America's Written Constitution: Remembering the Judicial Duty to say what the Law is

• Author: Joshua J. Schroeder, J.D.
• Position: Joshua J. Schroeder, J.D., Lewis & Clark Law School in Portland, Oregon. Member of the Oregon and California bars. This project began as a memorandum known as the Equity Memorandum regarding the state of the Court's equitable power after the 2013 term in light of the Wheaton injunction.
• Pages: 833-888

AMERICA’S WRITTEN CONSTITUTION:

REMEMBERING THE JUDICIAL DUTY TO SAY WHAT THE

LAW IS

JOSHUA J. SCHROEDER, J.D.*

“Those then who controvert the principle that the

constitution is to be considered, in court, as a paramount

law, are reduced to the necessity of maintaining that courts

must close their eyes on the constitution, and see only the

law. This doctrine . . . reduces to nothing what we have

deemed the greatest improvement on political institutions –

a written constitution.”1

-- Chief Justice J ohn Marshall, Marbury v. Madison

Copyright © 2015, Joshua J. Schroeder, J.D.

* Joshua J. Schroeder, J.D., Lewis & Clark Law School in Portland, Oregon. Member of

the Oregon and California bars. This project began as a memorandum known as the Equity

Memorandum regarding the state of the Court’s equitable power after the 2013 term in light

of the Wheaton injunction.

1 Marbury v. Madison, 5 U.S. 137, 178 (1803). C.f. James Wilson, 2 J. Elliot, Debates

on the Federal Constitution 432 (2d ed. 1863) (“Sir William Blackstone will tell you, that in

Britain the [sovereign] power is lodged in the British Parliament; the Parliament may alter

the form of the government; and that its power is absolute, without control. The idea of a

constitution, limiting and superintending the operations of legislative authority, seems not to

have been accurately understood in Britain. There are, at least, no traces of practice

conformable to such a principle. The British constitution is just what the British Parliament

pleases. When the Parliament transferred legislative authority to Henry VIII., the act

transferring could not, in the strict acceptation of the term, be called unconstitu tional. To

control the power and conduct of the legislature, by an overruling constitution, was an

improvement in the science and practice o f government reserved to the American states.

Perhaps some politician, who is not considered with sufficient accuracy our political systems,

would answer that, in our governments, the supreme power was vested in the constitutions.

This opinion approaches a step nearer to the truth, but does no t reach it. The truth is, that, in

our governments, the supreme, absolute, and uncontrollable power remains in the people. As

our constitutions are superior to our legislatures, so the people are superior to our

constitutions.”).

834 CAPITAL UNIVERSITY LAW REVIEW [43:833

I. INTRODUCTION: THE PROBLEM OF FEIGNED POSITIVISM

In 2013 the Supreme Court embraced a policy of feigned positivism.2

Legal positivism suggests there will be no day of future rewards and

punishments, and thus there is no Natural Law which holds sway over rulers

whether it is established by a creator God or not.3 Thus, adopting positivism

2 Burrage v. United States, 134 S. Ct. 881, 885–92 (2014) (The Court recognized that the

“but-for” causation requirement for criminal guilt was “one of the traditional background

principles ‘against which Congress legislates,’” but t he Court also asserted that “Congress

could have written” the law to avoid such a background principle for applying criminal

punishment. The Supreme Court deceptively went furt her and promised “to apply the statute

as it is written—even if we think some other approach might ‘accor[d] with good policy.’”

This feigned promise affected many decisions throughout the 2013 term, even regarding

structural safeguards explicitly created b y the Court to ensure Justice itself. The Court even

cited to the writings of H.L.A. Hart, an arch-positivist from England, for the common law

“but-for” rule instead of U.S. common law developed by American courts.) (citing H. L. A.

HART & A. HONORÉ, CAUSATION IN THE LAW 104 (1959)). But see JOSEPH STORY,

COMMENTARIES ON EQUITY JURISPRUDENCE ch. I § 7 (13th ed. 1886) (“Equity must have a

place in every rational system of jurispruden ce, if not in name, at least in substance. It is

impossible that any code, however minute and particular, should embrace or provide for the

infinite variety of human affairs, or should furnish rules applicable to all of them.”). C.f. Davis

v. Ayala, 135 S. Ct. 2187, 2212 (2015) (Sotomayor, J., dissenting) (dissenting on behalf of

the “the basic background principle” of the adversarial process which the majority “fail[ed]

to account for”) (citing Kaley, 134 S. Ct. at 1113 (Roberts, C.J., dissenting)).

3 Jeremy Bentham, Short Review of the Declaration (1776), in DAVID ARMITAGE, THE

DECLARATION OF INDEPENDENCE: A GLOBA L HISTORY 173–74 (2007) (“Of the preamble I

have taken little or no notice. The truth is, little or none does it deserve. The opinions of the

modern Americans on Government, like those of their good ancestors on witchcraft, would

be too ridiculous to deserve any noti ce, if like them too, contemptible and extravagant as the y

be, they had not led to the most serious evils. . . . They are about ‘to assume,’ as they tell us,

‘among the powers of the earth, that equal and separate station to which’—they have lately

discovered—‘the laws of Nature, and of Nature’s God entitle them.’ . . . ‘All men,’ they tell

us, ‘are created equal.’ This surely is a new discovery; . . . The rights of ‘life, liberty, and the

pursuit of happiness’ . . . ‘they ‘hold to be unalienable.’ This they ‘hold to be among truths

self-evident.’” These words of the Declaration of Independence were considered by Bentham

as a mere “cloud of words” made only to “throw a veil over” evil plans. Thus Bentham’s

positivist rejection of natural law was developed as a wholly anti-American body of thought.

Hypocritically the Supreme Court has begun to cite Bentham as if the United States willingly

participated in some sort of Anglo-Saxon tradition of erasing the vestiges of the legitimacy

of the American government.). See Hamdan v. Rumsfeld, 548 U.S. 557, 630–31 (2006)

(citing JEREMY BENTHAM, INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION

6, 296 (J. Burns & H. Hart eds. 1970)). But see THE DECLARATION OF INDEPENDENCE para. 2

2015] AMERICA’S WRITTEN CONSTITUTION 835

leaves the Court with an existential problem because the Court’s equitable

power flows directly from Natural Law and Nature’s God4 and is much older

than the new country known as the United States.5 But even in the scope of

(U.S. 1776); Calder v. Bull, 3 U.S. 386, 388 (1798) (Chase, J.) (“The purposes for which men

enter into society will determine the nature and terms of the social compact. . . .”); 2 Peter 3

(speaking of the day of days, and of future rewards and punishments).

4 THE DECLARATION OF INDEPENDENCE para. 1 (U.S. 1776 ). The Declaration specifically

drew upon “the Laws of Nature and of Nature’s God” in order to “assume among the powers

of the earth” the sovereign power of the American people to dissolve its ties with Engl and.

Writers in the Law of Nations long argued that God speaks to all human beings with the

“voice of nature,” thus the laws of “Nature’s God” in the sense that term is used in the

DECLARATION is meant to be broad, covering all human beings and speaking to all human

beings with the God’s mouthpiece—Nature. It is fro m God’s voice that the Law of Nations

was derived. The DECLARATION was entered into the Law of Nations to speak to the nations

of the Earth in order to convince them of the legitimacy of the United States. The

DECLARATION continues to fulfill this role. See Hugo Grotius, The Freedom of the Seas 1

(trans. Ralph van Deman Magoffin, 1916) (1609) (“The law by which our case must be

decided is not difficult to find, seeing that it is the same among all nations; and it is easy to

understand, seeing that it is innate in every individual and implanted in his mind. Moreover

the law to which we appeal is one such as no king ought to deny to his subjects, and one no

Christian ought to refuse to a non-Christian. For it is a law derived from the law of nature,

the common mother of us all, whose bounty falls on all, and whose sway extends over those

who rule nations, and which is held most sacred by those who are most scrupulously just.”);

Letter from Phillis Wheatley to Reverend Samson Occom (1774) (“The Israelites never

accepted Egyptian rule, for in every human Breast , God has implanted a Principle, which we

call Love of Freedom; it is impatient of Oppression, and pants for Deliverance.”); Benjamin

Franklin, Great Seal Design (1776) (Franklin’s design included a scene from Exodus with

Moses and the Israelites escaping Pharaoh’s army with the inscription “Rebellion to Tyrants

is Obedience to God.”); Marcus Tullius Cicero, De Officiis, 1.4.13, available at

http://www.constitution.org/rom/de_ officiis.htm (“To this passion for discovering truth there

is added a hungering, as it were, for independence, so that a mind well-moulded by Nature is

unwilling to be, subject to anybody save one who gives rules of conduct or is a teacher of

truth or who, for the general good, rules according to justic e and law. From this attitude come

greatness of soul and a sense of superiority to worldly conditions.”) (emphasis added).

5 Galations 5:22–23 (Equity is the power of the Court to recognize what was said in the

Bible: “But the fruit of the Spirit is love, joy, peace, forbearance, kindness, goodness,

gentleness and self-control. Against such things there is no law.”); STORY, supra note 2, at

ch. I § 1 (“In the most general sense we are accustomed to call that Equity which in human

transactions is founded in natural justice, in honesty and right, and which properly arises ex

œquo et bono. In this sense it answers precisely to the definition of justice, or natural law, as

given by Justinian in the Pandects.”). See also Marcus Tullius Cicero, De Officiis 1.10.32,

available at http://www.constitution.org/rom/de_officiis.htm (giving an example of a time