The Judicial Bookshelf

Abstract

The Judicial Bookshelf DONALD GRIER STEPHENSON, JR. Spring and summer of 2011 brought to mind two instructive American chronological landmarks: the 235th anniversary of the signing of the Declaration of Independence and the 150th anniversary of the outbreak of the Civil War. One was as uplifting as the other was disheartening. In launching a nation, the Declaration captured the core of democratic theory in its reference to “[g]overnments... deriving their just powers from the consent of the governed.” Eighty-seven years later, as the American states were at war with each other after eleven of them refused to accept the outcome of the election of 1860, President Abraham Lincoln restated the principle of consent on the battlefield at Gettysburg as “government ofthe people, by the people, and for the people.” However phrased, this found­ ing principle had to be made operational. Oth­ erwise, the “dependence on the people” that James Madison acknowledged in 1788 in The Federalist, No. 51, as “the primary control on the government” would not be achieved. The Framers deployed the principle of consent in various ways in the plan of gov­ ernment they devised in Philadelphia in the summer of 1787. The Constitution entrusted the conduct of elections for national of­ fices to the popularly elected legislatures of the pre-existing states, subject to modifica­ tions that Congress might make. People eli­ gible to vote for “the most numerous Branch of the State Legislature” elected members of the House of Representatives, as Article I dictated. State legislatures designated mem­ bers of the Senate. Electors, in numbers ap­ portioned among the states in accord with the size of their congressional delegation and “appointed], in such Manner as the Legis­ lature [of each state]... may direct,” chose the President and Vice President, as Ar­ ticle II dictated. Except for constitutional amendments that instituted popular election for Senators and significantly broadened the franchise, these provisions still control the election of national officers. By determin­ ing peacefully those who shall govern and by bestowing legitimacy on the decisions they make, the provisions have provided workable answers to the crucial question faced by every political system: who shall govern? THE JUDICIAL BOOKSHELF 305 Yet, how did the Framers link the Supreme Court to the principle ofconsent? They delib­ erately detached that body from any meaning­ ful “dependence on the people.” The Presi­ dent, “by and with the Advice and Consent of the Senate,” was to “appoint... Judges of the supreme Court” who, along withjudges ofthe “inferior Courts” were to “hold their offices during good Behavior” and to enjoy “a Com­ pensation, which shall not be diminished dur­ ing their Continuance in Office,” as Article III outlined. Thus, in April 1788, when Alexander Hamilton in The Federalist, No. 78 imag­ ined the Supreme Court and a national judi­ cial power, he defended this “independence of thejudges” as “an essential safeguard” against popular sovereignty, “against the effects ofoc­ casional ill-humors in the society.” Ofprimary concern to Hamilton were “infractions of the constitution,” which the anticipated power of judicial review would not only block and con­ tain once they had occurred but perhaps even prevent. As Princeton’s Professor Edward S. Corwin would observe 160 years later, “judi­ cial review represents an attempt by American Democracy to cover its bet.”1 Hamilton, however, strove valiantly in the seventy-eighth Federalist to lodge consent in the Court. Judicial review, he argued, did not “suppose a superiority ofthejudicial to the leg­ islative power. It only supposes that the power of the people is superior to both.” It was this convergence of an appointed Bench with the popular will that Chief Justice John Marshall articulated in Marbury v. Madison,2 the first defense ofjudicial review in a decision by the U.S. Supreme Court. “That the people have an original right to establish, for their future gov­ ernment, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise ofthis original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The princi­ ples, therefore, so established, are deemed fun­ damental. ... Those, then...