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Power Line University: Judicial Review and the Bill of Rights

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Our ninth and final seminar of our series on The Federalist concludes our discussion of judicial review, with a detour to the famous case of Marbury v. Madison in 1803 that supposedly settled the matter, though Lucretia draws some fine and original distinctions between what John Marshall did in Marbury and what the Supreme Court did afterwards.

From there we consider Hamilton's argument in Federalist #84—the next to last Federalist Paper—that a Bill of Rights was not only unnecessary, but potentially dangerous. Hamilton lost that argument as a practical matter, but was his reasoning about this question wrong? Not necessarily, as we explain. Could we have been better off without a Bill of Rights? It seems unfathomable to think so, but we take in Herbert Storing's thoughtful angle on this question.

Unfortunately a technical glitch bollixed our video recording of this final session, so we can't post a YouTube video for people who like to follow along with our Power Point slides of the text and quotations we use. We'll see if we can find an alternative mode to post them up.

Hosted by Steve Hayward, with guest "Lucretia"

Discussion (8)

  • Saint Augustine@SaintAugustine

    What about Daniel Webster's argument that judicial review is entailed by the Constitution?

    Saint Augustine (View Post):

    He says that Judicial Supremacy is taught in the Constitution itself. He repeatedly argues for this based on the fact that the Constitution makes federal law supreme over state law and on the fact that the Constitution explicitly gives the Supreme Court power over “all cases arising under the Constitution.” Since cases requiring interpretation of the Constitution are cases arising under the Constitution, they fall under the jurisdiction of the Supreme Court. Since the Supreme Court has the power to interpret the superior laws, it has the supreme power of legal interpretation.

  • LibertyDefender@LibertyDefender
    ReplyingtoSaint Augustine

    Saint Augustine (View Comment):

    What about Daniel Webster’s argument that judicial review is entailed by the Constitution?

    Saint Augustine (View Post):

    He says that Judicial Supremacy is taught in the Constitution itself. He repeatedly argues for this based on the fact that the Constitution makes federal law supreme over state law and on the fact that the Constitution explicitly gives the Supreme Court power over “all cases arising under the Constitution.” Since cases requiring interpretation of the Constitution are cases arising under the Constitution, they fall under the jurisdiction of the Supreme Court. Since the Supreme Court has the power to interpret the superior laws, it has the supreme power of legal interpretation.

    It just seems to me that if the Framers and Ratifiers had intended to grant to the Supreme Court the power not just to interpret the Constitution, but also to render null and void those laws that the Supreme Court believes are in conflict with their interpretation of the Constitution, then the Framers could have and should have better and more simply spelled out that grant of awesome power in the Constitution itself.

    This dovetails somewhat with my belief that we have not amended the Constitution as often as we should have.

  • Saint Augustine@SaintAugustine
    ReplyingtoLibertyDefender

    Saint Augustine (View Comment):

    What about Daniel Webster’s argument that judicial review is entailed by the Constitution?

    Saint Augustine (View Post):

    He says that Judicial Supremacy is taught in the Constitution itself. He repeatedly argues for this based on the fact that the Constitution makes federal law supreme over state law and on the fact that the Constitution explicitly gives the Supreme Court power over “all cases arising under the Constitution.” Since cases requiring interpretation of the Constitution are cases arising under the Constitution, they fall under the jurisdiction of the Supreme Court. Since the Supreme Court has the power to interpret the superior laws, it has the supreme power of legal interpretation.

    LibertyDefender (View Comment):

    It just seems to me that if the Framers and Ratifiers had intended to grant to the Supreme Court the power not just to interpret the Constitution, but also to render null and void those laws that the Supreme Court believes are in conflict with their interpretation of the Constitution, then the Framers could have and should have better and more simply spelled out that grant of awesome power in the Constitution itself.

    Does it matter what they were intending? Isn't it more important what is written in the text? Is one of Webster's premises wrong? Premise 1 would be: "SCOTUS has authority over all cases arising under the Constitution." Premise 2 would be something like: "Cases requiring interpretation of the Constitution are cases arising under the Constitution."

    LibertyDefender (View Comment):

    This dovetails somewhat with my belief that we have not amended the Constitution as often as we should have.

    Yes!

  • LibertyDefender@LibertyDefender
    ReplyingtoSaint Augustine

    Saint Augustine (View Comment):

    What about Daniel Webster’s argument that judicial review is entailed by the Constitution?

    Saint Augustine (View Post):

    He says that Judicial Supremacy is taught in the Constitution itself. He repeatedly argues for this based on the fact that the Constitution makes federal law supreme over state law and on the fact that the Constitution explicitly gives the Supreme Court power over “all cases arising under the Constitution.” Since cases requiring interpretation of the Constitution are cases arising under the Constitution, they fall under the jurisdiction of the Supreme Court. Since the Supreme Court has the power to interpret the superior laws, it has the supreme power of legal interpretation.

    LibertyDefender (View Comment):

    It just seems to me that if the Framers and Ratifiers had intended to grant to the Supreme Court the power not just to interpret the Constitution, but also to render null and void those laws that the Supreme Court believes are in conflict with their interpretation of the Constitution, then the Framers could have and should have better and more simply spelled out that grant of awesome power in the Constitution itself.

    Saint Augustine (View Comment):

    Does it matter what they were intending? Isn’t it more important what is written in the text?

    I have never figured out how to remove an author's intent from the process of interpreting that author's text. Yes, it matters what they intended. I'm reminded of the joke about how punctuation matters:

    • Let's eat Grandma!
    • Let's eat, Grandma!

    What did the author mean?

    Saint Augustine (View Comment):

    Is one of Webster’s premises wrong? Premise 1 would be: “SCOTUS has authority over all cases arising under the Constitution.” Premise 2 would be something like: “Cases requiring interpretation of the Constitution are cases arising under the Constitution.”

    Again, this time working backward from Webster to ratification: If the text were so clear, why did it take until Daniel Webster for anyone to figure it out? If the text were so clear, why didn't Marshall use the same clear reasoning as Webster, instead of relying on the unexplained uniquery of the oaths administered to the Executive Branch officers involved in Marbury v. Madison?

    Judicial Review is an awesome power. It should have been more clearly granted to the Supreme Court if that's what the Framers and Ratifiers intended.

  • Saint Augustine@SaintAugustine
    ReplyingtoLibertyDefender

    Saint Augustine (View Comment):

    What about Daniel Webster’s argument that judicial review is entailed by the Constitution?

    Saint Augustine (View Post):

    He says that Judicial Supremacy is taught in the Constitution itself. He repeatedly argues for this based on the fact that the Constitution makes federal law supreme over state law and on the fact that the Constitution explicitly gives the Supreme Court power over “all cases arising under the Constitution.” Since cases requiring interpretation of the Constitution are cases arising under the Constitution, they fall under the jurisdiction of the Supreme Court. Since the Supreme Court has the power to interpret the superior laws, it has the supreme power of legal interpretation.

    LibertyDefender (View Comment):

    It just seems to me that if the Framers and Ratifiers had intended to grant to the Supreme Court the power not just to interpret the Constitution, but also to render null and void those laws that the Supreme Court believes are in conflict with their interpretation of the Constitution, then the Framers could have and should have better and more simply spelled out that grant of awesome power in the Constitution itself.

    Saint Augustine (View Comment):

    Does it matter what they were intending? Isn’t it more important what is written in the text?

    LibertyDefender (View Comment):

    I have never figured out how to remove an author’s intent from the process of interpreting that author’s text.

    I'm not for removing it. But if the meaning in the text can be discerned without it, why not go ahead and discern it?

    LibertyDefender (View Comment):

    Yes, it matters what they intended. I’m reminded of the joke about how punctuation matters:

    • Let’s eat Grandma!
    • Let’s eat, Grandma!

    What did the author mean?

    Saint Augustine (View Comment):

    Saint Augustine (View Comment):
    Is one of Webster’s premises wrong? Premise 1 would be: “SCOTUS has authority over all cases arising under the Constitution.” Premise 2 would be something like: “Cases requiring interpretation of the Constitution are cases arising under the Constitution.”

    Again, this time working backward from Webster to ratification: If the text were so clear, why did it take until Daniel Webster for anyone to figure it out?

    I don't know that it did.

    LibertyDefender (View Comment):

    If the text were so clear, why didn’t Marshall use the same clear reasoning as Webster, instead of relying on the unexplained uniquery of the oaths administered to the Executive Branch officers involved in Marbury v. Madison?

    Beats me.

    Read Michael Paulsen on Marbury and see if he answers.

    LibertyDefender (View Comment):

    Judicial Review is an awesome power. It should have been more clearly granted to the Supreme Court if that’s what the Framers and Ratifiers intended.

    No objections there.

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