In 1824, a retired James Madison was corresponding with the writer Henry Lee IV, half-brother of Robert E. Lee and son of the Revolutionary War hero “Light Horse Harry” Lee. The former president is known to history as “the Father of the Constitution” and the man who helped shepherd the Bill of Rights through the first Congress. But Madison demurred from offering Lee (known to wags as “Black Horse Harry” because of his involvement in a family sex scandal) his opinion of some political and historical works Lee was promoting. “I find that the span of life is contracting much faster than the demands on it can be discharged,” Madison wrote.
Nevertheless, Madison offered Lee this morsel:
I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful, exercise of its powers. . . . And that the language of our Constitution is already undergoing interpretations unknown to its founders, will I believe appear to all unbiased enquirers into the history of its origin and adoption.
Who primarily was to blame, in Madison’s eyes, for this sorry state of affairs? That would be John Marshall, chief justice of the United States.
Marshall, who served from 1801 to 1835, longer than any other chief justice, was by common assent the greatest of them all. He is best known for his rulings in two cases: Marbury v. Madison (1803), which declared the Supreme Court’s power of judicial review to invalidate unconstitutional acts of Congress, and McCulloch v. Maryland (1819), which allowed Congress considerable discretion in the “necessary and proper” exercise of its enumerated powers. Both opinions were condemned by Marshall’s contemporary critics, and hailed by his modern successors, as instances of what we now call “judicial activism.”
According to Jonathan Turley, for example, Marshall’s Marbury opinion provoked “protests that he was amending the Constitution through the ruling—the earliest allegation of judicial activism.” Chattanooga history professor Larry Ingle (taking issue with something I had written about Marshall in my newspaper days) wrote that in Marbury, Marshall “used a minor administrative case to decide that a mere majority of the Supreme Court had final power to determine what the Constitution meant, even in the face of a congressional majority.” That, Ingle wrote, is an “undeniably judicial activist” ruling. “The phrase ‘judicial review’ is not only absent from the Constitution,” he wrote, “it is also not even implied, except by the broadest reach of a judicial activist.”
I lack the credentials to go toe-to-toe with Turley or even with Ingle. What I know about Marshall comes mainly from Raoul Berger, a man who in my view outranks them both. And according to Berger, Marshall was no activist.
Before going on, I should note that as used here, the phrase “judicial activism” is the antonym of “originalism,” not the antonym of “judicial restraint.” It doesn’t mean an inclination (rather than a hesitancy) to overrule the actions of elected officials or the decisions of previous courts. Instead, activism means the interpretation of the Constitution, on questions where its original meaning is clear, in a sense deliberately contrary to that meaning so as to obtain a result favored by the judge. As the Encyclopædia Britannica puts it, “In political rhetoric activism is used as a pejorative. To describe a judge as activist in this sense is to argue that he decides cases on the basis of his own policy preferences rather than a faithful interpretation of the law, thus abandoning the impartial judicial role and ‘legislating from the bench.’”
The controversy surrounding Marshall began long ago, but it continues to affect our lives today. Indeed, for many hundreds of thousands of us, learning the truth of the matter, and having that truth prevail among those who today expound the law to us, can be a matter of life and death.
Was Marbury, as today’s judicial activists would have it, a piece of sneaky business in which Marshall smuggled judicial review into the Constitution without the people’s knowledge or consent? That may be an apt description of their own methods, but it bears no resemblance to Marshall’s work.
Let the ruling speak for itself:
The powers [of Congress] are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if those limits may, at any time, be passed by those intended to be restrained? … 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. . . . Does [such an act], notwithstanding its invalidity, bind the courts, and oblige them to give it effect? . . .
If two laws conflict with each other, the courts must decide on the operation of each. So if a law is 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 the conflicting rules governs the case.
Exclaiming against the idea that the Constitution should not control the courts in such situations, Marshall gave several examples of the absurdities that would result. Such as: “The constitution declares that ‘no bill of attainder or ex post facto law shall be passed.’ If, however, such a bill should be passed, and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavours to preserve?” Then he concluded:
It is not entirely unworthy of observation, that in declaring what shall be the supreme law of the land [Article VI], the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.
The logic of Marshall’s elegant opinion is so clear as to be self-evident. What can one say to it? “Well, duh!” And he was no daring pioneer in making his argument. Berger writes that in the Constitutional Convention in 1787, James Madison himself had said “a law violating a constitution established by the people themselves, would be considered by the judges as null and void,” and during debate on the Bill of Rights in 1789 Madison said the “independent tribunals of justice . . . will be naturally led to resist every encroachment” upon those rights—rights expressly asserted against acts of Congress. Statements supporting judicial review as a check on legislative power were made in the 1787 convention by 17 of its members comprising, by constitutional historian Edward Corwin’s count, fully three-quarters of the convention’s leaders. And more such statements were made during the ratification debates, by Marshall himself in the Virginia ratification convention, and by others elsewhere, including New York’s Alexander Hamilton in Federalist 78:
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the mediums of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. … Nor does this conclusion 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.
That’s the same argument Marshall would later make in Marbury. As historian Bernard Schwartz observes, Marbury “merely confirmed a doctrine that was part of the legal tradition of the time, derived from both the colonial and Revolutionary experience.” Marbury thus conforms to the intention of the framers and is, therefore, not an activist decision.
What about McCulloch v. Maryland, the other great opinion upon which Marshall’s reputation rests? Here is where Marshall and Madison parted ways. The question Marbury raised and answered may have been a no-brainer, but the question raised by McCulloch presents a thornier problem. Article I, Section 8 gives Congress a list of enumerated powers, at the end of which is the power “to make all Laws which shall be necessary and proper” for carrying those powers into execution. What, exactly, does that last clause mean?
Marshall’s most famous words come from McCulloch: “We must never forget that it is a constitution we are expounding, . . . a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” Accordingly, Marshall thought the framers intended the “necessary and proper” clause to give Congress (not the courts, obviously) an ample choice of means for executing its enumerated powers. His critics, dubbed “strict constructionists,” thought the framers intended that it be interpreted more narrowly.
The point to remember is that both sides held that their interpretation reflected the Constitution’s original, true, intended meaning. What today’s judicial activists ignore is that while Marshall and the “strict constructionists” disagreed about what that true meaning is, neither he nor they thought it can be changed by a judicial opinion.
Marshall summed up his rule for interpreting the “necessary and proper” clause this way:
We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.
That struck Madison as all wrong. In a letter to Virginia jurist and outspoken Marshall critic Spencer Roane, Madison condemned such a “latitudinary mode of expounding the Constitution,” He conceded that “difficulties and differences of opinion might occasionally arise” in expounding the Constitution’s terms and phrases. “But it was anticipated, I believe, by few if any of the friends of the Constitution, that a rule of construction would be introduced, as broad and as pliant as what has occurred.” An avowal during the ratification debates of the rule Marshall was to spell out in McCulloch, Madison thought, would have caused the Constitution’s defeat.
It has been the misfortune, if not the reproach of other nations, that their Governments have not been freely and deliberately established by themselves. It has been the boast of ours that such has been its source, and that [our Constitution] can be altered by the same authority only which established it [i.e., by “We the People”]. It is a further boast that a regular mode of making proper alterations, has been providently inserted in the Constitution itself. It is anxiously to be wished therefore that no innovations may take place in other modes; one of which would be a constructive assumption of powers never meant to be granted. If the powers granted be deficient, the legitimate source of additional ones is always open, and ought to be resorted to.
So Marshall stood accused of altering the Constitution in the guise of interpretation. What few if any of his latter-day activist admirers realize is that Marshall didn’t shrug off the accusation. He vehemently denied it. In response to a newspaper campaign against McCulloch waged by Roane and others, Marshall wrote a series of newspaper articles of his own, signing them “A Friend to the Union” and “A Friend of the Constitution.” In them, he declared that the “intended to endure for ages” passage “does not contain the most distant allusion to any extension by construction of the powers of Congress. Its sole object is to remind us that a constitution cannot possibly enumerate the means by which the powers of government are to be carried into execution. . . . The [Supreme Court’s] power of deciding, in a last resort, all questions ‘arising under the constitution and laws’ of the United States . . . cannot be the assertion of a right to change that instrument.”
Marshall’s defense of McCulloch v. Maryland was lost to history until rediscovered by Stanford Law Professor Gerald Gunther in 1969, but his rejection of judicial activism has been evident all along. From the bench, he held “that the intention of the instrument must prevail; that its provisions are neither to be restricted into insignificance nor extended to objects not comprehended in them nor contemplated by its framers” (Ogden v. Saunders, 1827).
In modern terms, then, Marshall himself was a “strict constructionist.” And in Gibbons v. Ogden (1824), he said as much: “What do gentlemen mean, by a strict construction? If they contend only against that enlarged construction which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle.”
“Judicial power, as contradistinguished from the power of the laws, has no existence,” Marshall wrote. “Courts are the mere instruments of the law, and can will nothing. . . . Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law” (Osborn v. Bank of the United States, 1824).
Berger sums it all up:
Commentators at a loss to justify judicial arrogations fall back on Marshall’s sonorous reference to a “constitution intended to endure for ages to come.” In an oft-quoted apostrophe, Justice Frankfurter declared that it “expressed the core of [Marshall’s] constitutional philosophy . . . the single most important utterance in the literature of constitutional law.” It has become a mythic incantation. . . . Slender as was the justification for invocation of Marshall’s dictum prior to Gerald Gunther’s discovery of Marshall’s Defense, it has been shattered altogether by Marshall’s categorical disclaimer of judicial “right to change that instrument.” . . . The evidence, I submit, calls for an end to the incantatory reliance on Marshall’s “a Constitution . . . to be adapted to the various crises of human affairs.” If the Constitution is to be altered by judicial fiat, let it not be under seal of a reading Marshall himself repudiated.
The reason any of this matters today is that modern judicial activism has greatly empowered itself by its appropriation of Marshall’s mantle. Sometimes the activists’ results have been good, but mostly they’ve been bad, and often they’ve been disastrous. Left unchallenged, their toll in innocent lives will continue indefinitely into the future.
Further, as a general principle of jurisprudence, both Madison and Marshall agreed that judicial activism is entirely illegitimate. In the words of a man who outranks even Madison and Marshall:
The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. . . . If in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way in which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.