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Bringing an End to Weak Sister Constitutionalism

man showing fist to his big boss

The particular genius of Marbury v. Madison was John Marshall’s act of jujitsu. President Jefferson wanted William Marbury kept off the federal bench and let it be known he would defy any Supreme Court order to the contrary, so Marshall delivered that outcome while seizing the larger prize of judicial review. Two centuries on, President Jefferson’s successor Donald Trump is reduced not to defying the Court but rather to tweeting ruefully that the judiciary’s consideration of his travel ban is “slow and political.”

Thus has Marshall won on both ends: Judicial review is entrenched, and judges no longer occupy the posture of constitutional weakness that necessitated the gymnastics in which Marshall engaged to give Jefferson his desired outcome while voiding Section 13 of the Judiciary Act of 1789. No President would dare defy a court order today, much less announce in advance of a case his intent to do so.

This is not a sign of constitutional health. It is an indication that the separation of powers is deranged. A return to vigor would entail all three branches’ asserting themselves independently of each other on constitutional questions. It is the ongoing interaction between them, not the proclamations of any one, that should vindicate the Constitution’s meaning.

Two models of establishing constitutional meaning may be understood here. One is linear: Congress passes a bill, the President signs it, the Court rules on its constitutionality. On this understanding, the Court is, temporally speaking, the last stop on the line. Madison wrote that such an arrangement “makes the Judiciary Dept paramount in fact to the Legislature, which was never intended, and can never be proper.”

The other model, which Richard Reinsch has emphasized in this space, sees the Constitution’s meaning emerging from an ongoing conversation between the branches. No branch has the discrete or final word.

On this view, which is more compatible with the Madisonian regime, President Trump has every authority to impose the travel ban despite the determinations of the courts to the contrary. What he lacks is the right to do so without consequences or counterbalancing assertions of power.

In a fully healthy regime, defying the courts on a sufficiently grave matter would expose the President to impeachment or other legislative sanctions, as well as to the higher sanction of public opinion. On a matter of any gravity, a conflict between two branches would force the people to deliberate through political institutions and settle the Constitution’s meaning by siding with one or the other. Such historical episodes as Franklin Roosevelt’s Court-packing plan—in which the public rejected efforts to tamper with judicial independence even in the depths of the Depression and at the height of Roosevelt’s popularity—or the Watergate tapes case suggest the public amply possesses the capacity for doing so.

The people may, indeed, be overprotective of the judiciary, which is one of several dynamics that impede the proper functioning of mutual checks and balances. The courts command both deference as a majestic institution of government for whom obsequiousness is a constitutional entitlement and, somehow simultaneously, sympathy as the weak sister of the regime. Thus the perpetual handwringing when—God save the republic—Presidents criticize them. They can do so nobly or ignobly, to be sure—and “so-called judge” does not fit the former description—but the notion that the judiciary is so enfeebled it needs to be shielded even from commentary is ridiculous.

Another dynamic inhibiting the normal operation of separation of powers is excessive fear of the constitutional checks available to Congress. The idea that impeachment in particular is an exclusively juridical rather than political device to which Presidents are immune unless they commit a literally indictable offense operates to the detriment to the separation of powers.

The truly weak sister in all this is, as in most contemporary constitutional matters, the legislature. What is unclear is whether Congress fears the other branches or hides behind them as convenient foils. Delegation to agencies allows Congress to claim credit for policy goals while complaining about policy implementation, while the assumption of judicial supremacy on constitutional questions enables legislators to vote for whatever is politically expedient on the assumption that, in the memorable formulation of the late U.S. Senator Arlen Specter, “the Court will clean it up.”

Compare this to the First Congress, which David P. Currie has called “a continuing constitutional convention.” To be sure, it had to be such in order to fill in the broad outlines of the framing document with governing details. But in early meetings of the legislature, constitutional debates were routine.

They should be again. But the separation of powers, as Publius envisions it, assumes, including with respect to constitutional meaning, that the branches will operate independently and not merely opportunistically—that is, that a Congress will not blindly defer to a President of its own party or vice versa.

In such circumstances, it is more conservative to ascertain the Constitution’s meaning in this political, conversational way than by making the judiciary the last stop on the line. To empower the judiciary as the final arbiter of the Constitution’s meaning is to empower abstract reason at discrete moments in time. Burke, by contrast, wrote in the Reflections that “the science of jurisprudence” was “the collected reason of ages, combining the principles of original justice with the infinite variety of human concerns.”

The idea is humility with respect to personal reason but confidence in matters of politics seasoned by generations. Thus Burke speaking to the reform of representation in Parliament: “The individual is foolish. The multitude, for the moment, is foolish, when they act without deliberation; but the species is wise, and when time is given to it, as a species it almost always acts right.”

George W. Carey observed that, as an institution, Congress rather than the presidency should command conservatives’ regard because the institution was inherently more deliberative and prone to conservation. The same is true of the determination of constitutional meaning. Conversation amid conditions of separation of powers is more conservative, and truer to the spirit of the regime, than making the judiciary the last stop on the line.

In this sense, if the terms are understood nobly rather than in the base sense in which he meant them, the President’s tweet was right. The courts are “slow and political.” As one cog—but only one—in the mechanism of constitutional meaning, they ought to be. The other branches should join them, subjecting one another to the separation of powers that is both a vital part of the Constitution and the means by which its meaning is determined.

Reader Discussion

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on June 07, 2017 at 09:33:37 am

"Delegation to agencies allows Congress to claim credit for policy goals"

I disagree. Actually, many legislators who vote in approval of a given bill want to be able to say they "did something", even though different groups of legislators have varying and even countervailing policy goals in mind. They just hope that since personnel is policy, their team runs the agency writing the regs when the time comes. Otherwise they can claim that they meant well, but it was the Deep State that hijacked their vague and ambiguous enabling legislation.

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Doug Wenzel
on June 07, 2017 at 09:46:22 am

Very interesting piece!

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Paul Binotto
on June 07, 2017 at 10:34:08 am

Doug--

I am not sure how your paragraph stands in disagreement with Greg's sentence. "Congress claims credit," the core of the sentence, strikes me as fairly close in meaning to "legislators say they did something," which I take to be the core thought of the paragraph.

Can you clarify? I suspect somewhere I am missing what you are striving to convey--a sign, no doubt, of my advancing dotage.

Thanks in advance . . .

Kevin

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Kevin R. Hardwick
on June 07, 2017 at 11:33:03 am

Kevin, my point is that enabling legislation that was far more specific, and attempted to hard-wire policy into the bill, would be far less likely to pass. Proponents of any bill have a variety of policy goals that are often tangential at best, while some are just there to say they backed "doing something" about an issue too:.
While legislators may be willing to swallow hard and back a compromise hard-wired into the bill as the best they could get, they do want to avoid accountability with single-issue voters and PACs that consider that voting in favor of a bill that incorporates anything less than their maximalist policy position on an issue constuitutes a betrayal . Thus, the urge to paper over the differences between the varied sponsors of the legislation with some ambiguity and then hope for the best once the bureaucracy starts writing the regs. Even within a party, who gets appointed to key positions within an agency matters,

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Doug Wenzel
on June 07, 2017 at 12:26:30 pm

Interesting string of discussion - do you view this practice as a dysfunction, (abuse may be too strong), or as an efficient and pragmatic means of legislating, which requires or at least accommodates, a certain level of dysfunction, to accomplish in the end, generally good results?

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Paul Binotto
on June 08, 2017 at 08:35:13 am

It certainly makes passing legislation easier, and the ambiguity may not cause many problems at the beginning if the legislators and agency appointees hold similar views. However, over time, the ambiguities can be exploited by the agency to increase its turf (e.g. friendly sue and settle via consent decrees) or appointees with a different ideology can update and expand the regs and their reach so that they point in novel directions unintended or even unimagined by the original backers of the legislation.

The counter argument would be that of proponents of the Wilsonian Administrative State - that legislation that was so specific would not stand the test of time, and be adaptable to new circumstances and challenges in a timely matter - never mind that those adaptations should properly be left to the chosen representatives of the people, the legislators, and not to the Executive and bureaucrats. .

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Doug Wenzel
on June 08, 2017 at 10:50:51 am

All valid concerns; I am more inclined towards a view-point contrary to the Wilsonian Administrative State model and favors a legislature that relies least heavily on policy delegation.

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Paul Binotto

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.