Montesquieu's mistakes and the true meaning of separation

Oxford Journal of Legal Studies

Volumn 25, Issue 3, 2005, Pages 419-451

  Claus, Laurence ^a  

^a UNIVERSITY OF SAN DIEGO   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 27844584337     PISSN: 01436503     EISSN: None     Source Type: Journal    
DOI: 10.1093/ojls/gqi022     Document Type: Review

References (222)

1. Charles de Secondat, Baron de Montesquieu, The Spirit of the Laws (Nugent translation) (revised edn, 1873, first published 1748), Bk XI, ch VI, 174.
2. R. Shackleton, Montesquieu: A Critical Biography (1961), 17-19.
3. Ibid, 297-301.
4. See also R. Shackleton, 'Montesquieu, Bolingbroke and the separation of powers', 3 French Studies 25 (1949);
5. M.J.C. Vile, Constitutionalism and the Separation of Powers (1967), 72-75.
6. Cf. I. Kramnick, Bolingbroke and his Circle: The Politics of Nostalgia in the Age of Walpole (1968), 144-50.
7. Shackleton, above n 2 at 285: 'the inclusion in L'Esprit des lois of the essay on the English constitution involved a physical incorporation of one manuscript, on different paper and in different hands, in the other.... [M]ost of the chapter as it now stands was written soon after Montesquieu's return from his travels, and under the immediate inspiration of English political life'.
8. Montesquieu, above n 1, Bk XI, chs V and VI, 173-74, 185.
9. Ibid at 173.
10. Ibid at 173-74.
11. Cf. John Locke, Second Treatise of Government (An Essay concerning the True Origin, Extent, and End of Civil Government), (Laslett crit. ed. 2nd), 1967 (first published 1690), ch XII ('Of the Legislative, Executive, and Federative Power of the Commonwealth'). Locke's 'federative power' was 'much less capable to be directed by antecedent, standing, positive laws than the executive; and so must necessarily be left to the prudence and wisdom of those whose hands it is in'.
12. See also Shackleton, above n 2 at 286-87.
13. Montesquieu, above n 1, Bk XI, ch VI, 174.
14. Blackstone later noted that the monarch's power of decree (which he called proclamation) was limited to subordinate provision for implementing enacted law. See I William Blackstone, Commentaries on the Laws of England (1765), ch 7, 261.
15. Montesquieu, above n 1, Bk XI, ch VI, 176-78.
16. Ibid at 179.
17. Ibid at 175-76.
18. See Locke, above n 8, ch XII. Locke's 'federative power' was the external relations aspect of the executive power, and the two were 'hardly to be separated and placed at the same time in the hands of distinct persons'.
19. As to Revolutionary American understanding, see Gordon S. Wood, The Creation of the American Republic (2nd edn, 1998), 159.
20. Montesquieu, above n 1, Bk VI, ch III, 85-86.
21. Ibid, Bk II ch I, 9.
22. Ibid, Bk VI, ch III, 85-86.
23. Ibid, Bk XI, ch VI, 182.
24. Ibid at 176.
25. Prominent Revolutionary Americans agreed. See Wood, above n 14, 161, 301-302.
26. See Steven G. Calabresi and Joan L. Larsen, 'One Person, One Office: Separation of Powers or Separation of Personnel?', 79 Cornell L Rev 1045, 1128-31 (1994).
27. See ibid at 1131-32.
28. Cf. Michael A. Mosher, 'Monarchy's Paradox' in David W. Carrithers, Michael A. Mosher and Paul A. Rahe (eds), Montesquieu's Science of Politics (2001), 163 n 8 (221-22).
29. Montesquieu, above n 1, Bk XI, ch IV, 172-73.
30. Ibid, ch VI, 183. 'The executive power... ought to have a share in the legislature by the power of rejecting, otherwise it would soon be stripped of its prerogative'.
31. Ibid at 183-84.
32. Ibid at 181.
33. Ibid at 182.
34. See also I Blackstone, above n 10, ch 2, 150-51, ch 7, 244.
35. Montesquieu, above n 1, Bk XIX, ch XXVII, 356.
36. Montesquieu, above n 1 at 173-74, 185.
37. Wood, above n 14 at 453 (quoting Jefferson, Notes on Virginia (ed. Peden), 120).
38. Shackleton, above n 2 at 306-07.
39. Politica methodice digesta (1603).
40. De Jure Belli ac Pacis (1625), Book I, ch 3 §7
41. Apologeticus eorum qui Holandiae praefuerunt (1640), ch 1.
42. Leviathan, 1651: 'the rights, which make the essence of sovereignty... are incommunicable and inseparable' (ch 18).
43. De Statu Regionum Germaniae (1661).
44. Introduction to the History of the Principal Kingdoms and States of Europe (8th edn, 1719), 282: 'Its irregular Constitution of Government is one of the chief Causes of its Infirmity; it being neither one entire Kingdom, neither properly a Confederacy, but participating of both kinds: For the Emperour has not the entire Soveraignty over the whole Empire, nor each Prince in particular over his Territories; and tho' the former is more than a bare Administrator, yet the latter have a greater share in the Soveraignty than can be attributed to any Subjects or Citizens whatever, tho' never so great'. Pufendorf drew an analogy to a building designed in disregard of the 'Rules of Architecture' or which had suffered from 'some great Fault' that had 'been cur'd and made up after a strange and unseemly manner'.
45. Of the Law of Nature and Nations (4th edn, 1729), 679.
46. Montesquieu's critique was of theories of indivisible sovereignty that lacked nuance. See Shackleton, above n 3 at 26.
47. Montesquieu, above n 1, Bk XI, ch VI, 182.
48. See, e.g. the Titus Oates Case, 10 Howell's State Trials, 1325, 1328
49. House of Commons Journal 176-77 (June 11, 1689).
50. R. Stevens, Law and Politics: The House of Lords as a Judicial Body, 1800-1976, 1978, 29-30.
51. See Paul Carmichael and Brice Dickson (eds), The House of Lords: Its Parliamentary and Judicial Roles (1999), 107 et seq.
52. Stevens, above n 40 at 12.
53. Ibid at 30.
54. III Blackstone, above n 10, 1768, ch 4, 56.
55. Stevens, above n 40 at 13.
56. Department of Constitutional Affairs Consultation Paper, Constitutional Reform: A Supreme Court for the United Kingdom, 2003, 1¶.
57. Constitutional Reform Act 2005, ss 20-21, 37.
58. DCA Consultation Paper, above n 46, 3¶4.
59. Constitutional Reform Act 2005. s109.
60. '1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law'.
61. Ibid, 1.2.
62. See also Lord Bingham of Cornhill, A New Supreme Court for the United Kingdom, The Constitution Unit, Spring Lecture 2002, May 1, 2002, passim.
63. Montesquieu, above n 1, Bk XI ch VI, 179.
64. Ibid at 176-79.
65. US Const., Art. I §1.
66. Montesquieu, above n 1, Bk XI ch VI, 179.
67. US Const., Art. II §1.
68. The British monarch's last exercise of the veto had been Queen Anne's rejection of the Scottish Militia Bill in 1708, but Blackstone gave his readers no reason to doubt the ongoing substance of the monarchical veto power: I Blackstone, above n 10, 1765, ch 2, 149-150, ch 7, 253.
69. US Const., Art. II §7 cl. 3.
70. US Const., Art. I 8§ cll. 1 and 2, §9 cl. 7.
71. US Const., Art I 2§ cl. 5; 3§ cl. 6; Art. II §4.
72. I Blackstone, above n 10, ch 7, 261-62.
73. US Const., Art. II §2 cl. 2.
74. Montesquieu, above n 1, Bk XI ch VI, 173. Blackstone made clear that war- and treaty-making were still de jure prerogatives of the monarch in Britain: I Blackstone, above n 10, ch 7, 242-53.
75. US Const., Art. I §8 cl. 11.
76. See M.D. Ramsey 'Textualism and War Powers', 69 U Chi L Rev 1543 (2002).
77. US Const., Art. II §2 cl. 2.
78. US Const., Art. I §8 cl. 10.
79. Federalist No. 47: 'The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts', New York Packet, Feb. 1, 1788.
80. Ibid.
81. US Const., Art. III §1.
82. US Const., Art. II § 2 cl. 2 and 4.
83. Federalist No. 81: 'The Judiciary Continued, and the Distribution of the Judicial Authority'.
84. Marshall to Chase, Jan 23, 1804, reproduced in III Albert J. Beveridge, The Life of John Marshall (1919), between 176 and 177.
85. Cf. Marbury v Madison, 5 US (1 Cranch) 137, 177 (1803).
86. NY Const., Art. XXXII (1777).
87. Cf. Art. III. See also Stevens, above n 40, 13, n 39.
88. Cf. Archives of the State of New Jersey, 1891, First Series, XV, 371 f., quoted in Paul Merrill Spurlin, Montesquieu in America (1969), 30.
89. Stevens, above n 40 at 13, citing Dwight Loomis and J. Gilbert Calhoun, The Judicial and Civil History of Connecticut, ch 10.
90. Federalist No. 81.
91. Federalist No. 78. In Plaut v Spendthrift Farm, 514 US 211, 223 (1995), Justice Scalia accurately interpreted Hamilton's reasoning to be that the judiciary was politically insignificant 'because the binding effect of its acts was limited to particular cases and controversies'. The doctrine of precedent makes that proposition untrue.
92. Ibid, n 1.
93. Montesquieu, above n 1, Bk XI ch VI, 178: 'Of the three powers above-mentioned, the judiciary is in some measure next to nothing: There remain, therefore, only two'.
94. Montesquieu, above n 1, Bk XI ch VI, 173.
95. See IV Blackstone, above n 10, 1769, ch 27, 342-43, ch 33, 407
96. III Blackstone, 1768, ch 23, 349 et seq.
97. I Blackstone, above n 10, ch 7, 258 (indexed 267) (citing 13 W. III c. 2 and 1 Geo. III c. 23).
98. Kramnick, above n 3 at 8.
99. Montesquieu, above n 1, Bk VI ch I, 81.
100. Ibid at 82.
101. Ibid, Bk VI, ch III, 85-86; Bk XI, ch VI, 176, 182 (all quoted in section 1, above).
102. See Paul A. Rahe, Forms of Government: Structure, Principle, Object, and Aim, in Carrithers, Mosher and Rahe, above n 22, 80-84.
103. Ibid, Bk XXIX, ch XVII, 290-91.
104. Cf. Nicholas Quinn Rosenkranz 'Federal Rules of Statutory Interpretation', 115 Harv L Rev 2085 (2002).
105. US Const., Art. III 2§ cl. 2.
106. Federalist No. 81: The Judiciary Continued, and the Distribution of the Judicial Authority.
107. Ibid.
108. US Const., Amdt. VII: 'In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law'. Cf. New York Times v Sullivan, 376 US 254 (1964).
109. US Const., Art. I §9 cl. 3; §10 cl. 1. (Both Congress and state legislatures are prohibited from enacting bills of attainder.)
110. I Blackstone, above n 10, ch 7, 259: 'Were it [the judicial power) joined with the legislative, the life, liberty, and property, of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions, and not by any fundamental principles of law; which, though legislators may depart from, yet judges are bound to observe'. Blackstone elsewhere argued that if 'the legislative and executive authority are in distinct hands, the former will take care not to entrust the latter with so large a power, as may tend to the subversion of it's [sic] own independence, and therewith of the liberty of the subject' (ibid, ch 2, 142). But preserving incentives to enact statutory detail does not require that legislators be kept individually uninvolved in judicial (or other executive) lawmaking. The mere fact that some participants in the legislative enactment process may later participate in judicial (or other executive) exposition of laws does not deprive the legislature as a whole of incentive to enact detailed provisions. Even where the legislature qua legislature is empowered to supervise judicial (or other executive) lawmaking, today's legislators still maximize their collective influence on the law by corralling the effective allocation of expository lawmaking power to their successors and by denying those successors precedent for broad delegation.
111. Planned Parenthood v Casey, 505 US 833, 866 (O'Connor, Kennedy and Souter, JJ).
112. Practice Direction (Judicial Precedent) [1966] 1 WLR 1234 (HL): 'Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so'.
113. Lochner v New York, 198 US 45 (1905).
114. See, e.g. West Coast Hotel Co. v Parrish, 300 US 379 (1937) (overruling Adkins v Children's Hospital, 261 US 525 (1923));
115. United States v Darby, 312 US 100 (1941) (overruling Hammer v Dagenhart, 247 US 251 (1918));
116. Brown v Board of Education, 347 US 483 (1954) (effectively overruling Plessy v Ferguson, 163 US 537 (1896)).
117. Consistent with his praise for the English separation of fact-finding from execution and the English assignment of the fact-finding function to juries, Montesquieu observed that 'in monarchies' such as France, it was 'a very great inconvenience' for 'ministers of the prince to sit as judges'. Though '[m] any are the reflections that here arise;, Montesquieu chose only to mention one, and it was not the critical issue of conflict-of-interest: 'There is in the very nature of things a kind of contrast between the prince's council and his courts of judicature. The king's council ought to be composed of a few persons, and the courts of judicature of a great many. The reason is, in the former things should be conducted and undertaken with a kind of warmth and passion, which can hardly be expected, but from four or five men who make it their sole business. On the contrary, in courts of judicature a certain coolness is requisite, and an indifference, in some measure, to all manner of affairs'. Montesquieu, above n 1, Bk VI ch VI, 91. The closest Montesquieu came to the conflict-of-interest point was in observing that the monarch should not personally adjudicate: 'In monarchies, the prince is the party that prosecutes the person accused, and causes him to be punished or acquitted; now were he himself to sit upon the trial, he would be both judge and party.... Farther, by this method, he would deprive himself of the most glorious attribute of sovereignty, namely, that of granting pardon; for it would be quite ridiculous of him to make and unmake his decisions: Surely he would not choose to contradict himself' (ibid, ch V, 88-89).
118. I Blackstone, above n 10, ch 7, 260.
119. The jurisdiction of France's Conseil constitutionnel falls within the formal lawmaking process. See John Bell, French Constitutional Law (1992), Section 1.3.
120. A 'faithful agent' characterization of British judges' role is more apt than such a characterization of their American counterparts' exercise of power to interpret statutes, for the Americans receive their expository power not from Congress but directly from 'the People' through Article III of the Constitution. See Section 6 infra. Cf. William N. Eskridge 'All About Words: Early Understandings of the "Judicial Power" in Statutory Interpretation', 1776-1806, 101 Colum L Rev 990 (2001);
121. John F. Manning 'Textualism and the Equity of the Statute', 101 Colum L Rev 1 (2001).
122. See Nicholas Quinn Rosenkranz, above n 86.
123. Appellate Jurisdiction Act 1876.
124. See, e.g. s 23 of the Municipal Corporations Act 1882, discussed by Lord Russell of Killowen, CJ, in Kruse v Johnson [1898] 2 QB 91.
125. See, e.g. s 115 of the Public Health Act 1848, considered in Marshall v Smith (1873) 8 CP 416.
126. Human Rights Act 1998, s 3.
127. Ibid, s 4.
128. Ibid, s 10.
129. Department of Constitutional Affairs Consultation Paper, Constitutional Reform: A Supreme Court for the United Kingdom, 2003, 2¶.
130. Conversely, the corrupting influence of election campaign contributions is no less likely to be felt by judicial lawmakers who have been elected to judicial office than it is by judicial lawmakers who have been elected to legislative bodies. There is no principled reason for a political system not to incorporate equally-elaborate measures to guard against bribery of judges and to guard against bribery of legislators.
131. See Scotland Act 1998, § 33, 102, 103, Sch VI;
132. Government of Wales Act 1998, Sch VIII;
133. Northern Ireland Act 1998, § 11, 81, 82, Sch X. Constitutional Reform Act 2005, s. 37(4).
134. Blackstone even found support in the writings of Sir Edward Coke for the conclusion that Parliament was omnipotent. See I Blackstone, above n 10, ch 2, 156.
135. See, e.g. May v Beattie [1927] 2 KB 353 (discussing a minister's regulation-making power, subject to parliamentary disallowance, under the London Traffic Act 1924).
136. Lord Hobhouse of Woodborough, Supplementary Response to the Government's consultation paper on Constitutional reform, November 7, 2003, D.1.
137. US Const., Preamble.
138. John Locke, Second Treatise of Government, above n 8, ch VII ('Of Political or Civil Society').
139. See also Johannes Althusius, Politica methodice digesta (1603);
140. Jean Jacques Rousseau, Du Contrat social ou Principes du droit politique (1762).
141. James Wilson most famously articulated this explanation of the process of deliberation and adoption during a speech at the Pennsylvania Ratification Convention on December 1, 1787, recorded in II Jonathan Elliot, The Debates of the Several State Conventions on the Adoption of the Federal Constitution (2nd edn, 1836), 443 et seq.
142. It was the reason that the Federal Convention referred the proposed constitution to especially-chosen conventions rather than to the state legislatures, in disregard of Art. XIII of the Articles of Confederation: See James Madison's arguments for doing so and the resolution of the convention in II Max Farrand (ed.), The Records of the Federal Convention of 1787 (2nd edn, 1937), 93 and 476 (Madison's notes) and 665.
143. See also Wood, above n 14, 524-36
144. Bruce Ackerman, We the People: Foundations (1991).
145. See section 1, above. For Montesquieu, the virtue of a république fédérative lay in the extent to which it could overcome disadvantages of the small scale to which he believed republican government was inevitably confined. His conclusion that a truly republican government could endure only over a small space of territory necessarily implied that the federation of republican governments that he had in mind could not amount to a republican government over the whole.
146. See Montesquieu, above n 1, Bk IX ch 1, 145. In a foedus (treaty)-based constitutional order, ultimate lawmaking and law-executing powers stayed in the member states, from which the federal actor's powers were delegated. That had been the character of American governance under the Articles of Confederation. Speaking of American governance under the Constitution, Alexis de Tocqueville observed: 'Here the term Federal Government is clearly no longer applicable...: A form of government has been found out which is neither exactly national nor federal; but no further progress has been made, and the new word which will one day designate this novel invention does not yet exist'. I Alexis de Tocqueville, Democracy in America (Reeve transl., 3rd edn, 1838), 186.
147. In Hamilton's words: 'The general power whatever be its form if it preserves itself, must swallow up the State powers otherwise it will be swallowed up by them.... Two Sovereignties can not co-exist within the same limits' (address to the Convention, June 18, 1787, in I Farrand, above n 116, 287 (Madison's notes).) At the 1787 Convention, Madison was content to say: 'Were it practicable for the Genl. Govt. to extend its care to every requisite object without the cooperation of the State Govts. the people would not be less free as members of one great Republic than as members of thirteen small ones.... Supposing therefore a tendency in the Genl. Government to absorb the State Govts. no fatal consequence could result'. (June 21, 1787, in ibid, 357-58 (Madison's notes).
148. See also Madison's speech on June 29: Ibid 471 (Yates's notes, corroborated by King's notes at 477 and by Madison's modification of his own notes by reference to Yates's at 464 (see n 2 on the page).)
149. In a letter to W.C. Rives dated October 21, 1833, however Madison impugned the accuracy of Yates's notes in relation to that speech: III ibid 521-24.
150. US Const., Art. I §1.
151. See, e.g. I.N.S. v Chadha, 462 US 919 (1983).
152. US Const., Art. III.
153. Ibid, §2 cl. 2: 'the supreme Court shall have appellate Jurisdiction, both as to Law and Fact'.
154. Ibid.
155. See Plaut v Spendthrift Farm, 514 US 211, 219-223 (1995);
156. Wood, above n 14, 453-63.
157. Cf. Cooper v Aaron, 358 US 1, 18 (1958): '[T]he interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States'.
158. Even when law is undisputed, executing it may involve public reasoning about its meaning that effectively expands the corpus of the law. See 'Symposium: Executive Branch Interpretation of the Law', 15 Cardozo L Rev 21-523 (1993);
159. Michael Stokes Paulsen 'The Most Dangerous Branch: Executive Power to Say What the Law Is', 83 Geo LJ 217 (1994);
160. Steven G. Calabresi 'Government Lawyering: The President, the Supreme Court, and the Constitution', 61 Law & Contemp Prob 61 (1998).
161. Judicial choice to defer to such executive expositions (see Chevron U.S.A. v Natural Resources Defense Council, 467 US 837 (1984)) comports with judicial enforcement of regulations adopted by the executive pursuant to explicit Congressional delegations of rulemaking power.
162. See Federalist No. 47 (Madison);
163. IV Elliot's Debates, above n 116, 121-122 (Davie, North Carolina). Montesquieu, however, thought liberty would be lost if 'the same person' possessed 'a share in both' the affirmative exercise of legislative power and the affirmative exercise of executive power.
164. See Montesquieu, above n 1, Bk XI ch VI, 179.
165. See Hayburn's Case, 2 US (2 Dall.) 408 (1792).
166. See I.N.S. v Chadha, 462 US 919, 951, 953 n 16 (1983) (Burger, CJ, opinion of the Court);
167. Eric A. Posner and Adrian Vermeule 'Interring the Nondelegation Doctrine', 69 U Chi L Rev 1721, 1723 (2002).
168. Cf. Larry Alexander and Saikrishna Prakash 'Reports of the Nondelegation Doctrine's Death Are Greatly Exaggerated', 70 U Chi L Rev 1297 (2003).
169. US Const., Arts. I 1§, II 1§, III 1§.
170. See section 3, above.
171. Mistretta v United States, 488 US 361, 417 (1989) (Scalia, J, dissenting).
172. Mistretta v United States, 488 US 361, 372 (1989) (Blackmun, J, opinion of the Court).
173. 'Congress' authority to delegate portions of its power to administrative agencies provides no support for the argument that Congress can constitutionally control administration of the laws by way of a Congressional veto'. INS v Chadha, 462 US 919, 953 n 16 (1983) (Burger, CJ, opinion of the Court).
174. The nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of Government'. Mistretta v United States, 488 US 361, 371 (1989) (Blackmun, J, opinion of the Court).
175. See Federalist No. 37 (Madison) and Federalist No. 22 (Hamilton).
176. Conflation of political theories that were not fully compatible was widespread feature of discourse in Revolutionary and Founding era America. See, e.g. Wood, above n 14 at 450.
177. Mass. Const. 1780, Part the First, Art. XXX: 'In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: To the end it may be a government of laws and not of men'.
178. Article III's vesting of the judicial power in one Supreme Court more clearly precludes Congress from second-guessing that Court's determinations of matters within the judicial power.
179. Cf. The executive's power to expound the law of the Constitution in the course of deciding how to act: See Frank H. Easterbrook 'Presidential Review', 40 Cas W Res 905 (1990);
180. 'Symposium: Executive Branch Interpretation of the Law', 15 Cardozo L Rev 21-523 (1993);
181. Gary Lawson and Christopher D. Moore 'The Executive Power of Constitutional Interpretation', 81 Iowa L Rev 1267 (1996);
182. Dawn E. Johnsen 'Presidential Non-enforcement of Constitutionally Objectionable Statutes', 63 Law & Contemp Prob 7 (2000). That constitutional lawmaking power is supervised by a combination of electoral accountability and judicial review, backed by Congress's power of impeachment.
183. II Farrand, above n 116, 186-87 (Madison's notes).
184. Ibid, 183-85.
185. Ibid, 401 (Madison's notes).
186. Ibid, 430 (Madison's notes). The convention also agreed that day without recorded discussion to a motion by Madison and Gouveneur Morris explicitly adding controversies to which the United States was a party to the Court's jurisdiction.
187. Ibid.
188. See Coleman v Miller, 307 US 433 (1939);
189. Nixon v United States, 506 US 224 (1993).
190. Cf. Baker v Carr, 369 US 186 (1961).
191. US Const., Art. III §2 cl. 1.
192. II Farrand, above n 116, 430 (Madison's notes).
193. Advisory opinions generated within the executive that establish norms governing executive conduct are, by contrast, subject to supervision through judicial review.
194. Though judicial supremacy flowed from the Constitution's creation of an unchecked judiciary, that consequence was far from universally appreciated at the Founding. See Larry D. Kramer, The People Themselves: Popular Constitutionalism and judicial Review (2004);
195. Larry D. Kramer 'Foreword: We the Court', 115 Harv L Rev 4 (2001);
196. Barry Friedman 'The History of the Countermajoritarian Difficulty, PartOne: The Road to Judicial Supremacy', 73 NYUL Rev 333 (1998).
197. 151 Federalist No. 81.
198. See also Brutus, Nos. 12 and 15, in II Herbert J. Storing, The Complete Antifederalist, 423-6, 437-442 (1981).
199. Ibid.
200. Ibid.
201. Ibid.
202. Federalist No. 78.
203. Even a libertarian claim that unsupervised judicial exposition of constitutional norms will necessarily produce fewest operative laws - if any of three separate sets of minds think a possible law would violate constitutional norms, then no such law will be enacted and successfully executed - fails in relation to any constitutional scheme under which the judicial power extends to expounding constitutional duties to act and enjoining compliance. See, e.g. the German Abortion Cases, 39 BverfGE 1 (1975) and 88 BverfGE 203 (1993) (Constitutional Court of the Federal Republic of Germany) (translated excerpts in Donald P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (2nd edn, 1997) 335-356);
204. the Hungarian Benefits Case, 4 E. Eur. Case Rep. Const. L. 64 (1997) (Constitutional Court of Hungary).
205. Attributed to Justice William J. Brennan: Bernard Schwartz, Decision: How the Supreme Court Decides Cases (1996), 6
206. James E. Simon, The Center Holds: The Power Struggle Inside the Rehnquist Supreme Court (1995), 54, quoting Nat Hentoff 'Profiles: The Constitutionalist', New Yorker, March 12, 1990, 45, 60.
207. Federalist No. 78.
208. Ibid: 'no bills of attainder, no ex-post-facto laws, and the like'.
209. 5 US (1 Cranch) 137, 179 (1803). Marshall's deft self-denial of power to issue writs of mandamus asserted in the mildest manner imaginable the Court's capacity to determine conclusively the reach of its own powers (ibid, 173-180).
210. The Federalist No. 78.
211. Pre-realist visions of the common law denied the centrality of judicial will to formation of that law. Common-law adjudication was supposed to be constrained by judicial deference to an ethereal corpus of principle revealed, not constituted, by the historic cumulation of judicial writings. (See Black and White Taxicab and Transfer Co. v Brown and Yellow Taxicab and Transfer Co., 276 US 518, 533 (1928) (Holmes, J);
212. Guaranty Trust Co. v York, 326 US 99, 101-102 (1945) (Frankfurter, J).) Appealing to that Platonic vision, Hamilton contended that judicial exposition of a new, and newly-authoritative, text would somehow be congruently constrained.
213. I Farrand, above n 116, 288-89. "'The gentleman from New York is praised by all, but supported by no gentleman", observed Dr. William Samuel Johnson' (Charles Warren, The Making of the Constitution (1928), 228 (citing King's notes)).
214. In 1787, Iredell wrote the following in private correspondence: 'Without an express Constitution the powers of the Legislature would undoubtedly have been absolute (as the Parliament in Great Britain is held to be), and any act passed not inconsistent with natural justice (for that curb is avowed by the judges even in England), would have been binding on the people' (Griffith J. McRee, 2 Life and Correspondence of James Iredell (1857), 172 (emphasis in original)).
215. See Sir Owen Dixon, 'The Common Law as an Ultimate Constitutional Foundation' in Jesting Pilate (1965); 203-213
216. Sir John Laws, 'Law and Democracy' [1995] Public Law 72.
217. See Dr. Bonham's Case, 8 Coke Rep. 107 (1610).
218. Angered by Chief Justice John Marshall's conduct of Aaron Burr's treason trial, Thomas Jefferson wrote: 'If a member of the Executive or Legislature does wrong, the day is never far distant when the people will remove him. They will see then and amend the error in our Constitution, which makes any branch independent of the nation. They will see that one of the great co-ordinate branches of the government, setting itself in opposition to the other two, and to the common sense of the nation, proclaims immunity to that class of offenders which endeavours to overturn the Constitution, and are themselves protected in it by the Constitution itself; for impeachment is a farce and will never be tried again. If their protection of Burr produced this amendment, it will do more good than his condemnation would have done' (letter to William Branch Giles, April 6, 1807, excerpted in V. Dumas Malone, Jefferson and His Time (Jefferson the President Second Term 1805-1809) (1974), 305).
219. US Const., Art. I §3 cl. 1.
220. US Const., Art. V.
221. See John O. McGinnis and Michael B. Rappaport 'Supermajority Rules as a Constitutional Solution', 40 Wm & Mary L Rev 365 (1999).
222. See Stevens, above n 40 at 12.