The Judicial Bookshelf

Abstract

The Judicial Bookshelf D. GRIER STEPHENSON, JR. A persistent reality of constitutional government in the United States from practically the beginning ofthe Republic has been the close link between the Constitution itselfand the Supreme Court. Oddly, this link derives more from the Constitution’s impact on the American political system than from what the Constitution itselfactually says or contains. True, Article III included cases “arising under this Constitution” in describing the proper reach of the federal judicial power, and Article VI specified that “[tjhis 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 ofthe United States, shall be the supreme Law ofthe Land... ”' But the document not only provided scant means for enforcing that supremacy, but also failed even to specify how this “supreme Law” should be interpreted. It soon became clear, however that the task of interpretation would fall upon the Supreme Court, as illustrated by Chisholm v. Georgia?- In the face ofassurances made by Alexander Hamilton, James Madison, John Marshall, and others during the ratification debates in 1787-1788 that a state could not, without its consent, be made a defendant in the federal courts by a citizen of another state,3 the Justices in 1793 construed the language in Article III conferring the federal judicial power in suits “Between a State and Citizens ofanother State” to encompass a suit brought by a South Carolinian against the State of Georgia. The uproar that ensued prompted swift ratification ofthe Eleventh Amendment, which reversed the Court’s first excursion into the realm of constitutional interpretation. Despite this rebuke, it was only a short time before Chief Justice Marshall insisted that the judicial power encompassed the authority “to say what the law is.”4 Thus, from the assumed role ofexpounding of the Constitution evolved the companion duty ofguarding it as well. Some 129 years later, this connection be­ tween the Court and fundamental law lay at the heart of the address Chief Justice Charles Evans Hughes delivered on October 13, 1932, as President Hoover put in place the corner­ stone for the new Supreme Court Building.5 “The Republic endures and this is the symbol of its faith,” he said.6 By “this,” the eleventh ChiefJustice presumably referred to the insti­ tution that would be housed in the grand fa­ cility then under construction that would be the High Court’s first permanent home of its THE JUDICIAL BOOKSHELF 97 Chief Justice Charles Evans Hughes delivered an address outlining the connection between fundamental law and the Court as the cornerstone for the new Supreme Court Building was put into place on October 13, 1932. own. For nearly a century and a half, after all, the Court had been “living with relatives.”7 By “faith,” Hughes probably had constitution­ alism in mind, the unshakable American be­ lief in the value and utility of government under a written charter—“a continuously op­ erating charter ofgovernment,”8 as ChiefJus­ tice Harlan Stone, Hughes’s successor, would explain eleven years later. In its American in­ carnation in the Constitution, this faith was designed to grapple with the twin manifesta­ tions of what James Madison had called “the great difficulty” encountered in “[fjraming a government which is to be administered by over men.... [Y]ou must first enable the gov­ ernment to control the governed; and in the next place oblige it to control itself. A depen­ dence on the people is, no doubt, the primary control on the government, but experience has taught mankind the necessity of auxiliary precautions.”9 Thus, a successful Constitution would have to be both power-conferring and power-limiting. Hence the express grants of authority to the several branches of govern­ ment and the intricate system of checks and balances, whereby separate institutions would share some powers (Madison’s “auxiliary pre­ cautions”) to augment the control on elected officials applied through the ballot box (Madi­ son’s “dependence on the people”). Or, as Hamilton observed soon after the Philadelphia Convention finished its work, “It has been fre­ quently remarked that it seems to have been reserved to the people of this country...