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First published more than forty years ago, Robert G. McCloskey's classic work on the Supreme Court's role in constructing the U.S. Constitution has introduced generations of students to the workings of our nation's highest court. In this fourth edition, Sanford Levinson extends McCloskey's magisterial treatment to address the Court's most recent decisions, including its controversial ruling in Bush v. Gore and its expansion of sexual privacy in Lawrence v. Texas. The book's chronology of important Supreme Court decisions and itsannotated bibliographical essay have also been updated.
As in previous editions, McCloskey's original text remains unchanged. He argues that the Court's strength has always been its sensitivity to the changing political scene, as well as its reluctance to stray too far from the main currents of public sentiment. Levinson's two new chapters show how McCloskey's approach continues to illuminate recent developments, such as the Court's seeming return to its pre-1937 role as "umpire" of the federal system. It is in Bush v. Gore, however, where the implications of McCloskey's interpretation stand out most clearly.
The best and most concise account of the Supreme Court and its place in American politics, McCloskey's wonderfully readable book is an essential guide to its past, present, and future prospects of this institution.
On June 21, 1788, when the convention of New Hampshire voted 57 to 46 to approve the proposed national constitution, the requirement of nine ratifying states was fulfilled and the United States of America sprang into legal being. Opportunity for instant creation of this magnitude occurs only in fiction and law, and the delegates did not underrate their historic moment. They were careful to specify that it came at one o'clock in the afternoon, for they feared that Virginia might act that very evening and claim a share in the honor. They need not have worried. The Virginians were in for three more days of oratory, mostly by Patrick Henry, before their state's proud name could be added to the list.
Fifteen months later, President Washington accomplished another of these portentous juridical feats by signing the judiciary Act of 1789, which was to be called many years afterward "probably the most important and the most satisfactory Act ever passed by Congress." The latter-day eulogist was himself a Supreme Court justice, and his good opinion of a law that made him one of the most august figures in the nation is not surprising; a long roll of eminent statesmen since 1789 could be called to testify on the other side. But hardly one of them would dispute his opinion that the Act was extremely important, for it not only established the far-flung system of federal courts but boldly defined their jurisdiction, and especially that of the Supreme Court, in such a way that the states, Congress, and the President could be held subject to judicial authority.
Finally, on February 2, 1790, some of the men who had received these high commissions and whose duty it therefore was to give living force to these paper enactments, assembled in the Royal Exchange building in New York and organized as the Supreme Court of the United States. The occasion was solemn, and the newspapers followed it closely, passing on to the people every crumb of detail about this third great department of their young national republic. Yet neither the press nor the people nor the justices themselves could quite know how momentous the day was, and there is good evidence that they did not. Only four of the six men Washington had chosen to adorn the Supreme Court turned up for that first official meeting. Robert H. Harrison declined appointment, apparently because he thought his judicial post as chancellor of Maryland was more important; and John Rutledge, though officially a member of the Court in its first three terms, never attended a session and soon resigned to accept the chief justiceship of South Carolina. Looking back, we can see that the first meeting of the Supreme Court of the United States was one of the mileposts in the history of jurisprudence. We can see that the ratifying of the Constitution and the signing of the judiciary Act had, when taken together, opened great wells of judicial power, and that the four justices who sat together in the Royal Exchange that winter were inaugurating a governmental enterprise of vast and unprecedented dimensions. But the principals were looking forward, not back, and the future must have seemed cloudy.
In the nature of the case they would not have known much about the prospects of their Court and the Constitution, for the very good reason that so little about either had been firmly decided. The delegates who framed the Constitution have been traditionally and deservedly praised for producing a document that could earn the approval of such diverse states as Massachusetts and Georgia and such diverse men as John Adams and Thomas Jefferson (neither of whom, by the way, attended the Federal Convention). But this congenial result had been achieved not only by compromise but by forbearance. The Constitution clearly established a few principles about which there was no serious colonial disagreement, for example, the representative system for choosing officials and the separation of powers between the departments of the national government. It compromised a few more troublesome issues like the question of equal state representation versus representation based on population, and the question of the slave trade. But still weightier difficulties that might have prevented ratification were either left severely alone by the Founding Fathers or treated in ambiguous clauses that passed the problems on to posterity.
No one quite knew, for example, what was meant when the Constitution endowed Congress with power "to regulate commerce among foreign nations, and among the several states"; or to make all laws "necessary and proper" for carrying out the national government's other powers; or when it was asserted that the Constitution as well as laws and treaties made by the nation were "the supreme law of the land." No one was sure how the "ex post facto" clause or the "contract clause" would restrict state inroads on the rights of property-holders. Some had hopes and others had suspicions about the meaning of these and other enigmatic phrases in the document. But if either the hopes or the suspicions had been fully warranted by clear language in the Constitution itself, it seems most unlikely that ratification would have been possible. The issue underlying these uncertainties was no less than this: whether a nation or a league of sovereign states was created by the Constitution. That was the question still awaiting decision in 1790, and until America began answering it, the full significance of New Hampshire's historic vote was a matter for guess work. If a true nation emerged as the future unfolded, then New Hampshire's action was unforgettable. If not, ratification would be seen as a comparatively minor incident in modern world history.
As for the Supreme Court, its future was even more uncertain. The Constitution has comparatively little to say about the Court or the federal judiciary in general. The "judicial power of the United States," whatever it may be, is vested in the Supreme Court and in such other courts as Congress may establish. But the composition of the Court, including the number of its members, is left for congressional decision; and, while federal judges cannot be removed except by impeachment, there is nothing to prevent Congress from creating additional judgeships whenever it chooses. Furthermore, although the judicial power "extends" to a variety of cases described in Article III, section 2, the second paragraph of that section significantly qualifies what the first seems to have granted, and gives Congress power to control the Supreme Court's jurisdiction over appeals from lower courts. Since the cases that reach the Court directly without first being heard in other courts are comparatively minor in quantity or importance, this legislative authority over appeals (over the "appellate jurisdiction") is a license for Congress to decide whether the Supreme Court will be a significant or a peripheral factor in American government.
Most important of all, the Constitution makes no explicit statement about the nature of the Court's power even when a case admittedly falls within its jurisdiction. Some of the uncertainties outlined above were re solved, temporarily at any rate, by the passage of the judiciary Act. Its famous Section 25 gave the Supreme Court power to reverse or affirm state court decisions which had denied claims based on the federal Constitution, treaties, or laws. This meant that such cases could be reached by the Supreme Court through its appellate jurisdiction. But suppose a state court had denied such a claim under the federal Constitution and the Supreme Court of the United States reversed on the ground that the state court's interpretation of the Constitution was in error. And suppose further that the state court obstinately continued to insist upon its own interpretation. Was there anything in the Constitution to guarantee that the Supreme Court's opinion would prevail, that the Supreme Court's authority was superior to state courts? Or suppose, to carry the matter a step further, that the state court had held a federal law invalid as conflicting with the national Constitution and the Supreme Court agreed with this holding, thus asserting its authority to overthrow an act of Congress. Does the Constitution make it clear that the Court has this final authority of "judicial review" over national legislative enactments?
The answer to both questions is a fairly solid "no." As for state decisions it has been argued that the "supreme law of the land" clause and the clause extending the judicial power to cases arising under the Constitution do make it clear that the Supreme Court was intended to be preeminent on questions of constitutional interpretation. If the Constitution is supreme and the Supreme Court has jurisdiction over cases involving the Constitution, then it follows that the Court's word on such matters is paramount over all others-so the argument runs. But in the first place this reasoning is not unassailable, for as defenders of states' rights were later passionately to insist, the fact that the Constitution is supreme does not settle the question of who decides what the Constitution means. And in the second place enthusiasts for judicial review have never quite been able to explain why so formidable a power was granted by implication rather than by flat statement. As for judicial review of congressional acts, the support in the language of the Constitution was even more suppositious, and arguments for the authority derived solely from that language seem inevitably to beg the question.
None of this is to say that the framers of the Constitution would have been surprised to see the Supreme Court exercising the power of judicial review in some form, both as against the states and as against Congress. Indeed there is ample evidence that most of them who had thought about it expected that the Court would do so, however distressing it is that they failed to make their expectations explicit. But neither the framers nor the ratifying state conventions (whose views are in some ways more relevant to the issue) had any general understanding about the particular form that the judicial review would take and the role that the Supreme Court would therefore assume.
Some, like Alexander Hamilton, certainly hoped that the justices would act as general monitors, broadly supervising the other branches of government and holding them to the path of constitutional duty, though even he seems to have conceived this exalted notion only after the Convention's adjournment. Others, like Robert Yates, also of New York, feared that the Court would so regard its function. But James Madison, the highest possible authority on the Constitution's intent, though apparently expecting the Supreme Court to disallow laws that clearly contravened the Constitution, by no means conceded that the Court could apply its negative judgment to more debatable points or that the judicial pronouncements were intended to be final and binding on the other branches of government. And the evidence of both the Convention and the ratification controversy suggests that other participants were equally doubtful about these questions and that many more had simply not considered the matter at all.
In short, neither the words of the Constitution nor the provable intent of those who framed and ratified it justified in 1790 any certitude about the scope or finality of the Court's power to superintend either the states or Congress. The most that can be said is that language and intent did not preclude the Court from becoming the puissant tribunal of later history.
Nevertheless those four men in the Royal Exchange, though without any ironclad assurances, might well have had a strong hunch that destiny sat beside them, that the Constitution would be transfigured from a bitterly debated paper enactment into a venerated symbol of Americanism, and that the Court would emerge as the chief expounder of its mysteries and a beneficiary of its prestige. They must have realized that by tradition and temperament the new nation was ripe for such developments.
For the Constitution was potentially the convergence point for all the ideas about fundamental law that had been current in America since the colonization period. Of course the notion of a law-above-government, a "higher" law, was well known throughout the Western world, but the colonists had given it a special domestic cast, infusing it with interpretations drawn from their own unique experience. While most Europeans thought of higher law as exercising a moral restraint on government, they did not argue that this moral limit was legally enforceable, that it was positive law, practically binding the governors. Even before the Revolutionary controversy, Americans had found it easy to assume that it was just that, for their own legislatures had long been literally bound by "higher law" in such forms as the colonial charters and decisions of the British Privy Council. But the struggle with England turned assumption into fiery conviction as the colonists argued that Parliament was forbidden, not only morally but literally, to transgress the rights Americans claimed under their charters and under the British Constitution. And after the break with England this now very American idea of a written, tangible higher law was further embodied in the new state constitutions and in the Articles of Confederation. The document of 1789 then could draw on this enormous fund of prestige that the higher-law idea had assimilated in America.
Such circumstances might help explain, at least initially, why the Constitution won such ready devotion. But the question remains, it might be said, why the Court should be chosen to share in and perpetuate the Constitution's glory. We have seen that the language of the Constitution is inconclusive on this matter and that the intentions of the framers were ambiguous. Jefferson, Madison and many other almost equally illustrious statesmen were later to argue that the Congress, the President, and even the individual states were, no less than the courts, guardians of the Constitution and coequal interpreters of its meaning. What warrant then had our four new judges for hoping that history would reject these rival claimants and confirm the Supreme Court's constitutional prerogative? To put the question somewhat differently, what made it likely, though perhaps not certain, that the Court would play the great part it has played in American life?
The Higher-law Background and Popular Sovereignty
With the benefit of hindsight, it is not hard to find a number of answers to these questions. The common law traditions deriving from the great seventeenth-century English jurist, Sir Edward Coke, exalted judges above other folk, and that tradition was cherished by Americans with peculiar tenacity. The Federalists, who enjoyed political ascendancy during the first decade of the Republic's history, tried to use their temporary prestige to implant in the popular mind a respect for judges, so that Federalism might find a haven against the adversity of a Jeffersonian political victory. The very fact that the concept of judicial review was, at the outset, imperfectly understood was a point in its favor, for it enabled judges to build up the Court's power gradually and almost imperceptibly and its opponents thus found themselves in the frustrating position of those who fight shadows. These factors, among others, are surely relevant to the problem. But they are not sufficient to explain the Court's impending future; they seem to rest on a broader, underlying causal condition whose roots drive deeper into the subsoil of American political life.
To understand that condition it is necessary to look again at the climate of political opinion in eighteenth-century America and particularly at the quarter-century that preceded the Constitution. We have seen that the old doctrine of fundamental law was stimulated by the events and idea currents of the Revolutionary era. Now it must be observed that the movement for revolution also supplied a vital impetus for another, and in some ways, contradictory, notion-the theory of popular sovereignty. American pamphleteers had insisted on the principle of home rule; the Declaration of Independence had founded just government on the "consent of the governed"; the next and natural step was to regard the people as not only a consenting but a willing entity and to declare, as Jefferson later said, that "the will of the majority is in all cases to prevail." These reasonable and perhaps inevitable deductions from the Spirit of '76 were widely prevalent in America during the Articles of Confederation period. Many of the solid citizens deplored such "mad democracy" and longed to curb it, but they could not evade the fact that the will-of-the-people concept was now firmly planted in American minds as one of the premises of political thinking.
Excerpted from The American Supreme Court by Robert G. McCloskey Copyright © 2005 by University of Chicago. Excerpted by permission.
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Editor's Foreword to the Second Edition
Editor's Foreword to the First Edition
Preface to the Second Edition
Preface to the First Edition
1. The Genesis and Nature of Judicial Power
2. The Establishment of the Right to Decide: 1789-1810
3. The Marshall Court and the Shaping of the Nation: 1810-1835
4. The Court under Taney: The Natural History of Judicial Prestige
5. Constitutional Evolution in the Gilded Age: 1865-1900
6. The Judiciary and the Regulatory State: 1900-1937
7. The Modern Court and Postwar America: 1937-1959
8. Civil Liberties, Civil Rights, and the Supreme Court
9. Judicial Monitoring of the New American Welfare State
Epilogue: The Court of Today and the Lessons of History