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Departmentalism versus Judicial Supremacy – Part III: Some Thoughts on the History

In my previous post, I noted that any obligation of the executive and Congress to follow court precedents – either a strong judicial supremacy or a milder obligation to follow a series of court decisions – would have its source in either an interpretation of the Constitution’s judicial power or federal common law.  But that reading of the Constitution or the common law would require evidence that judicial precedents were seen as imposing such an obligation.

What then might that evidence be?  One possible source of evidence are statements made by various framers at the Philadelphia and Ratification Conventions that Randy Barnett has recently blogged about.  For example, he notes that James Wilson said:

If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void; for the power of the Constitution predominates. Any thing, therefore, that shall be enacted by Congress contrary thereto, will not have the force of law.

One might read Wilson as stating that a judicial decision declares an unconstitutional law “null and void” and therefore the executive is obligated not to enforce it.  But Wilson need not be read that way.  As Ed Whelan notes, this statement might be understood instead as stating that the executive will as a practical matter not be able to enforce laws that the courts are unwilling to apply in adjudications.What I find more persuasive is that there is very little, if any, evidence of departmentalism at the time of the Constitution.  I have not systematically investigated the law prior to the Constitution, but Joseph Story in his Commentaries claims that English law understood judicial decisions as determining the meaning of the laws.  I am not aware of anyone who has provided evidence disputing this claim.  Nor am I aware of any contrary examples until at least the Jefferson Administration.  If these examples emerged in 1800 – and there was an earlier contrary practice – then these new examples can hardly be the original meaning.  And of course Jefferson had strong political reasons – a federalist judiciary – to invent a new justification.  Most significantly, apart from examples of nonenforcement, I am not aware of a practice of nonenforcement that has been followed during any presidency.

Of course, if the history differs from this account, that would be very important and one would want to take that into serious consideration.  But I am not aware of anyone claiming something to the contrary.

Ed Whelan does provide an apparently contrary statement from James Madison, who states “The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.”  Whelan argues “and what is the claim of judicial supremacy but a claim that the judiciary has a “superior right” to settle the boundaries governing the executive and legislative branches?”

While Madison’s quote could be interpreted as Whelan does, that is not the only interpretation.  Madison does not specifically say that the executive can ignore judicial precedents when enforcing the law.  Instead, Madison might just mean that each branch has various powers that it can use to police the boundaries of the other branch’s powers without settling the matter.  For example, a court might decide a case and then the legislature might impeach the judges for that decision.  Neither the judicial decision nor the impeachment might settle the matter.  And the norm of judicial supremacy might not extend to impeachment.

Of course, advocates of departmentalism sometimes argue that there is no principled reason why the legislature can ignore the bindingness of the judicial decision when engaging in impeachment but not in other circumstances, such as enforcement of the laws.  But that is a mistake.  The issue is not one of logical or principled distinctions.  The question is what were the norms in 1789 and it is quite likely that the legislature was not bound by the judicial precedents when making impeachment decisions.  The whole point of judicial impeachment is to check the judges.

Reader Discussion

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on June 22, 2015 at 16:33:22 pm

Since English courts had no power to set aside acts of Parliament and had little or no power at all with regard to lex parliamenti, it seems a stretch to take Justice Story's observation as the basis for judicial supremacy.

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Mike Stern
on June 23, 2015 at 01:38:08 am

Story's point was about the effect of the judicial power. I don't see why there would be a different understanding as to statutory interpretation and constitutional interpretation. If courts decided the meaning of a statute, why would they not decide the meaning of the Constitution, especially because so much of the power of judicial review comes from a claim about the basic nature of judicial power to decide according to law.

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Mike Rappaport
on June 23, 2015 at 14:25:16 pm

Yes, but what I find hard to understand is how the same power, exercised by English courts in a system that certainly did not recognize judicial supremacy (more like parliamentary supremacy), becomes the basis for judicial supremacy when it is exercised in the American system. Would it have been apparent to those who framed and ratified the Constitution that this would be the consequence simply of having a written constitution?

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Mike Stern

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