know of no clause in the Federal Constitution that gives the power
to the judiciary of declaring the law and constitution of a State
repugnant to the Constitution of the United States and therefore
null and void. No express grant, no fair instruction, contains
it, and the States never designated this Power to the Federal
Judiciary. But they have assumed it….
U.S. Senator Richard M. Johnson
Johnson was known as an odd man.
the above words at the opening of Congress in 1821. Today, Johnson's
statement would get him labeled a "strict constructionist."
However, in the early 19th century, Johnson was merely
a politician who held the odd (by 21st-century standards)
belief that words actually have definite meanings, and that when
you string enough of these words together, they communicate ideas
and concepts. Even stranger, perhaps, he was of the opinion that
when you arranged these ideas and concepts to form laws and covenants
(say, a constitution), that the verbiage would actually mean what
it says and, by implication, not mean what it doesn't say. How
odd a man, indeed!
appeal to the text of our foundational document was a preamble
for his introduction of a proposed constitutional amendment where
"in consequence of having a constitution or law of such State
questioned [by the Supreme Court], the Senate of the United States
shall have appellate jurisdiction." Unlike the legal scholars
of today, Johnson was left disquieted that the entire mechanism
of the Supreme Court's power of judicial review rests solely upon
the opinion of Chief Justice John Marshall in Marbury
v. Madison. Given the degree of recalcitrance on Johnson's
part for offering such an amendment, one is left to wonder what
kind of man would dare question the actions of a chief justice
who was merely faithfully executing his duties to the American
people — it is only incidental that Marshall's decision aggrandized
himself and the court, in perpetuam, with an immense power
not actually found in the words of the Constitution.
appears to have been a man free from that amazing credulity which
is the hallmark of the modern American mind, while his recognition
that the Supreme Court was destined to become the "most dangerous
branch" shows his logical mind and a keen understanding of
the corrosive nature of power that led him to become vice president
under Martin Van Buren. His star might have risen higher but for
marriage, which left him persona non grata in the social
circles of the day. (Ironically, while few today would publicly
scorn him for marrying a black woman, his ideas about states'
rights and limited government would leave him exposed to brummagem
charges of racism.)
may question Johnson's plan positing appellate power in the U.S.
Senate, the idea was more structurally sound before the 17th
Amendment, when senators were still the official representatives
of the states. Johnson saw the danger and attempted a solution.
But seldom, if ever, will the Leviathan state ever curb its own
power — not even in 1821.
the original federalist balance to the current Constitution, it
will first be necessary to check the ukaz power of the
Supreme Court. Johnson's idea that the nullification of state
law should somehow require the consent of the several states is
central. Amendments similar to Johnson's were proposed during
the progressive era, but most had a mechanism for expedited constitutional
amendment in the face of state law invalidation rather than actual
nullification of the Supreme Court decision. However, they are
fertile ground for theorizing. In surveying these proposals, a
two-thirds concurrence of either state legislatures or state attorneys
general seems the logical mechanism for the nullification of a
Supreme Court decision.
As in Johnson's
day, the best-laid plans will come to naught unless somehow a
constitutional amendment can get passed. If Johnson failed in
binding an emerging centralized beast, little hope can be held
for passing such an amendment through Congress today. But that
is not the end of the game.
standard method of constitutional amending calls for a two-thirds
approval of the measure by Congress before sending it out to the
V provides a second method. The state legislatures may call
for conventions of the people, and a three-quarters majority of
conventions may pass an amendment, thereby completely by-passing
a plan for reformation of the Supreme Court (and federal power
in general) is, as of yet, unlikely to succeed — hope remains
in the breast of all those who love liberty. A framework for reform
exists in the words of the Constitution. To bring about reform,
one need only convince people that words are powerful and meaningful.
In the end freedom will prevail, as the words of the Constitution
do mean something — while the "implicit powers"
of tyranny are merely opinions written on the wind and swift water,
destined to pass away.
Rossi [send him mail]
recent law school graduate who lives in Washington, D.C.