderson, who served the bench in AshlandCounty for many years. In fact he continues to serve as a visiting in judge in Ashland, Crawford and MorrowCounties.

By his service on the bench and in the Air Force office of Judge Advocate General, we instinctively know that Judge Henderson is one who placed great emphasis on the civic responsibility of a lawyer and judge.

And what better way to demonstrate one’s civic commitment than by lending your name to a living celebration of Constitution Day.

After the delegates to the Constitutional Convention completed their work this date in 1787, a woman approached Benjamin Franklin and asked, “Well, doctor, do we have a republic, or a monarchy?”

Franklin replied, “A republic—if we can keep it.”

Franklin’s remark drives home the point that a Republic requires both a commitment to the ideals of life and liberty, but that it also requires us to take-up the difficult challenges that are required of a system built on the rule of law.

Many of the delegates had first hand experience of what it was like to live where the rule of law was substituted as the rule of man.

They had come from Europe, where was little logic, no rules… where religious beliefs were determined by the whim of the crown; kings interfered in the few trials that were held, and land could be confiscated for no apparent reason.

We know that critical to the thinking of the founders was a system of checks and balances, ensuring that one branch of government could not dominate the other two.

We know also that the precise role of the judiciary, at least the role it now performs, was not finitely delineated in the United States Constitution.

That was to come later, as the courts created an authority not assumed by or given to courts in other countries.

The words “judicial review” are not mentioned in the constitution and apparently were not even formally debated at the constitutional convention. First, let’s define “judicial review.”

It is the authority of a court, representing the judicial branch of government, to declare invalid, an act of the legislative or executive branch of government because such act violates the constitution.

It was not until fifteen years after the ratification of the constitution that Chief Justice John Marshall declared in the landmark case of Marbury v. Madison, that courts have the power to review legislative acts for conformance with constitutional requirements.

It is judicial review that prompts commentators to describe the United States Supreme Court as the most powerful judicial body in the world.

What is more, it has served as an example for other countries with newly developing constitutional law to incorporate judicial review as an integral part of their justice systems.

In this country, many early colonial leaders were attracted to the idea that there was some form of higher law—that people have certain natural or fundamental rights, such as the right to life, liberty, property and happiness; and that to preserve those natural rights, individuals form a community from which rules and written codes of conduct are produced.

Our country’s founders were deeply influenced by John Locke and Montesquieu. They in turn, were students of a prominent English jurist, Sir Edward Coke, who promoted the idea that fundamental laws are superior to the king’s (or in our case the legislature’s) law and that government, of the people, answered to a higher authority.

Coke labeled this higher authority the common law and he believed that because the judiciary was charged with applying the common law it also had the authority to determine when acts of other branches of the government violated these principles.

The colonists were familiar with Coke’s theories and so it was not surprising that Benjamin Franklin, James Madison, Alexander Hamilton and Thomas Jefferson, in letters written in France, during the period of the constitutional convention supported theories of a higher law.

Their support went beyond theory when they incorporated these principles into the framework of the new constitution of the United States.

Indeed the American Revolution was the result of a belief that a “higher law” takes precedence over the laws adopted by the English parliament.

The colonies did not view their actions of revolt as disobeying the laws of England. Rather they were defending the basic liberties guaranteed by the natural, common law against the assault of an oppressive government.

While these principles led to the creation of our country and the constitution, they were not formally recognized in the constitution itself. “Judicial review” as a legal concept or tradition was not formally acknowledged by the United States Supreme Court until 1803.

In 1803, with the stroke of a pen, and under some politically suspect circumstances, John Marshall gave birth to a fundamental principle of constitutional law.

This has had a tremendous effect on the course of our history and now accepted as a basic element of democratic law worldwide.

Since Marshall’s bold stroke, the U.S. Supreme Court has struck down more than 200 federal laws. As you can imagine, the number of statutes voided by state courts numbers in the thousands.

Today the idea of judicial review seems obvious, necessary, and inherent to our system of constitutional law. However, it was not always so.

Prior to Marbury v. Madison, there was much debate as evidenced in the federalist papers and raised at the Virginia ratification convention.

A reading of the Federalist Papers leaves no doubt that Alexander Hamilton believed strongly that it was the judicial branch of government that must resolve conflicts between acts of the legislature or the executive and the constitution.

Hamilton stated that the judiciary will always be the least dangerous of the political institutions because it has the least capacity to do violence to the rights which are guaranteed by the constitution.

Hamilton saw the courts as an intermediate body between the people and the legislature that would keep the legislature within the limits assigned to it.

The executive branch has the sword, and the legislature controls the money. The judiciary has no influence over either. It does not direct the strength or the wealth of the society. It has neither force nor will, but merely judgment.

Thus, in contrast to the legislature which creates the laws they wish to exist, judges do not determine the law based upon what they will it to be but they find the law by exercising their judgment.

Madison and the Jeffersonians argued that no branch should be superior to another branch of government. Hamilton took issue, noting that the peoples’ power is superior to all branches. For the citizens’ will to be fully exercised judges must have the ultimate authority in ruling on constitutional matters.

This opinion expressed by Hamilton is perhaps the most important premise upon which judicial review is founded.

In addition to the Federalist Papers, the Virginia Ratification Convention defined topics of the debate.

The prologue to Marbury v. Madison was written on June 25, 1788 at the Virginia convention.

Although the required two-thirds of the states had already ratified the constitution, ratification by Virginia and New York was deemed to be essential if the new strong central government provided by the constitution was to in fact function.

The outcome was in doubt. The last article to be debated was article three–the judiciary article. Federalists and anti-federalists seemed evenly divided. Patrick Henry argued that the constitution gave the judiciary too much authority.

Marshall was called upon to defend the article. He argued “to what quarter will you look for protection from an infringement on the constitution, if you will not give the power to the judiciary? There is no other body that can afford such… protection.”

The question before the convention was not whether an act repugnant to the constitution could stand, but who should be empowered to decide that the act is repugnant.

Marshall spoke eloquently and persuasively, emphasizing the limited nature of the proposed government and the supremacy of the constitution. At the end of the debate, the delegates to the convention ratified the constitution by a margin of 10 votes.

Given Marshall’s strong support for an independent judiciary, the stage was set for the next act.

It is therefore no surprise that when the opportunity presented itself in Marbury v. Madison, Marshall seized the chance and declared as a matter of law that the courts have the final authority to review the constitutionality of government acts.

Marbury v. Madison came about under very stressful and intensely political circumstances. In the elections of 1800, the Federalists, led by John Adams, lost control of both the presidency and congress to Thomas Jefferson and his Republicans.

During the closing weeks of his administration, President John Adams appointed numerous federalists to judicial positions newly created by an act of the Federalist lame-duck congress.

Naturally, the incoming Republicans were none too pleased at the appointment of these “midnight” judges. They were determined to challenge the validity of the appointments.

The Republicans seized upon the appointment of an obscure gentleman, William Marbury, to the unimportant position of justice of the peace in the District of Columbia.

The appointment of Marbury was clearly proper under the act. President Adams had appointed Marbury in accordance with a constitutional statute and Marbury had been confirmed by the Senate.

However, Marbury’s commission had not been delivered to him by the secretary of state who was ironically John Marshall.

The commission was found in Marshall’s desk after he had left office that was turned over to James Madison. Why Marshall, who was about to assume his fateful role as chief justice, failed to deliver the commission remains a mystery.

Madison, as the new secretary of state, felt no obligation to deliver the commission to Marbury and saw an opportunity to thwart the political antics of “the other party.” Marbury could not take office without receiving it.

Marbury sued under a provision of the judiciary act asking the court to direct Madison to deliver the commission.

As the new Chief Justice, Marshall found himself in a very precarious position. Jefferson and the Republicans were ready for battle and Marshall did not find this prospect appealing.

His political opponents were in control of both the legislative and executive branches. Nonetheless Marshall could not back away from the challenge presented by these political pressures without harming the status of the judiciary as a co-equal branch of government.

Marshall’s solution was to craft an opinion which enraged Jefferson and the Republicans and solidified the courts power in the process.

Marshall’s opinion held that Marbury was not entitled to his commission, not because, as the Jeffersonian or Republicans had argued, that one branch of government was powerless to require action from a co-equal branch of government, but rather, the statute which had allowed Marbury to bring the issue to the courts in the first place was unconstitutional and void because it attempted to grant the court original jurisdiction.

Marshall declared:

“The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

“If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? This would seem an absurdity too gross to be insisted upon.”

Through the years, the principle of judicial review took hold, establishing the framework we now take for granted. In doing so it granted great powers to the judiciary. To ensure that these powers would not over shadow the other two branches future cases created boundaries for judicial restraint.

The courts have used several rules of interpretation to restrain their use of power. Justice William Brandeis answered the question raised by Alexander Bickel in “the least dangerous branch.”

“How and whence do nine lawyers, holding lifetime appointments, devise or drive principles which they are prepared to impose without recourse, upon a democratic society.”

In his concurring opinion in Ashwander v. Valley Authority, Brandeis set forth in 1935 the rules that are still most commonly used by courts of last resort in passing upon the constitutionality of legislation. I will state them briefly:

  1. The court will not determine constitutionality in a friendly, non-adversary proceeding. Brandeis observed that it never was the thought that by means of a friendly suit, a party defeated in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.
  2. A court will not anticipate a question of constitutional law in advance of the necessity of deciding it. That is, a court decides a question of constitutionality only when it is absolutely necessary to a decision in the case.
  3. A court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.
  4. Closely related to number 2, is the practice of deciding an issue upon a non-constitutional ground if it can be disposed of in that manner. Thus, it is common to find that a court will decide a case on a question of statutory construction rather than deciding the constitutional issue.
  5. The person seeking to have a statute declared unconstitutional must show that he or she has been injured by operation of the statute. Thus, the challenge by a public official interested only in the performance of his official duty has not been entertained.

I think it is safe to speculate that just as the past 216 years have produced dynamic and interesting contentions under the Constitution and the Bill of Rights, the next 200 years will produce issues that will call upon courts to decide the bounds of freedom of press, the government’s interference with or support of religion, the limits of free speech, the government’s intrusion into the private lives of its citizens, as well as issues we are not able to contemplate.

The great experiment in democracy has succeeded, not because we venerate pieces of parchment safely sealed in glass cases at the National Archives.

America has succeeded because we have responded to the caution of Judge Learned Hand in 1944, that “liberty lies in the hearts of men and women: When it dies there, no constitution, no law, no court can save it.”

So, should we not tell future generations that the Bill of Rights, like a compass placed anywhere in the world—in a dark forest, on a rolling sea, upon a frigid mountain peak—will always set the same course for the journey?

A constitution that embodies the fundamental beliefs of its citizens will always, at any point in time, guide a civilized people through unforeseen challenges and the uncertainties of human conduct.

Thank you.