JSRG
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- Apr 14, 2019
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Jefferson was off in France when the Constitution was being made, he's the founding father whose opinion on it matters the least. And Jefferson's letter appears to criticize judicial review (the ability of courts to declare laws unconstitutional) in general. In other word, no court gets to declare laws unconstitutional under Jefferson's apparent view. It is obvious that is not what the article you are presenting is arguing, nor presumably is it what you are arguing.
It looks to me more like Jefferson just thought it was a bad idea to have judges evaluate constitutionality. But whether something is good or bad policy doesn't change whether something is how the Constitution works or not.
Your article claims that Alexander Hamilton agreed with Jefferson, but curiously omit the fact that Hamilton very clearly and explicitly said, in the very document cited, that courts would have the power of judicial review. In The Federalist 78:
"A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."
Hamilton isn't in agreement with Jefferson; he's in flat-out disagreement. Jefferson actually appears to have stood quite alone with his idea that judges can't declare laws unconstitutional; even opponents of the Constitution acknowledged they could, that was exactly a criticism that the pseudonymous "Brutus" brought up in a pamphlet attacking the Constitution, he thought it would be a bad idea for judges to have that power.
Even besides the fact Hamitlon and Jefferson were in disagreement, Hamilton's statement of the lack of force available to the Supreme Court is not in relation to the aritcle's claims about nationwide injunctions.
The claim here was:
"President Andrew Jackson took that Hamiltonian sentiment to its logical conclusion when, in 1832, he responded defiantly to Chief Justice John Marshall’s ruling in an Indian-removal case: “The decision of the Supreme Court has fell still born, and they find that it cannot coerce Georgia to yield to its mandate.” (Jackson is widely quoted as saying, “John Marshall has made his decision; now let him enforce it”, but his actual precise quip was similar enough.)"
Well, first this wasn't an "Indian-removal case" as it wasn't about Indian removal at all. It was about some imprisoned missionaries who had violated a Georgia law (the case had some relevance to the larger question of Indian removal, but the case was not itself about the issue). Jackson was saying that he didn't think the Supreme Court would be able to make Georgia obey its order to release the missionaries. While people say Jackson ignored the court's ruling or refused to enforce it, they hadn't actually asked him to enforce it (they might have later on had things progressed), so he was really just a bystander in the litigation. It's arguable what he would have done had things progressed enough that he would be asked by the court, but the situation got resolved via other matters before it came to that.
In fact, what's especially baffling about this is that the article is trying to argue against nationwide injunctions and say that the decisions of the cases only apply to those who are party to it. But Georgia and the missionaries were party to it! So this is worthless for the argument the article is making.
Lincoln is the "best" of these in that he's actually saying something similar to what the article is advocating, as none of the other quotes are in any way actually agreeing with what the article is arguing. In truth the article would've been better had it just left off all the others, because the previously discussed quotations just make the article look ridiculous.
Let's move onto Lincoln. Lincoln's statement from his inaugural address should perhaps be read in larger context:
I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.
It looks to me that with the statement "the instant they are made in ordinary litigation between parties in personal actions" is saying that in cases involving ordinary litigation between parties in personal actions, decisions only apply to those people involved in it. The case implicitly being referred to here is Dred Scott v. Sandford, a case that was ultimately just about whether Dred Scott (a slave) had been freed when he was brought into a federal territory where slavery was illegal. So really this case only affected a few people. It could have been settled--even with the same conclusion that Dred Scott remained a slave--on narrow grounds and it would've probably been a footnote. But the Supreme Court went much further, issuing wide-ranging and controversial rulings that were not necessary to the case in question. All this from a case between private actors where neither party was even a government entity! Suddenly, laws of the government were being declared unconstitutional when the government was not even a party to the lawsuit. It therefore looks to me like that is what Lincoln is specifically talking about.
Even if we were, however, to accept the interpretation of Lincoln's words offered by the article, that would ultimately mean only Lincoln functions as a witness, and not the others quoted.
Indeed, this bevy of quotations is much to the article's detriment, because it confuses itself considerably. What is it arguing? If it was simply about nationwide injunctions, that would be a reasonable argument to make. But as discussed, these quotes don't actually benefit that argument, and instead look like the things you'd dredge up when trying to argue people should ignore court decisions. And indeed, the opening bit quoting from J.D. Vance isn't Vance saying anything about injunctions either, but apparently getting upset that judges would be evaluating the constitutionality of executive action at all. And then Vance gets brought up again and it is claimed that the the people who were quoted from are in agreement with him... even though that's clearly not the case. The article thus seems rather confusing on what it is even trying to argue, with the quotes it offers only complicating matters.
In any event, the series of quotations that you keep referring to is actually easily the weakest part of the article. Not only do they not support the claims it makes about nationwide injunctions and end up just confusing the issue, they don't even match up with each other.
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