by Gennady Stolyarov II
In Marbury v. Madison (1804), John Marshall argues that the Supreme Court ought to have the authority to determine the constitutionality of laws which come before the court. Since the judges must apply the laws to particular cases, they must necessarily “expound and interpret” those laws.
Furthermore, since the Constitution is superior to an ordinary act of the legislature and cannot be annulled by such an act, the judges-when faced with a law contrary to the Constitution-must strike down the law so as to uphold the Constitution.
Otherwise, the power of the Constitution itself would be nullified, and the courts would be forced to uphold the very injustices against which the Constitution was meant to protect.
If, for instance, Congress had passed an ex post facto law, and an individual were prosecuted under it before the court, it would defeat the purpose of the Constitution if the court were forced to convict the individual under the law. Marshall emphasizes that court justices take an oath to support the Constitution, and it would thus be immoral for them to violate what they have sworn to support.
Those who insist that the courts do not consider the constitutionality of laws in their decisions are in effect insisting that the justices violate their oaths. Furthermore, “the judicial power of the United States is extended to all cases arising under the Constitution,” and thus it would absurd for the courts to examine a case arising under the Constitution without examining the instrument under which it arises.
In his letter to Judge Spencer Roane, Thomas Jefferson argues against exclusive judiciary construction of the Constitution; such exclusive power of constitutional interpretation would, according to Jefferson, undermine the principle of checks and balances-since it would allow the judiciary department to prescribe rules for the government of the others.
If the judiciary has sole power of constitutional interpretation, then the Constitution “is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”
Jefferson instead recommends that each department be truly independent of the others and have the right to decide for itself the Constitution’s meaning in cases submitted to its action-especially in those cases where it is to act ultimately and without appeal.
Marshall and Jefferson present two diametrically opposed views of the nature of constitutional interpretation, and it is regrettable that Marshall’s view has been virtually uncontested in the United States during the past century; Jefferson was correct to warn that giving the Supreme Court sole ultimate power to interpret the Constitution would shift supremacy from the text of the Constitution to the subjective wishes of Supreme Court justices.
Perhaps it is time to give each branch of government the sovereignty to judge for itself what is constitutional, and the ability to act as a check against misinterpretations by the other branches.
Gennady Stolyarov II is an independent philosophical essayist, composer, amateur mathematician, contributor to Mises.org, editor-in-chief of The Rational Argumentator and The Progress of Liberty, and a high-ranking content producer on Associated Content.