So far in President Trump’s short second term his greatest adversary has been the judicial branch. Some of his programs have been blocked by federal judges while others already have been overturned.
This is nothing new. No matter which party the president has been there always seems to be a judge somewhere on the other side willing to at least temporarily block any presidential action. With so many questioning the authority of the judiciary branch, it is worth looking at what the Constitution says while also examining one of the most important documents on the subject.
First the Constitution. Article III covers the judiciary branch and is the shortest article dealing with the three branches. Its main clause states, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” It then goes on to define who it has power over, like “between Citizens of different States.” What it does not define or even mention are the words judicial review or the court’s ability to declare a law unconstitutional.
Yet, as Alexander Hamilton wrote Federalist Paper No. 78, he seems to imply that the power of judicial review is inherent. As this document is considered one of the most consequential writings on the framers ideas of the courts it is worth examining.
To Hamilton, the most important part of Article III is that the judicial is a separate branch. At the end of the above clause it states that judges hold their offices for life and cannot lose their compensation. Because of this, judges are not beholden to either Congress nor the president and are free to adjudicate without pressure.
With proper separation of powers, Hamilton states, “the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution.” His reason was that the executive branch has the enforcement power (military) and the Legislature makes the laws and controls the money or as Hamilton said, “The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.”
Hamilton then begins to discuss judicial review, while never actually using those words. He wrote, “No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master.” He recognized that the legislative branch has the potential to overstep the Constitution and put their personal wills above the nations. Because of that, “The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.”
In other words, it is necessary for the courts to have the power to void any law created by Congress for the protection of the people. Hamilton wrote this paper in 1788 and while the founders seemed to have supported the idea of judicial review, it would not be codified in law until 1803 with the case of Marbury v. Madison.
The case stemmed from when Federalist John Adams left the White House after only one term and decided to stick it to Republican Thomas Jefferson by creating a bunch of new judge positions and quickly fill them with Federalist judges so that Jefferson would not have the ability to appoint judges any time soon. In the month before Adams left office, he appointed the judges, got them passed through the Senate and passed out most of the credentials.
However, Adams’ secretary of state John Marshall did not get all the credentials distributed, as he left to take over as chief justice of the Supreme Court. He instead left instructions for the new secretary of state, James Madison, to finish the task. Yet, upset with the appointment of the “Midnight Judges” Jefferson and Madison decided not to pass out the remaining credentials claiming their appointments null and void.
Long story short, one of the midnight appointments was William Marbury. And as all good Americans do, Marbury sued to force Madison to deliver his credentials. The case went all the way to the Supreme Court — the same court where Marshall now presided.
Marshall was in a difficult position; this was a first of its kind case. What if he ordered Jefferson to pass out the credentials and Jefferson said no. The court had no enforcement powers which could lead to a constitutional crisis.
Fortunately, Marshall would not have to find out as his decision stated that Jefferson and Madison should have handed out the credentials with a sort of shame on them. However, Marshall also said they did not have to because Section 13 of the Judiciary Act of 1789 actually went against the Constitution making that law unconstitutional. It was the first case that set a precedence of judicial review, codifying it into American law.
It is clear from Hamilton and Marshall that judicial review was always thought of as part of the Constitution. It is the courts’ duty to make decisions about the constitutionality of laws. What Hamilton and Marshall don’t mention is the presidency. As I have mentioned several times over the years, neither Hamilton nor Marshall would have seen a need to subject the executive branch to judicial review as presidents did not yield the power of modern president nor did they use executive orders to make laws or policies. It seems as if the same rules would apply to the president as the Congress, at least with the Supreme Court. Yet it also seems contrary to a balanced government that any lower judge at any time can stop the wheels of government for what could be purely political reasons.
James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at HistoricallySpeaking1776@gmail.com.
