Hi. Sorry for taking over a week off from writing, but it’s an awkward time. The war of attrition between Russia and Ukraine may be starting to tip Russia’s way after over 100 days of war; the January 6 commission has released footage showing more clearly how the Trump administration was involved in the attempted coup and has promised more such footage; and my hometown Boston Celtics are playing for the NBA championship (currently tied 2-2 in a best-of-7 series). And I’m looking forward to seeing my granddaughter on her first birthday next month. But my focus is still turned to the Supreme Court.
We’re in the final month of the 2021-22 U.S. Supreme Court term, which traditionally runs from the first Monday in October to the last day of June (although in 2020, the Court didn’t issue its final opinions until July 9). As of today (June 5), there are opinions outstanding in 33 cases that the court heard during the year, including the cases discussed last week in Quick Loop #12 (under “The Judicial Branch and the Partisan Wars”).
[UPDATE: By the time of actual publication of this article, June 11, SCOTUS had issued decisions in four of those cases, leaving 29 to decide — with the next two opinion dates scheduled for Monday, June 13, and Wednesday, June 15. For a look at all of the cases left in the 2021-22 term, see the linked article by Amy Howe, formerly a SCOTUS appellate lawyer at the firm Goldstein and Howe, P.C..]
But the real partisan divide is in how to decide such cases in the first place, and both parties seem to be digging in, making the divide appear to be wider than ever. Is it? Probably not, but the fact that the “pragmatists”, formerly known as the “living Constitutionalists”, are currently losing the debate in front of the Supreme Court to the “originalists”/”textualists”, at the same time that they dominate academia and the media, has ramped up the anti-Court rhetoric to levels unseen since the heyday of the Warren Court in the 1950s and 1960s. But instead of just choosing up sides and slinging false accusations about the other side, let’s pause and consider the elements and issues involved in the selection of a method of Constitutional interpretation.
Silence of the Constitution
One of the interesting parts about this question is that the Constitution is completely silent about how to interpret it, despite the broad wording used in many places. The Supreme Court was intended to handle interpretations, at least to some extent, but it was also intended to work from a position of weakness compared to the other two branches. As Alexander Hamilton wrote in one of the Federalist Papers (Federalist 78):
The interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcileable variance between the two, that which has the superior obligation and validity ought of course to be preferred; or in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. . . .
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.
This simple view of the matter suggests several important consequences. It proves incontestibly that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive.
And yet this ideal of the weak Court was obsolete within 15 years of the adoption of the Constitution. In the pivotal case of Marbury v. Madison (1803), the Supreme Court arrogated the duty to interpret the Constitution entirely to itself, in a unanimous opinion written by Chief Justice John Marshall:
The question whether an act repugnant to the Constitution can become the law of the land is a question deeply interesting to the United States, but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it. . . .
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.
This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.
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? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.
So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
One of the other American founders, Thomas Jefferson, argued instead that each branch of government had the power to interpret the Constitution with regard to its own functions:
In denying the right [the judiciary] usurp[s] of exclusively explaining the constitution, I go further than you do, if I understand rightly your quotation from the Federalist, of an opinion that "the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived." If this opinion be sound, then indeed is our constitution a complete felo de se. For intending to establish three departments, co-ordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone, the right to prescribe rules for the government of the others, and to that one too, which is unelected by, and independent of the nation. . . .
My construction of the constitution is very different from that you quote. It is that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal.
Several subsequent presidents, including Andrew Jackson and Abraham Lincoln, also argued for Jefferson’s interpretation. But before we move on to discussing this point further, it’s worth a few moments to consider the issues underlying Marbury v. Madison — and to decide whether the outcome was consistent with the idea of a government of laws, not men, that the U.S. had tried to create.
Marbury v. Madison, beyond the opinion
As discussed in this prior article, the writing of the Constitution was primarily advocated by Alexander Hamilton and James Madison, who, along with John Jay (appointed the first Chief Justice), wrote The Federalist Papers to express their views on the rights of the federal government and were known as Federalists. The Supreme Court itself was primarily Madison’s idea; in 1785, Madison had written:
The Judiciary Department merits every care. Its efficacy is demonstrated in G. Britain where it maintains private Right against all the corruptions of the other two departments & gives a reputation to the whole Government which it is not in itself entitled to.
The people opposed to the Constitution were known as Anti-Federalists. After the Constitution was adopted, though, the Anti-Federalists generally joined with Jefferson and Madison to form the Democratic-Republican Party, while most of the Federalists, including Hamilton and Jay as well as John Adams, formed the Federalist Party. Jay became the first Chief Justice.
Another of the most prominent Federalists was Jefferson’s second cousin once removed, John Marshall. Marshall’s grandmother had been blackballed by the prominent Randolph family, which included Jefferson, for marrying below her station, and Marshall had a substantial chip on his shoulder, including against Jefferson, as a result. Marshall had sided with Hamilton, Madison, and Jefferson to get the Constitution ratified, but he then sided with Hamilton and the Federalists in opposition to Jefferson, Madison, and the Democratic-Republicans.
When the Federalists formed the first partisan government in the U.S. after John Adams defeated Jefferson in the 1796 election, Marshall, as Jefferson’s most prominent opponent in Virginia, became a major national figure, first serving as a diplomatic representative of the U.S. to France, where he and the other representatives refused to authorize a bribe demanded by the French in what eventually became known as the XYZ Affair, and then upon his return becoming a U.S. congressman and then Secretary of State in 1800, where he resolved the Quasi-War with France that resulted from the XYZ Affair. Among Marshall’s other duties as Secretary of State was the delivery of federal commissions.
After Jefferson defeated Adams in their rematch in 1800 (a choice that ended up in the House of Representatives to decide due to a tie in the Electoral College between Jefferson and his VP choice, Aaron Burr — and where Marshall had refused the entreaties of Hamilton to publicly support Jefferson over the reprehensible Burr), Marshall remained as Secretary of State until the end of Adams’ term on March 4, 1801. Except . . . Marshall was also appointed by Adams to the Supreme Court, taking office on February 4, 1801, and thus serving as both Secretary of State and Chief Justice for a full month. Clearly, the U.S. government was still a work in progress in 1801.
Nineteen days before Adams’ term ended, Congress approved the Judiciary Act of 1801, also known as the “Midnight Judges Act”. One of Marshall’s last duties was to deliver the federal commissions for about 60 judges appointed by Adams on March 2, 1801, less than 48 hours before leaving office, and approved by the Senate the next day, March 3 — who were referred to as the “Midnight Judges” because Adams was said to be signing their commissions up to midnight of his last day in office. In fact, Marshall actually received the commissions from Adams just after the Senate vote and gave them to his younger brother to deliver that day, but a few of them, including William Marbury’s appointment as a D.C. justice of the peace, could not be delivered on the third and thus remained in the office of the new Secretary of State, James Madison. But Madison refused to deliver them, consistent with Jefferson’s view that the commissions were void once March 4 had begun without their delivery.
Marbury sued Madison to get his commission— which led to a banana-republic scenario of an appointed-but-not-seated judge suing the successor of the guy who was supposed to deliver his commission, with the guy who had failed to deliver the commission getting to resolve the case. Knowing those facts, I assume all of you have expectations about what happened.
Except it didn’t.
The actual ruling in Marbury v. Madison was that the Supreme Court had not been given the power under the Constitution to issue a writ of mandamus against the executive branch, and thus the Judicial Act of 1789, which provided that method, was unconstitutional. Under this opinion, the Supreme Court did not — and could not — order Madison to distribute Marshall’s leftover judicial commissions. Marshall did not use his judicial power to further his party’s interests, and accordingly Marbury did not and would not get his commission. Since the Jefferson administration won the case, it had no reason to dispute the ruling, even though it disagreed with the logic used by Marshall and the Court (almost entirely Federalists) to reach that conclusion.
Judicial supremacy in the early U.S.A.
Marbury v. Madison established the precedent that the Court had the primary power to review the constitutionality of laws passed by Congress, and American law proceeded down the path of “judicial supremacy” from there. Some people have wanted the Constitution amended to limit such supremacy; for example, in 1996, former Yale professor and 1987 unsuccessful SCOTUS nominee Robert Bork urged the passage of a Constitutional amendment that would permit the legislative and executive branches to override some judicial decisions. But what criteria should the Court use to decide whether a law was constitutional? Some methods of interpretation and construction had to be employed.
Debate about the meaning of the terms used in the Constitution was frequent in that early period. For example, see this discussion from Weems v. United States (1910), describing an 1824 debate about the scope of the Commerce Clause in Article 1, Section 8 of the Constitution (citation omitted):
There are many illustrations of resistance to narrow constructions of the grants of power to the national government. One only need be noticed, and we select it because it was made against a power which, more than any other, is kept present to our minds in visible and effective action. We mean the power over interstate commerce. This power was deduced from the eleven simple words -- "to regulate commerce with foreign nations and among the several states." The judgment which established it was pronounced by Chief Justice Marshall (Gibbons v. Ogden), and reversed a judgment of Chancellor Kent, justified, as that celebrated jurist supposed, by a legislative practice of fourteen years and fortified by the opinions of men familiar with the discussions which had attended the adoption of the Constitution. Persuaded by such considerations, the learned chancellor confidently decided that the congressional power related to "external, not to internal, commerce," and adjudged that, under an act of the state of New York, Livingston and Fulton had the exclusive right of using steamboats upon all of the navigable waters of the state. The strength of the reasoning was not underrated. It was supported, it was said, "by great names, by names which have all the titles to consideration that virtue, intelligence, and office can bestow." The narrow construction, however, did not prevail, and the propriety of the arguments upon which it was based was questioned. It was said, in effect, that they supported a construction which
"would cripple the government and render it unequal to the objects for which it was declared to be instituted, and to which the powers given, as fairly understood, render it competent."
As this discussion makes clear, the early justices’ interpretation of the language in the Constitution in Gibbons v. Ogden took into account their interpretation of the intended purposes of that language. In this particular case, all three of the prominent justices on the early Supreme Court — Justices John Marshall, Joseph Story, and Bushrod Washington — agreed that commerce, as the term is used in the Constitution, included more than just trading [and note that Story was a Democratic-Republican appointed by Jefferson, so this was not just a partisan position]:
The words are, "Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes."
The subject to be regulated is commerce, and our Constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations which shall exclude all laws concerning navigation, which shall be silent on the admission of the vessels of the one nation into the ports of the other, and be confined to prescribing rules for the conduct of individuals in the actual employment of buying and selling or of barter. . . .
The word used in the Constitution, then, comprehends, and has been always understood to comprehend, navigation within its meaning, and a power to regulate navigation is as expressly granted as if that term had been added to the word "commerce." . . .
We are now arrived at the inquiry -- What is this power?
It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its Constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States. The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often they solely, in all representative governments.
Thus, in the view of the Supreme Court, New York could not award Robert Fulton and his partners the exclusive right to use steamships in the navigable waters of New York, because Congress had an overriding power to regulate commerce. But we’ll come back to this power with regard to “living Constitutionalism”/“pragmatism” in a case called Wickard v. Filburn in part #2.
Dred Scott and the 14th Amendment
But the Constitution still only applied to the federal government, not to the states. Thus, states were largely free to do whatever they wanted to do, which is how the country developed with half the states free and half the states slave.
Then came Dred Scott v. Sandford (1857). Dred Scott overrode the laws of the states that prohibited slavery by ruling, among other things, that slaves were property that had to be respected and allowed in every state and that the Missouri Compromise, which prohibited slavery in the United States north of the 36’30’ parallel, was unconstitutional. When Missouri created its state constitution in 1820, it prohibited the entry of “free negroes and mulattos” into the state. Although Congress accepted the state constitution, the congressional act admitting Missouri to the United States provided that the exclusionary clause should “never be construed to authorize the passage of any law” impairing the “privileges and immunities” of any American citizen. The ruling in Dred Scott was designed in part to wipe that prohibition out. Although not necessary to resolving the case, the Supreme Court ruled in Dred Scott that blacks could not be citizens of any state in the United States, thus paving the way for Missouri (and the other slave states) to exclude all black (or partially-black) people except for slaves.
In Dred Scott, the Supreme Court had given the white slaveholders in the South a total and complete victory in their battle over slavery with the free states of the North. Of course, that victory never really came to pass, because northern antipathy to Dred Scott led to the election of the first anti-slavery president, Abraham Lincoln, less than four years later, and the 13th Amendment to the Constitution completely outlawed slavery in America about 4.5 years after that (after the anti-slavery forces won a bitter civil war).
And then came the next change: the 14th Amendment, ratified in 1868. Section 1 of the 14th Amendment overrode Dred Scott to make all blacks citizens, as well as anyone else “born or naturalized” in the U.S. and “subject to the jurisdiction thereof”, a concept that has become known as “birthright citizenship”. But Section 1 also went further and applied all of the Constitutional guarantees of citizens’ rights against each of the states as well. Here is Section 1, in its entirety:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The only thing certain about that provision is that SCOTUS didn’t want to enforce it as written (which requires a much longer discussion). At a minimum, such a discussion would include the infamous 5-4 decision by SCOTUS in The Slaughter-House Cases (1873) that the Privileges or Immunities Clause of the 14th Amendment only protects the legal rights that are associated with federal U.S. citizenship, not those that pertain to state citizenship:
Twelve articles of amendment were added to the Federal Constitution soon after the original organization of the government under it in 1789. Of these, all but the last were adopted so soon afterwards as to justify the statement that they were practically contemporaneous with the adoption of the original; and the twelfth, adopted in eighteen hundred and three, was so nearly so as to have become, like all the others, historical and of another age. But within the first eight years, three other articles of amendment of vast importance have been added by the voice of the people to that now venerable instrument.
The most cursory glance at these articles discloses a unity of purpose, when taken in connection with the history of the times, which cannot fail to have an important bearing on any question of doubt concerning their true meaning. Nor can such doubts, when any reasonably exist, be safely and rationally solved without a reference to that history, for in it is found the occasion and the necessity for recurring again to the great source of power in this country, the people of the States, for additional guarantees of human rights, additional powers to the Federal government; additional restraints upon those of the States. Fortunately, that history is fresh within the memory of us all, and its leading features, as they bear upon the matter before us, free from doubt. . . .
We repeat, then, in the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all, and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. It is true that only the fifteenth amendment, in terms, mentions the negro by speaking of his color and his slavery. But it is just as true that each of the other articles was addressed to the grievances of that race, and designed to remedy them as the fifteenth. . . .
The language [in the second sentence of the 14th Amendment] is, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." It is a little remarkable, if this clause was intended as a protection to the citizen of a State against the legislative power of his own State, that the word citizen of the State should be left out when it is so carefully used, and used in contradistinction to citizens of the United States in the very sentence which precedes it. It is too clear for argument that the change in phraseology was adopted understandingly and, with a purpose.
Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respectively are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment.
The dissenters ridiculed this view. The primary dissent stated that:
What [the Privileges & Immunities Clause of Article IV, Section 2] did for the protection of the citizens of one State against hostile and discriminating legislation of other States, the fourteenth amendment does for the protection of every citizen of the United States against hostile and discriminating legislation against him in favor of others, whether they reside in the same or in different States. If, under the fourth article of the Constitution, equality of privileges and immunities is secured between citizens of different States, under the fourteenth amendment, the same equality is secured between citizens of the United States.
In a separate dissent written by one of the parties to the primary dissent, the issue is restated:
I think sufficient has been said to show that citizenship is not an empty name, but that, in this country, at least, it has connected with it certain incidental rights, privileges, and immunities of the greatest importance. And to say that these rights and immunities attach only to State citizenship, and not to citizenship of the United States, appears to me to evince a very narrow and insufficient estimate of constitutional history and the rights of men, not to say the rights of the American people. . . .
But we are not bound to resort to implication, or to the constitutional history of England, to find an authoritative declaration of some of the most important privileges and immunities of citizens of the United States. It is in the Constitution itself. The Constitution, it is true, as it stood prior to the recent amendments, specifies, in terms, only a few of the personal privileges and immunities of citizens, but they are very comprehensive in their character. The States were merely prohibited from passing bills of attainder, ex post facto laws, laws impairing the obligation of contracts, and perhaps one or two more. But others of the greatest consequence were enumerated, although they were only secured, in express terms, from invasion by the Federal government; such as the right of habeas corpus, the right of trial by jury, of free exercise of religious worship, the right of free speech and a free press, the right peaceably to assemble for the discussion of public measures, the right to be secure against unreasonable searches and seizures, and above all, and including almost all the rest, the right of not being deprived of life, liberty, or property without due process of law. These and still others are specified in the original Constitution, or in the early amendments of it, as among the privileges and immunities of citizens of the United States, or, what is still stronger for the force of the argument, the rights of all persons, whether citizens or not.
But even if the Constitution were silent, the fundamental privileges and immunities of citizens, as such, would be no less real and no less inviolable than they now are. It was not necessary to say in words that the citizens of the United States should have and exercise all the privileges of citizens; the privilege of buying, selling, and enjoying property; the privilege of engaging in any lawful employment for a livelihood; the privilege of resorting to the laws for redress of injuries, and the like. Their very citizenship conferred these privileges, if they did not possess them before. And these privileges they would enjoy whether they were citizens of any State or not. Inhabitants of Federal territories and new citizens, made such by annexation of territory or naturalization, though without any status as citizens of a State, could, nevertheless, as citizens of the United States, lay claim to every one of the privileges and immunities which have been enumerated, and among these none is more essential and fundamental than the right to follow such profession or employment as each one may choose, subject only to uniform regulations equally applicable to all.
Amazingly, despite the arguments made in the dissents, the majority opinion in The Slaughter-House Cases is still the law of the land. Instead, the 14th Amendment was later applied to the states through the Due Process Clause, which is still a controversial choice.
But it’s almost impossible to address the full implications of the 14th Amendment and the SCOTUS mistakes with regard to it in a single essay such as this one, because discussing the wrong turns taken by the Court requires almost a book-length dissertation, so we’ll have to address it at greater length later. Instead, let’s see how some of the most influential jurists have chosen to address constitutional interpretation since 1900. And we’ll do that in part #2.
Be seeing you.