Wednesday, August 5, 2015

A Law Repugnant to The Constitution is Void -- John Marshall's path to nullification

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.

With this sentence in his historic ruling in the Supreme Court case Marbury v. Madison, Chief Justice of the United States John Marshall established the power of the Supreme Court to identify whether an act of Congress was unconstitutional, and thus lacked the force of law. But did Chief Justice Marshall also set forth a legal doctrine whereby anyone, a state government or even the people at large, might be able to similarly overrule the Congress? A close reading of this historic ruling indicates that he did.

The doctrine of judicial review was by no means novel in Marshall's day (indeed, from extemporaneous notes during the Constitutional Convention in 1787, we know of 11 delegates who specifically commented on the judicial review as a power of the court). The capacity of courts to review and comment upon laws was well established in the state of jurisprudence at the time,  nowhere in the text of the United States Constitution itself is the power mentioned. The judicial power is described explicitly in Article III, Section 2, paragraph 1:
The judicial Power shall extend 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;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
The Constitution thus established the scope of "the judicial Power", but chose not to define the nature of that power. Marshall, in formulating the reasoning within Marbury, opted to fill in that gap, arguing that "It is emphatically the province and duty of the judicial department to say what the law is." The court, in Marshall's view, is called upon to state the substance of a law (and, by extension, the limits of a law). Marshall actually engaged in some legal hair-splitting, arguing that while Marbury was certainly entitled to a legal remedy in his case, the language of the Constitution was at odds with the language of the Judicial Act of 1789, which was the enabling act that created the nascent federal court system for the United States.

Language lies at the heart of the Marbury ruling, for Marshal also wrote that "It cannot he presumed that any clause in the Constitution is intended to be without effect; and, therefore, such a construction is inadmissible unless the words require it." Every word within the Constitution is significant, according to Marshall, and has meaning. But if words are essential to the Constitution, they are equally essential to Marshall's rendered opinion. Consider now the meaning of "province" and "duty" as Marshall applied them:
It is emphatically the province and duty of the judicial department to say what the law is.
province - proper or appropriate function or scope
duty - a moral or legal obligation; the force of moral obligation
Marshall asserted that not only are courts well equipped to state clearly the meaning and intent of laws, they are obligated to do exactly that. Moreover, by declaring the role of the court to say "what the law is," Marshall proposed that the state of the law--of any law--to be pre-existing. A court merely discerns what is already there.

Marshall did not arrogate to the Supreme Court any special power to overrule Congress' power to enact laws.  Rather, his formulation was a mere expression of a pre-existing reality: a law that is inherently at odds with the dictates of the Constitution lacks any validity or operative force. Marshall's notion of judicial review was not that courts are granted authority to invalidate laws on the basis of Constitutional compliance, but merely that they are endowed with the competency to articulate whether or not a law is invalid because of Constitutional conflict. What Marshall did claim for the courts was a duty to render that articulation--according to Marshall's thesis, the Marbury ruling was a requisite operation of the courts, something that had to be said, and no more.

As Marshall did not arrogate to the courts the power to render laws unconstitutional, neither did he derogate the capacity of other entities--the states or even the people--to identify laws as being unconstitutional.  Marshall's claim, as articulated within Marbury, was not of power but of duty, but nowhere in the Marbury ruling is there any language which makes either the duty or the competency exclusive to the courts. Given that Marshall was already consciously micro parsing the text of the Constitution as well as the Judicial Act of 1789, it hardly seems likely that he would have been so semantically sloppy as to fail to incorporate exclusive language into the Marbury ruling had he been so inclined. The question of whom besides the courts might be possessed of that competence is neither asked nor answered within the ruling.

Yet on one point Marshall left absolutely no room for debate: any law which is contrary to the Constitution is by its very nature without authority. Such a law is void, lacking both legal form and legal substance. With or without a ruling by a court, such is the nature of law, according to Marshall.

As a direct result, not only did Marshall affirm judicial review to be an organic part of the role of the judiciary, he also articulated a basic framework of nullification. A legislature can only pass laws in accordance with its authority, as rendered by a governing constitution; it is morally impossible, under Marshall's logic, for a legislature to pass laws beyond the scope of its authority--should it put statutes down in writing which are at odds with the governing constitution, such statutes are from their moment of creation simply words without form, without meaning, and without force of law. No ruling of the Supreme Court, or any court, is needed to void such statutes; conflict with the governing constitution alone is sufficient.

Whom besides the courts might have the competence to articulate a law's invalidity? Within the framework of the Constitution, certainly the individual states can make a strong claim to such competence, for the Tenth Amendment reserves an expansive and indeterminate set of powers to the several states and to the people of the United States:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
As the Constitution is silent on whom enjoys the capacity to articulate a law's invalidity, the Tenth Amendment offers at least a presumption that such capacity is given to the states, inasmuch as the Constitution failed to prohibit that capacity to the states

The Constitution itself states explicitly that it is intended to be the supreme law of the land. There is no statute nor charter within the United States which is superior to the Constitution. As the Preamble states most eloquently, it is by the Constitution--and by the Constitution alone--that the United States is given legal form, substance, and reality.  Any legislative act not in accordance with the Constitution lacks both substance and reality. 

As John Marshall so eloquently illuminated in Marbury v Madison, the Supreme Court is charged with stating what the law is. It is therefore given to the rest of the United States--to the several states and ultimately to "We The People"--to state what the law is not.