"Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."
– Alexander Hamilton, Federalist No. 78
Barack Obama's characteristically careless and deceitful attack against judicial review has once again brought under scrutiny the supposed power of the federal judiciary to "strike down" legislation duly enacted by the U.S. Congress.
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Though Marbury v. Madison was the first case in which the U.S. Supreme Court asserted and exercised the "duty … to declare all acts contrary to the manifest tenor of the Constitution void," in Federalist No. 78, Hamilton makes clear the reasoning which justifies that assertion. It's important to note that, by contrast with the thoughtless language commonplace today, Hamilton refers to judicial review not as a power of the judiciary, but as an aspect of its duty in the exercise of the constitutional power to decide cases which the Constitution assigns to its jurisdiction.
The distinction matters because the word "power" may be misconstrued to imply some purely discretionary authority, while the word "duty" signifies action as required by respect for a superintending rule or ruler. Hamilton makes this clear when he counters the specter of judicial supremacy with the observation that judicial review does not "by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."
Obama couched his attack on the Supreme Court in terms that evoked the authority of "a law that was passed by a strong majority of a democratically elected Congress." In a blatant display of cynical demagoguery, he snarled at the possibility that "an unelected group of people would somehow overturn a duly constituted and passed law." He even sought to identify himself with conservative opponents of "judicial activism or a lack of judicial restraint."
Obama's statement is not true to recent facts (the legislation now in question passed by a slim majority, not a strong one) or to history (on more than one occasion the high court has acted on its long-recognized duty to uphold the Constitution against provisions of law passed by lopsided majorities.) More importantly however, with this demagogic maneuver he poses as a champion of "democracy" in order to camouflage a fatal blow aimed at the authority of the U.S. Constitution. In this respect he employs the tactic typical of "those men who have overturned the liberties of republics" (Federalist No. 1). Beguiling people with a false assertion of unrestrained democratic power, he shrewdly attacks the authority of the carefully crafted instrument of government which expresses and aims to preserve the people's sovereignty over their nation's affairs.
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Hamilton's reasoning in Federalist No. 78 differs profoundly from Obama's sly manipulation of ultimately self-destructive democratic passion. To be sure, his reasoning evokes the power of the people, but only in and through the constitutional instrument that secures and stabilizes their sovereignty. Hamilton respects the constitutional allocation of power that defines the authority of the Supreme Court justices. He also makes clear their obligation to exercise that authority with due regard for the Constitution declared by the people to be the Supreme Law of the land.
Hamilton's reasoning also places the duty of judicial review squarely in the context of the constitutional separation of powers. In doing so, he acknowledges that the decisions of the Supreme Court, even when lawful in the constitutional sense, have neither force nor will. But unless they express the will of a sovereign capable of enforcing them, in and of themselves words do not make law. This implies that, without the forces commanded by the executive, or the support of the will of people as represented in the legislature, the judiciary's opinions are just that, opinions. Without the active concurrence of at least one of the other branches, they do not become law in any effective sense of the term.
These days the self-serving members of the legal profession talk as if the other branches are somehow obliged by the Constitution to respect and carry out the judgments of the Judiciary. If this were true, however, it would make no sense to say that "the judiciary … has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society. …" Every case brought before them would represent an opportunity for the judges to take command of any and all of these things. Judicial review would imply judicial supremacy. Judicial supremacy would supersede the separation of powers, establishing judicial tyranny instead.
Hamilton explicitly rejects this view of judicial power. He says that "the general liberty of the people" cannot be endangered by the judiciary, "so long as the judiciary remains truly distinct from both the legislature and the Executive." This distinction requires that, in the exercise of its judgment in particular cases, the judiciary be independent of the other branches. But it also requires that, in the exercise of their respective powers the other branches remain independent of the judiciary. If the other branches were constitutionally obliged to conform to judicial opinions, they would be subordinate, not independent.
This does not mean that the president or Congress may simply ignore the decisions of the courts; any more than it means that the judges and justices may simply ignore laws duly enacted by the Congress. All three branches, however, have a distinct obligation to respect "the manifest tenor of the Constitution." But their independence from one another necessarily implies the possibility of conscientious disagreements about what the Constitution requires. In the exercise of their respective constitutional powers the executive, or a constitutionally appropriate majority of the legislature, may conclude that a judicial action is "contrary to the manifest tenor of the Constitution." If and when they do so, they are just as duty bound as the members of the judicial branch to follow their conscientious understanding of the Constitution.
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But if each branch has a duty to follow its conscientious sense of what the Constitution requires, who has the authority to arbitrate the differences among them? I address that question in Part 2 of this column, posted at Loyal to Liberty.