Supreme Power
How the Judiciary beat out Congress, Presidents, and the States to win ultimate power to dictate law
The summer of 1787 was a hot one in Philadelphia, where 55 men spent 115 days in a room with shuttered windows and no air conditioner debating what a new Constitution should look like. It’s little wonder that after exhaustive rounds of debate over the powers and limitations of presidents and legislators, they phoned it in on the American judiciary and called it a day.
“The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,” Article III begins, and shortly thereafter ends.
2,296 words were written on the legislature, 1,023 on the presidency, and only a paltry 293 on the courts.
And, in a simple way, it made sense. Congress would write laws, the executive would implement them, and the judiciary would host the trials. What more was there to say?
But then, during the John Adams administration (1797-1801), Americans realized there was one rather large responsibility the founders had forgotten to delegate - who got to decide what was and wasn’t constitutional?
In 1798, the United States was in a state of undeclared “Quasi-war” with France on the high seas. Adams’ opponents were saying mean things about him in the press, so his party, the Federalists, passed what, in hindsight, was a series of blatantly unconstitutional laws. The laws allowed the government to basically jail anyone who said mean things about it.
You may have heard of them: The Alien and Sedition Acts.
As a handful of the government’s most vocal critics were locked away, the people on the street consulted their pocket constitutions and said, ‘Hey, I think this law violates the first amendment, freedom of speech.’
They then flipped through their pocket constitutions to see who had the power to strike down an unconstitutional law and realized, holy crap, the answer was “nobody.”
And then all sorts of somebodies tried to step into that breach.
Congress argued that the founders had always intended the legislature to be the most powerful branch in the government (which is true), so everything Congress decreed must, it followed, be constitutional by default.
But George Washington had already scoffed at that idea when he was president. I can practically see him saying, Congress, with all its petty rivalries and jealousies, determining what was Constitutional? Don’t make me laugh!
Washington thought the presidency held the power to decide what was constitutional. After all, hadn’t the founders granted presidents the power of the veto? And what is a veto if not the power to declare a law unconstitutional? Washington’s first veto was made on the grounds that a proposed law violated the constitution, and the next 9 presidential vetoes, stretching across 7 administrations and 40 years, were all justified on the same grounds.
But hey, hadn’t the colonies just fought a war of independence because they were sick of being ruled by a king? And didn’t a president with the power to decide what is and isn’t constitutional sound pretty king-like? Folks may have liked Washington, but they did not like that idea, and it never really caught on outside the executive office.
But then two other claimants reached for the mantle.
Remember the Alien and Sedition act from earlier? Well, after Thomas Jefferson and his right-hand man, James Madison, saw the act violated the first amendment (freedom of speech) and realized their pocket constitutions didn’t say who had the power to do anything about it, they cooked up their own theory on it.
States could nullify it.
The United States of America had been formed from power granted to the federal government by the states, they argued. So the states themselves held supreme power. That’s right, this here was the origin of the states rights argument.
But Jefferson and Madison realized the idea was too politically explosive to actually attach their names to it, so they ghost-wrote a pair of resolutions, passed by the Kentucky and Virginia state assemblies, claiming that states could nullify laws they felt were unconstitutional.
But the resolutions never really went anywhere. Neither state had the chutzpa to actually pull the trigger on nullifying the alien and sedition acts. Jefferson won the presidency two years later, the Alien and Sedition acts were overturned or allowed to expire, and that was that.
But the nullification idea was out there. Lurking. Waiting for someone to make hay out of it.
It was around this time, 1803, that the last claimant to the throne of “constitutional arbiter” made its play.
The Supreme Court.
In “Marbury v. Madison” - a relatively minor and boring case over presidential appointments - the court casually dropped a decision that said, “A Law repugnant to the Constitution is void.”
And everyone went along with it.
The Constitution didn’t say the court had the power to do this, but because Chief Justice John Marshall had picked such an innocuous issue on which to make his play, nobody cared enough to protest the reach for power. It was a shrewd political move.
And then, for a few decades, the debate over who got to interpret the Constitution became a rather moot point. Thomas Jefferson’s Democratic-Republican party won the White House and Congress in 1800 and, for the next 30+ years, they were practically the only show in town. The Federalist minority got smaller and smaller until, in 1816, they didn’t even field a presidential candidate. The first and last openly Federalist president, John Adams, saw his own son run for president as a member of his rival, Jefferson’s, party. The so-called “Era of Good Feelings” was an era where major constitutional questions were hard to come by.
Until it all came a crashing down in 1832.
When South Carolina nearly seceded.
The issue at hand was a protective tariff passed by Congress over southern protests. The tariff made many imported manufactured goods more expensive to force Americans to buy from northern industries instead. The tariff was basically a set of training wheels to help northern industries grow until they could compete without it, but it also effectively served as a vacuum cleaner sucking southern dollars into northern coffers.
Southerners called it “The Tariff of Abominations.”
South Carolina hated the tariff so much that native son Charles Calhoun, then serving as the Vice President, unearthed Jefferson and Madison’s old Virginia and Kentucky resolutions to argue that states had the power of nullification, and he wanted the palmetto state to use it.
Now, that might have flown during some administrations, but in 1832, Andrew Jackson was president, and Jackson was a man of strong feelings. Among those strong feelings was the conviction that federal law trumped states rights.
So when South Carolina attempted to nullify the tariff, Jackson called up the military.
And South Carolina called up the militia.
Calhoun resigned the vice presidency.
And South Carolina threatened to secede.
The two sides nearly came to blows before Congress negotiated a compromise to lower the tariff, but one thing had been made clear - states would never be allowed to nullify federal law.
That didn’t mean the question of constitutional interpretation was settled, though. When the Supreme Court ruled in favor of the Cherokee nation against Georgians attempting to take the Cherokee’s land in 1832, saying states held no “right of legislative interference” on tribal lands, Jackson told Georgia to just ignore the ruling and kick the Cherokee out anyway. A few years later, Jackson would engineer the further removal of the Cherokee nation and begin the Trail of Tears.
This was a tragedy for Native American tribes and a blight on U.S. history, but in the contest over constitutional interpretation, it was only a setback for the Supreme Court, not a defeat. Chief Justice John Marshall, now 77-years-old and just 3 years away from death, continued to establish precedent by declaring what was and wasn’t constitutional in small, unimportant cases that nobody cared enough to protest until, eventually, when the really tough questions were up for contention (usually over slavery), the nation looked to the court, with its long history of deciding such matters, as the arbiter of constitutionality.
There is nothing in the Constitution that says the Supreme Court gets to interpret the constitutionality of laws, but by playing a long game and focusing on the constitutionality of issues nobody cared about, it seized the authority to determine the constitutionality of the biggest issues of the day.
A power that, as Jackson pointed out long ago, the court only has so long as we listen to it.
I hadn't realized that South Carolina's first secession threat was back in the 1830s until I listened to your entertaining and educationl podcast, Abridged Presdidential Histories. I'm glad I discovered your accompanying Substack.