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September 9, 2011

Quis Dicit?

On Twitter, I got asked a great question by @edwardjohngalla:

If we repealed Marbury v. Madison, that would get rid of Roe v. Wade and Citizen's United. Cool! Your thoughts?

OK, there are actually several things buried in there that I want to talk about:

  1. Would the undoing of Marbury v. Madison also undo all the precedents set by rulings assuming its validity?
  2. Should we even be using precedent in deciding legal matters? What about nullification?
  3. Should Marbury v. Madison be undone?
  4. Should there be a final arbiter of the Constitution's meaning, and if so who or what should be that final arbiter?

I'm going to take them in that order.

When people reference Marbury v. Madison, what they really are referring to is the power of judicial review that it established: the Supreme Court has the power to nullify laws passed by the Congress on the grounds that those laws violate the US Constitution. In other words, the Supreme Court asserted the power (a power not given in the Constitution to any office or body) to be the final arbiter of the meaning of the Constitution, and by extension of the meaning of a law. [Don't write letters; I recognize that I'm simplifying.] In the 208 years since this decision, a great many Court decisions have been predicated on it, at least in part, including the two mentioned in Edward John Gallardo's question. Because our system is theoretically based on common law (about which more later), and in particular because we use the doctrine of stare decisis to avoid continuously relitigating cases, such a decision would apply not merely in the specific case being decided, but in any matter whether or not brought before the Court, until such time as a later Court might revisit the issue. That's a huge assumption of power, and we'll deal with that later. But for now, the relevant issue is that the combination of doctrines that we use for our legal system and the assumption of power from Marbury v. Madison essentially mean that once the Court decides on the meaning of some part of the Constitution, that meaning sticks indefinitely.

So let's assume that some case were to come along based on Griswold v. Connecticut, which I believe was the first Supreme Court decision to find a constitutional right to privacy, and in deciding this case, the Supreme Court were to strike down Griswold. In that event, the right to privacy protection would be struck down as well, and then cases based on that decision, such as Roe v. Wade, would also potentially be in jeopardy. The idea there is that if the Court were to revisit the issue of abortion without Griswold's precedent to rely upon, it might reach a different decision regarding Roe. But note all the conditionals: merely having undone Griswold would not itself undo Roe, because the cases decided different issues. The right to privacy asserted in Roe and based on Griswold might still exist in Roe that are not addressed in the decision that undid Griswold. In other words, merely undoing a Supreme Court decision does not mean that all of the Court's decisions that reference the decision that was nullified would themselves be undone. Presumably, the Court would have to hear other cases that would be brought asserting the claim that this or that case was now also invalid, and over time a new jurisprudence would arise that would clarify those issues.

So no, undoing Marbury v. Madison would not ipso facto undo either Roe or Citizens United.

Part of the problem, though, is that our legal system is hopelessly muddled. We use precedent as if we were a common law country (as, indeed, the Constitution says we should be), but we give supremacy to laws passed by legislatures over common law "even against common right and reason". In fact, it was Marbury v. Madison itself that made statute law take precedence over common law in the US. We allow nullification for the Court generally nullifying laws (again, Marbury v. Madison is responsible for that, or at least for cementing in place what was prior to that a scattered practice) but not for juries nullifying laws in a particular case. We almost seem to have designed for ourselves a system that takes the worst elements of common law and the worst elements of statute law and makes that the universal practice. If we are to truly be a common law nation, then that law which governs the fewest people or the smallest area should take precedence over that law which governs the most and the widest, and Constitutions/charters should flow in the other direction. That's essentially a states' rights position, by the way. It also means though that we have to take into account human nature and a broad conception of rights granted against the powers of government, which inherently limits government and expands freedom. If, alternately, we are to be a statute law nation, then we must have all laws explicitly written, and interpreted according to the plain meaning of the words rather than inventing new meanings out of whole cloth. By trying to have it both ways, we have utterly thrown away any conception of a nation based on law, rather than man.

I should explain here that the idea of rule of law is commonly and horribly misinterpreted. Rule of law does not mean having a lot of laws, or even compelling obedience strictly to the law. Rather, it means that the laws must be knowable (few enough to learn, and clear enough for a common person to interpret, and published widely enough for anyone to access), and that all people regardless of station or position must alike be subject to the law. The alternative is the rule of man, where the arbitrary whims of those in power determine whether or not you are to be punished for any given act, and the written law (if there even is one) is no defense. The United States is not a nation of laws. If you need evidence of this, consider that recent Supreme Court decisions — settled law of the land and trumping all else — have held that non-commercial actions happening entirely within one person's domicile constitute "interstate commerce;" that the protections against the seizure of one's property by the government does not hold if the government really, really wants your property, even if it's just to give it to someone else in a corrupt land for campaign cash deal; and so on. Or consider that we are now being asked to believe that not engaging in commerce means that you are engaging in commerce, and in the process to allow Congress to dictate — and I use that word deliberately — anything at all that it wants, to compel you to do or not do as it suits them and them alone. Or consider prosecutorial discretion, which routinely holds the favored few to no account, while bringing horrific punishments on the common many. And all of this is in no small part due to the confusions introduced by Marbury v. Madison, though of course there are other factors in play as well.

So the next question is, should Marbury be undone? The easy answer is yes, but that's a problematic answer. Fundamentally, the legitimacy of an institution or a system really comes down to whether or not people accept it as legitimate. Authority is granted by acceptance. If Americans as a rule believed the Court to be institutionally illegitimate because of their arrogation of the power to have the final say on the meaning of the Constitution, then overturning Marbury would be a no brainer. But really, people don't. In fact, I'd say that Americans as a whole likely see Court review of laws as a fundamental cornerstone of our Constitutional system. You can argue about whether they are right to do so, but that doesn't matter in the end. Legitimacy flows from acceptance, and the American people accept that the Court not only does have this power, but should have this power. And in practice, that means that the Court will have this power until we fundamentally change our system.

But at this point, I would argue that we need to fundamentally change our system. If we are to be a nation of laws, those laws have to have meaning. And the supreme law of the land is the Constitution. It is no longer possible to read the Constitution and, from that reading, understand anything other than the basic structure of the Federal government. In particular, you cannot read phrases like "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" (4th Amendment) and actually know what it means, because if this were actually legally binding, how would no knock warrants be possible? In fact, what you can start with is the annotated Constitution (don't forget the three supplements released later), thousands of pages of text and footnotes explaining how the Court has actually interpreted the Constitution, frequently to mean the exact opposite of what is meant by the plain meaning of the words. So the real Constitution is, in a fundamental sense, unknowable to the average person, and in fact largely hidden from the average person. Moreover, because what is taught to people as the Constitution is the original, written form, people routinely see the Constitution (not to mention other laws) violated by the government and treated as being as meaningless. Contempt for the law from the government breeds contempt for the law from the people; why should anyone think about the meaning of the Constitution when the Speaker of the House, on being asked whether a proposed law granting the government sweeping new powers is constitutionally valid, responds with "Are you joking?"

If we are to be a nation of laws, and not of men, then the law — including the Constitution — must be seen to be binding, knowable, and uniformly enforced. That means that what the law is also needs to comport with the beliefs of the great majority of what the people believe the law should be. And that in turn means that the Constitution, as written, is illegitimate, because it does not conform to what the majority think it should be. There are three ways around this. The first would be to call a Constitutional Convention, and write a new Constitution that actually says what we think it should. I encounter a lot of resistance to this idea on the grounds that a Constitution written with current beliefs is unlikely to protect things like freedom of speech, or of religion, or whatever. To which my answer is this: it already does not provide any such protection in practice. The second would be to amend the Constitution to make Social Security constitutionally valid, for example, and to actually give the Supreme Court a written grant of authority to be the final arbiter of the document's meaning, and so forth. The problem with that is this: if you propose, and pass the Congress, an amendment to make Social Security valid, and then it fails to be ratified by the States, is Social Security then invalid? No, under the way that we interpret the Constitution. And so the amendments would potentially further alienate the legitimacy of the Constitution, rather than restore it. The third way is to do what we have done: consent to being ruled by the whims of men, and live in fear that our government might be ruled by people who will force their religion on us and ban abortion (on the one side), or take our guns and ban religion (on the other). Federalism and subsidiarity, the idea that we should be mostly governed locally and the Federal government should have very strictly limited powers, seems to be a dead letter in the American mind, even though it would resolve even some of the thorniest of our issues were we to practice it.

So yes, Marbury should be undone, but the only way to undo it is to fashion a new system, and that would require a very great leap of faith, and consequently a strong non-partisan or bi-partisan leadership to allow that leap of faith. I don't see it happening in practice, but in theory it's way overdue.

But let's say that we do decide to rewrite or amend the Constitution back into a meaningful document. Then should there be a final arbiter of its meaning, and if so, whom or what kind of body should that be? If it were up to me, I'd say that we should not have a final arbiter. The reason is that it actually requires more different people and groups to violate the Constitution without a final arbiter than with one.

Let me give an example. Let's say that the Court had the ability to apply judicial review only to a particular case, and not to broadly strike down laws. Then to violate the Constitution, the Congress would have to pass a law in violation of the Constitution. The President would have to enforce that law in violation of the Constitution. The Court would have to allow that enforcement to stand in each case brought before it — and each case could be brought before it because lower Courts wouldn't automatically dismiss them as unconstitutional. So if the Congress passes an unconstitutional law, the President could simply determine that the law was unconstitutional and refuse to enforce it. Judges could determine that the law was unconstitutional and refuse to try. Juries could determine that the law was unconstitutional and refuse to convict. In other words, a ton of people would have to concur that the law was constitutuionally valid in order to enforce it, while only a few people would have to concur that the law was unconstitutional in order to prevent its enforcement. This is undeniably a situation that furthers individual liberty.

But as I noted before, the idea of a final arbiter has broad legitimacy, and changing that impression — if it is at all possible — would not be easy or quick. So let's assume for the moment that we want to have some person or body with the final authority to interpret the Constitution's meaning. Whom or what should that be? What characteristics would we want to have for whomever has that power?

First, I think that we would want this to not be a single person, because (a) a single person can be corrupted, and (b) that's a lot of power to put in one person's hands. What if that person turns out to think that beheading is an appropriate punishment for shoplifting? What if he thinks that's the only appropriate punishment for shoplifting? By the nature of being a final arbiter, that power is plenary — there is no appeal. So if it's to be an organization, what kind of organization should it be?

Well, we'd want it to be fast. This rules out the first thing that comes to mind: periodic Constitutional conventions. When court cases are pending, it's not exactly conducive to a speedy trial to have to wait a decade or more for the next convention. It would be possible to do periodic conventions combined with court review in the interim periods, but that would lead to an unstable base of law (and thus essentially to an unknowable base of law) as decisions get made and then overturned and so forth. For the same reason, we'd want whatever kind of organization has this power to be permanent, at least to the point of having a common body of rules that change slowly over time, including the rules for how many people are in the body and how they are chosen.

At the same time, you wouldn't want the body to be schlerotic. It is good to have the basis of law change slowly, but it is also good to have an ability to change bad decisions without waiting decades or suffering disastrous consequences. Recall that the appeal for the Dred Scott case was the Civil War. For that reason, you want the body's membership to change over time, and you want the body to meet regularly.

So far, that gives us a permanent institution that meets regularly and changes its membership regularly. What powers should it have? I would argue that it should have exactly two powers: it should be able resolve constitutional questions posed by the courts, legislatures, executives and even common citizens; and it should be able to recommend changes to the Constitution, either to Congress as Amendments, or directly to the States as amendments or a call for a Constitutional Convention. That way, the body would have the power to say what the Constitution means, and to recommend changes where that meaning is at odds with current sentiments. I'd be willing to give it the power to amend, and take that away from Congress, depending on how the membership is chosen and a host of other details.

As far as membership, though, you'd want to have that selected by more than one means. The reason is that this body would be the governing body over the interpretation of the Constitution, and a large purpose of that document, and thus of this body, is to make sure we are all represented and all protected. So you'd want some people appointed by various legislatures or executives, but you'd also want people who were elected by various subgroups (ethnic, gender, urban/rural, by trade/profession, income level, owners/renters, etc) with diverse interests, and you'd want some people who were chosen by lot from the jury pool. The idea is to ensure that the body is both large enough and diverse enough in its interests and needs to ensure that any change to the Constitution, or any interpretation of the Constitution, protects and serves the whole society, rather than just narrow interests. (That, by the way, was the purpose of the original geographic breakdown of the House of Representatives. If we wanted to preserve that idea today, we'd probably go to partisan proportional representation.)

I don't want to go too far off topic by getting into all kinds of other features of such a body, but it's pretty clear to me that if there is to be a power vested somewhere to interpret the Constitution for everyone else, the Supreme Court is not the place to vest it. The membership changes too slowly, is too small, is too unrepresentative of the population, and is appointed in exactly one manner.

Posted by jeff at September 9, 2011 5:27 PM

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