Published online by Cambridge University Press: 05 August 2009
Constitutional theory has recently turned to the importance of extrajudicial constitutional interpretation. Yet much of the scholarly debate remains rooted in “legal” views of the Constitution, which continue to give primacy to the Court. This article seeks to go further by articulating a Madisonian view of the Constitution, which resituates questions of interpretation within a larger institutional framework. This Madisonian view suggests that the Constitution calls forth continual debate about constitutional meaning. The “settlement” of constitutional issues is not an essential feature of our constitutional system and, thus, constitutional politics with overlapping views, discontinuities, and essentially unsettled meanings are inherent features of the Madisonian Constitution. Recovering the Madisonian vision is an essential step in restoring both the political branches and the Court to the proper place in the constitutional scheme and, in doing so, overcoming the deeply ingrained myth of judicial supremacy.
I would like to thank Dean Alfange, John Brigham, Mark Graber, Shelly Goldman, Jeff Sedgwick, and Keith Whittington for comments on an earlier version of this article.
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5. Moore, Wayne, Constitutional Rights and Powers of the People (Princeton: Princeton University Press, 1996)Google Scholar. When I refer to the Madisonian Constitution or the Madisonian solution to maintaining constitutional government, I do not mean to suggest that it has developed exactly as Madison himself would want it to, or that it is “proper” because Madison saw it this way. Rather, I argue that the system can be described as Madisonian because it operates broadly as he suggested even if many of the particulars go against his own vision.
6. Seidman, Louis, Our Unsettled Constitution: A New Defense of Constitutionalism and Judicial Review (New Haven: Yale University Press, 2001)Google Scholar examines how judicial review may work to unsettle politics, but the argument on the whole is a normative justification for a particular view of the Court and judicial review.
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13. This does not reject deference in all circumstances. It is proper to defer if the Constitution vests a particular branch as the central constitutional actor (as may be argued in the case of war and the political branches).
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34. This has perhaps changed with the ratification of the Fourteenth Amendment, which arguably paved the way for the legalization of the Constitution shifting our focus to rights (and courts) and away from constitutional structure. But such a reading relies on a legalist view of the amendment overlooking the fact that Congress seems to have been entrusted by way of section 5 with defending (and perhaps defining) constitutional rights. Furthermore, recent scholarship casts serious doubt on any special connection between rights—even in a bill of rights—and the judiciary, suggesting that the articulation of rights fits within a political view of the Constitution. See Amar, Akhil, The Bill of Rights (New Haven: Yale University Press, 1998)Google Scholar and Dinan, John, Keeping the People's Liberties (Lawrence, KS: University Press of Kansas, 1998)Google Scholar.
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51. The repeal of the Judiciary Act of 1801 by the Judiciary Act of 1802 is also a prime example, but one I do not take up for reasons of space.
53. Gary Jacobsohn notes that the consensus in Congress—unlike Madison's argument—did not question “the finality of the judicial determination of constitutionality,” although that is not quite the same things as endorsing it. The Supreme Court and the Decline of Constitutional Aspiration (Lanham, MD: Rowman and Littlefield, 1986), p. 123Google Scholar.
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57. See Clinton, Robert Lowry, Madison, Marbury v.and Judicial Review (Lawrence, KS: University Press of Kansas, 1989)Google Scholar for perhaps the most influential statement of this view. See also, Hobson, Charles, The Great Chief Justice: John Marshall and the Rule of Law (Lawrence, KS: University Press of Kansas, 1996)Google Scholar. Hobson suggests that Marshall's “defense of judicial review fully agreed with the “departmental” theory of constitutional interpretation, according to which each of the three coordinate departments of government had final authority to interpret the Constitution when acting within its own sphere of duties and responsibilities,” p. 67. Although Corwin, Edward, Court Over Constitution (Princeton: Princeton University Press, 1938)Google Scholar who coined the term, surely meant “coordinate construction.”
60. When the Court later addressed the president's removal power, Chief Justice Taft turned to Madison's arguments in the House. Myers v. United States, 272 U.S. 52 (1926)Google Scholar. This power was qualified in later Court decisions regarding the president's power to remove officers performing quasi-legislative and quasi-judicial duties, Wiener v. United States, 357 U.S. 349 (1958)Google Scholar and Humphrey's Executor v. United States, 295 U.S. 602 (1935)Google Scholar. See also Fisher, , Constitutional Dialogue, p. 238Google Scholar.
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67. At least on the question of whether the national government could establish a bank. Whether or not a state may tax that bank once established was an open question. See also Moore, Constitutional Rights and Powers of the People.
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80. “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” The United States Constitution, Amendment XIV, Section 5.
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