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Posts Tagged ‘Madison’

Over at The  Volokh Conspiracy, Nick Rosenkranz has a post titled “James Madison Anticipates the Possibility of Government Shutdown–and Predicts that the House of Representatives Can and Should Prevail.” The post consists of an extended quotation from Federalist No. 58 that Rosenkranz interprets as predicting that the House of Representatives “can and should prevail” in a battle of wills over their exercise of the power of the purse.

Rosenkranz’s post brings to mind an early episode in our nation’s history in which the House sought to use its appropriations authority to block “the law of the land” from taking effect: the fight over appropriations to implement the vastly unpopular Jay Treaty. The short of it is that Madison, in the House, lost. But the short version leaves much out (and the circumstances of that showdown are different from present circumstances in some obvious ways, of course). For some primary sources on the debate over the Jay Treaty, see the relevant portion of the collection edited by Lance Banning, available at The Online Library of Liberty: Liberty and Order the First American Party Struggle.

Of potential interest to students of federal judicial power, in The Supreme Court in the Early Republic, William Casto describes a nine-page opinion letter about the legal issues raised by the House’s opposition that was authored by Chief Justice Oliver Ellsworth as a type of advisory opinion:

Almost as soon as Ellsworth took his oath as Chief Justice, he–like Chief Justices Jay and Rutledge before him–became entangled in a political facet of Jay’s treaty. The Senate had consented to the Treaty, but it could not be implemented without an appropriate of funds, and this technicality gave its opponents one last chance to defeat it. The Republican leaders in the House maintained that they had the right to judge the wisdom of the Treaty and to refuse to appropriate the necessary funds if they deemed it unacceptable. To assist the House in its consideration, Congressman Edward Livingston of New York called for the President to provide copies of all papers relevant to the Treaty’s negotiation.

Five days after Ellsworth became Chief Justice, he wrote an extensive advisory opinion on these developments. Although the opinion is in the form of a nine-page letter to Senator Jonathan Trumbull of Connecticut, it wound up in George Washington’s files docketed under the subject “treaty making power.” Whether Ellsworth wrote the letter in response to an indirect request from the President is not known, but the Chief Justice clearly intended his letter to be a formal legal opinion. His basic analysis was that, under the Constitution, the treaty-making power is vested solely in the President and the Senate. Once a treaty was approved by the Senate and ratified by the President, it became a “law of the land” binding upon the House. The fact that the Treaty coincidentally required an appropriation to carry it into effect was “an accidental circumstance [that did] not give the house any more right to examine the expediency of the Treaty, or control its operation, than they would have without this circumstance.” The House was therefore bound to appropriate the funds “as it is to appropriate for the President’s salary, or that of the Judges.” The President subsequently refused to provide the requested papers, and the Federalists in Congress mustered barely enough votes to appropriate the funds necessary to implement the Treaty.

[Casto at 97-98]

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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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It is to be expected that those on the losing end of the Fourth Circuit’s unanimous dismissal of Virginia’s challenge to the individual mandate have criticized the opinion in Virginia v. Sebelius.

There is nothing to criticize about engaging in such criticism. One of the most beneficial functions that lawyers and others can serve is to criticize judicial opinions. These opinions do not come down from Mt. Olympus but from fallible human beings like you and I.

The surprising aspect of the criticism is its focal point, which is Judge Motz’s renunciation of a theory that would enable a state to become a “roving constitutional watchdog” litigating generalized grievances in federal court.

(more…)

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