America's Unwritten Constitution: The Precedents and Principles We Live By (35 page)

“
THIS CONSTITUTION
…shall be the supreme Law of the Land.” “The Senators and Representatives…, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.”

With this pair of self-referential sentences in the closing paragraphs of Article VI, the Constitution crowns itself king. Judges and other officials must pledge allegiance to the document. These crowning words recapitulate the Constitution’s basic architecture and enactment history. In his 1803
opinion in
Marbury v. Madison
, John Marshall declared that the Constitution’s supremacy would have arisen even without specific language because of the very nature of the document as approved by the American people: “Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation.”

Of course, any document can claim to be supreme law. Something more is needed to make it so. That something is social convention. Underpinning the Constitution’s self-proclaimed supremacy is the basic social fact that Americans generally accept the document’s pretensions. Ordinary citizens view the Constitution as authoritative, and power-wielding officials everywhere take solemn oaths to support the Constitution, as commanded by the document itself. In particular, Supreme Court justices take these oaths, and in the pages of the
United States Reports
the justices regularly pledge allegiance to the document.

It’s worth pausing to let all this soak in. Any text that self-referentially asserts its own authority can seem entirely circular to a skeptic standing outside the orb of the text’s say-so. If the written Constitution asserted its own legal supremacy, while
U.S. Reports
asserted the supremacy of
U.S. Reports
, we would have two tight circles of seemingly conflicting authority. If, in addition, millions of Americans accepted the Constitution’s legal pretensions, while millions of others pledged ultimate allegiance to
U.S. Reports
, then America’s situation would be parlous. At the extreme, this is the stuff of civil war. But in fact this is not America’s situation.
U.S. Reports
does not assert its supremacy over the written Constitution. On the contrary, case law asserts its own subordination to the Constitution, which in turn envisions the Supreme Court playing an important role in interpreting and implementing the text. In principle, at least, America’s supreme law and America’s Supreme Court reinforce each other.

BY PROCLAIMING ITSELF AMERICA
’
S SUPREME LAW,
the written Constitution marked itself, and was immediately recognized in actual practice, as decisively different from its predecessor document, the Articles of Confederation. Although the Articles contained several self-referential passages, the document did not even clearly describe itself as a single holistic text as distinct from an assortment of discrete “Articles.” More important,
the Articles never described themselves as “law,” much less as supreme law. Nowhere did the Articles describe the Confederation Congress as a “law maker” or a “legislature”—even as the Confederation document referred a dozen times to state “legislatures” or state “legislative” power. In truth, Congress under the Articles was less a legislature than an international diplomatic and military council, loosely akin to the modern-day United Nations Security Council and the NATO North Atlantic Council.

Perhaps most important of all, the Articles of Confederation contained no language whatsoever obliging any judge in America to take an oath to support the Articles or to treat the Articles as ordinary law in a courtroom, much less as supreme law applicable in courtrooms even against a state government seeking to act in contravention. Moving beyond the text to actual practice, we find that state judges did not pledge allegiance to the Articles; nor did these judges routinely enforce the Articles if their home state legislators—whose enactments were generally recognized as binding law—directed a different outcome.

THE CONSTITUTION
’
S REFERENCE TO ITSELF
as “supreme law” in Article VI textually interlocked with an earlier self-reference in the document’s Article III, its Judicial Article. Both articles specified the hierarchy of law in America and did so in virtually identical language. Consider first the text of Article III, which extends the federal judicial power to lawsuits arising under “this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” Now, compare Article VI, which specifies America’s supreme law as comprising “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States.”

This textual interlock between Articles III and Article VI was no mere coincidence. The Philadelphia framers purposefully chose matching language to make clear that the supreme law of the Constitution would come before federal judges in garden-variety lawsuits, either at trial or on appeal from state court rulings. Thus, the clauses referring to “this Constitution” in Article III and the closing paragraphs of Article VI did not simply float freely in constitutional space; rather, they formed a tight textual triangle,
with two vertices positioned in close Article VI proximity and the third located in Article III.
¹

Here is how the triangle worked: Immediately after specifying the hierarchy of America’s supreme law, Article VI added that all state judges would “be bound” by this supreme law, notwithstanding any contrary command in a state law or even a state constitution. In the next sentence, Article VI went on to oblige every judge, along with other state and federal officials, to swear a personal oath to support “this Constitution.” Lest state judges fail to enforce the Constitution properly—either by willfully defying the Constitution, and thus dishonoring their oaths, or by simply misconstruing the document in good faith—Article III’s language stood as a backstop to Article VI, ensuring that federal courts could review and, if necessary, reverse any state court decision involving a dispute about the meaning of “this Constitution.” This tight triangle of self-referential provisions thus made clear that the Constitution would operate not merely as law, not merely as supreme law, but also as everyday law—as courtroom law that could be invoked by ordinary parties in ordinary lawsuits.

The Founders understood that grand constitutional questions could arise in the humblest of places. Imagine an agreement between two small farmers, in which Jones promises to sell five acres to Smith. Before money changes hands and the deed is transferred, Jones gets a better offer and wants out of the deal. And he has an argument: Smith has recently arrived from England, and state law forbids foreigners from owning real estate. But Smith has a counterargument: Congress has enacted an immigration law giving all lawful aliens the right to hold real property despite any state rule. But is this federal law constitutional? Does it properly fall within the powers of the federal government? In a suit brought by Smith against Jones, these are the constitutional issues a court would need to address to decide whether Smith or Jones should win the case. These momentous questions, pitting state against federal power, could arise in either state or federal court, at trial or on appeal, and would need to be decided by the court even if neither the state nor the federal government formally intervened as a party to the lawsuit, and indeed even if neither government bothered to file an amicus brief.

But exactly what would and what should happen when the Constitution
goes to court in this hypothetical constitutional case, or in any other case “arising under this Constitution”? How do and how should judges turn the document into workable court-law—that is, doctrine?

VIA ITS TIGHT TRIANGLE OF
self-referential clauses dealing with “law” and “judges,” the Constitution envisioned that in deciding cases arising under the supreme law of the land, judges would offer interpretations of the document’s meaning, give reasons for those interpretations, develop mediating principles, and craft implementing frameworks enabling the document to work as in-court law. These interpretations, reasons, principles, and frameworks are what lawyers call
doctrine
.

The basic need for doctrine arises because the terse text is and must remain terse. Concision is constitutionally constitutive. Had America’s written Constitution tried to specify every detail, it would have lost its strength as a document that could be voted on in the 1780s—and that could thereafter be read and reread—by ordinary Americans. (This was John Marshall’s profound insight in
McCulloch v. Maryland
, where he declared that the Constitution could not properly “partake of the prolixity of a legal code,” because if it did, it would “never be understood by the public.”) Because terseness is necessary, the document is importantly and intentionally underspecified. Judicial doctrine helps fill in the gaps, translating the Constitution’s broad dictates into law that works in court, in keeping with the vision of Article III.

ARTICLE III
“
JUDICIAL POWER
” comprises at least five distinct components.

First, “judicial Power” encompasses the power of constitutional interpretation and exposition—the power of judges to decide for themselves and to declare what the Constitution as law means. As Marshall famously put the point in
Marbury
, “It is emphatically the province and duty of the judicial department to say what the law is.”

Marshall here built his church on the solid rock of the word “jurisdiction,” a word that explicitly appeared in the Judicial Article as a facet of
“judicial Power.” Specifically, the Judicial Article vested “judicial Power” in federal courts; declared that this very same “judicial Power” had to extend to all legal and equitable cases arising under “this Constitution”; and then specified that the Supreme Court would generally have “appellate Jurisdiction” in these cases. Thus, “judicial Power” encompassed “Jurisdiction.” “Jurisdiction” in turn encompassed the power to speak the law. As Alexander Hamilton, writing as Publius, reminded readers in
The Federalist
No. 81, the very word “jurisdiction” is “a compound of JUS and DICTO, juris, dictio, or a speaking or pronouncing of the law.” Accordingly, Article III authorized any federal court hearing
Smith v. Jones
to declare its own answer to the relevant constitutional questions raised by the case.

A second and hugely significant component of “judicial Power” is the power not merely to interpret and declare the Constitution’s meaning, but to implement the Constitution. This component involves taking the abstract meanings of the Constitution and making them work as actual rules of decision in the courtroom itself and in the real world beyond the courtroom. For example, in
Smith v. Jones
, what specific test should a court use to decide how broadly to construe the scope of congressional power under the Constitution? Who should bear the burden of proving what in the courtroom? What kind of evidence should count in favor of or against various factual assertions made in court? In order to decide the case at hand, a court will typically need to develop a set of tools for its own use and for the use of lawyers, litigants, and lower courts. These tools translate the core meanings of the Constitution into sub-rules, formulas, and tests that can be applied in the courtroom. Among other things, these various sub-rules and tests are necessary so that a court may go beyond abstract opining on the meaning of the Constitution and actually decide the case at hand.
²

This need to decide also brings into view a third component of “judicial Power”—the power to adjudicate a proper constitutional case and to award a binding judgment to the prevailing party. In our hypothetical, a federal court would have the power to rule in favor of either Smith or Jones and to order that the disputed property be disposed of accordingly. So long as a lawsuit is properly before a federal court—that is, so long as the court has “jurisdiction” in the broadest sense of the word, jurisdiction as provided for in the Judicial Article and appropriate implementing legislation—the
court’s rulings must be respected by private citizens and enforced by public officials, even if those citizens and officials believe (quite plausibly or even correctly from a God’s-eye point of view) that the court has erred and the wrong party has won. In this sense, jurisdiction and “judicial Power” encompass the judiciary’s right to be wrong, its right to err and nevertheless have that error be honored as the law of the case. This is what lawyers call
res judicata
, an “adjudicated thing,” the law governing the parties to the case. Thus, a federal court hearing
Smith v. Jones
could definitively determine the status of the disputed acreage between these two men.
³

Beyond a court’s legal authority to bind the parties in the case at hand, there exists a fourth component of “judicial Power,” encompassing the authority to lay down a decisional precedent that will be entitled to a certain amount of legal weight in later cases. This is what lawyers call
stare decisis
. But how much weight should precedent carry? What kind of weight? Alongside the power to set precedents for the future, the judiciary also has the power to overturn past precedents. When and how should it exercise this power? We shall return to these momentous questions at the conclusion of this chapter.

Fifth and finally, the “judicial Power” encompasses authority to fashion traditional judicial remedies for the violations of legal rights. In our hypothetical, if a court rules for Smith, it will need to decide whether Smith should receive the land itself or merely money damages. If the latter, the court must also decide whether the damages should aim simply to compensate Smith for his loss or also to penalize Jones for his breach.