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Statesmanship and the Judiciary

Published online by Cambridge University Press:  05 August 2009

Matthew J. Franck
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Extract

This essay questions whether it is as appropriate as it is common to speak of the federal judiciary as legitimately engaged in “statesmanship”— however that rather slippery concept may be denned or elucidated. Scholars of both the “interpretivist” and “noninterpretivist” schools in constitutional law appear to subscribe to the expectation that judges should be statesmen. Some point to Tocqueville for support of this notion. The argument here is that Tbcqueville is unreliable on this point, for he parts company not only with his contemporary, Joseph Story, but with the framers of the Constitution. The Federalist is examined for its thoughts on the meaning and location of statesmanship in the constitutional order, and it is argued that the essays on the judiciary reveal a conspicuous absence of any expectation that that branch should contain statesmen. Indeed, Publius advances an argument that Congress should act to restrain (through the threat of impeachment) judicial temptations to engage in any adventures that can be called statesmanship.

Type
Research Article
Information
The Review of Politics , Volume 51 , Issue 4 , Fall 1989 , pp. 510 - 532
Copyright
Copyright © University of Notre Dame 1989

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References

Notes

The author wishes to thank the following individuals for helpful comments on earlier drafts of this article: Morton J. Frisch, Gary D. Glenn, Robert L. Clinton, Richard G. Stevens, Werner J. Dannhauser, and Edward Wright. The views herein, of course, are solely my own.

1. De Tocqueville, Alexis, Democracy in America, ed. Mayer, J. P. (Garden City: Doubleday Anchor, 1969), pp. 150–51.Google Scholar

2. Marbuty v Madison, 1 Cranch 137 at 177 (1803). For a gloss on Marbury representative of the views controverted in this paper, see Cahn, Edmond, “An American Contribution,” in Supreme Court and Supreme Law, ed. Cahn, (New York: Clarion/Simon & Schuster, 1971 [originally published by Indiana University Press, 1954})Google Scholar: “{Marbury} introduced an unending colloquy between the Supreme Court and the people of the United States, in which the Court continually asserts, ‘You live under a Constitution but the Constitution is what we say it is,’ and the people incessantly reply, ‘As long as your version of the Constitution enables us to live with pride in what we consider a free and just society, you may continue exercising this august, awesome, and altogether revocable authority'” (p. 25, emphasis in original).

3. The recent flag-burning decision and ensuing calls for a corrective amendment to the Constitution may spark a larger public debate over the appropriate role of the Court, but this is more ardently to be wished than seriously to be expected.

4. Perry, Michael J., The Constitution, the Courts, and Human Rights (New Haven: Yale University Press, 1982), p. 101.Google Scholar

5. Fiss, Owen M., “Two Models of Adjudication,” in Goldwin, Robert A. and Schambra, William A., eds., How Does the Constitution Secure Rights? (Washington: American Enterprise Institute, 1985), p. 44.Google Scholar

6. Levy, Leonard W., Original Intent and the Framers' Constitution (New York: Macmillan, 1988), p. 396.Google Scholar

7. Agresto, John, The Supreme Court and Constitutional Democracy (Ithaca: Cornell University Press, 1984), p. 143.Google Scholar

8. Jacobsohn, Gary J., Pragmatism, Statesmanship, and the Supreme Court (Ithaca: Cornell University Press, 1977).Google Scholar I think this effort is ultimately a failure, not least in its concluding chapter, which upholds as a model of statesmanship Chief Justice Hughes's, Charles Evans opinion for the Court in Home Building and Loan Association v Blaisdell, 290 US. 398 (1934)Google Scholar — perhaps the most egregious disregard of the Constitution's plain meaning in the twentieth century.

9. Clor, Harry M., “Judicial Statesmanship and Constitutional Interpretation,” South Texas Law Journal 26 (1985): 397–433.Google Scholar Like Jacobsohn, , Clor's, case is weakest in his choice of unfortunate examples of judicial statesmanship: Fletcher v Peck, 6 Cranch 187 (1810)Google Scholar (cf. the different treatment of this case by Wolfe, Christopher, The Rise of Modem Judicial Review (New York: Basic Books, 1986), pp. 109–10, 112–13);Google ScholarPalko v Connecticut, 302 U.S. 319 (1937);Google ScholarU.S. v Reynolds, 98 US. 145 (1879);Google ScholarPierce v Society of Sisters, 268 U.S. 510 (1925);Google ScholarShelley v Kraemer, 334 U.S. 1 (1948);Google Scholar and Mille v California, 413 U.S. 15 (1973).Google Scholar See also the reply to Clor by Graglia, Lino A., “Judicial Review on the Basis of Regime Principles': a Prescription for Government by Judges,” South Texas Law Journal 26 (1985): 435–52.Google Scholar

10. Jaffa, Harry V., “What Were the ‘Original Intentions’ of the Framers of the Constitution of the United States?,” University of Puget Sound Law Review 10 (1987): 351–448.Google ScholarSee also Jaffa, , letter to editor, Commentary, 10 1987, p. 4Google Scholar; “Judge Bork's Mistake,” National Review, 4 March 1988, p. 38; “A Right to Privacy?” ibid., 24 March 1989, p. 51; and letter to editor, ibid., 19 May 1989, p. 4.

11. There are others. See Eidelberg, Paul, The Philosophy of the American Constitution (Lanham, MD: University Press of America, 1986 [reprint of New York: Free Press, 1968]), pp. 244–46;Google ScholarFaulkner, Robert Kenneth, The Jurisprudence of John Marshall (Princeton: Princeton University Press, 1968), pp. vii, xv, 233, 237;Google ScholarEly, John Hart, Democracy and Distrust: a Theory of Judicial Review (Cambridge: Harvard Universi Press, 1980), chaps. 4–6;Google ScholarHickok, Eugene, “On Federalism,” Benchmark 3 (1987): 238.Google Scholar

12. Justice Antonin Scalia, in his concurring opinion in Webster v Reproductive Health Services, appears at least to be moving in the right direction: “The outcome of today's case will doubtless be heralded as a triumph of judicial statesmanship. It is not that, unless it is statesmanlike to prolong this court's self-awarded sovereignty over a field where it has little proper business, since the answers to most of the cruel questions posed are political, not juridical — a sovereignty which therefore quite properly, but to the great damage of the court, makes it the object of the sort of organized pressure that political institutions in a democracy ought to receive” ( —— U.S. —— [1989], Scalia, J., concurring in part and concurring in the judgment [slip op., pp. 1–2]).Google Scholar The justice recognizes the crucial difference between the political and the juridical, without quite seeing the incongruity of judicial statesmanship — or rather, without quite seeing that it invariably results in the kind of “self-awarded sovereignty” which he here condemns.

13. Tocqueville, , Democracy in America, p. 270.Google Scholar

14. Zetterbaum, Marvin has noticed this: see his “Alexis de Tocqueville,” in History of Political Philosophy, ed. Strauss, Leo and Cropsey, Joseph, 3rd ed. (Chicago: University of Chicago Press, 1987), p. 774.Google Scholar

15. Tocqueville, , Democracy in America, p. 269.Google Scholar

16. Ibid.

17. Ibid.

18. Ibid., p. 270.

19. Ibid., pp. 150–51.

20. Ibid., p. 150.

21. Clor, , “Judicial Statesmanship and Constitutional Interpretation,” pp. 399–400.Google Scholar

22. Tocqueville, , Democracy in America, p. 150.Google Scholar

23. Clor, , “Judicial Statesmanship and Constitutional Interpretation,” p. 400.Google Scholar

24. Story, Joseph, Commentaries on the Constitution of the United States, 1st ed. (1833), sec. 1736.Google Scholar

25. Ibid., sec. 424. See the similar depreciation by Hamilton of men's motives in supporting or opposing the Constitution, in Federalist, No. 1, Hamilton, , Madison, and Jay, , The Federalist Papers, ed. Rossiter, Clinton (New York: Mentor, 1961), p 34–36CrossRefGoogle Scholar. [Hereafter cited as “Federalist.”]

26. Story, , Commentaries, sec. 426.Google Scholar

27. Lincoln's, reply to Douglas, Ottawa debate, 21 08 1858, in The Collected Works of Abraham Lincoln, ed. Basler, Roy P. (New Brunswick: Rutgers University Press, 1953), 3: 27.Google Scholar It is noteworthy that Lincoln, made this remark in the midst of an extended criticism of the Supreme Court's most notorious attempt to play the statesman, Dred Scott v Sandford, 19 Howard 393 (1857).Google Scholar

28. Cohens v Virginia, 6 Wheaton 264 at 418 (1821).

29. “Statesman”: Federalist, No. 58 (p. 360); “statesmen”: nos. 10 (p. 80); 12 (p. 91); 36 (p. 219); and 70 (p. 424). See Engeman, Thomas, Erler, Edward, and Hofeller, Thomas, eds., The Federalist Concordance (Chicago: University of Chicago Press, 1988), p. 520.Google Scholar

30. Federalist, No. 58, p. 360.

31. Federalist, No. 10, p. 80.

32. Ibid., p. 77. See Diamond, Martin, The Founding of the Democratic Republic (Itasca, III.: F.E. Peacock, 1981), pp. 70–78Google Scholar; Plattner, Marc F., “American Democracy and the Acquisitive Spirit,” in Goldwin, Robert A. and Schambra, William A., eds., How Capitalistic Is the Constitution? (Washington: American Enterprise Institute, 1982), pp. 1–21Google Scholar; and Peterson, Paul, “The Rhetorical Design and Theoretical Teaching of Federalist No. 10,” The Political Science Reviewer 17 (1987), pp. 193–218Google Scholar.

33. Federalist, No. 10, p. 83.

34. Excluding present members, Justices of the Supreme Court historically have averaged roughly sixteen years of service. See Abraham, Henry J., Justices and Presidents, 2nd ed. (New York: Oxford University Press, 1985), Appendix D, pp. 386-91.Google Scholar

35. Federalist, No. 70, p. 423.

36. Federalist, No. 71, p. 432.

37. Ibid., pp. 432–33.

38. Ibid., p. 434.

39. See Hamilton's, warning in Federalist, No. 72 (pp. 435–40)Google Scholar that an executive not indefinitely re-eligible would (among other things) be dangerously prone to pandering to the people. The Twenty-second Amendment may be teaching us this lesson anew.

40. Federalist, No. 62, p. 380.

41. Ibid., p. 379.

42. Federalist, No. 63, p. 385.

43. Ibid., p. 384.

44. Federalist, No. 51, p. 324.

45. Federalist, No. 78, p. 471.

46. Ibid., p. 470.

47. Ibid., p. 469.

48. Ibid., pp. 470–71.

49. Ibid., p. 465.

50. Ibid.

51. Ibid., p. 466. Two who have are Wolfe, , Rise of Modern Judicial Review, p. 75Google Scholar; and Clinton, Robert Lowry, Marbury v Madison and judicial Review (Lawrence: Univesity Press of Kansas, 1989), pp. 70–71.Google Scholar These are the best recent works on the originally limited character of judicial review.

52. Federalist, No. 78, pp. 465–66 (emphasis added).

53. Ibid., pp. 470–71 (emphasis added).

54. See the similar usage of the word “rights” to denote, not individual liberties, but the rightful powers of a political office, in Madison's, Federalist, No. 51: “The interests of the man must be connected with the constitutional rights of the place” (p. 322).Google Scholar It was common at the time of the founding to use “right” and “power” interchangeably in a way that can confound the modern reader; see also Hobbes, Thomas, Leviathan, ed. Oakeshott, Michael (New York: Collier, 1962), p. 134Google Scholar (“From this institution of a commonwealth are derived all the rights” of a sovereign [emphasis in original]); and Locke, John, Two Treatises of Government, ed. Laslett, Peter (New York: Mentor, 1965), p. 308Google Scholar (“Political Power then I take to be a Right of making Laws...” [emphasis in original]).

55. Cf. Wright, Benjamin F., The Growth of American Constitutional Law (Chicago: University of Chicago Press, 1967), pp. 24–25Google Scholar; and Mccloskey, Robert G., The American Supreme Court (Chicago: University of Chicago Press, 1960), p. 9.Google Scholar

56. Clor, , “Judicial Statesmanship and Constitutional Interpretation,” p. 399.Google Scholar

57. Federalist, No. 78, p. 470.

58. Article III, section 2: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States.” Only Mcdowell, Gary L. seems to have noticed this aspect of Federalist, No. 78; see his Equity and the Constitution (Chicago: University of Chicago Press, 1982), pp. 40–42.Google Scholar

59. Federalist, No. 78, p. 470.

60. See Diamond, Ann Stuart, “The Anti-Federalist ‘Brutus,’” in The Political Science Reviewer 6 (1976): 269.Google Scholar

61. Diamond points out that “what Hamilton is really doing is trying to put the cat back into the bag; he is trying to make the best of Brutus' charges and turn the flank of a very dangerous argument” (ibid., p. 277; emphasis in original).

62. Federalist, No. 78, pp. 468–69.

63. See Brutus's essays nos. 11 through 15, in Storing, Herbert J., The Anti-Federalist, abridgment by Dry, Murray of The Complete Anti-Federalist (Chicago: University of Chicago Press, 1985), pp. 162–91.Google Scholar

64. Federalist, No. 81, p. 482 (emphasis in original).

65. Brutus, , no. 11, in Storing, Anti-Federalist, p. 164.Google Scholar

66. Federalist, No. 78, p. 466; no. 81, p. 482 (emphasis added); see Wolfe, , Rise of Modem Judicial Review, p. 77Google Scholar.

67. Federalist, No. 81, pp. 484–85.

68. Ibid., p. 485.

69. Federalist, No. 78, pp. 471, 468–69, 465; no. 81, p. 485.

70. Brutus, no. 15, in Storing, Anti-Federalist, p. 185Google Scholar (emphasis in original).

71. Choper, Jesse H., Judicial Review and the National Political Process (Chicago: University of Chicago Press, 1980), p. 50.Google Scholar

72. Agresto, , Supreme Court and Constitutional Democracy, p. 120.Google Scholar

73. Ibid.

74. See Anastaplo, George, The Constitution of 1787 (Baltimore: Johns Hopkins University Press, 1989): “No other branch or officer of government can counteract what Congress does here, no matter how mistaken or wrongheaded Congress may be” (p. 33)Google Scholar. But for an argument that the words “high Crimes and Misdemeanors” are limiting, see Berger, Raoul, Impeachment: the Constitutional Problems (Cambridge: Harvard University Press, 1973), esp. chap. 2, pp. 53–102.Google Scholar

75. Mccloskey, , American Supreme Court, p. 47.Google Scholar

76. See Ellis, Richard E., The Jeffersonian Crisis: Courts and Politics in the Young Republic (New York: Oxford University Press, 1971), chaps. 5–7, pp. 69–107Google Scholar. See also Berger, , Impeachment, who argues that “his factional acquittal was a miscarriage of justice” (p. 224)Google Scholar.

77. Adams, Henry, History of the United States of America during the Administrations of Thomas Jefferson (New York: Library of America, 1986), pp. 465–66.Google Scholar

78. See Federalist, No. 71: “The tendency of the legislative authority to absorb every other has been fully displayed and illustrated by examples in some preceding numbers. In governments purely republican, this tendency is almost irresistible. The representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter; as if the exercise of its rights, by either the executive or judiciary, were a breach of their privilege and an outrage to their dignity. They often appear disposed to exert an imperious control over the other departments; and as they commonly have the people on their side, they always act with such momentum as to make it very difficult for the other members of the government to maintain the balance of the Constitution” (p. 433). It is significant that this remark appears in an essay on the executive, about whose independence Hamilton was arguably more concerned.

79. Story, Commentaries, sec. 1629.

80. Story elsewhere, in considering what are impeachable offenses, rejects the notion of finding them only in criminal statutes, but also recoils from absolute congressional discretion, preferring a middle ground that recurs to “parliamentary practice, and the common law” as “the only safe guide” (ibid., sec. 795); but since he also clearly regards impeachment as a “political” act (ibid., sec. 784), there seems to be wide latitude for Congress to consider judicial invasions of its own authority as within the purview of impeachment.

81. Federalist, No. 81, p. 482 (emphasis in original); no. 78, pp. 466, 469.

82. Federalist, No. 81, p. 483.

83. Clor, , “Judicial Statesmanship and Constitutional Interpretation,” p. 407.Google Scholar

84. Perry, , Constitution, the Courts, and Human Rights, p. 101.Google Scholar