A hundred-fifty years ago, a couple days ago, the U.S. Supreme Court decided, for the second time in the Court's history, that the Constitution barred a Congressional Act. The first time was in Marbury v. Madison.
In Marbury, the Court struck down the Judiciary Act, passed by Congress in 1789. Some background: Normally, we hear about the Supreme Court in its role as the final appelate court after a case goes through all the rungs of lower federal courts (or a case with federal law issues is ruled upon by a state's highest court). The Constitution also allows a person to file a case directly to the Supreme Court in certain circumstances. This original jurisdiction exists in "all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party." A few years after the Country got rolling, Congress appeared* to extend that original jurisdiction to cases where the plaintiff wanted the Court to issue writs of mandamus (i.e., tell another government entity to do something).
The Court, in Marbury, decided that Congress was not allowed to extend the scope of the Supreme Court's original jurisdiction. Thus the plaintiff, who had gone straight to the Court rather than landing there on appeal, had gone to the wrong court…said the Court.
In the midst of so ruling, the Court noted that Acts of Congress that conflict with the Constitution are not, in fact, law. Judges, the Court also noted, swear an oath to uphold the Constitution (forgetting to note, apparently, that so do Presidents, Governors, Congressional members, lawyers, and various others).
It would be more than fifty years later, and about 150 years ago, on August 20, 1857, that the Court again decided a Congressional Act violated the Constitution. While deciding that Dred Scott, who had sued for the freedom that should have been his according to federal law, was not, in the eyes of the federal government, a person, the Surpreme Court's Dred Scott v. Sandford decision overrulled Congress' law that would have supported Scott's freedom.
To make the case that, because he had been in free-state territory and had thus, under state and federal law, become free, Mr. Scott needed to be able to, well, make the case. The Constitution allows federal courts to hear cases between citizens of different states, so Mr. Scott needed the Court to consider him a citizen. Or, as Chief Justice Taney put it:
The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.
For the Court to have jurisdiction to hear the case, Mr. Scott needed to be a "citizen." To answer the question, the Chief Justice opined on the nature of Mr. Scott's eligibility of person-hood:
The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the 'sovereign people,' and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is, whether [persons of African descent] compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.
By the way, pre-echoing a theme in jurisprudence common today, the Chief Justice cleansed his hands and noted that policy (good or bad) is made outside the court:
It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.
Chief Justice Taney proceeds to discuss several reasons why the framers of the Constitution would not have considered Mr. Scott a citizen; thus, the Constitution bars Mr. Scott being a citizen.
Shall we call Taney's jurisprudential approach the original original intent?
After establishing Mr. Scott's (and any African American's) non-person-hood, The Chief Justice reasoned that the 1820 Missouri Comprimise, which prohibited slavery in non-state territory north of a specified latitudinal line, violated the Constitution because it unreasonably deprived citizens of property (slaves).
Thus, the second instance of the Court's use of the 'judicial review' stick to Congress' hand. With that history said, I have a few things on the mind. Taney's reasoning…is it bad, or just mean? Is there a better word than judicial review (or activism) to describe the Court's role as balancing Constitution vs Congressional Acts? What did the dissent say in Dred Scott?
To be continued, I hope…
* Akhil Amar makes the convincing point, in America's Constitution, that Marbury is wrongly decided because Justice Marshall misread the Judiciary Act (read page232-233).
