The Progressive Revolution in Politics and Political Science by Unknown

Author:Unknown
Language: eng
Format: epub
ISBN: 9781461666547
Publisher: Rowman & Littlefield Publishers
Published: 2013-07-12T00:00:00+00:00

JUDICIAL STATESMANSHIP

Many commentators have noted that Marshall could have avoided ruling on the constitutional issue by declaring that the Supreme Court had no jurisdiction to decide the case. But I think it is too obvious for argument that Marshall went out of his way, not so much to assert the power of judicial review, but to give the nation an authoritative discourse on the fundamental principles of the Constitution. In the wake of the election of 1800 and the attacks on the judiciary that followed in its train, this was a necessary act of judicial statesmanship. Indeed, Marshall’s conception of judicial statesmanship was to provide, on appropriate and propitious occasions, a powerful and authoritative explication or exegesis of fundamental constitutional principles. Marshall at least on one occasion referred to the Constitution as a “sacred instrument,”80 and he seemed to have conceived of judicial statesmanship as providing authoritative commentary on the fundamental—and even sacred—law of the nation.81 Creating reverence for the fundamental law was Marshall’s most powerful contribution to making the Constitution an instrument “framed for ages to come, and … designed to approach immortality as nearly as human institutions can approach it.”82 The “framers must be unwise statesmen indeed,” Marshall continues, “if they have not provided [the Constitution], as far as its nature will permit, with the means of self-preservation from the perils it may be destined to encounter.”83 It is in the explication and defense of the fundamental law that Marshall lodged the “measure of self-preservation” in the Supreme Court.

Any attempt, of course, to issue a mandamus in the vindication of Marbury’s claim would have ended in failure, since as we have seen the judiciary “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments” (No. 78, at 465). Marbury is an example of the Court’s power to make a final determination about the meaning of the Constitution because the statute in question was addressed to the Court. The Court merely had to refrain from acting to make its decision—and its interpretation of the Constitution—final. In other cases, where the cooperation of the legislative and executive branch is required, the Court’s construction of the Constitution would not have the same air of finality.

The executive and legislative branches equally have the power and responsibility of constitutional construction. Congress, presumably, would not pass a law that it believed was unconstitutional, nor would the president sign a bill that he deemed unconstitutional. Courts also make judgments about the constitutionality of laws that come before them in the context of particular cases or controversies. Judges, of course, are bound by their constitutional oaths no less than presidents and members of Congress and are duty-bound not to apply laws they deem to be unconstitutional. But are the decisions of judges final? Does the judiciary because of its “peculiar province” to say what the law is occupy a superior position with respect to the determination of constitutionality?

Whenever the Court declares a law unconstitutional it does so in the context of the vindication of particular constitutional rights.

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