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Archive for May, 2013

Having recently solicited critical comments on a draft paper, I enjoyed reading John Marshall’s comments to an author who had sent him a copy of his book on political economy:

I have read your ‘Thoughts on Political Economy’ with great attention and pleasure, and am gratified that an American has taken up the subject. It is not less important than abstruse, and presents perhaps as many questions, the solution of which, on full investigation, will be different from our impressions on a first view, as any science whatever. You have thought upon it profoundly, and if I am not sure that every proposition you law down is entirely accurate, I am convinced that many are, and that all deserve consideration.

Ltr from John Marshall to Daniel Raymond, Sept. 25, 1821.

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A fourth-grade class in Chesterfield County, Virginia was recently asked the following multiple-choice question on a history test:

The United States Supreme Court ruled in 1954 (Brown v. Board of Education) that “separate but equal” ___________ were unconstitutional.

A. water fountains
B. restaurants
C. public schools
D. churches

The right answer to this question is “C.”

A more challenging way to ask this same question would be to make it a “multiple answer, multiple choice” question and require the test-taker to concisely explain his or her answer. What’s the right answer?

(more…)

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I had the privilege recently of attending a faculty seminar sponsored by The John Marshall International Center for the Study of Statesmanship at University of Richmond’s Jepson School of Leadership Studies. The discussion leader for the seminar was R. Kent Newmyer. The opportunity to learn about Marshall from Newmyer and the other participants in the seminar (including Charles Hobson and Robert Faulkner) was a highlight of the academic year. While I suspect that the conversations from this seminar will be generative for a time to come, I think it worthwhile now to reflect for a moment on one of the final topics of discussion: John Marshall’s greatness.

Is Marshall’s kind of greatness still achievable? That is a difficult question with other difficult questions nestled inside and growing out of it. My tentative answer is conditional: Marshall’s kind of greatness is achievable if one believes in law the way that he believed in law.

Marshall’s greatness was inseparable from his belief in law. But what does it mean to believe in law in this way? Justice Story, who knew and loved Marshall deeply, drew on the language of worship in discussing Marshall as a lawyer:

He loved the law as a science, and not as a trade; and felt the full dignity of being a minister at its altars. He deemed himself under deep responsibility, not to his client alone, but to the court, and to the cause of public justice. . . . He argued for the law, and with the law, and from the law.

Source: Joseph Story, Life, Character, and Services of Chief Justice Marshall: A Discourse Pronounced on the 15th of October, 1835, at the Request of the Suffolk Bar, in The Miscellaneous Writings of Joseph Story 639, 687-88 (William W. Story, ed.).

Story uses the similar imagery of ministering at the altars of Justice in describing Marshall as the nation’s Chief Magistrate:

Yes, this great and good man was all, that we could ask, or even desire for the station. He seemed the very personation of Justice itself, as he ministered at its altars–in the presence of the nation–within the very walls, which had often echoed back the unsurpassed eloquence of the dead, of Dext, and Pinkney, and Emmett, and Wirt, and of the living also, nameless here, but whose names will swell on the voices of a thousand generations. Enter but that hall, and you saw him listening with a quiet, easy dignity to the discussions at the bar; silent, serious, searching; with a keeness of thought, which sophistry could not mislead, or error confuse, or ingenuity delude; with a benignity of aspect, which invited the modest to move on with confidence; with a conscious firmness of purpose, which repressed arrogance, and overawed declamation. You heard him pronounce the opinion of the Court in a low but modulated voice, unfolding in luminous order every topic of argument, trying its strength, and measuring its value, until you felt yourself in the presence of the very oracle of the law.

Source: Joseph Story, Life, Character, and Services of Chief Justice Marshall: A Discourse Pronounced on the 15th of October, 1835, at the Request of the Suffolk Bar, in The Miscellaneous Writings of Joseph Story 639, 692 (William W. Story, ed.).

Looking back at these statements from almost 180 years ago, there are many challenges to adopting the same perspective toward Marshall that Story had toward him. Not least of these is the difficulty of entering into the understanding of law that Marshall and Story possessed. In his eulogy address, Story describes Marshall as ministering at the altars of law at one point, and ministering at the altars of Justice at another point. And one of the most challenging aspects of Marshall’s constitutional thought to understand is the relationship between positive law and natural justice. (For a sense of the complications, take a look at Marshall’s dissent–his only dissent in a constitutional case–in Ogden v. Saunders, 25 U.S. 213 (1827).)

Another difficulty is understanding their perspective toward the Supreme Court as an institution. The talk of altars and the echoes of eloquent advocates might conjure to mind today’s Marble Temple. But that building was not completed until a century after Marshall’s death.

***

The Supreme Court’s current webpage “The Court Building,” opens with a statement that links the Republic’s “faith” with the Supreme Court’s importance:

“The Republic endures and this is the symbol of its faith.” These words, spoken by Chief Justice Charles Evans Hughes in laying the cornerstone for the Supreme Court Building on October 13, 1932, express the importance of the Supreme Court in the American system.

By the 1930s, however, conceptions of law had changed significantly from the time of Marshall. The Court finally had a temple to the rule of law, but did the Justices still share the faith of their fathers? I do not know. But I completely reject the false faith later professed in the plurality opinion of Planned Parenthood v. Casey:

Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals.

Planned Parenthood v. Casey, 505 U.S. 833, 868 (1992) (Opinion of O’Connor, J., Kennedy, J., & Souter, J.)

In this linking of the Court’s sociological legitimacy with “the character of a Nation of people who aspire to live according to the rule of law,” we see a danger in traveling too far down one path pursued in establishing John Marshall’s greatness. An appreciative admirer of Joseph Story, there is nevertheless appropriate caution in Professor Newmyer’s statement that “Story appreciated Marshall almost to the point of idolatry.” (Heroic Age at 407) That caution is the recognition of a need to stop short of idolatry in appreciating any great man. Newmyer explains that “Story and other antebellum mythmakers laid the foundation of [Marshall’s] enduring fame” “[b]y fusing Marshall with the Supreme Court and the Court with the Constitution.” (Heroic Age at 470) After rejecting Casey‘s false faith, we must retrieve the orthodoxy of a rule of law and not of men. And for that, we need a grand reaction, a great fission.

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For a comparison case that more closely tracks the analysis I suggested would have been proper in my prior post on Judge Sutton’s opinion for the Sixth Circuit in Platinum Sports Ltd v. Snyder, see Judge Kanne’s opinion for the Seventh Circuit in Wisconsin Right to Life, Inc. v. Schober. The key reasoning is contained in the following four paragraphs:

Right to Life submits that the threat of enforcement inherent in the statute chilled its participation in the July 2003 special election and will continue to chill its speech unless the federal courts provide injunctive relief. “A plaintiff who mounts a pre-enforcement challenge to a statute that he claims violates his freedom of speech need not show that the authorities have threatened to prosecute him; the threat is latent in the existence of the statute.” Majors v. Abell, 317 F.3d 719, 721 (7th Cir. 2003) (internal citations omitted); see Virginia v. Am. Booksellers Ass’n Inc., 484 U.S. 383, 393 (1988). The instant case, however, presents a unique circumstance because the statute at issue has been declared unconstitutional by a district court and that ruling was not appealed.

Although it is highly unusual to seek injunctive relief when a judgment that was not appealed has already rendered a challenged statute unconstitutional, Right to Life’s argument in favor of Article III standing is not “frivolous,” as the Board contends. Right to Life presents a two-step argument. First, Right to Life points out that the injunction entered against the Board to prevent enforcement of the statute against theWisconsin Realtors Ass’n plaintiffs did not extend to Right to Life. Indeed, district courts lack the authority to enjoin the “enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs.” McKenzie v. City of Chicago, 118 F.3d 552, 555 (7th Cir. 1997) (quoting Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975)); see also Fed. R. Civ. P. 65(d) (“Every order granting an injunction . . . is binding only upon the parties to the action . . . .”). Right to Life is correct in asserting that the injunction against enforcement granted in the Wisconsin Realtors Ass’n case does not protect it, a non-party to the Wisconsin Realtors Ass’ncase.

The second step of Right to Life’s argument is that the declaratory judgment granted in the Wisconsin Realtors Ass’n case does not limit the power of the Board to bring prosecutions under the statute. Certainly, the statute cannot be repealed by a district-court opinion; only the Wisconsin legislature can repeal the statute. Furthermore, a district court’s declaration that the statute is unconstitutional does not automatically stop state officials from trying to enforce the statute. Coupled with the Board’s refusal to issue an advisory opinion, Right to Life reasons that this is enough to present a live controversy to the federal courts.

Right to Life’s argument, however, fails to tie this theoretical harm to an actual and imminent threat of enforcement. The Board did not appeal the Wisconsin Realtors Ass’n case. Implicitly, the Board has conceded that the statute is unconstitutional. The State’s Attorney General conceded before the Wisconsin Realtors Ass’n litigation that the statute was unconstitutional in its petition to the Wisconsin Supreme Court to determine the constitutionality of Act 109. Right to Life makes no effort to satisfy its burden of persuasion by showing that any Wisconsin official, let alone the Board, has ever tried to enforce a statute in these circumstances.

The only seemingly relevant difference between this case and Platinum Sports is that the plaintiffs in the later cases in Platinum Sports were represented by the same lawyer. But this difference makes no difference. For a while, some circuit courts had applied a “virtual representation” doctrine under which representation by the same lawyer might have made a difference in the preclusion analysis. But the Supreme Court rejected the doctrine of virtual representation in Taylor v. Sturgell, 553 U.S. 880 (2008).

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Thanks to a recent post by Jonathan Adler at Volokh Conspiracy, I read with great interest last week Judge Sutton’s opinion for the Sixth Circuit in Platinum Sports Ltd. v. Snyder. The underlying claim was a First Amendment challenge to a Michigan ordinance restricting signs for sexually oriented businesses, but the opinion affirms dismissal on the non-merits ground of lack of standing. The decision addresses difficult issues surrounding “facial challenge” doctrine and standing to challenge a law that the relevant enforcement officials agree is unconstitutional and have agreed not to enforce. If this were a casenote outline, I would probably classify this decision as “right outcome; wrong reasoning.” But I’m not sure and it raises important questions worth considering, so here’s an analysis.

The basic situation consists of three cases: (1) Attorney A, representing Client X, files a complaint seeking declaratory and injunctive relief against Governor, alleging that a state law is unconstitutional–on its face and as applied–under the First Amendment; (2)  Attorney A, representing Client Y, files a second complaint seeking declaratory and injunctive relief against Governor and Attorney General, making the same constitutional challenge; and (3) Attorney A, now representing Client Z and seeking to represent a class of approximately 400 similarly situated businesses covered by the claim, files a complaint seeking declaratory and injunctive relief against Governor and Attorney General, making the same constitutional challenge as in the first two cases.

The timeline of relevant events in these cases is as follows:

  • April 25, 2011: Complaint in case (1) is filed.
  • July 14, 2011: Hearing in case (1) on motion for preliminary injunction and motion to dismiss.
  • July 20, 2011: Complaint in case (2) is filed.
  • July 26, 2011: District court is case (1) grants preliminary injunction and denies motion to dismiss.
  • August 25, 2011, Case (1) and case (2) are terminated by a final judgment in Plaintiffs’ favor, together with injunctions against enforcement of the statute.
  • October 21, 2011: Complaint in case (3) is filed.

The Sixth Circuit held in Platinum Sports, Inc. v. Snyder that the plaintiff business in case (3) lacked standing because it suffered no cognizable injury. I think that bottom-line conclusion is correct, but for a different reason than provided in Judge Sutton’s opinion for the court.

Let’s begin with common ground. The mere “on-the-books existence” of a statute is not enough to create legally cognizable injury. The statute must have some kind of injurious effect that a federal court is capable of redressing. Federal courts do not take statutes off the books. They enter judgments and remedies that prevent enforcement of laws. Judge Sutton’s statement of these relevant principles seems just right: “[T]he question is whether the claimant has an ‘actual and well-founded fear that the law will be enforced against them.’ Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988). Absent some ‘credible threat’ of enforcement, no injury exists. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979).”

The Platinum Sports opinion reasons that there was no credible threat of enforcement against the plaintiff in case (3) at the time the complaint was filed because the statute had already been declared facially unconstitutional and its enforcement had been enjoined in an order agreed to by the Governor and the Attorney General. The assessment that there was no credible threat of enforcement is probably right, but not for the reason given in the opinion.

The opinion’s analysis turns on an explication of facial challenge doctrine:

A party who brings a facial challenge to a law “seeks to vindicate not only his own rights, but those of others who may also be adversely impacted by the statute in question.” City of Chicago v. Morales, 527 U.S. 41, 55 n.22 (1999). A successful facial challenge invalidates a law in all of its applications, “forbidd[ing]” any enforcement of it. Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). The upshot is that a State may not enforce such a law against anyone.

But what constitutes a “successful facial challenge”?

Consider the order in case (2) (which is the same in all material respects as the order in case (1)): “IT IS HEREBY ORDERED that judgment declaring that M.C.L. 252.318a violates U.S. Const., Amend. I (the First Amendment to the United States Constitution) is entered for Plaintiff and Defendants are permanently ENJOINED from enforcing M.C.L. 252.318a.”

Suppose that the defendants believe that the district court’s understanding of the First Amendment in cases (1) and (2) is wrong. Do the judgments and injunctions in those cases protect all other SOBs in the state against enforcement of the law?

The Sixth Circuit found the answer to this question in facial challenge doctrine, stating: “[T]he district court’s orders [in cases (1) and (2)] declared the laws facially unconstitutional, necessarily prohibiting their enforcement against anyone, including the plaintiff [in case 3].” Judge Sutton’s opinion for the court appears to assume that the injunctions in these cases authoritatively prohibit enforcement against anybody else, but the reason for this assumption is unclear:

In this instance, the district court entered a stipulated final judgment declaring the two laws facially unconstitutional and enjoining the Governor and Attorney General from enforcing either law. Nor is there any reason to fear the Governor or Attorney General will sidestep these orders. They agreed to their entry. If any doubt remained about the point, the Governor and Attorney General eliminated it in this case. In their appellate brief, they have recognized the “provisions to be unconstitutional,” Br. at 22, and have promised that they “will not be enforced,” id. at 16. Anything in this world is possible, we suppose. But the legal possibility that this Governor or this Attorney General will enforce these laws in the face of these injunctions is: zero.

While the opinion states that the “legal possibility” of enforcement is “zero,” that is distinct from a claim about “legal permissibility.” The opinion appears to assume that facial challenge doctrine can somehow expand the binding legal effect of a judgment or remedy. But  facial challenge doctrine cannot expand the binding legal effect of a judgment or remedy because the theory of constitutional infirmity underlying a particular judgment does not itself bind except through embodiment in a remedy or through preclusion or precedent.  In order to know the binding legal effect of the district court’s ruling in cases (1) and (2), it is therefore necessary to know the preclusive effect of the underlying judgment and the terms and permissible reach of the injunction issued. The declaration of facial unconstitutionality can only reach as far as these other doctrines permit it to reach. (Another means by which judicial declarations of law can bind in courts is through stare decisis, but that doctrine has no application here because a district court ruling has no precedential effect for other cases.)

To see why this distinction is important, suppose that the AG (enjoined in cases (1) and (2) beginning in August 2011) had sent a letter in September 2011 threatening enforcement of the ordinance against Z (the plaintiff in case (3)). Would Z have had standing to file a federal lawsuit seeking declaratory and injunctive relief on October 21, 2011? Yes, Z would have had standing. The injunctions in cases (1) and (2) protect X and Y (the plaintiffs in those cases), but these injunctions do not themselves eliminate the threat of enforcement against Z. See Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975) (“[N]either declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs, and the State is free to prosecute others who may violate the statute.”). (It may also be worth adding that, not only would Z have had standing, but that if Z had wanted a federal forum for its lawsuit, Z should have filed suit quickly after receiving the threat letter because the initiation of an enforcement action in state court can result in Younger abstention.)

There was no threat letter here, so why does any of this make a difference? The comparison reveals that the real legal basis for the absence of any threat of enforcement is not the “successful facial challenge” in case (1) or (2), but the defendants’ agreement that the statute is unconstitutional and their promise (rather than their legal obligation) not to enforce the statute. The fact that they made this agreement in connection with a stipulated judgment and an order to pay over $20,000 in attorneys’ fees makes their commitment to non-enforcement credible.

This discussion of the reasoning underlying the no-standing dismissal in Platinum Sports is not just idle nitpicking about a minor issue. The effectiveness of agreement about unconstitutionality to preclude standing by eliminating threatened enforcement goes to the very fundamentals of pre-enforcement adjudication of constitutional challenges to constitutionally questionable laws. Consider, for example, a pre-enforcement challenge to a State’s partial-birth abortion prohibition in which the sole theory of constitutional infirmity is that the statute is unconstitutional as applied to performance of the constitutionally protected D&E procedure. (Such a limited claim would be unusual but not completely implausible given the Supreme Court’s statement of a preference for as-applied challenges in this area.) Suppose the Attorney General’s position is that the statute does not criminalize the D&E procedure, but even if it did, the State would never use the statute to prosecute for the performance of a D&E because the Attorney General agrees that the statute would be unconstitutional as applied to D&Es. Suppose that no prosecutor can initiate a prosecution without the AG’s approval. If an agreement not to enforce precludes standing, then there would be no standing to bring this challenge. Or would there be?

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Oliver Wendell Holmes, Jr. was a complete skeptic of American law. But what does it mean to say this? Holmes’s February 4, 1901 speech in memorial of John Marshall provides some clues. It is widely acknowledged that Holmes’s  Civil War wounds and battlefield experiences profoundly shaped his understanding of law. But only in reflecting on this memorial have I recently begun to appreciate just how much these wounds and battlefield experiences distorted that understanding.

On the 100th anniversary of the day on which John Marshall took his seat as Chief Justice of the United States, Holmes–presiding as Chief Justice of the Massachusetts Supreme Judicial Court–delivered an answer to a motion that the court adjourn. On paper, his words are brutal. I wonder what impression they conveyed to his live audience.

Holmes’s speech included words of apparent praise for Marshall: “[W]hen I consider his might, his justice, and his wisdom, I do fully believe that if American law were to represented by a single figure, sceptic and worshipper alike would agree without dispute that the figure could be one alone, and that one, John Marshall.” But a close reading reveals that Holmes praised power, not  John Marshall. For Holmes was no worshipper of law. Marshall was a representative figure of American law; but to Holmes the sceptic of American law, Marshall represented the ability of an idea to “shoot across the world the electric despotism of an unresisted power.”

Holmes insisted that it “most idle” and “futile” to consider a man apart from his circumstances, for a man is part of a larger organism made up of surrounding circumstances. The man is equivalent to an inch of mucous membrane or a cube from the brain, not a tenor speaking or an orator speaking. Shifting from physiological to martial imagery, Holmes analogized the “great man” to one who happens to find himself at “a strategic point in the campaign of history”: “A great man represents a great ganglion in the nerves of society, or to vary the figure, a strategic point in the campaign of history, and part of his greatness consists in his being there.”

Linking Marshall more specifically to Colonel Robert Gould Shaw (who would have been familiar with Holmes’s Boston audience for leading the black soldiers of the Massachusetts 54th regiment in their hopeless death charge on Fort Wagner), Holmes continued:

I no more can separate John Marshall from the fortunate circumstance that the appointment of Chief Justice fell to John Adams, instead of to Jefferson a month later, and so gave it to a Federalist and loose constructionist to start the working of the Constitution, than I can separate the black line through which he sent his electric fire at Fort Wagner from Colonel Shaw. When we celebrate Marshall we celebrate at the same time and indivisibly the inevitable fact that the oneness of the nation and the supremacy of the Constitution were declared to govern the dealings of man with man by the judgments and degrees of the most august of courts.

What does it mean to celebrate “the oneness of the nation and the supremacy of the Constitution”? It depends. For setting aside a day in honor of this “great judge” is a symbol. “[A]nd what shall be symbolized by any image of the sight depends upon the mind of him who sees it.”

To a Virginian, the setting aside symbolizes “the glory of his glorious state.”

To a patriot, it symbolizes “the fact that time has been on Marshall’s side, and that the theory for which Hamilton argued, and he decided, and Webster spoke, and Grant fought, and Lincoln died, is now our cornerstone.”

And to the lawyer, “it stands for the rise of a new body of jurisprudence, by which guiding principles are raised above the reach of statute and State, and judges are entrusted with a solemn and hitherto unheard-of authority and duty.”

To Holmes, the setting aside of this day on honor of Marshall marks something powerful and dark:

To one who lives in what may seem to him a solitude of thought, this day–as it marks the triumph of a man whom some Presidents of his time bade carry on his judgments as he could–this day marks the fact that all thought is social, is on its way to action; that, to borrow the expression of a French writer, every idea tends to become first a catechism and then a code; and that according to its worth his unhelped meditation may one day mount a throne, and without armies, or even with them, may shoot across the world the electric despotism of an unresisted power.

We see here an earlier version of Holmes’s more famous statement, delivered in dissent more than twenty years later, that “[e]very idea is an incitement.” Gitlow v. New York, 268 U.S. 652, 673 (1925). But unlike the “redundant discourse” before the Court in Gitlow–discourse that “had no chance of starting a present conflagration”–the discourse of Marshall and “the men of his generation” successfully invested an iconic American symbol with death-dealing power. This setting aside of a day in honor of Marshall, Holmes concluded, “is all a symbol, if you like, but so is the flag”:

The flag is but a bit of bunting to one who insists on prose. Yet, thanks to Marshall and to the men of his generation–and for this above all we celebrate him and them–its red is our lifeblood, its stars our world, its blue our heaven. It owns our land. At will it throws away our lives.

And thus concludes Holmes’s memorial words for Marshall: “The motion of the bar is granted, and the court is adjourned.”

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James Madison was a strong proponent at the Constitutional Convention of a Council of Revision. This “joint executive-judicial council of revision” would be “armed with a limited negative over congressional acts, including congressional exercise of its power to negative state laws.” Jack N. Rakove, Judicial Power in the Constitutional Theory of James Madison, 43 William & Mary L. Rev. 1513, 1521 (2002). The Convention rejected this proposal. Later, in his Observations on the “Draught of a Constitution for Virginia,” Madison contrasted how a Council of Revision would work in contrast with the mechanism that we now call “judicial review” (a name not given it until the early 20th century):

A revisionary power is meant as a check to precipitate, to unjust, and to unconstitutional laws. These important ends would it is conceived be more effectually secured, without disarming the Legislature of its requisite authority, by requiring bills to be separately communicated to the Exec: & Judicy. depts. If either of these object, let 2/3, if both 3/4, of each House be necessary to overrule the objection; and if either or botii protest agst. a bill as violating the Constitution, let it moreover be suspended, notwithstanding the overruling proportion of the Assembly, until tiiere shall have been a subsequent election of the H. of Ds. and a repassage of the bill by 2/3 or 3/4 of both Houses, as the case may be. It sd. not be allowed the Judges or the Ex to pronounce a law thus enacted, unconstitul. & invalid.

In the State Constitutions & indeed in the Fedl. one also, no provision is made for the case of a disagreement in expounding them; and as the Courts are generally the last in making their decision, it results to them, by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary Dept paramount in fact to the Legislature, which was never intended, and can never be proper.

Putting aside the reasons for and against the various proposals, it is worth noting Madison’s description of what “judicial review.” It consists of a court’s decision to refuse or not to refuse to execute a law. Nothing more. But also nothing less. For while this description of “judicial review” may seem somewhat weaker than the ability to “strike down” or “negative” laws, it is still an awesome power. In Madison’s view, this arrangement “makes the Judiciary Dept paramount in fact to the Legislature, which was never intended, and can never be proper.”

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