Clarifying departmentalism: how the framers' vision of judicial and presidential review makes the case for deductive judicial supremacy.

• Author: Tyler, David W.

TABLE OF CONTENTS INTRODUCTION I. THE PRAGMATIC REASONING BEHIND THE FRAMERS' VISION OF CONSTITUTIONAL REVIEW II. JUDICIAL REVIEW A. State Judicial Review 1. The Foundations of State Judicial Review 2. The Spread of State Judicial Review B. National Judicial Review III. PRESIDENTIAL REVIEW A. The Basis for Presidential Review 1. Opposition to Excessive Executive Power 2. Support for a Moderate Review Power B. The Practicality of Presidential Review C. The Means of Presidential Review 1. The Qualified Veto 2. The Pardon Power 3. Selective Execution IV. AMERICAN DEPARTMENTAL THEORY OF GOVERNMENT AND DEDUCTIVE JUDICIAL SUPREMACY A. The Reasoning Behind the American Departmental Theory of Government B. Deductive Judicial Supremacy Generally Defined V. A FRAMEWORK UNDER WHICH DEDUCTIVE JUDICIAL SUPREMACY INFORMS DEPARTMENTALISM IS MOST CONSISTENT WITH THE FRAMERS' VISION OF CONSTITUTIONAL REVIEW A. Justice Jackson's Proposed Constitutional Framework B. Recalibrating Justice Jackson's Framework To Describe the Framers' Vision of Constitutional Review: Departmentalism Within a Deductive Judicial Supremacy Context 1. Step One: Determining Which Branch Should Possess the Greatest Interpretive Power 2. Step Two: Applying the Framework CONCLUSION "After the Destruction of the King in Great Britain, a more pure and unmixed tyranny sprang up in the parliament than had been exercised by the monarch." -James Wilson (1)

"[I]f the whole legislature ... should attempt to overleap the bounds, prescribed to them by the people, I, in administering the public justice of the country, will ... [point] to the constitution, [and] will say ... here is the limit of your authority; and hither, shall you go, but no further."

-George Wythe, Commonwealth v. Caton (2)

INTRODUCTION

John Adams once defined a "republic" as "a government of laws and not of men." (3) Even Adams would acknowledge, however, that laws must have their limits, and that men, as the makers and interpreters of laws, must necessarily define what those limits are. (4) Indeed, in the American legal system, the idea that men can invalidate legislation that directly contradicts the Constitution has become an almost axiomatic constitutional directive. Not only does the Constitution itself implicitly support this position, (5) but the nullification of unconstitutional laws is also consistent with America's early political climate, which emphasized contractual constraints upon government authority (6) and the necessity of limited government power. (7)

This anxiety toward overzealous government, as well as the legislative power that such a government would entail, is ubiquitously manifest within the Founding documents. In Federalist No. 1, for example, Alexander Hamilton cautioned readers against one of the proposed Constitution's main criticisms: that the national government would expand its powers at the expense of individual and state liberty. (8) "An enlightened zeal for the energy and efficiency of government," he wrote, "will be stigmatized as the offspring of a temper fond of despotic power and hostile to the principles of liberty." (9) Madison echoed Hamilton's reassurances, reminding the Constitution's skeptics that the Framers had created "neither [a] wholly national nor [a] wholly federal" (10) political system that would prove incapable of abusing its delineated constitutional authority. (11) This desire to prevent the national government from perverting its inherently limited capabilities continued even after the Constitution's ratification. In Washington's administration, for instance, Thomas Jefferson opposed Congress's ability to pass a bill authorizing the creation of a national bank. "To take a single step beyond the boundaries [of the Constitution]," Jefferson wrote, "is to take possession of a boundless field of power, no longer susceptible of any definition." (12)

And yet, despite the Framers' apparent agreement that the national government--and more specifically, the national legislature should not overstep its proper bounds, Madison's notes from the Constitutional Convention contain scant evidence that the delegates favorably discussed judicial review. (13) Even more puzzling is the fact that the Convention delegates only briefly mentioned other potential mechanisms (e.g., presidential review) for remedying the passage of unconstitutional statutes. (14) Certainly, this lack of clarity did not mean that the Framers granted to Congress an unlimited legislative power. To the contrary, The Federalist warned that "[t]he legislative department is everywhere extending the sphere of its activity and drawing all power into its impetuous vortex." (15) Given the legislature's propensity to increase its own lawmaking prerogative, some Founders advocated the necessity of imposing constitutional limits that would prevent Congress from either adjudicating (16) or enforcing (17) its own legislation. In other words, they wished to avoid a system in which the legislature would "decid[e] rights which should have been left to judiciary controversy, [or to] the direction of the executive." (18) This emphasis on the ability of the legislature's coordinate branches to "decide rights" seemed to indicate that those branches might each possess some nominal degree of interpretive sovereignty with which no other branch, least of all Congress, could constitutionally interfere. For some Framers, then, the Constitution appeared to defend a system that vested each branch with the ability to make its own constitutional judgments.

Despite this apparent belief in constitutional review, however, the Framers failed to indicate how each branch's interpretations would relate to each other, to define the areas in which each branch's interpretations would predominate, or to identify what each branch's sphere of constitutional interpretation could permissibly include. In short, even though the Founders clearly intended a system that vested the power to review congressional legislation in multiple constitutional actors (namely, the President and the Supreme Court), they did not specify exactly how that interpretive power should be divided. (19) In so doing, the Framers rendered their constitutional creation incomplete. By leaving open the possibility that multiple constitutional actors might disagree about a statute's constitutionality, the Framers appeared to have unwittingly inhibited the political system's ability to control unconstitutional legislation.

Because the Framers obviously sought to prevent the national government's ability to overstep its proper bounds by passing such legislation, this Note seeks to reexamine the indicia of constitutional review that the Framers sewed into the fabric of the American legal system. It then argues that the Framers intended to create a system that honored departmentalism, but that also filtered departmentalism through an informal hierarchy of multilayered constitutional review. This informal hierarchy best reflected a departmental system of deductive judicial supremacy, in which each branch of the national government engages in constitutional review, but in which the Supreme Court provides the most telling assessments of constitutionality. (20)

This Note is pertinent because, as Professors Gary Lawson and Christopher Moore documented only a decade ago, "no one ... has even attempted to put forth a plausible originalist case for a generalized judicial supremacy in constitutional interpretation. Instead, those who defend judicial supremacy ... have done so on grounds unrelated to the Constitution's original public meaning." (21) This Note seeks to provide precisely what Lawson and Moore claim is lacking in constitutional scholarship: an originalist case for judicial supremacy that properly takes into account the Founders' consideration of both judicial and presidential review. In so doing, this Note attempts to define the Founders' political creation in understandable and concrete constitutional terms.

Part I lays the groundwork for the existence of American constitutional review. Parts II and III examine two forms of this constitutional review: judicial and presidential review. Part IV introduces American departmental theory of government and explains the modern concept of deductive judicial supremacy. Finally, Part V proposes a paradigm to explain the interrelation of presidential and judicial review in the multilayered interpretive framework that the Framers created. In so doing, it likens the Framers' proposed system to the modern notion of deductive judicial supremacy--though in a way that takes into account the executive and the judiciary's comparative relationship to the legislature instead of simply considering the Supreme Court and the legislature alone.

Methodologically, this Note appears to operate upon a contestable premise: that the intent of the "Framers" can be properly discerned. With this limitation in mind, this Note does not seek to establish that every Framer intended there to be presidential review, judicial review, or some combination of the two--as such a proposition could be easily disproven by even the most cursory glance at the historical record. (22) Nor does it aim to standardize the Framers' beliefs about whether the President's or the Supreme Court's constitutional determinations should predominate. Rather, this Note means to show that by supporting judicial and presidential review, the Framers intended to establish an interpretive departmentalist paradigm that is best characterized as a system of deductive judicial supremacy. It is this limited proposition, as well as the underlying analytical methodology supporting it, for which this Note makes a valuable legal contribution. (23)

In documenting the Framers' generalized intent, this Note does not suggest that "original intent" is the appropriate canon to guide modern constitutional interpretation. In fact, some Framers outwardly opposed the use of intent. (24)...