Photo credit: Politico
by Dick Hall-Sizemore
The U.S. Supreme Court has flatly turned down a request for an injunction against the enforcement by Indiana University that all students and staff be vaccinated against COVID-19. This request was an appeal of a unanimous decision of the Court of Appeals for the Seventh Circuit denying the request.
The order was issued by Justice Amy Coney Barrett, who is assigned to review petitions from the circuit in which the university is located. She did not give any reasons in her order. According to Adam Liptak, a long-time New York Times reporter covering the Supreme Court, “She acted on her own, without referring the application to the full court, and she did not ask the university for a response, Both of those moves were indications that the application was not on solid legal footing.” So much for the issue of the constitutionality of vaccination mandates.
Regarding the recent discussion on this blog about the “waiver” of constitutional rights, that notion is nonsensical. It presumes that constitutional rights are clearly spelled out and are absolute and therefore cannot be waived. First of all, the Supreme Court has never ruled that any right is absolute. Even freedom of speech has some limitations. Second, many provisions of the Constitution are less than crystal clear. The prime example would be the guarantee of “due process of law.”
There was a lot of quoting of Jefferson and Madison regarding judicial review. Folks tend to forget about another Virginian in the pantheon of the Founding Fathers. Here is what John Marshall had to say about judicial review in Marbury v. Madison:
If an act of the Legislature 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 law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty….
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.”
As to whether the framers of the Constitution contemplated judicial review, here is the discussion in Federalist 78:
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority…. The interpretation of the laws is the proper and peculiar province of the courts. 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.
In Federalist 39, Madison assigned the role of umpire (in the words of esteemed historian Jack Rakove) over conflicts in state and national legislation to the Supreme Courts:
[T]he proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.
James Madison would have gone beyond judicial review regarding the role of the judiciary. As set out in The Records of the Federal Convention of 1787, edited by Max Farrand and based primarily on Madison’s notes, the proposed Virginia Plan, largely drafted by Madison, had the following provision:
The Executive and a convenient number of the National Judiciary ought to compose a council of national revision with authority to examine every act of the National Legislature before it shall operate and every act of a particular Legislature before a Negative thereon shall be final [the previous resolution would have given Congress the power to veto any state legislation]; and the dissent of the said Council shall amount to a rejection unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negative by _____ of the members of each branch.” Vol. I, page 21
Although the proposed council of revision was defeated by the Convention, Madison vigorously defended the proposal throughout the debate.
In another context during the debates, Madison pointed out, “A law violating a constitution established by the people themselves, would be considered by the Judges as null & void.” Farrand, Vol II, page 93.
Finally, in his later comments to Jefferson’s proposed Virginia constitution, Madison had this to say about the courts:
In the State Constitutions & indeed in the Fedl. one also, no provision is made for the case of a disagreement in expounding them; and as the Courts are generally the last in making their decision, it results to them, by refusing or not refusing to execute a law, to stamp it with its final character.” (Quoted in https://constitutioncenter.org/debate/special-projects/a-madisonian-constitution-for-all/essay-series/james-madison-and-the-judicial-power)
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