I 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
Richard Mentor Johnson was known as an odd man.
Johnson spoke 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!
Johnson's 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.
Richard Johnson 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 his interracial 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.)
While one 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.
To return 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.
While the standard method of constitutional amending calls for a two-thirds approval of the measure by Congress before sending it out to the states, Article 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 the feds.
While such 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.
August 4, 2005
C.T. Rossi [send him mail] recent law school graduate who lives in Washington, D.C.