and 1957, the Court cited Marbury only eight times to support judicial power to invalidate laws, and all eight describe the power in a very restrictive way. So, all totalled, there were 92 uses of Marbury between 1803 and 1957, and only 10 of these concern judicial power to invalidate laws; all 10 advancing restrictive notions of the power. Nowhere can be found any claim that the Court is the final arbiter of constitutional questions. If Marbury really means what Cooper and Boerne says it means, wouldn't the Court have said so during its first 168 years?

But all this changes in 1958. Över the next quarter century after the decision of Cooper, Marbury is employed 50 times to support judicial review; 18 times to support sweeping assertions of judicial power; and 9 times to support the idea that the Court is ultimate interpreter of the Constitution. So if we take the Court's own law seriously, we must conclude that judicial supremacy originated neither in Marbury, nor in the Constitution, but was established by the Warren court and developed subsequently by the Burger and Rehnquist courts. Thus judicial supremacy is not the correct understanding of the judicial power established in the Constitution. So what is?

The answer to this question is found by consulting Article III of the Constitution, Marbury v. Madison, and the thoughts of the Framers. In the first Congress, Madison flatly denied the power of any branch of the national Government, including the judicial, "to determine the limits of the constitutional division of power." The separation of powers was a central concern of the Founders who extended Federal judicial powers to cases arising under the Constitution, laws and treaties, only after they had generally agreed that the power was limited to cases of a judiciary nature. Marbury is the prototypical case of a judiciary nature because it involved a constitutional provision aimed directly at the Court that also embodies a clear restriction on judicial power. This means that the Court could not have applied the statute in Marbury without at the same time violating the Constitution. Cases of the Marbury type, in which the Constitution implicates judicial functions directly, may be expected to arise most often under Article III, Amendments Four through Eight, and perhaps portions of Article I, Section 9. Limiting final constitutional review to the Court only in these cases, leaving to co-ordinate branches the final authority to determine the reach of their own constitutional powers, will preserve the co-equality accorded to each division of Government by the Founders, strengthens the Separation of Powers by emphasizing the constitutional responsibilities of Congress and the President, and recovers an important strand of our republican heritage that is nowhere more apparent than in the Supreme Court's own rich constitutional legacy. Thank you.

[The prepared statement of Mr. Clinton follows:]

PREPARED STATEMENT OF ROBERT L. CLINTON, ASSOCIATE PROFESSOR OF POLITICAL SCIENCE, SOUTHERN ILLINOIS UNIVERSITY

JUDICIAL CONSTITUTIONALISM IN THE UNITED STATES

Discussion of the United States Constitution cannot avoid confronting the obvious fact that the Supreme Court is now widely regarded to be the primary guardian of our fundamental law. The Court's monopoly in constitutional law rests largely upon two kinds of argument. The first argument, political, says that judicial control of

the Constitution is required in order to protect individuals and minority groups from the majority tyranny which would be implemented by legislatures in the absence of the judicial monopoly. The second argument is historical, asserting that judicial supremacy in constitutional matters is grounded in American constitutional history, especially in the landmark case of Marbury v. Madison (1803). My expertise is in the history of judicial review, so I shall confine my remarks mainly to the second argument.

In Marbury v. Madison and Judicial Review, I described the historical process by which legal commentators in late-nineteenth and early-twentieth century America employed the Marbury case to lay a precedential foundation for modern judicial supremacy. Some of the present-day practical effects of the resulting judicialized constitutionalism are summarized by Robert F. Nagel in the following passage:

Today federal courts control more important public decisions and institutions in more detail and for more extended periods than at any time in our history.. This unprecedented use of judicial power is not a response to specific and limited necessity or emergency. The power is exercised in every state and on a wide variety of social issues. Even a relatively "conservative" Supreme Court seems transfixed; recent decisions, such as those dealing with the legislative veto and political gerrymandering, illustrate the Court's continuing insistence that almost no public issue should be excluded from judicial oversight Heavy reliance on the judiciary-in various ideological directions-is fast becoming an ingrained part of the American system; already it is difficult for many... even to imagine any alternative.2

The ever-growing list of judicial intrusions into areas of activity historically governed by other institutions makes it clear that it is no longer possible to question the observation that we are, in many of the most vital aspects of life in the American polity, governed primarily by judges. Nagel's metaphor is that of “addiction:" American society has grown "dependent" on the omnipresent, omnicompetent federal judge, who appears to have supplanted the priest of earlier times.3 Nagel concludes that "excessive reliance on judicial review" undermines long-term support for basic constitutional principles, impairs the "general health of the political culture," and works against "both the preservation and the healthy growth of our constitutional traditions."4 I concur with these conclusions.

One of the most important results of judicialization has been to turn virtually all discussions about the Constitution into discussions about the role of judges in its interpretation. Here are two prominent examples. Soterios Barber, one of the few contemporary constitutional theorists who has tried to establish that the Constitution and constitutional law are two different things,5 nonetheless suggests that the most important job of "mainstream scholars" is to justify "a strong and unapologetic exercise of judicial power in constitutional cases."6 The second illustration is provided by Michael Perry:

In a society, like American society, in which it is axiomatic that the judiciary should enforce the Constitution, the choice among competing conceptions of the Constitution is (in part) precisely a choice among competing conceptions of judicial role. In resolving the question how to conceive of the Constitution, we are resolving the question what role the judiciary should play. In that sense, the two questions are really one question: What conception of "Constitution/judicial role" ought we to choose?" 7

This equation of Court with Constitution is pervasive in contemporary constitutional theory. It has led to a form of constitutional nihilism, expressed by Mark Tushnet, that judicial review is an "all or nothing" proposition: "Either one allows judges to do whatever they want or one allows majorities to do whatever they want.

1 Robert Lowry Clinton, Marbury v. Madison and Judicial Review (Lawrence, Kansas: University Press of Kansas, 1989).

Robert Nagel, Constitutional Cultures: The Mentality and Consequences of Judicial Review (Berkeley, California: University of California Press, 1989), pp. 1-2. See also Robert Lowry Clinton, God and Man in the Law: The Foundations of Anglo-American Constitutionalism (Lawrence, Kansas: University Press of Kansas, 1997), pp. 13-14.

3 Ibid., p. 2; Clinton, God and Man in Law, p. 14.

Ibid., p. 3; Clinton, God and Man in Law, p. 14.

5 Soterios A. Barber, "Michael Perry and the Future of Constitutional Theory," Tulane Law Review 63 (1989): 1289-1303, at 1298; Clinton, God and Man in Law, p. 14.

Ibid., at 1290; Clinton, God and Man in Law, p. 14.

7Michael Perry, "Review," Ethics, October 1985 (1985): 202-203, at 203; Clinton, God and Man in Law, pp. 14-15.

Either choice is deeply anticonstitutional-which means, I suppose, that constitutionalism is self-contradictory." 8

Let's think about this for a moment. Here are three of our nation's leading constitutional theorists unflinchingly declaring: (1) that the main job of constitutional scholars today is to justify judicial activism (not to understand the Constitution); (2) that in our system, the word "Constitution" really means "judicial role"; and (3) that constitutionalism is "anticonstitutional," or "self-contradictory!" This is astounding. Constitutionalism may be a contradiction under any regime in which judicial review is "all or nothing," but judicial review is "all or nothing" only under a theory of judicial supremacy. So if judicial supremacy is incompatible with constitutionalism, shouldn't we just get rid of judicial supremacy, and keep the Constitution? My answer is an unequivocal affirmative; and I would add that American constitutional history supports this answer. Let's consider this history now.

CONSTITUTIONAL INTERPRETATION IN AMERICAN HISTORY

During the antebellum period, constitutional interpretation was performed continuously by all three branches of the federal government. The great debates in Congress during this period were arguments over the meaning of constitutional provisions. The record is literally permeated by assertions of legislative duty to interpret the Constitution both rightly and in accordance with accepted canons of construction. In the 1790s, debates in Congress on the meaning of key provisions in Articles I, II, and III shaped the contours of the federal government as it was to exist for a century-and-a-half. 10 At the same time, during the first half-century of the republic, presidential vetoes of congressional acts were exercised almost solely on constitutional grounds, and most of these were accompanied by explicit, uncontested assertions of executive authority to interpret the fundamental law.11

Note also that the indeterminacy of certain portions of the constitutional text has frequently required provision of constitutional meaning via the interplay of non-judicial political forces (for instance, in the establishment of a national executive administration in the 1790s, in the interposition, nullification, and secession controversies of the antebellum period, in some famous impeachment controversies, or in more recent conflicts over the reach of executive power in foreign and military affairs). The result here has been an extralegal constitutional construction which, though principled, is nonetheless primarily a political activity necessarily involving non-judicial actors and agencies and is largely unsuitable for courts. When judges go beyond the activity of applying determinate legal texts, where all the resources of traditional legal practice are available both to circumscribe their efforts and to justify their results, they enter an area in which they have neither special claim nor special competence. Attention to the importance of constitutional constructions throughout American constitutional history makes it clear that constitutional development in the United States has been very much a "departmental" affair, involving not only the political branches and the administration of the national government, but the states as well. 12

Finally, and perhaps most tellingly, the Supreme Court itself did not claim "finality" or conclusiveness for its own constitutional interpretations until 1958;13 nor did constitutional commentators until the early twentieth century. 14 Nor did the Court assert any power to control the boundaries of constitutional authority assigned to other agencies of government until the late nineteenth century, except in "cases of a judiciary nature." 15 The last-mentioned point reflects the Court's successful assertion, in Marbury, of its power to construe constitutional provisions in such a way as to make possible their application as law, but only in the decision of cases involving the performance of judicial functions. 16

Thus the historical record unequivocally establishes that the origin of modern judicial supremacy in constitutional law can be found neither in the Constitution itself nor in its early judicial application. Rather, it originated in the polemics of legal

8 Mark Tushnet, "Judicial Review," Harvard Journal of Law and Public Policy 7 (1984): 77– 79, at 77; Clinton, God and Man in Law, p. 15.

9 See Clinton, Marbury and Review, pp. 72-77; Clinton, God and Man in Law, p. 15.

10 Ibid., Clinton, God and Man in Law, p. 27.

11 Ibid., p. 113; Clinton, God and Man in Law, p. 15.

12 See Keith E. Whittington, Constitutional Constructions: Divided Powers and Constitutional Meaning (typescript, Department of Politics, Catholic University of America, Washington, D.C., 1996), esp. chap. 1; Clinton, God and Man in Law, p. 24.

13 See Cooper v. Aaron, 358 U.S. 1, at 18 (1958); see also Clinton, Marbury and Review, pp. 14-15; Clinton, God and Man in Law, p. 15.

14 See Clinton, Marbury and Review, pp. 190-191; Clinton, God and Man in Law, p. 15.

15 Ibid., p. 121, notes 46-48 and accompanying test; Clinton, God and Man in Law, p. 15. 16 Ibid., chap. 5; Clinton, God and Man in Law, p. 27.

academicians and commentators in the late nineteenth and early twentieth centuries.17 It emerged in full flower only in the 1950s.18 During earlier periods, questions about constitutional meaning were not generally regarded as solely, or even primarily, judicial. Tocqueville's famous aphorism according to which all political questions sooner or later developed into judicial ones described a feared tendency rather than a reality. So had the earlier arguments of the antifederalist Brutus.19 When Jeffersonian Republicans and Jacksonian Democrats launched early attacks on the Court, they did so on the basis of a widespread belief that congressional and/ or presidential interpretations of the Constitution were entitled to as much respect as those of the judiciary.20

During the last forty years, the Court has pressed its claim to be the primary organ of constitutional interpretation in the United States with increasing frequency, intensity, and success. The Court's first assertion of constitutional guardianship came in 1958. In that year the Court decided Cooper v. Aaron (the Little Rock school desegregation case); claiming, for the first time in American constitutional history, judicial "finality" for its readings of the Constitution. This ruling effectively equated the Court's own constitutional interpretations with the Constitution itself.21 The legal peg supporting the maneuver was the Court's assertion that its own constitutional rulings possessed Article VI "supreme law" status, along with constitutional provisions, national laws, and federal treaties.22 In another "first," the Cooper Court cited Marbury v. Madison as precedent for its newly-discovered "ultimate" interpretive authority.

Since the Cooper decision, many have come to believe that, in Marbury,23 the Supreme Court declared itself to be the primary organ of constitutional interpretation. The theory that appears to be most widely accepted currently is that the primacy of judicial review was established in Marbury on the basis of a comparatively weak or "inconclusive" historical foundation in the Founding and immediate post-Founding eras.24 According to this theory, modern (broad-gauged) judicial review is explained and justified as an original "creative" fashioning by the Marshall Court that was later expanded by subsequent Courts in response to the demands of individuals and groups for judicial supervision of states, executives, and Congress in accord with the growing "needs" of American society.

As the Court's own record of precedents demonstrates, this conception of American constitutional history is fundamentally wrong. A limited form of judicial review was already established by 1800, but only as to relatively "clear cases.' "25 Marbury v. Madison did not alter this, but rather established a clear precedent for the Court's power to disregard congressional laws in cases "of a judiciary nature"-i.e., cases in which judicial functions were threatened by application of a questionable statutory provision.26 Marbury thus established only that the judiciary would play an important role in constitutional interpretation, not that it would be the sole, ultimate, or final constitutional interpreter. The idea that a single organ of government must possess such authority is a product of later times. After Marbury the Court would not invalidate another act of Congress until the 1850s.27 Nor would it cite

17 Clinton, Marbury and Review, chapter 10-11; Clinton, God and Man in Law, p. 15.

18 See Cooper v. Aaron, 358 U.S. 1, at 18 (1958); see also Clinton, Marbury and Review, pp. 14-15; Clinton, God and Man in Law, p. 15.

19 On the "Letters of Brutus," probably penned by prominent antifederalist Robert Yates, and Alexander Hamilton's (Publius's) response to them, see Clinton, Marbury and Review, pp. 6971. Brutus clearly saw vast potential for expansive judicial development in the 1787 Constitution; but his worst fears did not materialize until a century later. The relevant letters of Brutus may be found in Cecelia Kenyon, ed., The Antifederalists (Indianapolis: Bobbs-Merrill, 1966), pp. 334-357. Tocqueville's best discussion of the level of judicial power being exercised roughly a half-century after the Constitution's adoption may be found in Alexis de Tocqueville, Democracy in America, 2 vols., trans. George Lawrence, ed. J.P. Mayer and Max Lerner (New York: Harper & Row, 1966), pp. 89-93; Clinton, God and Man in Law, p. 27.

20 See Clinton, Marbury and Review, chapter 6; Clinton, God and Man in Law, p. 27.

21 Cooper v. Aaron, 358 U.S. 1 (1958); see also Clinton, Marbury and Review, pp. 14-15, 207211; Clinton, God and Man in Law, p. 27.

22 Ibid., at p. 18. The Court there declared that "the federal judiciary is supreme in the exposition of the law of the Constitution." See also Clinton, God and Man in Law, p. 27.

231 Cranch (5 U.S.) 137 (1803); Clinton, God and Man in Law, p. 36.

24 See, eg., Leonard Levy, ed., Judicial Review and the Supreme Court (New York: Harper and Row, 1967); Clinton, God and Man in Law, p. 36.

25 Sylvia Snowiss, Judicial Review and the Law of the Constitution (New Haven, Conn.: Yale University Press, 1990), esp. chapter 3; Clinton, God and Man in Law, p. 38.

26 Clinton, Marbury and Review, esp. chapter 5, Clinton, God and Man in Law, p. 38.

27 Dred Scott v. Sanford, 19 Howard 393 (1857); Clinton, God and Man in Law, p. 38

Marbury in support of any kind of constitutional judicial review until the 1880s; and not in support of broad-gauged review until the 1950s.28

After its decision in Cooper v. Aaron, the Court has used Marbury to support its constitutional hegemony at least ten times, most recently in City of Boerne v. Flores (1997).29 There, the Court invalidated a provision of the Religious Freedom Restoration Act of 1993 (RFRA) that attempted to restore the "compelling interest" standard in free exercise cases that the Court declined to apply in Employment Div., Dept. of Human Resources of Oregon v. Smith (1990).30 In promulgating RFRA, Congress relied upon its authority to "enforce, by appropriate legislation," the provisions of the Fourteenth Amendment which, by judicial ruling, applies the First Amendment's Free Exercise Clause to the states. But the Court held in Boerne that the congressional enforcement authority is only “remedial,” not “substantive;” and thus that Congress is forbidden to determine "the substance of the Fourteenth Amendment's restrictions on the States," or to enact legislation which "alters the meaning of the Free Exercise Clause" by determining "what constitutes a constitutional violation." 31

Though it is indeed difficult to see how Congress can "enforce" the Constitution without being able to "determine what constitutes a constitutional violation;" for purposes of our historical survey, the crucial point that must be understood here is this: the reason why RFRA can be held to have altered the meaning of the Free Exercise Clause is that, in Cooper v. Aaron, the Court has put its own understandings of constitutional meaning (its "interpretations") on a par with the Constitution itself. In other words, according to the logic of Cooper, the Court's decision in Oregon v. Smith about the meaning of the Free Exercise Clause is the Free Exercise Clause. Not content, however, to rest upon this claim alone in Boerne, the Court explicitly denies the authority of Congress to interpret the Constitution conclusively or to define its own powers in accordance with it.32

Thus it appears that the development of judicial supremacy in constitutional law is now virtually complete. Modern judicial review is driven by a logic which affords the Supreme Court ultimate freedom to strike down laws merely because the justices believe those laws to be inconsistent with the Constitution. Co-ordinate agencies of government, the policies of which are defeated by the Court, are then expected to goose-step to the Court-imposed drumbeat, even to the point of conforming future policy choices to judicial preferences.

As I have said, it has not always been so. Nowhere is this shown more clearly than in the Court's historical treatment of the Marbury case the very case misrepresented in Cooper and Boerne to support constitutional judicial supremacy. Given the importance of stare decisis in our legal system, it is worthwhile to examine the Court's treatment of Marbury during previous historical periods, because this treatment indicates how the Court conceived its own power during those periods.

MARBURY IN THE SUPREME COURT

In Marbury v. Madison and Judicial Review, I surveyed and catalogued all of the Court's citations of Marbury from 1803 through 1983.33 Here's what I found. During the remainder of John Marshall's tenure as chief justice (through 1835), ten separate opinions contain references to Marbury. Nine are purely jurisdictional in nature, supporting the distribution of jurisdiction contained in Article III. The remaining reference is made to support the ruling that writs of mandamus may issue to executive officials only when engaged in the performance of purely ministerial duties. The Court's power to invalidate laws is not mentioned in any of these cases. Between 1835 and 1865, Marbury is cited in 15 separate opinions in the U.S. Reports. As before, the largest number of cites is in the jurisdictional area (eight references). Six concern nuances in the mandamus remedy. One clarifies some dicta in Marbury that were unnecessary to the decision of that case. Judicial review is not mentioned at all. Even in Dred Scott v. Sanford (1857), the only other case before the Civil War in which the Court invalidated an act of Congress, Marbury is not mentioned! This pattern continues during the 30-year period following the Civil War, a period in which the Court invalidated national laws in no fewer than 20 cases-yet Marbury is mentioned in none of them! As in earlier periods, the in

28 Clinton, Marbury and Review, chapter 7; Clinton, God and Man in Law, p. 38. 29 117 S.Ct. 2157.

30 494 U.S. 872.

31 117 S.Ct. 2157, at 2164.

32 117 S.Ct. 2157, at 2168.

33 Clinton, Marbury and Review, chap. 7. Full citations for all the cases may be found in the notes accompanying chapter 7, at pp. 266-274.