Judicial power in the constitutional theory of James Madison.

• Author: Rakove, Jack N.

One might have thought that the defendant in the most celebrated case in the canon of American constitutional law would have left history a record of his reaction to the famous decision in Marbury v. Madison. (1) After all, the defendant whom William Marbury sued for delivery of his famed commission was none other than Secretary of State James Madison--the same statesman who played so essential a role in the adoption of the Constitution and its first amendments, and who certainly cared deeply about the place of judicial power in the federal republic. Perhaps Madison saw Marshall's opinion not as the exalted judicial decision its modern worshipers and idolaters have adored, but simply as an irritatingly adroit but limited political slap at the administration in which he played second fiddle to Jefferson's violin. (2) Whatever the explanation, Madison left no comment on the case to ponder (which might itself confirm a skeptic's notion that the decision has been completely overrated).

There were, however, two other periods when Madison did reflect on the nature of judicial power and its particular importance in maintaining the equilibrium of both republican and federal government. One came during the mid-to-late 1780s, the point when he emerged as the leading constitutional theorist of the new republic (not to mention the Atlantic world). The second came a full three decades later, when Madison, only recently retired from the presidency as well as forty years of political service, was drawn into discussing other decisions of the Marshall Court that loomed far larger in the legal consciousness of the era than Marbury. In 1819, Spencer Roane, the leading critic of McCulloch v. Maryland (3) (and subsequently Cohens v. Virginia), (4) attempted to recruit both Madison and Jefferson into his campaign to demonstrate that the Supreme Court could not be the proper final arbiter of controversies affecting the boundaries of national and state power. Madison was no fan of Marshall's jurisprudence which, especially in McCulloch, relied too heavily on the same Hamiltonian arguments that had helped to drive him into political opposition in the early 1790s. But neither was he willing to join Roane in asserting that state and federal courts could be equally competent and authoritative in interpreting the federal structure of the Constitution. Madison's criticism of the reasoning of McCulloch and other concurrent decisions has to be weighed against his sympathy for the role that the Marshall Court was contriving to play--or at least should play, if it showed more restraint in framing its opinions. A careful reading of Madison's thoughts about judicial power, both in the late 1780s and again after 1819, casts useful light on his larger constitutional theory.

Three critical concerns drove Madison's approach to the underlying problems of constitutional government in the 1780s. One was his appreciation of the implications of the principle of legislative supremacy that would naturally predominate in a republican form of government. This appreciation covered both the political and the institutional advantages that the legislature would enjoy over the two "weaker" departments of executive and judiciary, in part through its capacity to speak as the immediate voice of the people, but also by exploiting its very rulemaking authority to mask its encroachments on their proper functions. Madison's understanding of the nature of legislative power was extremely precocious and modern; he grasped the key fact that a republican assembly would exist not only to monitor the potential abuses of power by the executive, but also to make law in the positive sense of the term. (5)

That perception was closely related to his second preeminent concern. The legislature might be politically and institutionally supreme, but its actions, Madison feared, would finally be driven by the interests and passions of its constituents, mustering as popular majorities or coalitions that would seek to use government instrumentally to pursue their own advantages. It was this danger of popular faction, manifesting itself through the enactment of multiple, mutable, and unjust laws, that Madison believed was endangering the cause of republican government. The search for a cure for the resulting "mischiefs of faction" (6) was partly about the possibility of limiting legislative misbehavior, but its deeper diagnosis was addressed to the nature of popular preferences, passions, and prejudices.

Madison's third concern rested on the realization that these first two problems would in turn complicate the task of establishing a federal government capable of meeting national exigencies. Federalism required drawing lines between the respective realms of policy to be governed by national and state law. But all such line-drawing enterprises were naturally imprecise, and state governments, with the parochial interests of their constituents behind them, would discover incentives to poach on national authority whenever or wherever possible. Because state legislatures could always deploy "an infinitude of legislative expedients" in support of these encroachments, some mechanism was needed to maintain the just authority of the national government and the due subordination of the states--or more neutrally, to police the boundaries separating the two jurisdictions. (7)

On all of these matters, Madison's starting position was the nature of legislative power, and his thoughts on the potential uses of the judiciary as a solution to these problems reflected that overarching preoccupation. Cabining legislative power was the problem; applying judicial power as a potential check was a possible solution. But the efficacy of that solution remained to be ascertained. Madison was a legislator (and a lawgiver in the making) but not a lawyer. (8) He read legal treatises, but never expressed any serious interest in the practice of law. Except for the two years he served on the Virginia council, his political career (until 1801) was spent in the Virginia legislature (including the surrogate legislature of the provincial convention of 1776), the quasi-legislature of the Continental Congress, the deliberative assemblies of the Federal Convention of 1787 and the Virginia ratification convention of 1788, and the first four Congresses under the Constitution. Like any member of the Virginia gentry, he probably knew a great deal about his state's legal system--which is why he was an enthusiastic advocate for its reform--but he was first and foremost a legislator. (9)

Madison's first important discussion of judicial power was a byproduct of his experience in the Virginia legislature in the mid-1780s. The occasion was the request of Caleb Wallace, an old college friend now resettled in Kentucky, for advice as to the nature of the constitution his new residence might draft once it gained its independence from Virginia. Scholars regard his reply to Wallace of August 23, 1785, as the first noteworthy text that illustrates Madison's concern with the defects of the first state constitutions. (10) It is a thoughtful, carefully developed document, which notably begins with a discussion of the want of "wisdom and steadiness" (11) in the legislative output of the states. At the time, Madison was a dominant figure in the Virginia assembly--though hackles were rising--but he was also learning that his best intentions and preparations could not always sway the minds of less-talented legislators whose votes nevertheless counted the same as his.

The character of the judiciary department was the third item that Madison addressed in this letter, but even before he reached it he offered two revealing comments indicative of his concerns. The first was to endorse the idea of a joint executive-judicial council of revision, as found in the New York constitution, "[a]s a further security against fluctuating & indegested [sic] laws...." (12) The second was to observe, en passant, that the executive department, "[t]hough it claims the 2d place" of importance in a state government, "is not in my estimation entitled to it," (13) thereby implicitly promoting the judiciary from its cellar-dwelling position in the hierarchy of separated powers.

Madison opened the ensuing discussion with a telling reference to Britain, where the judiciary "maintains private Right against all the corruptions of the two other departments & gives a reputation to the whole Government which it is not in itself entitled to" (14) (So much for the "vaunted" British constitution!). But Madison did not discuss judicial power in substantive or purposive terms. Rather, the main points he offered under this heading all addressed issues of judicial tenure. Judges should hold their tenure during good behavior, as had been the case in Britain since the Act of Settlement of 1701; (15) their salaries should either be "fixed" or immune to alteration; and their salaries should also be "liberal." (16) The justification of tenure during good behavior is "obvious." (17) Without fixed salaries, the independence desired would be "Ideal only"; and unless judges were well paid, "the bar will be superior to the bench which destroys all security for a Systematick [sic] administration of Justice." (18) Beyond stating these fundamental guidelines of judicial tenure, however, Madison was reluctant to say too much about the actual composition of the courts, save for the interesting observation that the arguments of Lord Bacon in favor of establishing a court of chancery "outweigh in my Judgment those of Lord Kaims [Kames] on the other side." (19)

One other passage in this letter bears, indirectly or one could even say negatively, on Madison's conception of judicial power. Madison answered Wallace's query, "Should there be a periodical review of the Constitution?" (20) with two possible solutions. One (only alluded to) was the council of censors instituted in Pennsylvania, where...