The Executive Power of Constitutional Interpretation

Iowa Law Review

Volumn 81, Issue 5, 1996, Pages 1267-1330

  Lawson, Gary ^a,b   Moore, Christopher D ^a,c  

^a NORTHWESTERN UNIVERSITY   (United States)

^b YALE UNIVERSITY   (United States)

^c SIDLEY AUSTIN LLP   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0030337441     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (326)

1. See Edwin Meese III, The Law of the Constitution, 61 Tul. L. Rev. 979 (1987) (reprinting Attorney General Meese's speech).
2. See e.g., Burt Neuborne, The Binding Quality of Supreme Court Precedent, 61 Tul. L. Rev. 991 (1987); Michael Kinsley, Meese's Stink Bomb, Wash. Post, Oct. 29, 1986, at A19; Anthony Lewis, Law or Power?, N.Y. Times, Oct. 27, 1986, at A23; Mr. Meese's Contempt of Court, N.Y. Times, Oct. 26, 1986, at 4-22; Why Give That Speech?, Wash. Post, Oct. 29, 1986, at A18. To be sure, the immediate response was not wholly negative. See, e.g., Sanford Levinson, Could Meese Be Right This Time?, 61 Tul. L. Rev. 1071 (1987).
3. See e.g., Burt Neuborne, The Binding Quality of Supreme Court Precedent, 61 Tul. L. Rev. 991 (1987); Michael Kinsley, Meese's Stink Bomb, Wash. Post, Oct. 29, 1986, at A19; Anthony Lewis, Law or Power?, N.Y. Times, Oct. 27, 1986, at A23; Mr. Meese's Contempt of Court, N.Y. Times, Oct. 26, 1986, at 4-22; Why Give That Speech?, Wash. Post, Oct. 29, 1986, at A18. To be sure, the immediate response was not wholly negative. See, e.g., Sanford Levinson, Could Meese Be Right This Time?, 61 Tul. L. Rev. 1071 (1987).
4. See e.g., Burt Neuborne, The Binding Quality of Supreme Court Precedent, 61 Tul. L. Rev. 991 (1987); Michael Kinsley, Meese's Stink Bomb, Wash. Post, Oct. 29, 1986, at A19; Anthony Lewis, Law or Power?, N.Y. Times, Oct. 27, 1986, at A23; Mr. Meese's Contempt of Court, N.Y. Times, Oct. 26, 1986, at 4-22; Why Give That Speech?, Wash. Post, Oct. 29, 1986, at A18. To be sure, the immediate response was not wholly negative. See, e.g., Sanford Levinson, Could Meese Be Right This Time?, 61 Tul. L. Rev. 1071 (1987).
5. See e.g., Burt Neuborne, The Binding Quality of Supreme Court Precedent, 61 Tul. L. Rev. 991 (1987); Michael Kinsley, Meese's Stink Bomb, Wash. Post, Oct. 29, 1986, at A19; Anthony Lewis, Law or Power?, N.Y. Times, Oct. 27, 1986, at A23; Mr. Meese's Contempt of Court, N.Y. Times, Oct. 26, 1986, at 4-22; Why Give That Speech?, Wash. Post, Oct. 29, 1986, at A18. To be sure, the immediate response was not wholly negative. See, e.g., Sanford Levinson, Could Meese Be Right This Time?, 61 Tul. L. Rev. 1071 (1987).
6. See e.g., Burt Neuborne, The Binding Quality of Supreme Court Precedent, 61 Tul. L. Rev. 991 (1987); Michael Kinsley, Meese's Stink Bomb, Wash. Post, Oct. 29, 1986, at A19; Anthony Lewis, Law or Power?, N.Y. Times, Oct. 27, 1986, at A23; Mr. Meese's Contempt of Court, N.Y. Times, Oct. 26, 1986, at 4-22; Why Give That Speech?, Wash. Post, Oct. 29, 1986, at A18. To be sure, the immediate response was not wholly negative. See, e.g., Sanford Levinson, Could Meese Be Right This Time?, 61 Tul. L. Rev. 1071 (1987).
7. See e.g., Burt Neuborne, The Binding Quality of Supreme Court Precedent, 61 Tul. L. Rev. 991 (1987); Michael Kinsley, Meese's Stink Bomb, Wash. Post, Oct. 29, 1986, at A19; Anthony Lewis, Law or Power?, N.Y. Times, Oct. 27, 1986, at A23; Mr. Meese's Contempt of Court, N.Y. Times, Oct. 26, 1986, at 4-22; Why Give That Speech?, Wash. Post, Oct. 29, 1986, at A18. To be sure, the immediate response was not wholly negative. See, e.g., Sanford Levinson, Could Meese Be Right This Time?, 61 Tul. L. Rev. 1071 (1987).
8. A panel of the Ninth Circuit Court of Appeals ruled that it was bad faith, for purposes of awarding attorney's fees, for the Executive to act upon a constitutional view different from that of the courts. See Lear Siegler, Inc. v. Lehman, 842 F.2d 1102, 1119-26 (9th Cir. 1988), rev'd and remanded, 893 F.2d 205 (1989) (en banc). The federal courts' reaction to the longstanding policy of some federal agencies to refuse in some circumstances to follow circuit court precedent concerning the meaning of statutes bordered on the hysterical. For a sample, see Joshua I. Schwartz, Nonacquiescence, Crowell v. Benson, and Administrative Adjudication, 77 Geo. L.J. 1815, 1821 n.15, 1823 n.23 (1989). And one can only imagine the response that a challenge to judicial supremacy would receive from the Supreme Court Justices who recently wrote or signed onto the following statement: Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 869 (1992). See Daniel O. Conkle, Nonoriginalist Constitutional Rights and the Problem of Judicial Finality, 13 Hastings Const. L.Q. 9, 12 (1985) ("[T]he Court does not . . . expect executive or legislative officials to reevaluate for themselves the validity of the Court's constitutional rulings.").
9. See, e.g., Michael J. Perry, What Is the Constitution?, in Constitutionalism: Philosophical Foundations (Lawrence A. Alexander ed., forthcoming 1997); Gary Apfel, Whose Constitution Is It Anyway? The Authority of the Judiciary's Interpretation of the Constitution, 46 Rutgers L. Rev. 771 (1994); Steven G. Calabresi, Thayer's Clear Mistake, 88 Nw. U. L. Rev. 269, 272-76 (1993); Frank H. Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905 (1990); Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 Geo. L.J. 347 (1994); David E. Engdahl, John Marshall's "Jeffersonian" Concept of Judicial Review, 42 Duke L.J. 279 (1992) [hereinafter Engdahl, John Marshall's "Jeffersonian" Concept]; David E. Engdahl, What's in a Name: The Constitutionality of Multiple "Supreme" Courts, 66 Ind. L. Rev. 457 (1991); Sanford Levinson, Constitutional Protestantism in Theory and Practice: Two Questions for Michael Stokes Paulsen and One for His Critics, 83 Geo. L.J. 373 (1994); Christopher N. May, Presidential Defiance of "Unconstitutional" Laws: Reviving the Royal Prerogative, 21 Hastings Const. L.Q. 865 (1994); John O. McGinnis, Models of the Opinion Function of the Attorney General: A Normative, Descriptive, and Historical Prolegomenon, 15 Cardozo L. Rev. 375 (1993); Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L. Rev. 43 (1993); Geoffrey P. Miller, The President's Power of Interpretation: Implications of a Unified Theory of Constitutional Law, 56 Law & Contemp. Probs. 35 (1993); Robert F. Nagel, Name-Calling and the Clear Error Rule, 88 Nw. U. L. Rev. 193 (1993); Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81 (1993) [hereinafter Paulsen, The Merryman Power]; Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217 (1994) [hereinafter Paulsen, The Most Dangerous Branch]; Michael Stokes Paulsen, Protestantism and Comparative Competence: A Reply to Professors Levinson and Eisgruber, 83 Geo. L.J. 385 (1994) [hereinafter Paulsen, Reply]; Michel Rosenfeld, Executive Autonomy, Judicial Authority and the Rule of Law: Reflections on Constitutional Interpretation and the Separation of Powers, 15 Cardozo L. Rev. 137 (1993); David A. Strauss, Presidential Interpretation of the Constitution, 15 Cardozo L. Rev. 113 (1993); see also Michael B. Rappaport, The President's Veto and the Constitution, 87 Nw. U. L. Rev. 735, 738 (1993) (describing some consequences of a presidential power to interpret the Constitution without taking a position on the power's scope).
10. See, e.g., Michael J. Perry, What Is the Constitution?, in Constitutionalism: Philosophical Foundations (Lawrence A. Alexander ed., forthcoming 1997); Gary Apfel, Whose Constitution Is It Anyway? The Authority of the Judiciary's Interpretation of the Constitution, 46 Rutgers L. Rev. 771 (1994); Steven G. Calabresi, Thayer's Clear Mistake, 88 Nw. U. L. Rev. 269, 272-76 (1993); Frank H. Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905 (1990); Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 Geo. L.J. 347 (1994); David E. Engdahl, John Marshall's "Jeffersonian" Concept of Judicial Review, 42 Duke L.J. 279 (1992) [hereinafter Engdahl, John Marshall's "Jeffersonian" Concept]; David E. Engdahl, What's in a Name: The Constitutionality of Multiple "Supreme" Courts, 66 Ind. L. Rev. 457 (1991); Sanford Levinson, Constitutional Protestantism in Theory and Practice: Two Questions for Michael Stokes Paulsen and One for His Critics, 83 Geo. L.J. 373 (1994); Christopher N. May, Presidential Defiance of "Unconstitutional" Laws: Reviving the Royal Prerogative, 21 Hastings Const. L.Q. 865 (1994); John O. McGinnis, Models of the Opinion Function of the Attorney General: A Normative, Descriptive, and Historical Prolegomenon, 15 Cardozo L. Rev. 375 (1993); Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L. Rev. 43 (1993); Geoffrey P. Miller, The President's Power of Interpretation: Implications of a Unified Theory of Constitutional Law, 56 Law & Contemp. Probs. 35 (1993); Robert F. Nagel, Name-Calling and the Clear Error Rule, 88 Nw. U. L. Rev. 193 (1993); Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81 (1993) [hereinafter Paulsen, The Merryman Power]; Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217 (1994) [hereinafter Paulsen, The Most Dangerous Branch]; Michael Stokes Paulsen, Protestantism and Comparative Competence: A Reply to Professors Levinson and Eisgruber, 83 Geo. L.J. 385 (1994) [hereinafter Paulsen, Reply]; Michel Rosenfeld, Executive Autonomy, Judicial Authority and the Rule of Law: Reflections on Constitutional Interpretation and the Separation of Powers, 15 Cardozo L. Rev. 137 (1993); David A. Strauss, Presidential Interpretation of the Constitution, 15 Cardozo L. Rev. 113 (1993); see also Michael B. Rappaport, The President's Veto and the Constitution, 87 Nw. U. L. Rev. 735, 738 (1993) (describing some consequences of a presidential power to interpret the Constitution without taking a position on the power's scope).
11. See, e.g., Michael J. Perry, What Is the Constitution?, in Constitutionalism: Philosophical Foundations (Lawrence A. Alexander ed., forthcoming 1997); Gary Apfel, Whose Constitution Is It Anyway? The Authority of the Judiciary's Interpretation of the Constitution, 46 Rutgers L. Rev. 771 (1994); Steven G. Calabresi, Thayer's Clear Mistake, 88 Nw. U. L. Rev. 269, 272-76 (1993); Frank H. Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905 (1990); Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 Geo. L.J. 347 (1994); David E. Engdahl, John Marshall's "Jeffersonian" Concept of Judicial Review, 42 Duke L.J. 279 (1992) [hereinafter Engdahl, John Marshall's "Jeffersonian" Concept]; David E. Engdahl, What's in a Name: The Constitutionality of Multiple "Supreme" Courts, 66 Ind. L. Rev. 457 (1991); Sanford Levinson, Constitutional Protestantism in Theory and Practice: Two Questions for Michael Stokes Paulsen and One for His Critics, 83 Geo. L.J. 373 (1994); Christopher N. May, Presidential Defiance of "Unconstitutional" Laws: Reviving the Royal Prerogative, 21 Hastings Const. L.Q. 865 (1994); John O. McGinnis, Models of the Opinion Function of the Attorney General: A Normative, Descriptive, and Historical Prolegomenon, 15 Cardozo L. Rev. 375 (1993); Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L. Rev. 43 (1993); Geoffrey P. Miller, The President's Power of Interpretation: Implications of a Unified Theory of Constitutional Law, 56 Law & Contemp. Probs. 35 (1993); Robert F. Nagel, Name-Calling and the Clear Error Rule, 88 Nw. U. L. Rev. 193 (1993); Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81 (1993) [hereinafter Paulsen, The Merryman Power]; Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217 (1994) [hereinafter Paulsen, The Most Dangerous Branch]; Michael Stokes Paulsen, Protestantism and Comparative Competence: A Reply to Professors Levinson and Eisgruber, 83 Geo. L.J. 385 (1994) [hereinafter Paulsen, Reply]; Michel Rosenfeld, Executive Autonomy, Judicial Authority and the Rule of Law: Reflections on Constitutional Interpretation and the Separation of Powers, 15 Cardozo L. Rev. 137 (1993); David A. Strauss, Presidential Interpretation of the Constitution, 15 Cardozo L. Rev. 113 (1993); see also Michael B. Rappaport, The President's Veto and the Constitution, 87 Nw. U. L. Rev. 735, 738 (1993) (describing some consequences of a presidential power to interpret the Constitution without taking a position on the power's scope).
12. See, e.g., Michael J. Perry, What Is the Constitution?, in Constitutionalism: Philosophical Foundations (Lawrence A. Alexander ed., forthcoming 1997); Gary Apfel, Whose Constitution Is It Anyway? The Authority of the Judiciary's Interpretation of the Constitution, 46 Rutgers L. Rev. 771 (1994); Steven G. Calabresi, Thayer's Clear Mistake, 88 Nw. U. L. Rev. 269, 272-76 (1993); Frank H. Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905 (1990); Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 Geo. L.J. 347 (1994); David E. Engdahl, John Marshall's "Jeffersonian" Concept of Judicial Review, 42 Duke L.J. 279 (1992) [hereinafter Engdahl, John Marshall's "Jeffersonian" Concept]; David E. Engdahl, What's in a Name: The Constitutionality of Multiple "Supreme" Courts, 66 Ind. L. Rev. 457 (1991); Sanford Levinson, Constitutional Protestantism in Theory and Practice: Two Questions for Michael Stokes Paulsen and One for His Critics, 83 Geo. L.J. 373 (1994); Christopher N. May, Presidential Defiance of "Unconstitutional" Laws: Reviving the Royal Prerogative, 21 Hastings Const. L.Q. 865 (1994); John O. McGinnis, Models of the Opinion Function of the Attorney General: A Normative, Descriptive, and Historical Prolegomenon, 15 Cardozo L. Rev. 375 (1993); Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L. Rev. 43 (1993); Geoffrey P. Miller, The President's Power of Interpretation: Implications of a Unified Theory of Constitutional Law, 56 Law & Contemp. Probs. 35 (1993); Robert F. Nagel, Name-Calling and the Clear Error Rule, 88 Nw. U. L. Rev. 193 (1993); Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81 (1993) [hereinafter Paulsen, The Merryman Power]; Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217 (1994) [hereinafter Paulsen, The Most Dangerous Branch]; Michael Stokes Paulsen, Protestantism and Comparative Competence: A Reply to Professors Levinson and Eisgruber, 83 Geo. L.J. 385 (1994) [hereinafter Paulsen, Reply]; Michel Rosenfeld, Executive Autonomy, Judicial Authority and the Rule of Law: Reflections on Constitutional Interpretation and the Separation of Powers, 15 Cardozo L. Rev. 137 (1993); David A. Strauss, Presidential Interpretation of the Constitution, 15 Cardozo L. Rev. 113 (1993); see also Michael B. Rappaport, The President's Veto and the Constitution, 87 Nw. U. L. Rev. 735, 738 (1993) (describing some consequences of a presidential power to interpret the Constitution without taking a position on the power's scope).
13. See, e.g., Michael J. Perry, What Is the Constitution?, in Constitutionalism: Philosophical Foundations (Lawrence A. Alexander ed., forthcoming 1997); Gary Apfel, Whose Constitution Is It Anyway? The Authority of the Judiciary's Interpretation of the Constitution, 46 Rutgers L. Rev. 771 (1994); Steven G. Calabresi, Thayer's Clear Mistake, 88 Nw. U. L. Rev. 269, 272-76 (1993); Frank H. Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905 (1990); Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 Geo. L.J. 347 (1994); David E. Engdahl, John Marshall's "Jeffersonian" Concept of Judicial Review, 42 Duke L.J. 279 (1992) [hereinafter Engdahl, John Marshall's "Jeffersonian" Concept]; David E. Engdahl, What's in a Name: The Constitutionality of Multiple "Supreme" Courts, 66 Ind. L. Rev. 457 (1991); Sanford Levinson, Constitutional Protestantism in Theory and Practice: Two Questions for Michael Stokes Paulsen and One for His Critics, 83 Geo. L.J. 373 (1994); Christopher N. May, Presidential Defiance of "Unconstitutional" Laws: Reviving the Royal Prerogative, 21 Hastings Const. L.Q. 865 (1994); John O. McGinnis, Models of the Opinion Function of the Attorney General: A Normative, Descriptive, and Historical Prolegomenon, 15 Cardozo L. Rev. 375 (1993); Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L. Rev. 43 (1993); Geoffrey P. Miller, The President's Power of Interpretation: Implications of a Unified Theory of Constitutional Law, 56 Law & Contemp. Probs. 35 (1993); Robert F. Nagel, Name-Calling and the Clear Error Rule, 88 Nw. U. L. Rev. 193 (1993); Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81 (1993) [hereinafter Paulsen, The Merryman Power]; Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217 (1994) [hereinafter Paulsen, The Most Dangerous Branch]; Michael Stokes Paulsen, Protestantism and Comparative Competence: A Reply to Professors Levinson and Eisgruber, 83 Geo. L.J. 385 (1994) [hereinafter Paulsen, Reply]; Michel Rosenfeld, Executive Autonomy, Judicial Authority and the Rule of Law: Reflections on Constitutional Interpretation and the Separation of Powers, 15 Cardozo L. Rev. 137 (1993); David A. Strauss, Presidential Interpretation of the Constitution, 15 Cardozo L. Rev. 113 (1993); see also Michael B. Rappaport, The President's Veto and the Constitution, 87 Nw. U. L. Rev. 735, 738 (1993) (describing some consequences of a presidential power to interpret the Constitution without taking a position on the power's scope).
14. See, e.g., Michael J. Perry, What Is the Constitution?, in Constitutionalism: Philosophical Foundations (Lawrence A. Alexander ed., forthcoming 1997); Gary Apfel, Whose Constitution Is It Anyway? The Authority of the Judiciary's Interpretation of the Constitution, 46 Rutgers L. Rev. 771 (1994); Steven G. Calabresi, Thayer's Clear Mistake, 88 Nw. U. L. Rev. 269, 272-76 (1993); Frank H. Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905 (1990); Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 Geo. L.J. 347 (1994); David E. Engdahl, John Marshall's "Jeffersonian" Concept of Judicial Review, 42 Duke L.J. 279 (1992) [hereinafter Engdahl, John Marshall's "Jeffersonian" Concept]; David E. Engdahl, What's in a Name: The Constitutionality of Multiple "Supreme" Courts, 66 Ind. L. Rev. 457 (1991); Sanford Levinson, Constitutional Protestantism in Theory and Practice: Two Questions for Michael Stokes Paulsen and One for His Critics, 83 Geo. L.J. 373 (1994); Christopher N. May, Presidential Defiance of "Unconstitutional" Laws: Reviving the Royal Prerogative, 21 Hastings Const. L.Q. 865 (1994); John O. McGinnis, Models of the Opinion Function of the Attorney General: A Normative, Descriptive, and Historical Prolegomenon, 15 Cardozo L. Rev. 375 (1993); Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L. Rev. 43 (1993); Geoffrey P. Miller, The President's Power of Interpretation: Implications of a Unified Theory of Constitutional Law, 56 Law & Contemp. Probs. 35 (1993); Robert F. Nagel, Name-Calling and the Clear Error Rule, 88 Nw. U. L. Rev. 193 (1993); Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81 (1993) [hereinafter Paulsen, The Merryman Power]; Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217 (1994) [hereinafter Paulsen, The Most Dangerous Branch]; Michael Stokes Paulsen, Protestantism and Comparative Competence: A Reply to Professors Levinson and Eisgruber, 83 Geo. L.J. 385 (1994) [hereinafter Paulsen, Reply]; Michel Rosenfeld, Executive Autonomy, Judicial Authority and the Rule of Law: Reflections on Constitutional Interpretation and the Separation of Powers, 15 Cardozo L. Rev. 137 (1993); David A. Strauss, Presidential Interpretation of the Constitution, 15 Cardozo L. Rev. 113 (1993); see also Michael B. Rappaport, The President's Veto and the Constitution, 87 Nw. U. L. Rev. 735, 738 (1993) (describing some consequences of a presidential power to interpret the Constitution without taking a position on the power's scope).
15. See, e.g., Michael J. Perry, What Is the Constitution?, in Constitutionalism: Philosophical Foundations (Lawrence A. Alexander ed., forthcoming 1997); Gary Apfel, Whose Constitution Is It Anyway? The Authority of the Judiciary's Interpretation of the Constitution, 46 Rutgers L. Rev. 771 (1994); Steven G. Calabresi, Thayer's Clear Mistake, 88 Nw. U. L. Rev. 269, 272-76 (1993); Frank H. Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905 (1990); Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 Geo. L.J. 347 (1994); David E. Engdahl, John Marshall's "Jeffersonian" Concept of Judicial Review, 42 Duke L.J. 279 (1992) [hereinafter Engdahl, John Marshall's "Jeffersonian" Concept]; David E. Engdahl, What's in a Name: The Constitutionality of Multiple "Supreme" Courts, 66 Ind. L. Rev. 457 (1991); Sanford Levinson, Constitutional Protestantism in Theory and Practice: Two Questions for Michael Stokes Paulsen and One for His Critics, 83 Geo. L.J. 373 (1994); Christopher N. May, Presidential Defiance of "Unconstitutional" Laws: Reviving the Royal Prerogative, 21 Hastings Const. L.Q. 865 (1994); John O. McGinnis, Models of the Opinion Function of the Attorney General: A Normative, Descriptive, and Historical Prolegomenon, 15 Cardozo L. Rev. 375 (1993); Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L. Rev. 43 (1993); Geoffrey P. Miller, The President's Power of Interpretation: Implications of a Unified Theory of Constitutional Law, 56 Law & Contemp. Probs. 35 (1993); Robert F. Nagel, Name-Calling and the Clear Error Rule, 88 Nw. U. L. Rev. 193 (1993); Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81 (1993) [hereinafter Paulsen, The Merryman Power]; Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217 (1994) [hereinafter Paulsen, The Most Dangerous Branch]; Michael Stokes Paulsen, Protestantism and Comparative Competence: A Reply to Professors Levinson and Eisgruber, 83 Geo. L.J. 385 (1994) [hereinafter Paulsen, Reply]; Michel Rosenfeld, Executive Autonomy, Judicial Authority and the Rule of Law: Reflections on Constitutional Interpretation and the Separation of Powers, 15 Cardozo L. Rev. 137 (1993); David A. Strauss, Presidential Interpretation of the Constitution, 15 Cardozo L. Rev. 113 (1993); see also Michael B. Rappaport, The President's Veto and the Constitution, 87 Nw. U. L. Rev. 735, 738 (1993) (describing some consequences of a presidential power to interpret the Constitution without taking a position on the power's scope).
16. See, e.g., Michael J. Perry, What Is the Constitution?, in Constitutionalism: Philosophical Foundations (Lawrence A. Alexander ed., forthcoming 1997); Gary Apfel, Whose Constitution Is It Anyway? The Authority of the Judiciary's Interpretation of the Constitution, 46 Rutgers L. Rev. 771 (1994); Steven G. Calabresi, Thayer's Clear Mistake, 88 Nw. U. L. Rev. 269, 272-76 (1993); Frank H. Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905 (1990); Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 Geo. L.J. 347 (1994); David E. Engdahl, John Marshall's "Jeffersonian" Concept of Judicial Review, 42 Duke L.J. 279 (1992) [hereinafter Engdahl, John Marshall's "Jeffersonian" Concept]; David E. Engdahl, What's in a Name: The Constitutionality of Multiple "Supreme" Courts, 66 Ind. L. Rev. 457 (1991); Sanford Levinson, Constitutional Protestantism in Theory and Practice: Two Questions for Michael Stokes Paulsen and One for His Critics, 83 Geo. L.J. 373 (1994); Christopher N. May, Presidential Defiance of "Unconstitutional" Laws: Reviving the Royal Prerogative, 21 Hastings Const. L.Q. 865 (1994); John O. McGinnis, Models of the Opinion Function of the Attorney General: A Normative, Descriptive, and Historical Prolegomenon, 15 Cardozo L. Rev. 375 (1993); Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L. Rev. 43 (1993); Geoffrey P. Miller, The President's Power of Interpretation: Implications of a Unified Theory of Constitutional Law, 56 Law & Contemp. Probs. 35 (1993); Robert F. Nagel, Name-Calling and the Clear Error Rule, 88 Nw. U. L. Rev. 193 (1993); Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81 (1993) [hereinafter Paulsen, The Merryman Power]; Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217 (1994) [hereinafter Paulsen, The Most Dangerous Branch]; Michael Stokes Paulsen, Protestantism and Comparative Competence: A Reply to Professors Levinson and Eisgruber, 83 Geo. L.J. 385 (1994) [hereinafter Paulsen, Reply]; Michel Rosenfeld, Executive Autonomy, Judicial Authority and the Rule of Law: Reflections on Constitutional Interpretation and the Separation of Powers, 15 Cardozo L. Rev. 137 (1993); David A. Strauss, Presidential Interpretation of the Constitution, 15 Cardozo L. Rev. 113 (1993); see also Michael B. Rappaport, The President's Veto and the Constitution, 87 Nw. U. L. Rev. 735, 738 (1993) (describing some consequences of a presidential power to interpret the Constitution without taking a position on the power's scope).
17. See, e.g., Michael J. Perry, What Is the Constitution?, in Constitutionalism: Philosophical Foundations (Lawrence A. Alexander ed., forthcoming 1997); Gary Apfel, Whose Constitution Is It Anyway? The Authority of the Judiciary's Interpretation of the Constitution, 46 Rutgers L. Rev. 771 (1994); Steven G. Calabresi, Thayer's Clear Mistake, 88 Nw. U. L. Rev. 269, 272-76 (1993); Frank H. Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905 (1990); Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 Geo. L.J. 347 (1994); David E. Engdahl, John Marshall's "Jeffersonian" Concept of Judicial Review, 42 Duke L.J. 279 (1992) [hereinafter Engdahl, John Marshall's "Jeffersonian" Concept]; David E. Engdahl, What's in a Name: The Constitutionality of Multiple "Supreme" Courts, 66 Ind. L. Rev. 457 (1991); Sanford Levinson, Constitutional Protestantism in Theory and Practice: Two Questions for Michael Stokes Paulsen and One for His Critics, 83 Geo. L.J. 373 (1994); Christopher N. May, Presidential Defiance of "Unconstitutional" Laws: Reviving the Royal Prerogative, 21 Hastings Const. L.Q. 865 (1994); John O. McGinnis, Models of the Opinion Function of the Attorney General: A Normative, Descriptive, and Historical Prolegomenon, 15 Cardozo L. Rev. 375 (1993); Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L. Rev. 43 (1993); Geoffrey P. Miller, The President's Power of Interpretation: Implications of a Unified Theory of Constitutional Law, 56 Law & Contemp. Probs. 35 (1993); Robert F. Nagel, Name-Calling and the Clear Error Rule, 88 Nw. U. L. Rev. 193 (1993); Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81 (1993) [hereinafter Paulsen, The Merryman Power]; Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217 (1994) [hereinafter Paulsen, The Most Dangerous Branch]; Michael Stokes Paulsen, Protestantism and Comparative Competence: A Reply to Professors Levinson and Eisgruber, 83 Geo. L.J. 385 (1994) [hereinafter Paulsen, Reply]; Michel Rosenfeld, Executive Autonomy, Judicial Authority and the Rule of Law: Reflections on Constitutional Interpretation and the Separation of Powers, 15 Cardozo L. Rev. 137 (1993); David A. Strauss, Presidential Interpretation of the Constitution, 15 Cardozo L. Rev. 113 (1993); see also Michael B. Rappaport, The President's Veto and the Constitution, 87 Nw. U. L. Rev. 735, 738 (1993) (describing some consequences of a presidential power to interpret the Constitution without taking a position on the power's scope).
18. See, e.g., Michael J. Perry, What Is the Constitution?, in Constitutionalism: Philosophical Foundations (Lawrence A. Alexander ed., forthcoming 1997); Gary Apfel, Whose Constitution Is It Anyway? The Authority of the Judiciary's Interpretation of the Constitution, 46 Rutgers L. Rev. 771 (1994); Steven G. Calabresi, Thayer's Clear Mistake, 88 Nw. U. L. Rev. 269, 272-76 (1993); Frank H. Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905 (1990); Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 Geo. L.J. 347 (1994); David E. Engdahl, John Marshall's "Jeffersonian" Concept of Judicial Review, 42 Duke L.J. 279 (1992) [hereinafter Engdahl, John Marshall's "Jeffersonian" Concept]; David E. Engdahl, What's in a Name: The Constitutionality of Multiple "Supreme" Courts, 66 Ind. L. Rev. 457 (1991); Sanford Levinson, Constitutional Protestantism in Theory and Practice: Two Questions for Michael Stokes Paulsen and One for His Critics, 83 Geo. L.J. 373 (1994); Christopher N. May, Presidential Defiance of "Unconstitutional" Laws: Reviving the Royal Prerogative, 21 Hastings Const. L.Q. 865 (1994); John O. McGinnis, Models of the Opinion Function of the Attorney General: A Normative, Descriptive, and Historical Prolegomenon, 15 Cardozo L. Rev. 375 (1993); Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L. Rev. 43 (1993); Geoffrey P. Miller, The President's Power of Interpretation: Implications of a Unified Theory of Constitutional Law, 56 Law & Contemp. Probs. 35 (1993); Robert F. Nagel, Name-Calling and the Clear Error Rule, 88 Nw. U. L. Rev. 193 (1993); Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81 (1993) [hereinafter Paulsen, The Merryman Power]; Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217 (1994) [hereinafter Paulsen, The Most Dangerous Branch]; Michael Stokes Paulsen, Protestantism and Comparative Competence: A Reply to Professors Levinson and Eisgruber, 83 Geo. L.J. 385 (1994) [hereinafter Paulsen, Reply]; Michel Rosenfeld, Executive Autonomy, Judicial Authority and the Rule of Law: Reflections on Constitutional Interpretation and the Separation of Powers, 15 Cardozo L. Rev. 137 (1993); David A. Strauss, Presidential Interpretation of the Constitution, 15 Cardozo L. Rev. 113 (1993); see also Michael B. Rappaport, The President's Veto and the Constitution, 87 Nw. U. L. Rev. 735, 738 (1993) (describing some consequences of a presidential power to interpret the Constitution without taking a position on the power's scope).
19. See, e.g., Michael J. Perry, What Is the Constitution?, in Constitutionalism: Philosophical Foundations (Lawrence A. Alexander ed., forthcoming 1997); Gary Apfel, Whose Constitution Is It Anyway? The Authority of the Judiciary's Interpretation of the Constitution, 46 Rutgers L. Rev. 771 (1994); Steven G. Calabresi, Thayer's Clear Mistake, 88 Nw. U. L. Rev. 269, 272-76 (1993); Frank H. Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905 (1990); Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 Geo. L.J. 347 (1994); David E. Engdahl, John Marshall's "Jeffersonian" Concept of Judicial Review, 42 Duke L.J. 279 (1992) [hereinafter Engdahl, John Marshall's "Jeffersonian" Concept]; David E. Engdahl, What's in a Name: The Constitutionality of Multiple "Supreme" Courts, 66 Ind. L. Rev. 457 (1991); Sanford Levinson, Constitutional Protestantism in Theory and Practice: Two Questions for Michael Stokes Paulsen and One for His Critics, 83 Geo. L.J. 373 (1994); Christopher N. May, Presidential Defiance of "Unconstitutional" Laws: Reviving the Royal Prerogative, 21 Hastings Const. L.Q. 865 (1994); John O. McGinnis, Models of the Opinion Function of the Attorney General: A Normative, Descriptive, and Historical Prolegomenon, 15 Cardozo L. Rev. 375 (1993); Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L. Rev. 43 (1993); Geoffrey P. Miller, The President's Power of Interpretation: Implications of a Unified Theory of Constitutional Law, 56 Law & Contemp. Probs. 35 (1993); Robert F. Nagel, Name-Calling and the Clear Error Rule, 88 Nw. U. L. Rev. 193 (1993); Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81 (1993) [hereinafter Paulsen, The Merryman Power]; Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217 (1994) [hereinafter Paulsen, The Most Dangerous Branch]; Michael Stokes Paulsen, Protestantism and Comparative Competence: A Reply to Professors Levinson and Eisgruber, 83 Geo. L.J. 385 (1994) [hereinafter Paulsen, Reply]; Michel Rosenfeld, Executive Autonomy, Judicial Authority and the Rule of Law: Reflections on Constitutional Interpretation and the Separation of Powers, 15 Cardozo L. Rev. 137 (1993); David A. Strauss, Presidential Interpretation of the Constitution, 15 Cardozo L. Rev. 113 (1993); see also Michael B. Rappaport, The President's Veto and the Constitution, 87 Nw. U. L. Rev. 735, 738 (1993) (describing some consequences of a presidential power to interpret the Constitution without taking a position on the power's scope).
20. See, e.g., Michael J. Perry, What Is the Constitution?, in Constitutionalism: Philosophical Foundations (Lawrence A. Alexander ed., forthcoming 1997); Gary Apfel, Whose Constitution Is It Anyway? The Authority of the Judiciary's Interpretation of the Constitution, 46 Rutgers L. Rev. 771 (1994); Steven G. Calabresi, Thayer's Clear Mistake, 88 Nw. U. L. Rev. 269, 272-76 (1993); Frank H. Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905 (1990); Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 Geo. L.J. 347 (1994); David E. Engdahl, John Marshall's "Jeffersonian" Concept of Judicial Review, 42 Duke L.J. 279 (1992) [hereinafter Engdahl, John Marshall's "Jeffersonian" Concept]; David E. Engdahl, What's in a Name: The Constitutionality of Multiple "Supreme" Courts, 66 Ind. L. Rev. 457 (1991); Sanford Levinson, Constitutional Protestantism in Theory and Practice: Two Questions for Michael Stokes Paulsen and One for His Critics, 83 Geo. L.J. 373 (1994); Christopher N. May, Presidential Defiance of "Unconstitutional" Laws: Reviving the Royal Prerogative, 21 Hastings Const. L.Q. 865 (1994); John O. McGinnis, Models of the Opinion Function of the Attorney General: A Normative, Descriptive, and Historical Prolegomenon, 15 Cardozo L. Rev. 375 (1993); Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L. Rev. 43 (1993); Geoffrey P. Miller, The President's Power of Interpretation: Implications of a Unified Theory of Constitutional Law, 56 Law & Contemp. Probs. 35 (1993); Robert F. Nagel, Name-Calling and the Clear Error Rule, 88 Nw. U. L. Rev. 193 (1993); Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81 (1993) [hereinafter Paulsen, The Merryman Power]; Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217 (1994) [hereinafter Paulsen, The Most Dangerous Branch]; Michael Stokes Paulsen, Protestantism and Comparative Competence: A Reply to Professors Levinson and Eisgruber, 83 Geo. L.J. 385 (1994) [hereinafter Paulsen, Reply]; Michel Rosenfeld, Executive Autonomy, Judicial Authority and the Rule of Law: Reflections on Constitutional Interpretation and the Separation of Powers, 15 Cardozo L. Rev. 137 (1993); David A. Strauss, Presidential Interpretation of the Constitution, 15 Cardozo L. Rev. 113 (1993); see also Michael B. Rappaport, The President's Veto and the Constitution, 87 Nw. U. L. Rev. 735, 738 (1993) (describing some consequences of a presidential power to interpret the Constitution without taking a position on the power's scope).
21. See, e.g., Michael J. Perry, What Is the Constitution?, in Constitutionalism: Philosophical Foundations (Lawrence A. Alexander ed., forthcoming 1997); Gary Apfel, Whose Constitution Is It Anyway? The Authority of the Judiciary's Interpretation of the Constitution, 46 Rutgers L. Rev. 771 (1994); Steven G. Calabresi, Thayer's Clear Mistake, 88 Nw. U. L. Rev. 269, 272-76 (1993); Frank H. Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905 (1990); Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 Geo. L.J. 347 (1994); David E. Engdahl, John Marshall's "Jeffersonian" Concept of Judicial Review, 42 Duke L.J. 279 (1992) [hereinafter Engdahl, John Marshall's "Jeffersonian" Concept]; David E. Engdahl, What's in a Name: The Constitutionality of Multiple "Supreme" Courts, 66 Ind. L. Rev. 457 (1991); Sanford Levinson, Constitutional Protestantism in Theory and Practice: Two Questions for Michael Stokes Paulsen and One for His Critics, 83 Geo. L.J. 373 (1994); Christopher N. May, Presidential Defiance of "Unconstitutional" Laws: Reviving the Royal Prerogative, 21 Hastings Const. L.Q. 865 (1994); John O. McGinnis, Models of the Opinion Function of the Attorney General: A Normative, Descriptive, and Historical Prolegomenon, 15 Cardozo L. Rev. 375 (1993); Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L. Rev. 43 (1993); Geoffrey P. Miller, The President's Power of Interpretation: Implications of a Unified Theory of Constitutional Law, 56 Law & Contemp. Probs. 35 (1993); Robert F. Nagel, Name-Calling and the Clear Error Rule, 88 Nw. U. L. Rev. 193 (1993); Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81 (1993) [hereinafter Paulsen, The Merryman Power]; Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217 (1994) [hereinafter Paulsen, The Most Dangerous Branch]; Michael Stokes Paulsen, Protestantism and Comparative Competence: A Reply to Professors Levinson and Eisgruber, 83 Geo. L.J. 385 (1994) [hereinafter Paulsen, Reply]; Michel Rosenfeld, Executive Autonomy, Judicial Authority and the Rule of Law: Reflections on Constitutional Interpretation and the Separation of Powers, 15 Cardozo L. Rev. 137 (1993); David A. Strauss, Presidential Interpretation of the Constitution, 15 Cardozo L. Rev. 113 (1993); see also Michael B. Rappaport, The President's Veto and the Constitution, 87 Nw. U. L. Rev. 735, 738 (1993) (describing some consequences of a presidential power to interpret the Constitution without taking a position on the power's scope).
22. See, e.g., Michael J. Perry, What Is the Constitution?, in Constitutionalism: Philosophical Foundations (Lawrence A. Alexander ed., forthcoming 1997); Gary Apfel, Whose Constitution Is It Anyway? The Authority of the Judiciary's Interpretation of the Constitution, 46 Rutgers L. Rev. 771 (1994); Steven G. Calabresi, Thayer's Clear Mistake, 88 Nw. U. L. Rev. 269, 272-76 (1993); Frank H. Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905 (1990); Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 Geo. L.J. 347 (1994); David E. Engdahl, John Marshall's "Jeffersonian" Concept of Judicial Review, 42 Duke L.J. 279 (1992) [hereinafter Engdahl, John Marshall's "Jeffersonian" Concept]; David E. Engdahl, What's in a Name: The Constitutionality of Multiple "Supreme" Courts, 66 Ind. L. Rev. 457 (1991); Sanford Levinson, Constitutional Protestantism in Theory and Practice: Two Questions for Michael Stokes Paulsen and One for His Critics, 83 Geo. L.J. 373 (1994); Christopher N. May, Presidential Defiance of "Unconstitutional" Laws: Reviving the Royal Prerogative, 21 Hastings Const. L.Q. 865 (1994); John O. McGinnis, Models of the Opinion Function of the Attorney General: A Normative, Descriptive, and Historical Prolegomenon, 15 Cardozo L. Rev. 375 (1993); Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L. Rev. 43 (1993); Geoffrey P. Miller, The President's Power of Interpretation: Implications of a Unified Theory of Constitutional Law, 56 Law & Contemp. Probs. 35 (1993); Robert F. Nagel, Name-Calling and the Clear Error Rule, 88 Nw. U. L. Rev. 193 (1993); Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81 (1993) [hereinafter Paulsen, The Merryman Power]; Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217 (1994) [hereinafter Paulsen, The Most Dangerous Branch]; Michael Stokes Paulsen, Protestantism and Comparative Competence: A Reply to Professors Levinson and Eisgruber, 83 Geo. L.J. 385 (1994) [hereinafter Paulsen, Reply]; Michel Rosenfeld, Executive Autonomy, Judicial Authority and the Rule of Law: Reflections on Constitutional Interpretation and the Separation of Powers, 15 Cardozo L. Rev. 137 (1993); David A. Strauss, Presidential Interpretation of the Constitution, 15 Cardozo L. Rev. 113 (1993); see also Michael B. Rappaport, The President's Veto and the Constitution, 87 Nw. U. L. Rev. 735, 738 (1993) (describing some consequences of a presidential power to interpret the Constitution without taking a position on the power's scope).
23. See, e.g., Michael J. Perry, What Is the Constitution?, in Constitutionalism: Philosophical Foundations (Lawrence A. Alexander ed., forthcoming 1997); Gary Apfel, Whose Constitution Is It Anyway? The Authority of the Judiciary's Interpretation of the Constitution, 46 Rutgers L. Rev. 771 (1994); Steven G. Calabresi, Thayer's Clear Mistake, 88 Nw. U. L. Rev. 269, 272-76 (1993); Frank H. Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905 (1990); Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 Geo. L.J. 347 (1994); David E. Engdahl, John Marshall's "Jeffersonian" Concept of Judicial Review, 42 Duke L.J. 279 (1992) [hereinafter Engdahl, John Marshall's "Jeffersonian" Concept]; David E. Engdahl, What's in a Name: The Constitutionality of Multiple "Supreme" Courts, 66 Ind. L. Rev. 457 (1991); Sanford Levinson, Constitutional Protestantism in Theory and Practice: Two Questions for Michael Stokes Paulsen and One for His Critics, 83 Geo. L.J. 373 (1994); Christopher N. May, Presidential Defiance of "Unconstitutional" Laws: Reviving the Royal Prerogative, 21 Hastings Const. L.Q. 865 (1994); John O. McGinnis, Models of the Opinion Function of the Attorney General: A Normative, Descriptive, and Historical Prolegomenon, 15 Cardozo L. Rev. 375 (1993); Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L. Rev. 43 (1993); Geoffrey P. Miller, The President's Power of Interpretation: Implications of a Unified Theory of Constitutional Law, 56 Law & Contemp. Probs. 35 (1993); Robert F. Nagel, Name-Calling and the Clear Error Rule, 88 Nw. U. L. Rev. 193 (1993); Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81 (1993) [hereinafter Paulsen, The Merryman Power]; Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217 (1994) [hereinafter Paulsen, The Most Dangerous Branch]; Michael Stokes Paulsen, Protestantism and Comparative Competence: A Reply to Professors Levinson and Eisgruber, 83 Geo. L.J. 385 (1994) [hereinafter Paulsen, Reply]; Michel Rosenfeld, Executive Autonomy, Judicial Authority and the Rule of Law: Reflections on Constitutional Interpretation and the Separation of Powers, 15 Cardozo L. Rev. 137 (1993); David A. Strauss, Presidential Interpretation of the Constitution, 15 Cardozo L. Rev. 113 (1993); see also Michael B. Rappaport, The President's Veto and the Constitution, 87 Nw. U. L. Rev. 735, 738 (1993) (describing some consequences of a presidential power to interpret the Constitution without taking a position on the power's scope).
24. See, e.g., Michael J. Perry, What Is the Constitution?, in Constitutionalism: Philosophical Foundations (Lawrence A. Alexander ed., forthcoming 1997); Gary Apfel, Whose Constitution Is It Anyway? The Authority of the Judiciary's Interpretation of the Constitution, 46 Rutgers L. Rev. 771 (1994); Steven G. Calabresi, Thayer's Clear Mistake, 88 Nw. U. L. Rev. 269, 272-76 (1993); Frank H. Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905 (1990); Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 Geo. L.J. 347 (1994); David E. Engdahl, John Marshall's "Jeffersonian" Concept of Judicial Review, 42 Duke L.J. 279 (1992) [hereinafter Engdahl, John Marshall's "Jeffersonian" Concept]; David E. Engdahl, What's in a Name: The Constitutionality of Multiple "Supreme" Courts, 66 Ind. L. Rev. 457 (1991); Sanford Levinson, Constitutional Protestantism in Theory and Practice: Two Questions for Michael Stokes Paulsen and One for His Critics, 83 Geo. L.J. 373 (1994); Christopher N. May, Presidential Defiance of "Unconstitutional" Laws: Reviving the Royal Prerogative, 21 Hastings Const. L.Q. 865 (1994); John O. McGinnis, Models of the Opinion Function of the Attorney General: A Normative, Descriptive, and Historical Prolegomenon, 15 Cardozo L. Rev. 375 (1993); Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L. Rev. 43 (1993); Geoffrey P. Miller, The President's Power of Interpretation: Implications of a Unified Theory of Constitutional Law, 56 Law & Contemp. Probs. 35 (1993); Robert F. Nagel, Name-Calling and the Clear Error Rule, 88 Nw. U. L. Rev. 193 (1993); Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81 (1993) [hereinafter Paulsen, The Merryman Power]; Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217 (1994) [hereinafter Paulsen, The Most Dangerous Branch]; Michael Stokes Paulsen, Protestantism and Comparative Competence: A Reply to Professors Levinson and Eisgruber, 83 Geo. L.J. 385 (1994) [hereinafter Paulsen, Reply]; Michel Rosenfeld, Executive Autonomy, Judicial Authority and the Rule of Law: Reflections on Constitutional Interpretation and the Separation of Powers, 15 Cardozo L. Rev. 137 (1993); David A. Strauss, Presidential Interpretation of the Constitution, 15 Cardozo L. Rev. 113 (1993); see also Michael B. Rappaport, The President's Veto and the Constitution, 87 Nw. U. L. Rev. 735, 738 (1993) (describing some consequences of a presidential power to interpret the Constitution without taking a position on the power's scope).
25. See, e.g., Michael J. Perry, What Is the Constitution?, in Constitutionalism: Philosophical Foundations (Lawrence A. Alexander ed., forthcoming 1997); Gary Apfel, Whose Constitution Is It Anyway? The Authority of the Judiciary's Interpretation of the Constitution, 46 Rutgers L. Rev. 771 (1994); Steven G. Calabresi, Thayer's Clear Mistake, 88 Nw. U. L. Rev. 269, 272-76 (1993); Frank H. Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905 (1990); Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 Geo. L.J. 347 (1994); David E. Engdahl, John Marshall's "Jeffersonian" Concept of Judicial Review, 42 Duke L.J. 279 (1992) [hereinafter Engdahl, John Marshall's "Jeffersonian" Concept]; David E. Engdahl, What's in a Name: The Constitutionality of Multiple "Supreme" Courts, 66 Ind. L. Rev. 457 (1991); Sanford Levinson, Constitutional Protestantism in Theory and Practice: Two Questions for Michael Stokes Paulsen and One for His Critics, 83 Geo. L.J. 373 (1994); Christopher N. May, Presidential Defiance of "Unconstitutional" Laws: Reviving the Royal Prerogative, 21 Hastings Const. L.Q. 865 (1994); John O. McGinnis, Models of the Opinion Function of the Attorney General: A Normative, Descriptive, and Historical Prolegomenon, 15 Cardozo L. Rev. 375 (1993); Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L. Rev. 43 (1993); Geoffrey P. Miller, The President's Power of Interpretation: Implications of a Unified Theory of Constitutional Law, 56 Law & Contemp. Probs. 35 (1993); Robert F. Nagel, Name-Calling and the Clear Error Rule, 88 Nw. U. L. Rev. 193 (1993); Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81 (1993) [hereinafter Paulsen, The Merryman Power]; Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217 (1994) [hereinafter Paulsen, The Most Dangerous Branch]; Michael Stokes Paulsen, Protestantism and Comparative Competence: A Reply to Professors Levinson and Eisgruber, 83 Geo. L.J. 385 (1994) [hereinafter Paulsen, Reply]; Michel Rosenfeld, Executive Autonomy, Judicial Authority and the Rule of Law: Reflections on Constitutional Interpretation and the Separation of Powers, 15 Cardozo L. Rev. 137 (1993); David A. Strauss, Presidential Interpretation of the Constitution, 15 Cardozo L. Rev. 113 (1993); see also Michael B. Rappaport, The President's Veto and the Constitution, 87 Nw. U. L. Rev. 735, 738 (1993) (describing some consequences of a presidential power to interpret the Constitution without taking a position on the power's scope).
26. See, e.g., Michael J. Perry, What Is the Constitution?, in Constitutionalism: Philosophical Foundations (Lawrence A. Alexander ed., forthcoming 1997); Gary Apfel, Whose Constitution Is It Anyway? The Authority of the Judiciary's Interpretation of the Constitution, 46 Rutgers L. Rev. 771 (1994); Steven G. Calabresi, Thayer's Clear Mistake, 88 Nw. U. L. Rev. 269, 272-76 (1993); Frank H. Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905 (1990); Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 Geo. L.J. 347 (1994); David E. Engdahl, John Marshall's "Jeffersonian" Concept of Judicial Review, 42 Duke L.J. 279 (1992) [hereinafter Engdahl, John Marshall's "Jeffersonian" Concept]; David E. Engdahl, What's in a Name: The Constitutionality of Multiple "Supreme" Courts, 66 Ind. L. Rev. 457 (1991); Sanford Levinson, Constitutional Protestantism in Theory and Practice: Two Questions for Michael Stokes Paulsen and One for His Critics, 83 Geo. L.J. 373 (1994); Christopher N. May, Presidential Defiance of "Unconstitutional" Laws: Reviving the Royal Prerogative, 21 Hastings Const. L.Q. 865 (1994); John O. McGinnis, Models of the Opinion Function of the Attorney General: A Normative, Descriptive, and Historical Prolegomenon, 15 Cardozo L. Rev. 375 (1993); Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L. Rev. 43 (1993); Geoffrey P. Miller, The President's Power of Interpretation: Implications of a Unified Theory of Constitutional Law, 56 Law & Contemp. Probs. 35 (1993); Robert F. Nagel, Name-Calling and the Clear Error Rule, 88 Nw. U. L. Rev. 193 (1993); Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81 (1993) [hereinafter Paulsen, The Merryman Power]; Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217 (1994) [hereinafter Paulsen, The Most Dangerous Branch]; Michael Stokes Paulsen, Protestantism and Comparative Competence: A Reply to Professors Levinson and Eisgruber, 83 Geo. L.J. 385 (1994) [hereinafter Paulsen, Reply]; Michel Rosenfeld, Executive Autonomy, Judicial Authority and the Rule of Law: Reflections on Constitutional Interpretation and the Separation of Powers, 15 Cardozo L. Rev. 137 (1993); David A. Strauss, Presidential Interpretation of the Constitution, 15 Cardozo L. Rev. 113 (1993); see also Michael B. Rappaport, The President's Veto and the Constitution, 87 Nw. U. L. Rev. 735, 738 (1993) (describing some consequences of a presidential power to interpret the Constitution without taking a position on the power's scope).
27. See, e.g., Michael J. Perry, What Is the Constitution?, in Constitutionalism: Philosophical Foundations (Lawrence A. Alexander ed., forthcoming 1997); Gary Apfel, Whose Constitution Is It Anyway? The Authority of the Judiciary's Interpretation of the Constitution, 46 Rutgers L. Rev. 771 (1994); Steven G. Calabresi, Thayer's Clear Mistake, 88 Nw. U. L. Rev. 269, 272-76 (1993); Frank H. Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905 (1990); Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 Geo. L.J. 347 (1994); David E. Engdahl, John Marshall's "Jeffersonian" Concept of Judicial Review, 42 Duke L.J. 279 (1992) [hereinafter Engdahl, John Marshall's "Jeffersonian" Concept]; David E. Engdahl, What's in a Name: The Constitutionality of Multiple "Supreme" Courts, 66 Ind. L. Rev. 457 (1991); Sanford Levinson, Constitutional Protestantism in Theory and Practice: Two Questions for Michael Stokes Paulsen and One for His Critics, 83 Geo. L.J. 373 (1994); Christopher N. May, Presidential Defiance of "Unconstitutional" Laws: Reviving the Royal Prerogative, 21 Hastings Const. L.Q. 865 (1994); John O. McGinnis, Models of the Opinion Function of the Attorney General: A Normative, Descriptive, and Historical Prolegomenon, 15 Cardozo L. Rev. 375 (1993); Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L. Rev. 43 (1993); Geoffrey P. Miller, The President's Power of Interpretation: Implications of a Unified Theory of Constitutional Law, 56 Law & Contemp. Probs. 35 (1993); Robert F. Nagel, Name-Calling and the Clear Error Rule, 88 Nw. U. L. Rev. 193 (1993); Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81 (1993) [hereinafter Paulsen, The Merryman Power]; Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217 (1994) [hereinafter Paulsen, The Most Dangerous Branch]; Michael Stokes Paulsen, Protestantism and Comparative Competence: A Reply to Professors Levinson and Eisgruber, 83 Geo. L.J. 385 (1994) [hereinafter Paulsen, Reply]; Michel Rosenfeld, Executive Autonomy, Judicial Authority and the Rule of Law: Reflections on Constitutional Interpretation and the Separation of Powers, 15 Cardozo L. Rev. 137 (1993); David A. Strauss, Presidential Interpretation of the Constitution, 15 Cardozo L. Rev. 113 (1993); see also Michael B. Rappaport, The President's Veto and the Constitution, 87 Nw. U. L. Rev. 735, 738 (1993) (describing some consequences of a presidential power to interpret the Constitution without taking a position on the power's scope).
28. See The Federalist Society, Who Speaks for die Constitution?: The Debate over Interpretive Authority (1992) (collecting many of the most important historical sources).
29. We follow the dominant practice of the founding generation by referring to the federal legislature, executive, and judiciary as "departments," reserving the term "branches" for the different houses of a multicameral legislature. See generally Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1153, 1156 n.6 (1992).
30. It is less certain, however, that departmentalism prevails across a wider sample of the legal academy. See Miller, supra note 4, at 39 ("Judicial supremacists probably represent the majority view among U.S. legal academics.").
31. Professor Michael Stokes Paulsen in particular deserves credit for elevating the debate to new levels. See, e.g., Paulsen, The Most Dangerous Branch, supra note 4; Paulsen, The Merryman Power, supra note 4.
32. This Article largely postpones to another day the related issue of whether courts must or may give deference to the prior constitutional decisions of other courts.
33. For the best available description of originalist methodology, see Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 Yale L.J. 541, 550-59 (1994).
34. For some representative statements to this effect from prominent founding-era Federalists, see Gary Lawson & Patricia B. Granger, The "Proper" Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L.J. 267, 316-18 (1993).
35. See Paulsen, The Most Dangerous Branch, supra note 4, at 241.
36. Although we are ultimately concerned with the ability of various actors to act upon their legal interpretations, for ease of exposition we will henceforth speak only of the power to "interpret" the laws rather than of the power to "interpret and apply" the laws.
37. U.S. Const. art. III, § 1.
38. Id. art. II, § 2, cl. 2 ("[T]he Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."). We do not address here the scope of this appointment power, and in particular we do not address whether this clause empowers federal courts, when directed by Congress, to appoint nonjudicial inferior officers. See Morrison v. Olson, 487 U.S. 654, 675-76 (1988) (suggesting that courts might not be able to appoint nonjudidal officers "if there [were] some 'incongruity' between the functions normally performed by the courts and the performance of their duty to appoint") (quoting Ex parte Siebold, 100 U.S. 371, 398 (1879)).
39. The Chief Justice of the Supreme Court is empowered, and obliged, to preside over presidential impeachment trials in the Senate, U.S. Const. art. I, § 3, cl. 6, but this is a power personally vested in the Chief Justice rather than in the federal courts. One might also say that federal judges are empowered to stay in office during good behavior and to receive salaries that are not to be diminished during their time in office, see id. art. III, § 1 ("[T]he Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."), but it seems odd to describe a tenure provision as a grant of power. Professor Michael Froomkin has recently sought to argue that the federal courts are empowered to act by § 2 of Article III, which provides that "[t]he judicial Power shall extend to" nine specified categories of disputes. See A. Michael Froomkin, The Imperial Presidency's New Vestments, 88 Nw. U. L. Rev. 1346 (1994). This claim is untenable. Section 2 describes the class of disputes to which a pre-existing judicial power extends; both textually and structurally, it is a limitation on the previously-granted judicial power, not a grant of power in itself. Professor Froomkin's argument is decisively rebutted in Steven G. Calabresi, The Vesting Clauses as Power Grants, 88 Nw. U. L. Rev. 1377 (1994).
40. The Chief Justice of the Supreme Court is empowered, and obliged, to preside over presidential impeachment trials in the Senate, U.S. Const. art. I, § 3, cl. 6, but this is a power personally vested in the Chief Justice
41. U.S. Const. art. III, § 2, cls. 1-2.
42. See id. art. III, § 2, cl. 3 (specifying the venue for criminal trials); id. art. III, § 3 (defining treason and providing that no conviction for treason is permissible "unless on the Testimony of two Witnesses to the overt Act, or on Confession in open Court"). The Bill of Rights adds additional procedural limitations on the conduct of trials, both civil and criminal, see id. amend. V (requiring indictment by grand jury in criminal cases, prohibiting double jeopardy, requiring due process of law for deprivations of life, liberty, and property, and requiring compensation for public takings of property); id. amend. VI (guaranteeing in criminal trials rights to jury trial, confrontation, compulsory process, and counsel); id. amend. VII (preserving the right to jury trial in most civil cases), and it limits the power of federal judges to issue warrants, see id. amend. IV ("no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized"), and to set bail, levy fines, or impose punishment. See id. amend. VIII ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.").
43. See Calabresi, supra note 16, at 1379-82; Calabresi & Prakash, supra note 10, at 571. The so-called Necessary and Proper Clause, which was known to the founding generation as the Sweeping Clause, see Lawson & Granger, supra note 11, at 270, cannot be used to empower the federal judiciary to act. The clause provides that Congress shall have power "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." U.S. Const. art. I, § 8, cl. 18. This clause by its terms only authorizes Congress to pass laws that implement or carry into effect powers that are vested by some other provision(s) of the Constitution. If the Constitution did not elsewhere vest powers in the federal judiciary, Congress could not create those powers through the Sweeping Clause.
44. James Wilson, 1 The Works of James Wilson 296 (Robert G. McCloskey ed., 1967).
45. As John Marshall put it, "[t]hose who apply the rule to particular cases, must of necessity expound and interpret that rule." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
46. See U.S. Const. art. VI, cl. 2 ("This Constitution . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.").
47. See Marbury, 5 U.S. (1 Cranch) at 177 (stating that the Constitution is "a superior paramount law").
48. One must also be concerned about how the exercise of that power affects other actors, but for the moment we are addressing only the sources of and limits on the interpretative power of the federal courts.
49. We put aside the question whether courts can or should defer to the views of other courts.
50. James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129 (1893).
51. Id. at 144.
52. For an excellent survey of relevant materials, see Sylvia Snowiss, Judicial Review and the Law of the Constitution 13-44 (1990).
53. See John F. Manning, Not Proved: Some Lingering Questions About Legislative Succession to the Presidency, 48 Stan. L. Rev. 141, 141 n.5 (1995).
54. Of course, under the so-called political question doctrine, there are contexts in which the courts must accept the constitutional judgments of the political departments as conclusive. These contexts, however, are limited, and the doctrine is controversial. See Martin H. Redish, The Federal Courts in the Political Order, 111-36 (1991) (questioning the legitimacy of much of the contemporary political question doctrine).
55. For a thoughtful discussion of Thayerian review in the context of one aspect of the judicial review process, see Michael J. Perry, The Constitution in the Courts: Law or Politics?, 86-95 (1994).
56. "Formally unconstrained" is used because even actors with complete interpretative freedom can choose to follow other persuasive views.
57. Paulsen, The Most Dangerous Branch, supra note 4, at 228.
58. Id. at 229. This Article will not rehearse Professor Paulsen's overwhelming theoretical and historical case for the postulate of coordinacy in the context of American constitutionalism. See id.
59. See id.
60. See Calabresi, supra note 4, at 275; Easterbrook, supra note 4, at 927. But see Paulsen, The Most Dangerous Branch, supra note 4, at 296 n.271 (suggesting that this view leads to judicial supremacy).
61. 8 Coke's Rep. 107a, 118a (1610).
62. These provisions are discussed in more detail in Lawson & Granger, supra note 11, at 277-78.
63. U.S. Const. art. I, § 9, cl. 1 (emphasis added).
64. Id. art. II, § 2, cl. 2 (emphasis added).
65. Id. art. II, § 3 (emphasis added).
66. Id. (emphasis added).
67. Id. art. V (emphasis added).
68. And, of course, these provisions only give the relevant actors discretion to determine when those powers should be exercised. The Constitution does not expressly empower these actors to define the content of their powers. Congress, for example, does not have discretion to determine which officers of the United States are "inferior Officers," though it does have discretion to determine which inferior officers shall be appointed without Senate confirmation.
69. See Paulsen, The Most Dangerous Branch, supra note 4, at 257-62 (describing how the oath to uphold the Constitution supports "co-equal independent interpretive power for each branch of government.").
70. See Strauss, supra note 4, at 121-22 (noting that the Oath Clause argument begs the question because it fails to answer what the Constitution requires).
71. Chief Justice Marshall's determination in Marbury that it was unconstitutional for Congress to permit the Supreme Court to exercise original jurisdiction in cases beyond those enumerated in Article III does not suggest Thayerian deference. See generally Akhil Reed Amar, Marbury, Section 13, and the Original Jurisdiction of the Supreme Court, 56 U. Chi. L. Rev. 443, 482-83 (1989). Nor does the determination by three circuit courts in 1793 that Congress could not require federal courts to decide pension claims subject to executive or legislative revision. Hayburn's Case, 2 U.S. (2 Dall.) 408, 410-11 n.* (1793); infra notes 229-35 and accompanying text (discussing Hayburn's Case). Nor does the 1803 District of Columbia circuit court decision that Congress could not, under Article III, reduce the salary of a justice of the peace for the District of Columbia. See United States v. More, 7 U.S. (3 Cranch) 159, 160 n.* (1805) (reprinting the 1803 opinion of the circuit court); Gary Lawson, Territorial Governments and the Limits of Formalism, 78 Cal. L. Rev. 853, 880-85 (1990) (discussing More). The judicial determinations in all of these cases were probably correct, but the determinations do not display a Thayerian attitude of deferring to Congress unless a statute is unconstitutional beyond a reasonable doubt.
72. Chief Justice Marshall's determination in Marbury that it was unconstitutional for Congress to permit the Supreme Court to exercise original jurisdiction in cases beyond those enumerated in Article III does not suggest Thayerian deference. See generally Akhil Reed Amar, Marbury, Section 13, and the Original Jurisdiction of the Supreme Court, 56 U. Chi. L. Rev. 443, 482-83 (1989). Nor does the determination by three circuit courts in 1793 that Congress could not require federal courts to decide pension claims subject to executive or legislative revision. Hayburn's Case, 2 U.S. (2 Dall.) 408, 410-11 n.* (1793); infra notes 229-35 and accompanying text (discussing Hayburn's Case). Nor does the 1803 District of Columbia circuit court decision that Congress could not, under Article III, reduce the salary of a justice of the peace for the District of Columbia. See United States v. More, 7 U.S. (3 Cranch) 159, 160 n.* (1805) (reprinting the 1803 opinion of the circuit court); Gary Lawson, Territorial Governments and the Limits of Formalism, 78 Cal. L. Rev. 853, 880-85 (1990) (discussing More). The judicial determinations in all of these cases were probably correct, but the determinations do not display a Thayerian attitude of deferring to Congress unless a statute is unconstitutional beyond a reasonable doubt.
73. See infra notes 157-61 and accompanying text (discussing legal and epistemological deference).
74. We say "presumptively" because it is possible that some but not all exercises of power by other actors constrain the courts' law interpreting powers, or that some exercises of power constrain more than do others. One could imagine, for example, arguing that courts have a freer interpretative hand in the face of congressional interpretations of the postal power, see U.S. Const. art. I, § 8, cl. 7 (granting Congress power "[t]o establish Post Offices and Post Roads"), than they do in the face of presidential interpretations of the commander-in-chief power. See U.S. Const. art. II, § 2, cl. 1 ("The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States . . . ."). For a development of this idea of differential deference in the context of individual rights, see Perry, supra note 4 (manuscript at 63-78). We believe, however, that the Constitution accommodates these concerns through the principle of epistemological deference rather than through any principle of legal deference.
75. The Constitution refers to the President by a generic male pronoun. We follow this practice without endorsing it.
76. U.S. Const. art. I, § 7, cls. 2-3.
77. Id. art. II, § 2, cl. 1.
78. Id.
79. Id.
80. Id. art. II, § 2, cl. 2.
81. U.S. Const. art. II, § 2, cls. 2-3. There are three different modes of appointment (appointment with Senate confirmation, appointment without Senate confirmation, and recess appointment), the details of which are not important here.
82. Id. art. II, § 3.
83. Id.
84. Id.
85. Id.
86. U.S. Const. art. II, § 3.
87. Id. art. II, § I, cl. 1.
88. Id. art. II, § 3.
89. See supra notes 51-63 and accompanying text.
90. U.S. Const. art. II, § 1, cl. 1.
91. Article I grants to the President the power to sign or veto bills. See id. art. I, § 7, cls. 2-3.
92. For lists of modern scholars who have taken such a position, see, e.g., Calabresi, supra note 16, at 1377 n.1; Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1243 n.68 (1994).
93. See Calabresi, supra note 16, at 1378-1400 (discussing these arguments); see also Calabresi & Prakash, supra note 10, at 570-79 (extending these arguments).
94. U.S. Const. art. II, § 1, cl. 1.
95. See Calabresi, supra note 16, at 1380-81 (discussing these various sources).
96. U.S. Const. art. I, § 8, cl. 18 (emphasis added).
97. Id. art. II, § 2, cl. 2 (emphasis added).
98. For the classic analysis of the relationship between the Vesting Clauses of Article II and Article III, see generally Calabresi & Rhodes, supra note 6.
99. See supra notes 14-25 and accompanying text (discussing why Article III is the source of the federal courts' power to interpret the law).
100. By contrast, the Article I Vesting Clause provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States . . . ." U.S. Const. art. I, § 1 (emphasis added). The phrase "herein granted" means that Congress does not possess general legislative power, but only those specific legislative powers granted elsewhere in the document By contrast, the vesting clauses of Articles II and III grant to the President and the federal courts, respectively, the general executive and judicial powers.
101. Hamilton's failure in The Federalist to mention the Vesting Clause when discussing the President's powers presents the strongest argument against reading the clause as a power grant. See Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 49 (1994) ("[N]ot even Hamilton described the Vesting Clause as an independent source of substantive executive power, though he was generally quite eager to define a strong executive."). For a response to this argument, see Calabresi & Prakash, supra note 10, at 612.
102. See Antonin J. Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 852 (1989).
103. Abel P. Upshur, A Brief Inquiry into the True Nature and Character of Our Federal Government 116-17 (Da Capo 1971) (Petersburg, Edmund & Julian C. Ruffin eds., 1840).
104. As Chancellor Kent stated: The power of making laws is the supreme power in a state, and the department in which it resides will naturally have such a preponderance in the political system, and act with such mighty force upon the public mind, that the line of separation between that and the other branches of the government ought to be marked very distinctly, and with the most careful precision. 1 James Kent, Commentaries 207-10 (1826), reprinted in 2 The Founders' Constitution 39 (Phillip B. Kurland & Ralph Lerner eds., 1987).
105. As Chancellor Kent stated: The power of making laws is the supreme power in a state, and the department in which it resides will naturally have such a preponderance in the political system, and act with such mighty force upon the public mind, that the line of separation between that and the other branches of the government ought to be marked very distinctly, and with the most careful precision. 1 James Kent, Commentaries 207-10 (1826), reprinted in 2 The Founders' Constitution 39 (Phillip B. Kurland & Ralph Lerner eds., 1987).
106. The authors, for example, do not completely agree on the best reading of the available materials. Mr. Moore thinks that a respectable historical case can be made for an inherent presidential power of unilateral action to promote the public good in emergency circumstances in which the coordinate departments have failed to act, cf. John Locke, Second Treatise on Civil Government §§ 159-60 (1689), reprinted in 3 The Founders' Constitution 488 (Philip B. Kurland & Ralph Lerner eds., 1987), while Professor Lawson is dubious. For a good introduction to the debate, and a thoughtful defense of an executive power that extends only minimally beyond the power to execute the laws, see Henry P. Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1 (1993).
107. The authors, for example, do not completely agree on the best reading of the available materials. Mr. Moore thinks that a respectable historical case can be made for an inherent presidential power of unilateral action to promote the public good in emergency circumstances in which the coordinate departments have failed to act, cf. John Locke, Second Treatise on Civil Government §§ 159-60 (1689), reprinted in 3 The Founders' Constitution 488 (Philip B. Kurland & Ralph Lerner eds., 1987), while Professor Lawson is dubious. For a good introduction to the debate, and a thoughtful defense of an executive power that extends only minimally beyond the power to execute the laws, see Henry P. Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1 (1993).
108. The authors, for example, do not completely agree on the best reading of the available materials. Mr. Moore thinks that a respectable historical case can be made for an inherent presidential power of unilateral action to promote the public good in emergency circumstances in which the coordinate departments have failed to act, cf. John Locke, Second Treatise on Civil Government §§ 159-60 (1689), reprinted in 3 The Founders' Constitution 488 (Philip B. Kurland & Ralph Lerner eds., 1987), while Professor Lawson is dubious. For a good introduction to the debate, and a thoughtful defense of an executive power that extends only minimally beyond the power to execute the laws, see Henry P. Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1 (1993).
109. See Calabresi & Prakash, supra note 10, at 617.
110. U.S. Const. art. II, sect; 3.
111. One should not, however, draw too many conclusions about presidential power from the Take Care Clause. The clause is consistent both with a direct presidential power of law execution and with a mere presidential power of supervision over other actors who have direct power to execute the laws.
112. Samuel Johnson's 1785 Dictionary defined "executive" as follows: Executive. adj. [from execute.] 1. Having the quality of executing or performing. 2. Active; not deliberative; not legislative; having the power to put in act the laws. Samuel Johnson, A Dictionary of the English Language (7th ed. 1785) (italics in original). The Oxford English Dictionary defines "executive" as follows: A. adj. . . . 3. a. Pertaining to execution; having the function of executing or carrying into practical effect. . . . b. esp. as the distinctive epithet of that branch of the government which is concerned or charged with carrying out the laws, decrees, and judicial sentences; opposed to 'judicial' and 'legislative'. . . . B. sb. 1. a. That branch of the government which is charged with the execution of the laws. . . . b. The person or persons in whom the supreme executive magistracy of a country or state is vested. Chiefly U.S., applied to the President (also called chief executive), and to the governors of states. 5 The Oxford English Dictionary 522 (2d ed. 1989).
113. See Calabresi & Prakash, supra note 10, at 606-11.
114. Johnson, supra note 84.
115. Id.
116. Id.
117. 5 Oxford English Dictionary, supra note 84, at 522.
118. The Federalist No. 78, at 522-23 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
119. Easterbrook, supra note 4, at 905; see also Miller, supra note 4, at 50 ("The proposition that the president's power to execute the law includes a power of interpretation should be universally accepted.").
120. We are indebted to Professor Thomas W. Merrill for this example.
121. The law in question may be so vague that the President's interpretative power shades into the legislative power. Because the President has only the executive power, with its accompanying power of interpretation, the President cannot constitutionally execute a statute that cannot be interpreted. We do not address here how to draw the boundaries between interpretation and legislation. Compare Lawson, supra note 67, at 1239 (arguing that Congress cannot delegate legislative functions and must make "whatever policy decisions are sufficiently important to the statutory scheme at issue so that Congress must make them") with Martin H. Redish, The Constitution as Political Structure 136 (1995) (arguing that valid statutes must evince "some meaningful level of normative political commitment by the enacting legislators, thus enabling the electorate to judge its representatives") and David Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation 183 (1993) ("[A] person interested in knowing whether the statute prohibits any given conduct will, in most cases, get a clear answer from the statute that states the law, but may well get no answer, for any particular case, from a statute that delegates"). See generally Gary Lawson, Who Legislates?, 1995 Pub. Int'l L. Rev. 147 (reviewing Schoenbrod, supra, and discussing the constitutional sources and contours of the nondelegation principle). It is also possible that a judicial judgment could be so ambiguous that execution of that judgment would require exercise of judicial rather than executive power and would thus raise delegation concerns.
122. The law in question may be so vague that the President's interpretative power shades into the legislative power. Because the President has only the executive power, with its accompanying power of interpretation, the President cannot constitutionally execute a statute that cannot be interpreted. We do not address here how to draw the boundaries between interpretation and legislation. Compare Lawson, supra note 67, at 1239 (arguing that Congress cannot delegate legislative functions and must make "whatever policy decisions are sufficiently important to the statutory scheme at issue so that Congress must make them") with Martin H. Redish, The Constitution as Political Structure 136 (1995) (arguing that valid statutes must evince "some meaningful level of normative political commitment by the enacting legislators, thus enabling the electorate to judge its representatives") and David Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation 183 (1993) ("[A] person interested in knowing whether the statute prohibits any given conduct will, in most cases, get a clear answer from the statute that states the law, but may well get no answer, for any particular case, from a statute that delegates"). See generally Gary Lawson, Who Legislates?, 1995 Pub. Int'l L. Rev. 147 (reviewing Schoenbrod, supra, and discussing the constitutional sources and contours of the nondelegation principle). It is also possible that a judicial judgment could be so ambiguous that execution of that judgment would require exercise of judicial rather than executive power and would thus raise delegation concerns.
123. The law in question may be so vague that the President's interpretative power shades into the legislative power. Because the President has only the executive power, with its accompanying power of interpretation, the President cannot constitutionally execute a statute that cannot be interpreted. We do not address here how to draw the boundaries between interpretation and legislation. Compare Lawson, supra note 67, at 1239 (arguing that Congress cannot delegate legislative functions and must make "whatever policy decisions are sufficiently important to the statutory scheme at issue so that Congress must make them") with Martin H. Redish, The Constitution as Political Structure 136 (1995) (arguing that valid statutes must evince "some meaningful level of normative political commitment by the enacting legislators, thus enabling the electorate to judge its representatives") and David Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation 183 (1993) ("[A] person interested in knowing whether the statute prohibits any given conduct will, in most cases, get a clear answer from the statute that states the law, but may well get no answer, for any particular case, from a statute that delegates"). See generally Gary Lawson, Who Legislates?, 1995 Pub. Int'l L. Rev. 147 (reviewing Schoenbrod, supra, and discussing the constitutional sources and contours of the nondelegation principle). It is also possible that a judicial judgment could be so ambiguous that execution of that judgment would require exercise of judicial rather than executive power and would thus raise delegation concerns.
124. See Paulsen, The Most Dangerous Branch, supra note 4, at 267 (noting that the President's duty to interpret the law in order to "take care" that the laws be "faithfully executed" under the Constitution obligates him to refuse to enforce a statute he finds contrary to the Constitution as paramount law).
125. See supra notes 26-49 and accompanying text (discussing the degree of independence judicial interpretation should involve).
126. See U.S. Const. art. II, § 1, cl. 8 (stating that the President must swear or affirm: "'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'").
127. For example, in exercising the commander-in-chief power, the President must determine when and whether he needs congressional authorization for military action; in exercising the recommendation power, the President must insure that his proposals are constitutional; and in exercising the commission power, the President must determine who is an "Officer[] of the United States" to whom a commission must be given.
128. Professor Paulsen, for similar reasons, focuses on these contexts while acknowledging the need for constitutional interpretation in the exercise of other powers. See Paulsen, The Most Dangerous Branch, supra note 4, at 263 n.167 (discussing the legal interpretation of laws by the executive branch).
129. This is not inevitable. Congress may be unsure about the constitutionality of its proposed legislation and may want the President's input in a context in which the decision matters. Congress may know that the bill will be unconstitutional if enacted but may be pandering to the uninformed or impassioned will of voters; or Congress may be deliberately testing the President's mettle. Nonetheless, it is a decent working presumption that congressional legislative action constitutes an implicit, and sometimes explicit, judgment of constitutionality.
130. See Easterbrook, supra note 4, at 907-08 (tracing the history of presidential vetoes under Presidents Washington, Madison, and Jackson, which leads to an assumption that the veto should be exercised only on constitutional grounds).
131. For a definitive discussion, see Rappaport, supra note 4, at 771-76.
132. There is no historical evidence which suggests that presidents must defer to Congress in a legislative process. However, there is historical evidence suggesting that courts engaged in judicial review should adopt a deferential stance toward legislation. The case for judicial deference to congressional judgments is much stronger than the case for presidential deference to congressional judgments.
133. Thayer, supra note 26, at 144.
134. U.S. Const. art. II, § 8, cl. 18.
135. The word "necessary" in the Sweeping Clause probably means "helpful" - more or less the way that Chief Justice Marshall defined it in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 413-20 (1819). See Lawson & Granger, supra note 11, at 286-89 (briefly discussing the meaning of "necessary" in the context of the Sweeping Clause). A statute limiting the grounds on which the President can issue vetoes, some would argue, is hurtful to the exercise of the President's vested power - as contrasted, for example, with laws that appropriate funds for the purchase of veto pens or for the hiring of legal staff to advise the President on proposed legislation.
136. See Lawson & Granger, supra note 11.
137. See supra notes 95-96 and accompanying text (describing the role of presidential interpretation).
138. Congress can, of course, control (within limits) the jurisdiction of the federal courts, and can thus control the occasions in which the judicial power is exercised, but that is a very different power than the power to control the manner in which the judicial power is exercised in cases properly within the courts' jurisdiction. Similarly, because Congress determines whether and when bills will be sent to the President for signature, Congress controls the occasions in which the President's veto power can be exercised, but that does not mean that Congress also has power to control the manner in which the President can exercise that power when the occasion for its exercise arises. This Article analyzes the limits of Congress's power to regulate the manner in which courts or the President conduct business. The Article does not comment, for example, on such things as congressionally-prescribed quorum requirements for Supreme Court judgments or congressional limitations on judicial remedies. We are grateful to Evan Caminker for these examples of "borderline" congressional regulation of judicial affairs.
139. This annuls the problem of presidential interpretations of precedent - the first step of the two-step process of presidential interpretation. See supra notes 91-92 and accompanying text (discussing the "first step" of presidential interpretation). Before one considers the effects of a judicial decision, one needs to know what the decision says.
140. In 1832 Daniel Webster sharply criticized Andrew Jackson's bank bill veto because Jackson did not accept as dispositive Supreme Court decisions upholding Congress's power to charter a national bank, see Daniel Webster, Great Speeches and Orations of Daniel Webster 329-31 (Edwin P. Whipple ed., 1879); and in 1985 Daniel Manion, now a Judge of the Seventh Circuit Court of Appeals, was attacked during his Senate confirmation hearings for supporting legislation as a state legislator that would have permitted the posting of the Ten Commandments in Indiana schools in a fashion that arguably would have failed the Supreme Court's constitutional test for establishments of religion. See Meese, supra note 1, at 987-88 (discussing the attack on Daniel Manion during his Senate confirmation hearing).
141. See Easterbrook, supra note 4, at 907 (describing vetoes based on presidential interpretations of the Constitution at variance with prior court interpretations as "uncontroversial"); Paulsen, The Merryman Power, supra note 4, at 81 ("It is also widely recognized that the President may veto a bill for any reason or no reason at all, including constitutional reasons previously rejected by the Supreme Court.").
142. See Paul Brest, Who Decides?, 58 S. Cal. L. Rev. 661, 670 (1985) ("The belief in judicial exclusivity is so widespread that it is usually assumed rather than argued for.").
143. See U.S. Const. art. II, § 3, cl. 4 (stating that the President "shall take Care that the Laws be faithfully executed").
144. See infra notes 211-74 and accompanying text (discussing the Take Care Clause and the finality of judicial judgments).
145. U.S. Const. art. III, § 1, cl. 1. The Sweeping Clause does not help, as Congress can no more order the President to defer to court decisions than it can order the President to defer to congressional decisions. See supra notes 102-106 and accompanying text.
146. As we shall see, some people have put forward an originalist case for judicial supremacy in some specific contexts, and we make a modest case for such limited supremacy here. See infra notes 242-74 and accompanying text.
147. Neuborne, supra note 2, at 998-99; see also id. at 993 ("[O]nce the Supreme Court; or a circuit court for that matter, enunciates a settled rule of law, . . . in the context of resolving an article III case or controversy, our system of government obliges executive officials to comply with the law as judicially declared.").
148. Professor Neuborne was writing specifically about presidential enforcement of statutes. It is not at all clear that Professor Neuborne would extend his position to the presentment context, see Burt Neuborne, Panel: The Role of the Legislative and Executive Branches in Interpreting the Constitution, 73 Cornell L. Rev. 375, 376-77 (1988), but we think it useful to consider his reasoning in that context.
149. Neuborne, supra note 2, at 994.
150. Id. at 1000.
151. 358 U.S. 1 (1958).
152. Id. at 18; see also id. (referring to the Supreme Court's interpretation of the Fourteenth Amendment as "the supreme law of the land" for purposes of the Supremacy Clause).
153. See Neuborne, supra note 2, at 1000-01 (discussing the validity of the judiciary's role as the authoritative voice on Constitutional interpretation).
154. The argument has some internal flaws as well. The reasoning of earlier judicial opinions, such as Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), supports a departmentalist approach rather than a judicial supremacist approach, Cooper rests on a misstatement of Marbury, and modern lower court opinions that reaffirm judicial supremacy rely on Cooper and Cooper's misreading of Marbury. Merrill, supra note 4, at 50-53.
155. For a sample of presidential assertions of independent interpretative authority, see The Federalist Society, supra note 5, at 41-60, 71-73, 77-78, 87-91 (discussing statements by Thomas Jefferson, James Madison, Abraham Lincoln, Ronald Reagan, and George Bush).
156. Neuborne, supra note 2, at 994-96 (discussing the need for one authoritative voice for interpretation).
157. Id. at 996-97. This argument from inequality is developed at more length in Dan T. Coenen, The Constitutional Case Against Intracircuit Nonacquiescence, 75 Minn. L. Rev. 1339, 1352-55 (1991).
158. If the goal is a uniform interpretation of the Constitution, then the President rather than the courts is the ideal interpreter because the President is a unitary actor. See Easterbrook, supra note 4, at 917-18. More fundamentally, however, the possibility of different interpretations by different departments is a strength, not a weakness, of departmentalism, for the same reasons that the division of legislative authority among the state and federal governments, two different federal departments (Congress and the President), and two branches of Congress is a strength, not a weakness, of the constitutional separation of powers. As for the problem of inequality among rich and poor: under a system of pure departmentalism, as under a system of judicial supremacy, all participants in the legal system face the same formal rules for litigating claims. Wealthy litigants certainly have more opportunities to pursue appeals than do less wealthy persons, but that is no more startling or shocking than is the realization that rich people in shopping malls that are formally open to everyone have more opportunities to acquire goods than do poor people.
159. Neuborne, supra note 2, at 997. We say "in principle" because in practice some actors may be better situated than others - by knowledge, skill, temperament, or position - to find the answers to certain problems. See infra notes 157-61 and accompanying text. But it is implausible to suppose that these contingent factors will, in all contexts and circumstances, point to Judges as the interpreters most likely to get the right answer.
160. Neuborne, supra note 2, at 997.
161. See Neuborne, supra note 118, at 378-79 (discussing the concept "hard cases").
162. Neuborne, supra note 2, at 999.
163. Id. at 1000.
164. See Neuborne, supra note 118, at 375.
165. John Harrison et al., Panel: The Role of the Legislative and Executive Branches in Interpreting the Constitution, 73 Cornell L. Rev. 371, 399 (1988).
166. Obviously, a full treatment of the interesting jurisprudential implications of Professor Neuborne's position would require a separate article. Fortunately, one of the authors has already written it. See Gary Lawson, Legal Indeterminacy: Its Cause and Cure, 19 Harv. J.L. & Pub. Pol'y 411 (1996). Our aim here is simply to offer enough preliminary considerations to demonstrate that departmentalists need not be threatened by Professor Neuborne's challenge.
167. Exactly how high a degree of determinacy could be achieved would depend, inter alia, on the standard of proof that one applies to the determination of whether an answer is better than its competitors. Does it need to be clear beyond a reasonable doubt that one answer is better than its competitors? Is it enough that the best available conclusion is that one answer is the best available conclusion about constitutional meaning, or should we apply some intermediate standard of proof, such as a preponderance-of-the-evidence or a clear-and-convincing-evidence standard?
168. See, e.g., Thomas B. McAffee, Originalism and Indeterminacy, 19 Harv. J.L. & Pub. Pol'y 429, 429 (1996) (arguing that originalism's indeterminacy is often overstated).
169. One of us has devoted a good portion of his professional life to exploring standards of proof for legal claims and the relationship between uncertainty and indeterminacy in the law, and we are not going to do more than raise the issue here. See generally Lawson, supra note 136; Gary Lawson, Proving Ownership, 11 Soc. Phil. & Pol'y 139 (1994); Gary Lawson, Proving the Law, 86 Nw. U. L. Rev. 859 (1992).
170. One of us has devoted a good portion of his professional life to exploring standards of proof for legal claims and the relationship between uncertainty and indeterminacy in the law, and we are not going to do more than raise the issue here. See generally Lawson, supra note 136; Gary Lawson, Proving Ownership, 11 Soc. Phil. & Pol'y 139 (1994); Gary Lawson, Proving the Law, 86 Nw. U. L. Rev. 859 (1992).
171. See Lawson, supra note 136, at 425-28 (stating that the federal government bears the initial burden of affirmatively showing that it has the enumerated power to act, while challengers of state action or of federal action within the national government's enumerated powers bear the burden of showing that the Constitution affirmatively prohibits the action in question).
172. Neuborne, supra note 2, at 1000.
173. Strauss, supra note 4, at 127-28.
174. Id. at 127-34.
175. Id. An interesting question under Professor Strauss's analysis is whether the constraints of precedent are determined by the actual practice of the Supreme Court or by some external theory of precedent. If, for example, the Court were to follow a practice of absolutely abiding by precedent in all circumstances, would Professor Strauss maintain that the President is bound to follow the same practice rather than the more flexible approach to precedent that has thus far characterized American constitutional law?
176. Id. at 120-27.
177. Id. at 123.
178. Merrill, supra note 4, at 72 n.131.
179. Strauss, supra note 4, at 123-25. Professor Strauss notes that, among departmentalists, Professor Michael Stokes Paulsen presents a notable exception of a departmentalist who does not believe that the President is legally bound to enforce court judgments in specific cases. Id.
180. See id. at 124 (discussing the idea that the executive as a coordinate branch, should have symmetrical power to deny enforcement of a judicial decision).
181. See Strauss, supra note 4, at 126-27.
182. See supra notes 64-74 and accompanying text (discussing clauses that arguably confer such discretion on other actors).
183. Strauss, supra note 4, at 127.
184. Id.
185. Gary Lawson, The Constitutional Case Against Precedent, 17 Harv. J.L. & Pub. Pol'y 23, 24-25 (1994).
186. See Paulsen, The Most Dangerous Branch, supra note 4, at 319 n.349 (arguing that judges should prefer their own interpretation of the Constitution rather than rely on bad precedent). Several others have expressed agreement, but not for attribution.
187. We must leave for a later work such questions as how the distinction between legal and epistemological deference plays out in the context of precedent and whether the lower federal courts have different obligations with respect to Supreme Court decisions than does the Supreme Court itself.
188. See Eisgruber, supra note 4, at 348.
189. Id. For a similar approach, see Conkle, supra note 3, at 15-16.
190. See Eisgruber, supra note 4, at 351-52 (arguing that trust in the judiciary to discern the law in other contexts justifies trust in the judiciary's constitutional interpretations given judges' training and experience). Professor Paulsen has also noted and taken issue with this feature of Professor Eisgruber's argument. See Paulsen, Reply, supra note 4, at 390-91 (arguing that the Constitution does not enumerate the task of legal interpretation on a particular branch and requires legal interpretation to be exercised by all three branches as "incidental to their designated powers.").
191. This allocation has important exceptions, which Professor Eisgruber discusses at length. See Eisgruber, supra note 4, at 355-62.
192. Id. at 371.
193. See Easterbrook, supra note 4, at 907-09; Paulsen, The Most Dangerous Branch, supra note 4, at 264-65.
194. See infra notes 223-74 and accompanying text (discussing the constitutional significance of court judgments in specific cases).
195. See Edward S. Corwin, The President: Office and Powers 1787-1984, 180-90 (5th ed. 1984); Rappaport, supra note 4, at 776-79.
196. U.S. Const. art. I, § 7, cl. 2.
197. Easterbrook, supra note 4, at 917.
198. See May, supra note 4, at 876-81 (providing a historical based analysis on a qualified veto power).
199. See id. at 869-73 (describing the historical circumstances surrounding the English crown during the fourteenth to seventeenth century which vitiated the king's suspending power).
200. Id. at 873-74.
201. Id. at 881-85.
202. Id. at 876-81; see also id. at 885-89 (noting the lack of evidence in the debates over the Bill of Rights that indicates any awareness that the President might have a suspension power).
203. May, supra note 4, at 894.
204. Erik F. Dyhrkopp, Executive Nonenforcement and the Philadelphia Convention (June 1990) (manuscript on file with Iowa Law Review).
205. Id. at 22-27, 45-50.
206. Id. at 27-45.
207. We do not attempt to draw the line between impermissible refusals to enforce and permissible exercises of prosecutorial discretion.
208. See May, supra note 4, at 1011 n.32.
209. See infra notes 263-68 and accompanying text (summarizing Professor Paulsen's arguments favoring a presidential power of judicial review).
210. See May, supra note 4, at 877 n.48.
211. U.S. Const. art. I, § 2, cl. 5.
212. Id. art. I, § 3, cl. 6.
213. Id.
214. Id.
215. Id. art. I, § 3, cl. 7.
216. U.S. Const. art. II, § 4.
217. Id. art. II, § 2, cl. 1.
218. Id. art. I, § 3, cl. 6.
219. Id. art. III, § 2, cl. 3.
220. Id. art. II, § 4. The Constitution specifies that "Treason against the United States, shall consist only in levying War against them, or, in adhering to the Enemies, giving them Aid and Comfort." Id. art. III, § 3, cl. 1. Bribery presumably has its traditional meaning.
221. For some excellent studies of the meaning of "high Crimes and Misdemeanors," that all reach essentially the same conclusions, see Raoul Berger, Impeachment: The Constitutional Problems 55-103 (1973); Charles L. Black, Jr., Impeachment: A Handbook 27-41 (1974); Michael J. Gerhardt, The Constitutional Limits to Impeachment and Its Alternatives, 68 Tex. L. Rev. 1, 82-89 (1989); Ronald D. Rotunda, An Essay on the Constitutional Parameters of Federal Impeachment, 76 Ky. L.J. 707, 721-28 (1987-88).
222. For some excellent studies of the meaning of "high Crimes and Misdemeanors," that all reach essentially the same conclusions, see Raoul Berger, Impeachment: The Constitutional Problems 55-103 (1973); Charles L. Black, Jr., Impeachment: A Handbook 27-41 (1974); Michael J. Gerhardt, The Constitutional Limits to Impeachment and Its Alternatives, 68 Tex. L. Rev. 1, 82-89 (1989); Ronald D. Rotunda, An Essay on the Constitutional Parameters of Federal Impeachment, 76 Ky. L.J. 707, 721-28 (1987-88).
223. For some excellent studies of the meaning of "high Crimes and Misdemeanors," that all reach essentially the same conclusions, see Raoul Berger, Impeachment: The Constitutional Problems 55-103 (1973); Charles L. Black, Jr., Impeachment: A Handbook 27-41 (1974); Michael J. Gerhardt, The Constitutional Limits to Impeachment and Its Alternatives, 68 Tex. L. Rev. 1, 82-89 (1989); Ronald D. Rotunda, An Essay on the Constitutional Parameters of Federal Impeachment, 76 Ky. L.J. 707, 721-28 (1987-88).
224. For some excellent studies of the meaning of "high Crimes and Misdemeanors," that all reach essentially the same conclusions, see Raoul Berger, Impeachment: The Constitutional Problems 55-103 (1973); Charles L. Black, Jr., Impeachment: A Handbook 27-41 (1974); Michael J. Gerhardt, The Constitutional Limits to Impeachment and Its Alternatives, 68 Tex. L. Rev. 1, 82-89 (1989); Ronald D. Rotunda, An Essay on the Constitutional Parameters of Federal Impeachment, 76 Ky. L.J. 707, 721-28 (1987-88).
225. See, e.g., Berger, supra note 190, at 62-67, 73-78; Black, supra note 190, at 37-41; John R. Labovitz, Presidential Impeachment 126 (1978); Gerhardt, supra note 190, at 82; Rotunda, supra note 190, at 721-25. But see Labovitz, supra, at 93-100 (describing debates during President Nixon's impeachment proceedings on whether impeachment requires an indictable crime).
226. The Federalist No. 65, at 396 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Hamilton's views on this subject were fully representative of the thinking of the founding generation. For a thorough discussion, see Rotunda, supra note 190, at 721-25.
227. 116 Cong. Rec. 11,913 (1970).
228. We take no view on this question. See Nixon v. United States, 506 U.S. 224, 228-38 (1993) (holding nonjustidable a challenge to trial before a Senate committee rather than the full Senate); Berger, supra note 190, at 103-21 (urging judicial review of impeachment decisions); Michael J. Gerhardt, Rediscovering Nonjusticiability: Judicial Review of Impeachments after Nixon, 44 Duke L.J. 231, 253 (1994) (defending a broad conception of nonjusticiability for impeachments).
229. Needless to say, we emphasize only a few highlights from these materials. For an exhaustive discussion of the English history of impeachment, see Berger, supra note 190, at 53-103; and for an illuminating discussion of the convention and ratification debates, see Rotunda, supra note 190, at 722-25.
230. 4 William Blackstone, Commentaries on the Law of England 121 (1757) quoted in Berger, supra note 190, at 62.
231. See Berger, supra note 190, at 67-71.
232. 2 The Records of the Federal Convention of 1787 550 (Max Farrand ed., 1911). The substitution was accepted by an 8-3 vote.
233. See 4 Debates in the Several State Conventions on the Adoption of the Federal Constitution 47 (Jonathan Elliott ed., 2d ed. 1836) (discussing the statement of Archibald MacLaine at the North Carolina convention).
234. See 2 Debates in the Several State Conventions on the Adoption of the Federal Constitution 169 (discussing the statement of Samuel Stillman at the Massachusetts convention).
235. We say "absent extraordinary circumstances" in order to accommodate the possibility that use of the veto could rise to a level of presidential irresponsibility sufficient to warrant impeachment. Charles Black suggests that impeachment can similarly check, in extraordinary circumstances, use of the President's legally-unlimited pardon power: Suppose a president were to announce and follow a policy of granting full pardons, in advance of indictment or trial, to all federal agents or police who killed anybody in line of duty, in the District of Columbia, whatever the circumstances and however unnecessary the killing. This would not be a crime, and probably could not be made a crime under the Constitution. But could anybody doubt that such conduct would be impeachable? Black, supra note 190, at 34.
236. U.S. Const. art. II, § 3.
237. A number of scholars read the historical materials to suggest some threshold of concrete harm to the Republic before impeachment is legally warranted. See, e.g., Black, supra note 190, at 37; Labovitz, supra note 191, at 127. It is possible to argue, of course, that every refusal to enforce a congressional statute is "serious" enough to constitute potential grounds for impeachment.
238. See Paulsen, The Most Dangerous Branch, supra note 4, at 322-23.
239. See Little v. Barreme, 6 U.S. (2 Cranch) 170, 179 (1804) (holding that commanders of vessels who seized American vessels coming from French parts were liable for damages even though they were following presidential orders).
240. See Nixon v. Fitzgerald, 457 U.S. 731, 757-58 (1982). We express no view on whether Fitzgerald was correctly decided.
241. It is important to bear in mind that, in the scenario under discussion, the President is not being impeached for incorrectly interpreting the Constitution. Rather, the President is being impeached for failing to carry out his constitutionally-prescribed duty to "take Care that the Laws be faithfully executed." U.S. Const. art. II, § 3. The President's reason for refusing to enforce the law in question - his belief that the law in question is unconstitutional - does not alter the act of nonenforcement itself. If the President is objectively correct that the law in question is unconstitutional, then the President's action is justified and Congress would be wrong to impeach and convict him even though it has the power to do so. If, however, the President's constitutional judgment is objectively wrong, then impeachment and removal could be appropriate. The question is whether the President or Congress acting in its capacity as an impeachment tribunal (or, conceivably, the Supreme Court) has the legally-binding final word on the correctness of the President's interpretation.
242. The nonenforcement power thus differs in this respect from the pardon power. The pardon power is discretionary; the President need not exercise the pardon power in every case of conviction under an unconstitutional statute. See Rappaport, supra note 4, at 777-79 (providing a detailed analysis of how a presidential pardon to a privilege and not a right and justifying why it is discretionary). Similarly, the impeachment power is discretionary. Congress is not constitutionally obliged to exercise its impeachment power whenever it believes that the constitutional bases for impeachment have been satisfied.
243. Objections to this conclusion on the ground that it violates "judicial independence" beg the question. Judges are clearly "independent" in one important constitutional sense: they have tenure "during good Behaviour." U.S. Const. art. III, § 1. Accordingly, judges are not subject to at-will removal by the President, and Congress cannot give them limited terms of office. They are also "independent" in the sense that they are not legally bound to give deference to the constitutional views of Congress or the President. Judges are, however, subject to removal through impeachment, and we see no escape from the conclusion that Congress has the power to impeach and remove judges who do not, in the ultimate judgment of Congress, decide cases in accordance with governing law. We leave for another time the interesting question whether "bad" judicial decisions must generate some threshold of harm to the nation before they can be sufficient grounds for impeachment. We also leave for another day the question whether a congressional determination that a particular brand of judicial decisionmaking constitutes a "high Crime[]" or "Misdemeanor" is subject to judicial review.
244. A second, related argument against presidential review based on the veto power maintains that a nonenforcement power functions much like a line-item veto, for which the Constitution does not provide. As Professor Rappaport has pointed out however, nonenforcement functions very differently from a line-item veto, Rappaport, supra note 4, at 770-71, just as nonenforcement functions differently from, and has different consequences than, a true constitutional veto.
245. U.S. Const. art. II, § 3.
246. See supra notes 81-90 and accompanying text (discussing the President's executive power).
247. See Strauss, supra note 4, at 117 ("[A]nswering the question about executive autonomy does not automatically answer the question about the Take Care Clause.").
248. Id. at 118.
249. See Labovitz, supra note 191, at 133-34.
250. See Lawson, supra note 67, at 1242 (noting that the Take Care Clause limits presidential power to execute laws).
251. See, e.g., Robert J. Reinstein, An Early View of Executive Powers and Privilege: The Trial of Smith and Ogden, 2 Hastings. Const. L.Q. 309, 320-21 (1975).
252. See Paulsen, The Merryman Power, supra note 4, at 81; Paulsen, The Most Dangerous Branch, supra note 4, at 212.
253. By "judgments" we mean the concrete dispositions of cases, including where applicable the prescription of a remedy (or imposition of a sentence). The judgment - the disposition of the case - must be distinguished from the opinion (if any) - the court's explanation for its judgment.
254. See, e.g., Easterbrook, supra note 4, at 926; Engdahl, John Marshall's "Jeffersonian" Concept, supra note 4, at 312; Harrison, supra note 135, at 372; Lawson, supra note 154, at 30.
255. See Paulsen, The Most Dangerous Branch, supra note 4, at 294-98; Strauss, supra note 4, at 124. Professor Strauss concludes from this that departmentalists are not, and cannot be, really serious about departmentalism, id. at 124-25, while Professor Paulsen concludes that the President has no legally binding obligation to enforce judgments, Paulsen, The Most Dangerous Branch, supra note 4, at 343-45.
256. This failure may be a function of curricular specialization in the legal academy. Although the nature of court judgments has important ramifications for constitutional theory, the subject of judgments and their finality is normally the province of texts and treatises on civil procedure. See, e.g., Fleming James, Jr., Civil Procedure §§ 11.1-11.35, at 517-603 (1965); Richard L. Marcus et al., Civil Procedure: A Modern Approach 947-1024 (1989). Accordingly, constitutional commentators do not ordinarily grapple with the implications of the original understanding of judicial finality for constitutional theory. For a rare exception, see Engdahl, John Marshall's "Jeffersonian" Concept, supra note 4, at 312-13. On the other hand, it may simply be a function of the dearth of materials. The debates surrounding the drafting and ratification of the Constitution say remarkably little about the content of "[t]he judicial Power."
257. See supra notes 215-17 and accompanying text (discussing limits on presidential power to execute laws).
258. Samuel Johnson's Dictionary includes among its definitions of a law, "a decree, edict, statute, or custom, publickly established as a rule of justice," "a decree authoritatively annexing rewards or punishments to certain actions," and "Judicial process." Johnson, supra note 84. A "decree," in turn, is defined in part as "A determination of a suit, or litigated cause." Id.
259. See U.S. Const. art. I, § 2, cl. 3 (stating that a census shall take place in such manner as Congress "shall by Law direct"); id. art. I, § 4, cl. 1 (Congress may "by Law" change the time, place, and manner of holding election to the House); id. art. I, § 4, cl. 2 (sessions of Congress shall begin on a constitutionally specified date unless Congress "shall by Law" specify a different date); id. art. I, § 6, cl. 1 (the pay of members of Congress is to be "ascertained by Law"); id. art. I, § 7, cl. 2 (specifying the procedure whereby a bill becomes "a Law"); art. I, § 8, cl. 15 (Congress has power to call the militia "to execute the Laws of the Union"); id. art. I, § 8, cl. 18 (Congress can make "all Laws" which are necessary and proper for carrying into execution federal powers); id. art. I, § 9, cl. 3 (no "ex post facto Law shall be passed" by Congress); id. art. I, § 9, cl. 7 (treasury funds can be withdrawn only "in Consequence of Appropriations made by Law"); id. art. I, § 10, cl. 1 (no state shall pass any "ex post facto Law, or Law impairing the obligation of contracts"); id. art. I, § 10, cl. 2 (states can levy imposts or duties only if they are necessary for executing "inspection Laws," and "all such Laws" are subject to congressional control); id. art. II, § 2, cl. 2 (federal offices may be "established by Law," and Congress may "by Law" allow inferior officers to be appointed by the President or other officers without Senate confirmation"); id. art. III, § 2, cl. 1 (the judicial power shall extend to all Cases arising under "the Laws of the United States"); id. art. IV, § 1 (Congress may "by general Laws" implement the Full Faith and Credit Clause); id. art. VI, cl. 2 (the Constitution "and the Laws of the United States which shall be made in Pursuance thereof" are the supreme law of the land); cf. id. art. I, § 8, cl. 10 (mentioning "the Law of Nations"); id. art. II, § 2, cl. 2 (referring to "the Courts of Law"); id. art. III, § 2, cl. 1 (distinguishing between "Law and Equity"); id. art. III, § 2, cl. 2 (distinguishing between "Law and Fact"). There may be two exceptions. First, the Constitution specifies that the penalty for impeachment is removal from and disqualification for federal office, but that conviction does not prevent further criminal prosecution and punishment "according to Law." Id. art. I, § 3, cl. 7. If all crimes must be statutory, then this is a clear reference to statutory "Law." If, however, there can be a federal common law of crimes, one can argue that this reference includes judicial decisions. For a spirited defense of a federal common law of crimes, see Stephen B. Presser, The Original Misunderstanding 67-99 (1991). Second, the Fugitive Slave Clause dealt with persons "held to Service of Labour in one State, under the Laws thereof" who are purportedly discharged from slavery "in Consequence of any Law or Regulation" of another state. Id. art. IV, § 2, cl. 3. One can imagine an argument that slavery, or its abolition, is a product of the common law rather than statute.
260. Locke, supra note 80, § 160.
261. Plaut v. Spendthrift Farm, Inc., 115 S. Ct. 1447, 1452-63 (1995). We confine our discussion, as did Justice Scalia, to judgments that are no longer subject to appeal within the federal judicial hierarchy.
262. Id. at 1453 (quoting Easterbrook, supra note 4, at 926).
263. 2 U.S. (2 Dall.) 409 (1792).
264. Act of Mar. 23, 1792, ch. 11, § 2, 1 Stat. 243, 244.
265. Id. § 4, 1 Stat. at 244.
266. See Hayburn's Case 2 U.S. (2. Dall.) at 411 n.*.
267. Id. (emphasis added).
268. Id. at 410 n.(a) (emphasis added).
269. Id. at 413 n.*.
270. See Act of Feb. 29, 1793, ch. 17, 1 Stat. 324 (regulating the claims to invalid pensions).
271. The Federalist No. 81, at 484 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
272. 3 U.S. (3 Dall.) 385 (1798).
273. See id. at 395 (opinion of Paterson, J.); id. at 398 (opinion of Iredell, J.).
274. Id. at 395 (opinion of Paterson, J.). Justice Paterson's use of the word "properly" is especially noteworthy, as the term was commonly used in the founding generation to describe jurisdictional lines between governmental departments. See Lawson & Granger, supra note 11, at 291-97 (discussing the context in which "properly" was often used during the founding era).
275. See Calder, 3 U.S. (3 Dall.) at 398 (opinion of Iredell, J.) ("It may, indeed, appear strange . . . that . . . there should exist a power to grant . . . new rights of trial . . . . The power . . . is judicial in its nature; and whenever it is exercised . . . it is an exercise of judicial, not of legislative, authority.").
276. See infra notes 249-62 and accompanying text (discussing how the finality of judicial judgments may not be absolute).
277. 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487). The State of Georgia effectively defied the Supreme Court's judgment in Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), that the State had no jurisdiction over Indian lands. According to one nineteenth-century historian, President Andrew Jackson, upon hearing of the Court's decision, declared "Well: John Marshall has made his decision: now let him enforce it!" 1 Horace Greeley, The American Conflict: A History of the Great Rebellion in the United States of America, 1860-64 106 (1865). The story is probably apocryphal and Jackson's resolve on this issue was never tested. See 2 Robert V. Remini, Andrew Jackson and the Course of American Freedom, 1822-1832 276-77 (1981).
278. 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487). The State of Georgia effectively defied the Supreme Court's judgment in Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), that the State had no jurisdiction over Indian lands. According to one nineteenth-century historian, President Andrew Jackson, upon hearing of the Court's decision, declared "Well: John Marshall has made his decision: now let him enforce it!" 1 Horace Greeley, The American Conflict: A History of the Great Rebellion in the United States of America, 1860-64 106 (1865). The story is probably apocryphal and Jackson's resolve on this issue was never tested. See 2 Robert V. Remini, Andrew Jackson and the Course of American Freedom, 1822-1832 276-77 (1981).
279. See supra notes 35-35 and accompanying text (discussing the "principle of coordinacy").
280. 2 U.S. (2 Dall.) at 410.
281. 3 Henry P. Johnston, The Correspondence and Public Papers of John Jay 1763-1826 486-89 (1971).
282. George Mason urged that, in the event of impeachment, the President should be suspended from office. Otherwise, Mason argued, "[w]hen he is arraigned for treason, he has the command of the army and navy, and may surround the Senate with thirty thousand troops." 3 Debates in the Several State Conventions on the Adoption of the Federal Constitution 494 (Jonathan Elliot ed., 2d ed. 1836) (quoted in Labovitz, supra note 191, at 22 n.54).
283. Constitutional error can take several forms. The court's decision might be grounded on an incorrect interpretation of the Constitution or the court's remedy might violate the Constitution.
284. See 1 Restatement (Second) of Judgments §§ 10-12 (1982) (detailing the rules contesting different types of jurisdiction); Karen N. Moore, Collateral Attack on Subject Matter Jurisdiction: A Critique of the Restatement (Second) of Judgments, 66 Cornell L. Rev. 534, 534-35 (1981) (discussing the antinomy between the policies of finality, justice, and the abuse of power); Edward P. Krugman, Note, Filling the Void: Judicial Power and Jurisdictional Attacks on Judgments, 87 Yale L.J. 164, 164 (1977) (noting the legal system's need to balance its goal of resolving disputes quickly and finally with its goal of achieving equality); Developments in the Law: Res Judicata, 65 Harv. L. Rev. 818, 820 (1952) (explaining that "the conclusiveness of prior judgments may free overzealous litigation, perpetuate erroneous decisions and hamper the flexibility of the courts").
285. See 1 Restatement (Second) of Judgments §§ 10-12 (1982) (detailing the rules contesting different types of jurisdiction); Karen N. Moore, Collateral Attack on Subject Matter Jurisdiction: A Critique of the Restatement (Second) of Judgments, 66 Cornell L. Rev. 534, 534-35 (1981) (discussing the antinomy between the policies of finality, justice, and the abuse of power); Edward P. Krugman, Note, Filling the Void: Judicial Power and Jurisdictional Attacks on Judgments, 87 Yale L.J. 164, 164 (1977) (noting the legal system's need to balance its goal of resolving disputes quickly and finally with its goal of achieving equality); Developments in the Law: Res Judicata, 65 Harv. L. Rev. 818, 820 (1952) (explaining that "the conclusiveness of prior judgments may free overzealous litigation, perpetuate erroneous decisions and hamper the flexibility of the courts").
286. See 1 Restatement (Second) of Judgments §§ 10-12 (1982) (detailing the rules contesting different types of jurisdiction); Karen N. Moore, Collateral Attack on Subject Matter Jurisdiction: A Critique of the Restatement (Second) of Judgments, 66 Cornell L. Rev. 534, 534-35 (1981) (discussing the antinomy between the policies of finality, justice, and the abuse of power); Edward P. Krugman, Note, Filling the Void: Judicial Power and Jurisdictional Attacks on Judgments, 87 Yale L.J. 164, 164 (1977) (noting the legal system's need to balance its goal of resolving disputes quickly and finally with its goal of achieving equality); Developments in the Law: Res Judicata, 65 Harv. L. Rev. 818, 820 (1952) (explaining that "the conclusiveness of prior judgments may free overzealous litigation, perpetuate erroneous decisions and hamper the flexibility of the courts").
287. See 1 Restatement (Second) of Judgments §§ 10-12 (1982) (detailing the rules contesting different types of jurisdiction); Karen N. Moore, Collateral Attack on Subject Matter Jurisdiction: A Critique of the Restatement (Second) of Judgments, 66 Cornell L. Rev. 534, 534-35 (1981) (discussing the antinomy between the policies of finality, justice, and the abuse of power); Edward P. Krugman, Note, Filling the Void: Judicial Power and Jurisdictional Attacks on Judgments, 87 Yale L.J. 164, 164 (1977) (noting the legal system's need to balance its goal of resolving disputes quickly and finally with its goal of achieving equality); Developments in the Law: Res Judicata, 65 Harv. L. Rev. 818, 820 (1952) (explaining that "the conclusiveness of prior judgments may free overzealous litigation, perpetuate erroneous decisions and hamper the flexibility of the courts").
288. See Moore, supra note 249, at 537-43.
289. We focus on challenges to judgments in subsequent proceedings sometimes called collateral attack on a judgment. See 2 Restatement (Second) of Judgments § 64, at 141 (introductory note) (1982). This focus presents most dearly the problem we seek to address: the extent to which the judgment of one tribunal can bind another legal actor, such as a subsequent court or the executive official charged with enforcement of judgments.
290. Fed. R. Civ. P. 60.
291. Restatement (Second) of Judgments, supra note 249, §§ 12, 65, 69.
292. Id. §§ 68(1), 70(1)(a).
293. Id. §§ 68(2), 70(1)(b).
294. Id. §§ 68(5), 73.
295. Id. § 66.
296. Restatement (Second) of Judgments, supra note 249, §§ 68(3), 71.
297. See Moore, supra note 249, at 537; Krugman, supra note 249, at 164-71.
298. See Krugman, supra note 249, at 170.
299. See Moore, supra note 249, at 537-43; Krugman, supra note 249, at 171-81.
300. There is no logical requirement that the legislative, executive, and judicial departments all treat judicial judgments in precisely the same fashion. One can imagine a regime in which the President, for example, accords either more or less finality to judicial judgments than does the judiciary itself. "The judicial Power" could, in principle, entail an absolute requirement of finality as against the political departments but only a limited notion of finality as against the judiciary itself.
301. See Paulsen, The Merryman Power, supra note 4, at 88-99; Paulsen, The Most Dangerous Branch, supra note 4, at 278-83.
302. The Federalist No. 78, at 523 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
303. See Paulsen, The Most Dangerous Branch, supra note 4, at 228-40.
304. Id. at 301-02.
305. Id. at 284-87.
306. Congress could not control the Court through impeachments or restrictions on jurisdiction. The Court could simply declare in a judgment that it has jurisdiction notwithstanding the content of any congressional statutes and that judgment would be absolutely binding. The Court could issue a judgment declaring that the Justices are not subject to impeachment, and such a judgment would be absolutely binding.
307. Paulsen, The Most Dangerous Branch, supra note 4, at 301.
308. Thayer, supra note 26, at 144. Of course, presidential refusals to enforce court judgments can be grounds for impeachment.
309. Paulsen, The Most Dangerous Branch, supra note 4, at 288-92.
310. U.S. Const. amend. V.
311. See, e.g., Murray's Lessee v. Hoboken Land & Improvement Co., 59 US. (18 How.) 272, 276 (1856).
312. A distinction between refusing to enforce a judgment of liability and refusing to abide by a judgment of nonliability may also be implicit in the concept of departmentalism. One of the guiding principles of departmentalism is that all relevant governmental actors must agree on the constitutionality of an action before it takes place. If this principle is a defining property of departmentalism, rather than merely a frequent (though not essential) consequence of departmentalism, then it can be permissible for a President to refuse to carry out a levy of execution on a defendant's property when a court has rendered a verdict of liability but impermissible for the President to initiate a levy of execution in the face of a judgment of nonliability. Presidential review of judgments, on this understanding, can be used only as a passive rather than as an active force.
313. Black's Law Dictionary 1305 (6th ed. 1990).
314. 2 Henry C. Black, A Treatise on the Law of Judgments § 501, at 601 (1891).
315. IV The Digest of Justinian 623 (Theodor Mommsen et al. eds., 1985).
316. Justinian also noted in his Digests that: When the question is asked whether this defense avails or not, an inquiry must be made as to whether it is the same property, the same amount, the same right, and the same ground for claiming and the same parties; unless all these exist together, it is a different issue. Id. at 12-14.
317. Id. at cl. 7, 4.
318. See id. at cl. 28.
319. See Robert W. Millar, The Historical Relation of Estoppel By Record to Res Judicata, 35 U. Ill. L. Rev. 41, 44 (1940) (discussing the emergence of collateral estoppel in America).
320. Cromwell v. County of Sac., 94 U.S. 351, 353 (1876).
321. But see Eisgruber, supra note 4, at 350.
322. Federal statutory requirements that judges give reasons for their conclusions, in the form of findings of fact and conclusions of law, are therefore constitutionally questionable.
323. See Merrill, supra note 4, at 77-78 (emphasizing this feature of judicial opinions).
324. It is not always easy to identify the "four corners" of the judgment. It is often difficult to determine exactly which matters were definitively concluded by the judgment and hence are subject to its final disposition. The Restatement notes that a valid and final judgment that extinguishes a plaintiff's claim bars further claims "with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose," but noting that "[w]hat factual grouping constitutes a 'transaction,' and what groupings constitute a 'series,' are to be determined pragmatically," based on such matters as "whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage." 1 Restatement (Second) of Judgments § 24 (1982).
325. See The Federalist No. 51 (James Madison) (J. Cooke ed., 1961).
326. See Paulsen, The Most Dangerous Branch, supra note 4, at 329-30 (arguing that the framers intended each branch to share in the role of interpreter of the Constitution).