Have We Been Taught Marbury v. Madison Wrong?

One of the most striking parts of Kramer's The People Themselves has been his discussion of Marbury v. Madison. As someone who has taken numerous U.S. history classes and even an American legal history course in undergrad, this is the first time I was exposed to this considerably different interpretation of the significance (or lack thereof) of Marbury. It seems that Marbury is not revolutionary, but rather reactionary. Marbury did not create, much less expand, the power of judicial review (as we teach students). Instead, Marbury defended the departmental understanding of the power of judicial review against a perceived attack by politicians.

Although this is certainly a more complex understanding of Marbury, I'm upset a little upset to know that we have oversimplified this case to such a degree. It gets included with landmark decisions like Brown v. Board of Education and Roe v. Wade, when it is really on the same level of significance (at least in my mind).

Elections and Constitutional Regimes

Recently, my posts in this blog have strayed dangerously from issues constitutional to matters political, a dangerous kind of slippage for anyone who purports to deal with the Constitution and its history. Nonetheless, the two are connected. Throughout history, the settlement of great constitutional questions has often been done politically rather than legally. But such change is usually tethered to elections and the kind of mandate that politicians can make from them. Is 2008 such a year?

Probably not. But before we analyze that, we need to lay some historical groundwork. There are very few national elections that we might call constitutionally transformative in our history. I would argue for the following elections as fitting within that category: 1800; 1860; 1896; 1936. Each of these elections brought not just policy change, but serious and new interpretations of the Constitution to bear against older alternatives. 1800, of course, makes the case for itself: the Federalists and the Democratic-Republicans cast the election in those terms, and there is no doubt that Jefferson's election set the terms for constitutional interpretation for the next sixty years. The unresolved question of the antebellum era was slavery, and those issues came to a head in the election of 1860, when a party won that was devoted to keeping slavery from the federal territories. It brought Civil War. The 1896 election was noted for the losers--the Populists. The subsequent co-opting of progressive reform into the Republican Party created the activist, muscular government (think Teddy after 1900) that enforced rules that the Supreme Court had attempted to subvert. Finally, 1936 was a repudiation of the Lochner-era laissez faire Constitution and the ushering in of the New Deal.

This is not to say that other elections have not had huge political impact. 1828 marked the birth of democratic participation in the presidential election; 1876 signaled the end of Reconstruction; 1912 demonstrated how divided the United States was (given that the socialist candidate netted a big percentage of the vote); 1968 spelled the end of Democratic dominance of national issues; 1980 brought conservatism into the mainstream. But these political changes (I would argue) did not necessarily auger the kind of constitutinal change that we might describe as transformative. They may have been transformative politically, but (to take but one example) the Reagan mantra of low taxes and higher defense spending was not in-and-of-itself a novel interpretation of the Constitution meant to replace rival views. It was, more properly, a policy disagreement with liberal democrats.

To return to 2008. I had initially imagined that *perhaps* we were living in a transformative age. The Bush White House has through a variety of means exerted executive power in new ways. When combined with a quiescent Congress (even after that Congress turned Democrat) it appeared that we were more and more coming within the gambit of an imperial presidency. The stakes, therefore, for this election seemed inordinately high. Would the next president augment that power, or bring the office within constitutional limits?

These issues, however, do not seem to animate the electorate. Not that they need to, of course--many of those who voted for Lincoln did not do so in order to change the Constitution. Nonetheless, the nation understood his electoral victory as the kind of mandate that would remove federal protection (and sponsorship) of slavery. It was enough to drive the slaveholding states to secession. And from their perspective, rightfully so. They saw the imminent end of slavery, even if that imminent end was not immediate emancipation, but rather the slow strangulation provided by refusing slaveholders access to western territories.

In this election, thus, we are confronted with a question that does not have an easy answer. Is anyone really concerned with the executive branch's grab for power in the past eight years? Are we concerned that our own civil liberties might be endangered by the Bush administration's (and Congress's) end-run around the suspension clause? (I refer here to the issues raised in Boumediene v. Bush, and encourage anyone interested in this subject to read my article in common-place about it.) Polls have focused either on the economy or Iraq, and news coverage has steadily ignored all constitutional issues, excepting abortion. (Mainstream coverage of this has, as usual, been awful.)

It was possible several months ago to see both Obama's candidacy and McCain's victory over Romney in the Republican primary as an indication that American voters were moving not just toward a new kind of politics, but repudiating the executive powermongers understanding of the Constitution.

I do not believe it is possible to view things that way now. Nonetheless, we are caught in the fog of war and perhaps this election might nonetheless prove transformative. But that will require statesmen to emerge amongst those (whomever they are) who win the election. It has happened before, of course. But there are also reasons that we have come to expect so little from politicians.

Posner's Gauntlet

Eric Posner, son of famed legal scholar Richard Posner and a formidable legal scholar in his own right, has recently posted an essay on Slate about judicial restraint. Claiming as essentially proven the contention that judge's decide cases based on policy preferences, Posner suggests that judges ought to exercise more restraint than activism in deciding cases. Mark Graber over at Balkinization has taken exception to Posner's lack of scholarly reading on the subject, claiming that his rendering of the "best academic literature" on the subject is heavily weighted toward legal scholars without taking into consideration the best historical and political science literature on the subject. Graber further suggests that he has found copious evidence of antebellum belief in a regime of judicial supremacy.

I will be interested in reading Graber's work when it is out. Graber always does interesting work--his last book, for example, argued that Dred Scott was decided correctly--but his claim sounds a bit overdone. This is Graber's style, of course, so we will have to see what comes out of it.

But it might be worth looking at Posner's call for judicial restraint. The Rehnquist and Roberts courts have been, so far, some of the most activist in our history. They are, in a large sense, heirs of the Fuller and Warren courts. Can we even return to judicial restraint? Posner makes the call, but does not suggest how in a regime in which we accept judicial supremacy we can enforce anything like judicial restraint. It is difficult to see how it might work.

human rights and constitutional conundrums

Consider the following hypothetical scenario: A senior intelligence officer is informed that the CIA has established secret prisons abroad that are holding suspected terrorists. He is further informed that the CIA (with the indirect blessing of the Bush administration) has decided to use waterboarding and other methods commonly deemed to be torture in the process of
interrogation. That same senior intelligence officer is then called on to testify to Congress in closed hearings. Under oath, that officer then reveals this information. The senior intelligence officer also intimates that he cannot reveal such knowledge publicly because it would violate federal law (as in publishing state secrets). Those congressmen and senators had themselves signed a secrecy pledge thus binding themselves not to reveal sensitive information. Should a senator or congressman in possession of such information blow the whistle anyway? Would they risk jail time for doing so?

It would certainly raise an interesting constitutional question. Article I, section 6 grants freedom of speech for national legislators, and this ought to be protection enough
from political or legal threats (hat tip to Marty Lederman on Balkinization for bringing this discourse.net post to our attention). Precisely what sanctions would a member of Congress face for raising these practices in debate?

The constitutional conundrum, though, is not the real issue. As we lead into the 2008 presidential election, the question of the United States' commitment to human rights will be a central matter, particularly where the rest of the world is concerned. Our candidates (repubs and dems) have erred on the side of jingoistic hysteria and like to rehearse "get tough" speeches and soundbites during the debates. Witness, for instance, the immediate negative reaction to Barack Obama when, in debate, he was asked by Brian Williams what the first thing he would do as president if a terrorist organization attacked the United States. Obama's response--that he would have an emergency response ready so we don't get caught in another Katrina--was deemed weak and offensive.

Outright offensive, however, is the shameless behavior of Mitt Romney. He has suggested in debates that we "double" Guantanamo. Shockingly, he refused to denounce waterboarding as torture. Which brings us right back to where we stand in the presidential election of 2008. Although the corporate American media refuses to address the issue of international human rights, we must as a nation force our presidential candidates to account. It is time, for instance, for the Democrats to state plainly where they stand on these important issues. Hillary Clinton has ducked and dodged the question for too long, as has John Edwards.

We should not forget that elections are themselves constitutional procedures. And that it is elections when the people can speak the most forcefully on particular issues. The elections of 1800, 1828, 1860 and 1936 were all such moments when the people gave voice to a particular constitutional vision. Precisely how we treat 2008 has yet to be determined. Perhaps we need more input and voice from the most important, but most oft forgotten, constitutional actors there are: the People.