From Marshall To Nullification

Who Decides What Is Repugnant To The Constitution?

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.

Marbury v. Madison (5 US 137), 1803

With this sentence in his historic ruling in the Supreme Court case Marbury v. Madison, Chief Justice of the United States John Marshall confirmed the power of the Supreme Court to state whether an act of Congress was contrary to what was laid out within the United States Constitution. With this same sentence, Chief Justice Marshall affirmed that any such act of Congress necessarily lacked the force of law. 

Did Chief Justice Marshall also articulate a legal doctrine whereby anyone, a state government or even the people at large, could also state a statute's invalidity on the basis of Constitutional contradiction? A close reading of this historic ruling indicates that he did.

Judicial Review

The doctrine of judicial review was by no means novel in Marshall's day (indeed, from extemporaneous notes during the Constitutional Convention in 1787, we know of 11 delegates who specifically commented on the judicial review as a power of the court). The capacity of courts to review and comment upon statutes was well established in the state of jurisprudence at the time,  although nowhere in the text of the United States Constitution itself is the power mentioned. 

The judicial power is described explicitly in Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

This power was circumscribed somewhat by the Eleventh Amendment, limiting the use of the Federal courts to litigate matters against an individual state:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

The Constitution thus establishes the scope of "the judicial Power", but does not define in detail the nature of that power. Marshall, in formulating the reasoning within Marbury, opted to fill in that gap, arguing that "It is emphatically the province and duty of the judicial department to say what the law is." The court, in Marshall's view, is called upon to state the substance of the law (and, by extension, the limits of the law). 

Marshall actually engaged in some legal hair-splitting, arguing that while Marbury was certainly entitled to some legal remedy in his case, the language of the Constitution was at odds with the language of the Judicial Act of 1789, the enabling act that created the nascent federal court system for the United States. As the Judicial Act ran contrary to the Constitutional text, it was inoperable, and thus could not be used as authority to grant Marbury the remedy sought. The textual flaws in the Judicial Act, Marshall reasoned, conspired to deprive the Court of the power to issue Marbury's desired remedy.

All Words Matter

Language lies at the heart of the Marbury ruling, for Marshall also wrote that "It cannot he presumed that any clause in the Constitution is intended to be without effect; and, therefore, such a construction is inadmissible unless the words require it." Every word within the Constitution is significant, according to Marshall, and has meaning. 

If words are essential to the Constitution, they are equally essential to Marshall's rendered opinion. Consider now the meaning of "province" and "duty" as Marshall applied them:

It is emphatically the province and duty of the judicial department to say what the law is.

province - proper or appropriate function or scope

duty - a moral or legal obligation; the force of moral obligation

Marshall asserted that not only are courts well equipped to state with specificity the letter and substance of the law, they are obligated to do exactly that. Moreover, by declaring the role of the court to say "what the law is," Marshall asserted that the state of the law is precedes court involvement. A court does not add to the law, but merely discerns what is already there.

Marshall did not arrogate to the Supreme Court any special power to overrule Congress' power to enact statutes to incorporate into the law. His thesis does not require the Court to divine the intent of the Congress in passing any statute, nor to render any judgment on the propriety of that intent. In Marshall's view, the role of the Court is solely to assess the language of a statute as passed.

According to Marshall's thesis, the Marbury ruling was a simple and requisite operation of the courts. It was something that had to be said, and no more. It neither reshaped nor redefined the law, but simply restated the law.

Power Neither Claimed Nor Denied

As Marshall did not arrogate to the courts the power to render laws unconstitutional, neither did he derogate the capacity of other entities—the states or perhaps even the people—to identify laws as being unconstitutional.  Marshall's claim, as articulated within Marbury, was not of power but of duty.

Nowhere in the Marbury ruling is there any language which makes either the duty or the competency exclusive to the courts. Given that Marshall was already consciously micro parsing the text of the Constitution as well as the Judicial Act of 1789, it beggars belief that he would have been so semantically sloppy as to fail to incorporate exclusive language into the Marbury ruling had he been so inclined.

The question of whom besides the courts might be possessed of that competence is neither asked nor answered within the ruling. Marshall articulated the role of the Court in regard to the operation of the law. He did not articulate the role of the Congress, nor of the states, nor even of the people.

Within Marshall's articulation of the Court's role, it would have been improper for him to even attempt to speculate on the roles for others. While the Court is empowered to say what the law is, following Marshall's reasoning it is not empowered to say what the law is not, nor is it empowered to say what the law should be. The Court is not even empowered to state whom has authority to say what the law is not, nor what the law should be.

One Constitution, One Law

On one point Marshall left absolutely no room for debate: any statute which is contrary to the Constitution is by its very nature without legal authority. Such a statute is void, lacking both legal form and legal substance. Logic as well as simple common sense demand this be the case.

As there is but one Constitution, there is but one law. All statutes, all acts of Congress, all acts of any legislature within the United States, must fit within the Constitution. When they do not fit within the Constitution, they are not law. With or without a ruling by a court, such is the nature of law, according to Marshall.

A legislature can only pass statutes into law in accordance with its authority, as rendered by the Constitution. It is both legally and morally impossible, using Marshall's logic, for any legislature to enact law beyond the scope of its authority. Whenever the legislature exceeds that scope, it becomes by definition lawless.

Should the Congress or any state legislature put statutes down in writing which are at odds with the Constitution, such statutes are from their moment of creation simply words without form, without meaning, and therefore without force of law. No court ruling is needed to void such statutes; conflict with the Constitution has already voided them, and barred them from being incorporated into law.

Nullification: Simply Stating Reality

Marshall's formulation is therefore a mere restatement of this pre-existing reality: a statute at odds with the dictates of the Constitution lacks any validity or operative force of law; a statute written contrary to Constitutional mandate can never attain force of law.

Marshall's construction of judicial review is not that courts are granted authority to invalidate statutes on the basis of Constitutional compliance and remove them from the law, but merely that courts are given both the competency and the responsibility to articulate whether or not the text of a statute conforms to the text of the Constitution. Where the texts do not conform, a statute simply does not exist within the law.

Marshall's argument, plainly stated and plainly considered, establishes that an articulation of a statute's invalidity—what can be succinctly termed "nullification"— merely acknowledges this reality. Nullification is not a change in the law, merely a clarification of the law.

Whom besides the courts might have the right and the power of nullification? Within the framework of the Constitution, certainly the individual states can make a strong claim to both. The Tenth Amendment reserves an expansive and indeterminate set of powers both to the several states and to the people of the United States:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

As the Constitution is silent on whom enjoys either the right or the power of nullification, the Tenth Amendment offers a presumption that such capacity is given at least to the states, inasmuch as the Constitution failed to prohibit that capacity to either the states or the people.

Similarly, the Ninth Amendment makes explicit the principle that the rights enumerated in the Constitution do not of their own accord invalidate any other claim of right not enumerated in the Constitution.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

We cannot say with Constitutional authority this right and power of nullification does not exist and is not enjoyed either by the people or by the several states merely because the Constitution fails to state either the right or the power. The plain text of the Ninth and Tenth Amendments explicitly exclude that argument.

The Constitution Is The Supreme Law

The Constitution states explicitly that it is the supreme law of the land, without exception. No statute, charter executive decree, or judicial order within the United States is superior to the Constitution. No statute, charter executive decree, or judicial order within the United States can ever be superior to the Constitution. That is a legal impossibility.

Further, the Preamble to the Constitution makes it clear that the United States exists by the Constitution and by the Constitution alone:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The union of states known as the United States exists only because the Constitution exists. The union of states known as the United States is the expressed will of the people of the United States because the Constitution has been drafted, and ratified, in accordance with that expressed will.

No act of Congress, no executive decree, no act of either state legislature or state executive which contradicts this expressed will of the people may ever enjoy operative force of law within the United States. No ruling of any court which contradicts this expressed will of the people may ever enjoy authority under the law. That is a legal impossibility.

As John Marshall so eloquently illuminated in Marbury v Madison, the courts are charged with stating what the law is. It is therefore given to the rest of the United States—to the several states and ultimately to "We The People”—to state what the law is not, and what the law should be.