Nonjudicial Interpretation of the Constitution

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The requirement in Article VI, section 3, that public officers "support the Constitution" applies to all three branches of government, not merely the judiciary. In compliance with this constitutional mandate, legislators and executive officials have made major contributions over the years in interpreting and shaping the Constitution. Because jucidial doctrines often exclude the courts from deciding certain questions, the meaning of the Constitution may depend exclusively on determinations reached by the legislative and executive branches.

In the early decades of the American republic, before the Supreme Court began to establish precedents for constitutional law, the Constitution had to be interpreted solely by members of Congress and executive officials. Such critical issues as federalism, interstate commerce, the President's appointing and removal power, the investigative power of Congress, the treaty power and foreign affairs, slavery, and internal improvements were debated and resolved by the political branches without any assistance from the judiciary. Many of these constitutional judgments were later accepted by the federal courts as binding interpretations.

The idea of judicial supremacy begins with Chief Justice john marshall's declaration in marbury v. madison (1803) that it is "emphatically the province and duty of the judicial department to say what the law is." Bold words, but the political situation required Marshall to finesse the legal issue to avoid a confrontation with President thomas jefferson he knew he could not win. Significantly, Marshall never again, throughout his long tenure on the bench, invalidated another act of Congress.

It is doubtful whether Marshall actually believed that the Supreme Court possessed the exclusive authority to decide the meaning of the Constitution. After Congress impeached and removed Judge john pickering in 1804 and began proceedings to impeach Supreme Court Justice samuel j. chase (with Marshall probably next in line), Marshall wrote to Chase on January 23, 1804, suggesting that members of Congress did not have to impeach judges because they objected to their legal opinions. Congress could simply reverse the decisions. Marshall advised Chase, "I think the modern doctrine of impeachment should yield to an appellate jurisdiction in the legislature. A reversal of those legal opinions deemed unsound by the legislatures would certainly better comport with the mildness of our character that [would] a removal of the Judge who has rendered them unknowing of his fault."

Marshall's letter to Chase is somewhat ambiguous. Could Congress reverse only statutory interpretations or constitutional decisions as well? Did reversal require a constitutional amendment or merely a statute? The context of Marshall's statement implies that he was quite willing to share with the other two branches the task of constitutional interpretation.

Obviously, neither Congress nor the Presidents accepted the Court as the final arbiter of constitutional law. Jefferson believed that constitutional decisions by one branch, including the judiciary, were to be given "no control to another branch." Each branch "has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal." An example is the President's pardoning power. Although the alien and sedition acts of 1798 had never been declared unconstitutional in the federal courts, Jefferson considered it a nullity when he became President and, accordingly, pardoned those who had been convicted under it. Congress later appropriated funds to reimburse individuals who had been fined under the Sedition Act, declaring in committee reports that the statute was "unconstitutional, null, and void." The Court later admitted in new york times v. sullivan (1964) that the Sedition Act had been repudiated not by a court of law, but by the "court of history."

president andrew jackson also believed that each branch of government had an independent duty to interpret the Constitution. The Court upheld the constitutionality of the bank of the united states in mcculloch v. maryland (1819), and Congress passed legislation to re-charter it, but Jackson nevertheless vetoed the bill on the ground that Congress, the President, and the Court "must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others." This broad concept of the veto power has been adopted by all subsequent Presidents.

In a series of speeches in 1858, abraham lincoln denied that the Court's decision in dred scott v. sandford (1857) represented the "last word" on the slavery issue, particularly with regard to the power of Congress to prohibit slavery in the territories and the rights of blacks. Lincoln considered the Court a coequal, not a superior, branch of government. In his inaugural address in 1861, he warned that if government policy on "vital questions affecting the whole people is to be irrevocably fixed" by the Court, "the people will have ceased to be their own rulers."

The Supreme Court may be the ultimate interpreter of the Constitution in a particular case, but once it releases an opinion, it is helpless to control the political forces and pressures that shape constitutional meaning. In 1918 and again in 1922, the Court struck down congressional efforts to regulate child labor. The first statute, according to the Court, exceeded Congress's power under the commerce clause because manufacturing was not "interstate commerce." The second statute, the Court held, exceeded the taxing power because the tax was really a "regulation." Despite these precedents, the New Deal Congress passed legislation in 1938 to regulate wages and hours in manufacturing, relying again on the commerce clause, and a unanimous Court overrode the 1918 child labor decision and upheld the statute in united states v. darby lumber company (1941).

For a period of several decades in the twentieth century, the Supreme Court invoked its power of judicial review to restrict the power of Congress to regulate the national economy. These decisions did little more than delay the momentum for national control. In time, the constitutional meaning of interstate commerce and federalism fell almost exclusively to Congress and the President. In prudential insurance company v. benjamin (1946) the Court conceded: "the history of judicial limitation of congressional power over commerce, when exercised affirmatively, has been more largely one of retreat than of ultimate victory." In garcia v. san antonio metropolitan transit authority (1985) the Court essentially delegated to Congress the responsibility for defining federalism.

Relying on the commerce clause and its powers to enforce the Civil War amendments, Congress has taken the initiative to establish the constitutional rights of black citizens in such areas as education, housing, voting rights, employment, and equal access to public accommodations. Virtually all these legislative actions in recent decades have been sustained by the courts.

Dissenting in gertz v. robert welch, inc. (1974), Justice william j. brennan claimed that the courts are "the ultimate arbiters of all disputes concerning clashes of constitutional values." Two hundred years of history present quite a different picture. Clashes of constitutional values are fought out in every arena—national and state—and within all of the branches of government. No single branch can claim ultimate control. Constitutional judgments of the courts are frequently overturned by the political branches.

in zurcher v. stanford daily (1978) the Court balanced the right of a free press against the needs of law enforcement officials and sided with the latter. In 1980, Congress passed legislation giving much greater protection to first amendment interests. In United States v. Miller (1976) the Court supported the right of law enforcement agents to subpoena banks for information in a depositor's account. Two years later, Congress passed legislation that placed limits on warrantless searches of bank and credit records.

Another example of a Court-Congress dialogue, with Congress again defending constitutional rights left unprotected by the judiciary, is goldman v. weinberger (1986). The Court upheld an Air Force regulation that prohibited an Orthodox Jew from wearing his yarmulke indoors while on duty. The Court reasoned that the Air Force's values of obedience, discipline, and unity outweighed any interference with the religious beliefs of Captain Goldman. Congress disagreed, passing legislation the next year that told the Air Force to change its regulation to permit officers and airmen to wear religious apparel while in uniform.

On special occasion, an authoritative and binding decision by the Supreme Court may be helpful in resolving a political impasse. The unanimous decision in cooper v. aaron (1958) defused the smoldering Little Rock crisis, but the civil rights stalemate persisted until the two political branches confronted the issue squarely and passed the civil rights act of 1964. This statute provided more of a "last word" on the constitutional rights of black citizens than any court decision, including such landmark rulings as brown v. board of education (1954). Similarly, the unanimous decision in united states v. nixon (1974) signaled a dramatic turn in the watergate affair, leading to the resignation of President richard m. nixon, but the decision added little clarity to the constitutional meaning of executive privilege and even introduced new areas of confusion and uncertainty.

Sometimes an effort by the Court to announce the last word on a divisive constitutional issue simply backfires, attempting to do through the judiciary what must be accomplished through the political process. A notable example is the inaugural address by one President who explained that a difficult constitutional issue was before the Supreme Court, where it belonged, and that it would be "speedily and finally settled." The address was by james buchanan, two days before the Court announced the Dred Scott case.

The belief that the judiciary is the ultimate arbiter of constitutional issues finds no support in our history. The Court itself often shows a keen awareness that constitutional interpretation is an exceedingly delicate and complex task that must be shared with Congress, the President, the states, and society at large.

Louis Fisher


Andrews, William G., ed. 1969 Coordinate Magistrates: Constitutional Law by Congress and the President. New York: Van Nostrand Reinhold.

Fisher, Louis 1988 Constitutional Dialogues: Interpretation as Political Process. Princeton, N.J.: Princeton University Press.

Murphy, Walter F. 1986 Who Shall Interpret? The Quest for Ultimate Constitutional Interpreter. Review of Politics 48: 401–423.

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Nonjudicial Interpretation of the Constitution

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