CHIEF JUSTICE JOHN MARSHALL CONTRA STARE DECISIS (AND GEORGE WILL):

MARBURY v. MADISON, 5 U.S. 137 (1803)* (U.S. Supreme Court)

The question, whether a judicial ruling, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.

That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.

The government of the United States is of the latter description. The powers of the judiciary are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any judicial act repugnant to it; or, that the judiciary may alter the constitution by an ordinary ruling.

Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary judicial rulings , and, like other rulings , is alterable when the judiciary shall please to alter it.

If the former part of the alternative be true, then a judicial ruling contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that a ruling of the judiciary, repugnant to the constitution, is void.

This theory is essentially attached to a written constitution, and is, consequently, to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.

If a ruling of the judiciary, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a judicial ruling be in opposition to the constitution; if both the judicial ruling and the constitution apply to a particular case, so that the court must either decide that case conformably to the judicial ruling , disregarding the constitution; or conformably to the constitution, disregarding the judicial ruling ; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary ruling of the judiciary , the constitution, and not such ordinary ruling , must govern the case to which they both apply.

Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that the courts must close their eyes on the constitution, and see only the judicial ruling.

This doctrine would subvert the very foundation of all written constitutions. It would declare that a judicial ruling which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the judiciary shall do what is expressly forbidden, such ruling , notwithstanding the express prohibition, is in reality effectual. It would be giving to the judiciary a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions -- a written constitution -- would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection....

The judicial power of the United States is extended to all cases arising under the constitution.

Could it be the intention of those who gave this power, to say that in using it the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?

This is too extravagant to be maintained.

In some cases, then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey?

There are many other parts of the constitution which serve to illustrate this subject....

“No person,” says the constitution, “shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the judiciary should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the judicial ruling?

From these, and many other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instrument, and the knowing instrument, for violating what they swear to support!...

Why does a Judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? If it is closed upon him, and cannot be inspected by him?

If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime....

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a judicial ruling repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.

As Justice Marshall makes plain, a ruling like Roe v. Wade that is repugnant to the Constitution, is void, and judges are bound by their oath of office to ignore such precedents in future cases.

George Will, in his column, calls Roe v. Wade "an unreasoned act of judicial willfulness," and yet asserts that a "willingness to overturn Roe v. Wade" is "anti-constitutional." So, who are you gonna believe on this question of constitutional law -- a newspaper columnist, or the greatest Chief Justice in our history?

*Legal scholars may notice these substitutions: "judicial ruling" for "law"; "judiciary" for "legislature"; "judicial ruling" for "legislative act"; "ruling of the judiciary" for "act of the legislature"; "ruling" for "law"; and "judicial" for "legislative."

Posted by pjaminet at October 24, 2005 8:41 AM