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Introduction
Discussion of the role of the United States Supreme Court within the political system of the United States usually begins with an observation of its institutional weakness. Often encapsulated by Alexander Hamilton's description of a lack of “the sword or the purse,” this view highlights the Court's lack of “force or will,” and its consequential reliance upon “judgment.”
Alexander Hamilton, No. 78 A View of the Constitution of the Judicial Department in Relation to the Tenure of Good Behaviour, in The Federalist 401–408, 402 (George W. Carey & James McClellan eds., 2001).
Without access to direct levers of power, the Court is said to be particularly dependent upon maintaining “authority” in order to ensure recognition of, and—perhaps—obedience to, its constitutional rulings.
See for example, Dahl's account of the Court as rarely acting against a dominant political alliance. Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 50 Emory L. J. 563, 580 (2001). For an example of the theory that the Court can only act with allies cf. Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (1991).
Such authority allows the Court to operate against the majority and to survive as a political institution despite lacking a basis in popular will. Indeed, for one close student of authority and the Court, Hannah Arendt, it was the Court's very identity with authority that allowed the Constitution of the United States to endure. In such an understanding of the Court's position, that authority sits outside of politics, and calls upon a pre-existing and accepted relationship in order to navigate the absence of power and force. In this sense, authority can address another of the core characteristics of the Court—its association with the “countermajoritarian difficulty”
Most famously articulated by Bickel. Alexander M. Bickel, The Least Dangerous Branch: The Supreme Courtatthe Barof Politics 16–23 (1962).
—and retain a role for the Supreme Court within a democratic political system. The Court can be understood in terms of the guardian of a higher law constitution in the face of popular pressure, holding a secure position as a result of a pre-existing recognition of its non-political role.
This view of the Supreme Court's authority does much to address the democratic problems associated with its position. Linking authority to a pre-existing relationship and a non-political role, the Supreme Court can be seen as countermajoritarian by design. Calling on an authority which sits outside of political life, by necessity it lacks attachment to the political majority of any given era, and instead binds the nation (and its temporary majority) to a constitution which sits above and beyond politics. This depiction of a non-political Court presents some constraints however. The notion of a pre-political authority is suggestive of an authority that finds its origins in a historical moment of founding—a constitutional “Big Bang” in which authoritative institutions are created and grounded, but before the advent of a politics to which they might be participants. That in turn premises authority on a continuous connection to that moment. But neither continuity nor non-politicalness have been universally present in the history of the Court. Interruptions in its authority (Dred Scott, the New Deal) have occurred, and they have been linked to moments in which the Court has acted politically. Such occasions point towards a theory of the Court's authority that explains such moments, and more significantly the endurance of the Court's authority despite them.
It is not necessarily the case that “authority” sits in opposition to a popular will. Approaches to authority offered by Carl F. Friedrich and Richard E. Flathman emphasize not a relationship to a past moment or pre-political relationship but rather the collective recognition of authority. Following this line of thought, this article looks to Flathman's conception of “the authoritative,” defined in terms of “the web of conventions” that link power and authority, and on the basis of this articulation of authority re-examines the construction of the Court's authority in the early American Republic.
Richard E. Flathman, The Practiceof Political Authority: Authorityandthe Authoritative 151 (1980).
A significant moment within the development of the U.S. Supreme Court's authority, the case of McCulloch v. Maryland marked an attempt to assert national authority over the states while also locating constitutional authority within the juridical realm of the Supreme Court.
Reading Chief Justice John Marshall's opinion in McCulloch v. Maryland in this light, the article shows that while appeals to a founding moment were important within that opinion, these appeals can be productively understood as reflective of the authoritative ethos of the early American Republic. Framed in this manner, the opinion sought to generate authority not by a link to the past but through connection to a contingent sense of the authoritative. Crucially, such an approach positions constitutional authority within the contemporary political realm and offers the possibility of a constitutional politics less anchored in a particular historical moment of founding.
The article proceeds in five parts. In the first instance it turns to Arendt's writings on authority and the American Founding in What is Authority? and On Revolution in order to elucidate the theory of authority as pre-political. The article then offers an alternative approach to conceptualizing authority in which connection to an authoritative ethos plays a central legitimizing role. Following this, a discussion of Sylvia Snowiss's understanding of Marshall's jurisprudence explains why McCulloch v. Maryland ought to be regarded as a pivotal moment within construction of the U.S. Supreme Court's authority. Then the fourth part of the article examines Marshall's opinion in McCulloch and his discussion of it in contemporaneous pamphlets in light of the earlier discussions of authority. The final section of the article turns to the broader questions of constitutional authority raised by these discussions, their significance for conceptualizing authority, and its relationship to politics.
The U.S. Supreme Court’s Authority in Arendt’s Thought
Arendt opened her essay, What is Authority? with the suggestion that the titular question ought to have been “What was—and not what is—authority?” as it was the case that “authority has vanished from the modern world.”
Hannah Arendt, What Is Authority?, in Between Pastand Future: Eight Exercisesin Political Thought 91–141, 91 (1961).
The ruptures with the past and undermining of tradition that characterized the modern world lead to a necessary “crisis of authority,” with the reach of the crisis ever-growing.
Id. at 91.
Arendt located authority amongst a triumvirate of tradition, religion, and authority under siege in the modern era. Authority here rested “on a foundation in the past as its unshaken cornerstone, [which] gave the world the permanence and durability which human beings need…”
Id. at 95.
Locating the origin of the concept of authority in Rome, Arendt noted the association between authority and augmentation brought together in the act of augmenting the foundation.
Id. at 121.
Turning and adding to the foundation were sacred Roman acts reflecting the inconceivability of a new beginning in place of or alongside the founding of Rome—“the central, decisive, unrepeatable beginning of their whole history, a unique event.”
Id. at 120.
Bound with religion—“to be tied back, obligated, to the enormous, almost superhuman and hence always legendary effort to lay the foundations, to build the cornerstone, to found for eternity”—political activity meant engaging in the preservation and augmentation of the founding.
Id. at 121.
It is within the context of connection to the act of foundation that Arendt located authority and identified its bearers as those who personify a link to that foundation. For the Romans, those “endowed with authority were the elders, the Senate or the pares, who had obtained it by descent and by transmission (tradition) from those who had laid the foundations for all things to come…” and such authority was always “derivative” to the extent that the “authority of the living… [depended] upon the authority of the founders.”
Id. at 121, 122.
And though rooted in the past, it was nonetheless present: “Authority, in contradistinction to power (potestas), had its roots in the past, but this past was no less present in the actual life of the city than the power or strength of the living.”
Id. at 122.
The contradistinction between authority and power in the previous quote is demonstrative of Arendt's view that authority ought to be understood as not pertaining to relationships characterized by violence or persuasion. Where external coercion is utilized (force) Arendt suggests that authority has “failed” and where initial equality is presumed (persuasion), authority is “in abeyance.”
Id. at 92.
Just as Plato sought a basis for authority in relationships that already contained a compelling basis of obedience within the framework of the relationship—shepherd-flock, master-slave, captain-passenger—Arendt noted the “most conspicuous characteristic of those in authority is that they do not have power.”
Id. at 108, 122.
Authority sits outside of the interplay of force and persuasion, augmenting or confirming the decisions of others, adding to them but without any capacity to enforce them, engaged primarily in the recognition—or in not recognizing—their location within the continued thread springing from the foundation.
Id. at 123. This approach to defining authority has received wide acceptance—for example, cf. Frank Furedi, Authority: A Sociological History 9 (2013); Christopher McMahon, Authorityand Democracy: A General Theoryof Governmentand Management 25 (1994).
This makes authority particularly susceptible to association with prepolitical relations including those involved in the rearing of children and between teacher and pupil.
Indeed Hoye and Nienass have argued on this basis that authority in Arendt's work “is defined by its prepolitical nature insofar as it functions outside the realm of discursive contestation, persuasive speech, and political action.”
J. Matthew Hoye & Benjamin Nienass, Authority Without Foundations: Arendt and the Paradox of Postwar German Memory Politics, 76 Rev. Pol. 415–37, 418 (2014).
This interpretation is echoed in Arendt's claim elsewhere that the “source of authority in authoritarian government is always a force external and superior to its own power… which transcends the political realm.”
Hannah Arendt, Authority in the Twentieth Century, 18 Rev. Pol. 403–17, 406 (1956). By “authoritarian government” Arendt refers here to government supported by appeal to authority.
Arendt understood the success of the American Revolution to lie in its establishment of such authority.
Arendt, supranote 6 at 140. That is to legitimize itself without recourse to violence or to an absolute that would fail to ensure the stability that would preclude violence. cf. Bonnie Honig, Declarations of Independence: Arendt and Derrida on the Problem of Founding a Republic, 85 Am. Pol. Sci. Rev. 97–113 (1991); Jason Frank, Constituent Moments: Enactingthe Peoplein Postrevolutionary America (2010); Hoye and Nienass, supranote 18 at 115–19. Although scholars have been fond of pointing to the historical errors in Arendt's account of the American Revolution. Young-Bruehl documents widespread criticisms of the historical account of On Revolution in the 1960s—“fabulous in the literal sense of the word.” Elizabeth Young-Bruehl, Hannah Arendt: For Loveofthe World 403 (2004). A more recent critique on a similar basis is offered by Disch. Lisa Disch, How Could Hannah Arendt Glorify the American Revolution and Revile the French? Placing On Revolution in the Historiography of the French and American Revolutions, 10 Eur. J. Pol. Theory 350–71, 351 (2011).
In What is Authority? Arendt suggested that this success owed a great deal to the particular historical setting of the America Revolution:
It may also be that the founding fathers, because they had escaped the European development of the nation-state, had remained closer to the original Roman spirit. More important, perhaps, was that the act of foundation, namely the colonization of the American continent, had preceded the Declaration of Independence so that the framing of the Constitution, falling back on existing charters and agreements confirmed and legalized an already existing body politic rather than made it anew.
The Constitution—here representative of that successfully acquired authority—offered continuity with the colonial charters that came before it, ensuring that the American Revolution need not manufacture legitimacy from new cloth.
Including the Declaration of Independence. Id. at 140. On this aspect cf. Disch, supranote 20 at 353–4. Honig remained skeptical of such an approach, contrasting it with Derrida's belief that the performance of the Declaration of Independence marks the entry of the absolute. Honig, supranote 20.
This capacity to seek legitimacy in an appeal to, or at least continuation of, a pre-existing order accorded with Arendt's understanding of authority necessarily rooted in the past.
In Arendt's telling, the association of authority with a lack of imminent power is what makes the success of the American Revolution so astounding and at the same time makes the U.S. Constitution so central to its success. Arendt elaborated on this sketch of the American case in On Revolution where she outlined in greater detail the relationship between authority and the Constitution drawn up in 1787–88 and in doing so placed greater emphasis on the latter's role as a moment of foundation as well as a link to previous foundations. In the words of Hoye and Nienass, in On Revolution “Arendt asserts a direct relation between the positive political act of founding—of acting in concert on the basis of mutual promise, of new beginnings—and the authority which the deed itself, manifest in the constitution, ultimately held in anchoring the legitimacy of the republic.”
Hoye and Nienass, supranote 18 at 416; cf. Jeremy Waldron, Arendt's Constitutional Politics, in The Cambridge Companionto Hannah Arendt 201–09, 213 (Dana Villa ed., 2000).
Indeed Arendt claims “… that their [the American's] revolution succeeded where all others were to fail… one is tempted to think, was decided the very moment when the Constitution began to be ‘worshipped’, even though it had hardly begun to operate.”
Hannah Arendt, On Revolution 190–91 (1963).
The speed with which this process took place is noted elsewhere in On Revolution and framed as a key component of the Revolution's success. “Many historians,” Arendt notes, “… have found it rather disconcerting that the Constitution … should have become overnight the object of ‘an undiscriminating and almost blind worship’…”
Id. at 190. Emphasis added.
And again in the context of the Constitution's and Revolution's success:
… perhaps the political genius of the American people, or the great good fortune that smiled upon the American republic, consisted precisely in this blindness, or, to put it an other way, consisted in the extraordinary capacity to look upon yesterday with the eyes of centuries to come.
Id. at 190.
It was, Arendt suggests, the dual capacity to recognize their own participation in the foundation (Constitution) as an “absolute” and to quickly come to regard this as pertaining to the past, that enabled the American's founding to gain an authority absent in the French and later Russia Revolutions.
As Arendt gave more significance to the Constitution as a “positive political act of founding” in On Revolution, she also both located its authority within the institution of the Supreme Court and re-emphasized the latter's essential political powerlessness.
Developing thoughts offered in What is Authority? Arendt drew a parallel between the Roman Senate and the American Supreme Court pointing to them as institutions of authority but resultantly of limited power.
Arendt, supranote 24 at 192–93. In “What is Authority?” Arendt noted the similarities between the Roman Senate and the judicial branch within the thought of Montesquieu. Arendt, supranote 6 at 122.
Arguing that constitutional authority is located within the Supreme Court, Arendt approvingly quoted Alexander Hamilton to the effect that the Court is “beyond comparison the weakest of the three departments of power,” before insisting that “it is lack of power, combined with permanence of office, which signals that the true seat of the authority in the American Republic is the Supreme Court.”
Just as in Rome where the Senate had operated to make the “spirit of foundation … present” so too did the American Supreme Court exist as (in words attributed to Woodrow Wilson) “a kind of Constitutional Assembly in continuous session” making the initial act of mutual promise ever-present.
Id. at 193, 192.
Moreover, the very authority of the Supreme Court here is itself a witness to the mutual promising of the founding moment—“The Supreme Court derives its own authority from the Constitution as a written document.”
Id. at 192–3.
Linked to that founding text, the Court can be simultaneously the location of authority and an institution of relative powerlessness.
Authority and “The Authoritative”
Writing in the same period as Arendt, Carl J. Friedrich developed a similar understanding of the Roman Senate's authority to reach a different conclusion about the nature of authority.
Carl J. Friedrich, Authority, Reason, and Discretion, 1 Nomos 28–48 (1958). On Friedrich's importance for conceptualizing authority and differences with Arendt cf. Jeremy F. Plant, Carl J. Friedrich on Responsibility and Authority, Pub. Adm. Rev. 471–82 (2011).
Friedrich follows Theodor Mommsen's account of the etymology of Auctoritas to suggest that the significant augmentation was that appended to the will; “Auctoritas thus supplements a mere act of the will by adding reasons to it.”
In the case of the Roman Senate this operated as the “advice which can not be properly disregarded” by dint of coming from the deliberation of the “old ones,” but in a broader sense it suggests authority rests on a particular claim to greater insight and a corresponding “potentiality of reasoned elaboration”—that the figure of authority possess the capacity to issue communications that are accepted as authoritative on the supposition that he or she could, if required, justify them with a reasoned explanation.
Id. at 30, 35.
Such a figure is one of authority precisely because they can “say things which may be thus elaborated”—a capacity that varies significantly between particular individuals.
Id. at 37.
Friedrich's intervention locates authority within communication while at the same time maintaining the Arendtian distinction between authority and power. The association of authority with the potentiality of reasoned elaboration leads to the view that “authority is a quality of communication,” and the consequence that “authority is not power, but it may cause it.”
Id. at 36, 37.
The latter consequence arises from the observation that the capacity to offer reasoned elaboration bestows some power upon its holder, but by no means is this power determinative—“Nero exercised power without authority, while the Senate of his time possessed authority yet little or no power.”
Id. at 37.
Such power rests upon the willingness of others to recognize that authority and to accept the validity of the reasoning that supports it. Here, Friedrich makes the crucial point that, given the constant sifting of opinions, values, and beliefs, such authority is inherently fluid and subject to deterioration. It also opens the possibility of different theaters of authority —a political leader may hold authority with his or her followers but lack authority amongst the wider community. The contingent nature of authority—even in instances of institutional authority discussed further below—and its limited relation to power necessitates an understanding of power and authority as at times corresponding but oftentimes existing in a relative absence of the other.
The dependence of authority upon its compatibility with the values of the community within which it exists is suggestive of the importance of the category of “the authoritative.” In his consideration of political authority, Richard E. Flathman argues that “[i]n order for there to be rules that carry and bestow authority … there must be values and beliefs that have authoritative standing among the preponderance of those persons who subscribe to the authority of the rules.”
The authoritative, Flathman suggests, is the context within which claims can resonate with those upon whom they place a burden. And such a context is authoritative precisely in terms of that preponderance of subscribers—“Being true, valid, or otherwise meritorious is not the same as being authoritative.”
Id. at 22.
Attention to the manner in which the authoritative is attuned to socially held values and beliefs highlights for Flathman the extent to which authority is “a feature of an association,” made possible in part by the “values and beliefs shared among the associates.”
Id. at 31.
Focusing upon the associational aspect of authority allows Flathman to add important elements to our view of authority. In the first instance, this understanding of the conceptual importance of the authoritative allows Flathman to develop an analysis that bridges the apparent divide between in authority (e.g. holding office) and an authority (e.g. being a renowned expert) by arguing that—in light of the authoritative—both are reliant upon a community willing to subscribe to a set of beliefs that support such claims. In the second instance the concept of the authoritative provides a framework for examining the relationship between power and authority. For Flathman,
“Power” and “authority” share not only a post or station in our discourse but also the quality of being interwoven with the web of conventions that partly constitutes the practices, associations, societies, cultures and even civilizations in which they fill that post or station; they are interwoven with what we have been calling the authoritative.
Id. at 151.
Consequently, power and authority are linked by the existence of the authoritative, which makes possible what might be termed “legitimate” power—that which compels an individual to conform with the claim of another but which is not wholly coercive.
Or perhaps doesn’t compel, but at least transfers some element of duty to conform on to the former individual. Flathman suggests that individuals might disregard a claim by authority but that it still be legitimate on the basis of a broader acceptance of it as compatible with the authoritative. In expanding upon Arendt's view of the power and authority relation, Flathman suggests Arendt both recognized this and misapplied it insofar as she located authority in the power embodied in “action in concert.” While accepting that legitimate power (grounded in the authoritative) can arise from the authority associated with action in concert, Flathman denies that all action in concert can be the fount of legitimate power and that all acts of a legitimate institutionalization of action in concert would necessarily be of authority. cf. Id. at 148–67.
This rendering of power and authority, echoing Friedrich, points to authority as not transcending society but actually constantly under reinvention and renewal (to the extent that culture is itself ever in flux). As the authoritative churns, so too will the nature of claims of authority—and so too, by extension, must the forms of legitimate power.
Such a depiction of authority—churning and ever in flux—shifts the locus of authority away from the past and to the present, and from a hierarchical relationship to one based on mutual agency. Where Arendt framed authority within a preexisting relationship, the latter understanding of authority (while not wholly rejecting the possibility of a preexisting relationship) suggests a relationship that is given meaning through its recognition by the parties in the moment of its invocation. This brings us to the notion that the parties could withdraw their recognition of this authoritative relationship—and that at bottom, authoritative claims are reliant upon a degree of consent.
Such a view has been given extended treatment by Shannon Hoff in her examination of Lockean thought as it relates to political authority. Shannon Hoff, Locke and the Nature of Political Authority, 77 Rev. Pol. 1–22 (2015).
Shannon Hoff makes the important point in her discussion of Lockean political authority that a “political authority is legitimate if its exercise of power reflects the individual's own agency, even when this authority effectively restrains this agency.”
Id. at 13. Original emphasis.
Although Hoff's discussion is consciously framed within a Lockean order of consenting individuals, the notion that individuals participate in an invocation of authority through acceptance of the authoritative holds for broader frames of reference as well. In this wider frame we can say that it is through the individual's acceptance that a claim to a particular action on the part of that individual by another can be located within the authoritative that such a claim comes to be coded as from authority. In this way—as Hoff notes—the individual exhibits agency and submission to restraint, with the necessary possibility that such agency is enacted as rejection of the legitimacy of the claim. To flesh this out with an example, it is not because of a doctor-patient relationship that the patient follows the doctor's advice but because the patient recognizes the location of a doctor as operating within the broader medical-scientific approach to biology and that the doctor's advice is transmitted in that register. In this scenario the doctor's authority is subject to fluctuations in the support of the wider medical-scientific context, the ability of the doctor to make claims within that framework, and the patient's willingness to recognize either.
Returning to the issue of the Supreme Court's authority, these interventions suggest that the connection between the Court, the Constitution, and the (authority of) the founding cannot be regarded as assumed or static. Part of Arendt's concern for authority resided in her belief that its underpinnings in tradition and religion were giving way in the Twentieth century, breaking a long chain that ran from the Roman republic, through the Medieval Church and to the present moment. Perhaps for this reason, she equated the authority of the Supreme Court with its capacity to link back to the past and to reanimate the line of mutual promising that the Constitution drew upon. But the discussion here suggests that authority is marked by contingency, not continuity. If this is the case, then the Supreme Court could not assure its authority merely by placing itself in the position of the past; rather its ability to wield authority was dependent on locating its claims within the context of the authoritative. This latter view has the advantage of being a closer approximation of the issues faced by a Court acting against the backdrop of a revolution that marked a conscious break with existing authorities rather than a continuity. Indeed, one commentator suggests that if “it could be said that an “American tradition” had existed at all at the time of the framing of the Constitution, its life was so brief that an impressive defense of it was almost impossible.”
Norman Jacobson, Knowledge, Tradition, and Authority: A Note on the American Experience, 1 Nomos 113–25, 120 (1958).
While continuities between the colonial and postcolonial political experiences existed, it is undoubtedly true that politically powerful actors in the early Republic understood themselves to have made a break with the past in the form of initiating a government on a popular basis.
Christian G. Fritz, American Sovereigns: The Peopleand America’s Constitutional Tradition Before The Civil War 3 (2008).
The problem facing the Supreme Court was therefore precisely to show authority while emphasizing rupture, not continuity. To understand how this might be achieved, we now turn to the Marshall Court's defining attempt to assert its authority over the federal government and state governments respectively.
The Supreme Court as Constitutional Authority
As numerous scholars have powerfully argued, the Supreme Court's emergence as co-equal branch of the federal government was neither immediate nor inevitable.
Larry D. Kramer, The People Themselves: Popular Constitutionalismand Judicial Review (2004); Keith E. Whittington, Political Foundationsof Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadershipin U.S. History (2007); Stephen M. Engel, Before the Countermajoritarian Difficulty: Regime Unity, Loyal Opposition, and Hostilities toward Judicial Authority in Early America, 23 Stud. Am. Pol. Dev. 189–217 (2009); Justin Crowe, Buildingthe Judiciary: Law, Courts, andthe Politicsof Institutional Development (2012).
These accounts have pointed towards institutional constraints on the Court's ability to assert supremacy over constitutional interpretation, in order to posit that the process was drawn out and contested. As Crowe notes the “story of the judiciary's transformation … is not a single moment of revelation but a series of battles.”
Such institutional competition speaks in part to the emergent and solidifying institutional capacity of the Court explored in numerous works; however these developments alone would not—and did not—ensure the emergence of the Court as the institutional locus of constitutional authority.
The institutional development of the Court can be seen in numerous measures. Evidence of this process of institutional development can be seen in, for example, (1) the transition from seriatim opinions (each justice presenting an independent opinion) to the idea of an opinion of the Court, (2) the emergence of the figure of the Court reporter, (3) the development of the habit of shared living and eating quarters for the Justices, (4) the expansion of the rules of the Court and (5) the increasing use and development of precedent by the Court. Scott Douglas Gerber, Introduction, in Seriatim: The Supreme Courtbefore John Marshall 1–25 (Scott Douglas Gerber ed., 1988); Donald G. Morgan, Marshall, the Marshall Court, and the Constitution, in Chief Justice John Marshall: A Reappraisal 168–85 (W. Melville Jones ed., 1956); Craig Joyce, The Rise of the Supreme Court Reporter: An Institutional Perspective on Marshall Court Ascendency, Mich. L. Rev. 1291–391; Robert K. Faulkner, The Marshall Court and the Making of Constitutional Democracy, in John Marshall’s Achievement: Law, Politics, and Constitutional Interpretation 13–32, 16 (Thomas C. Shevory ed., 1989); Henry Wheaton, A Digestofthe Decisionsofthe Supreme Courtofthe United States, From Its Establishmentin 1780, to February Term, 1820 vii–xiv (1821); Timothy R. Johnson, James F. Spriggs & Paul J. Wahlbeck, The Origin and Development of Stare Decisis at the U.S. Supreme Court, in New Directionsin Judicial Politics 167–185 (Kevin T. McGuire ed., 2012).
As the dichotomy of power and authority suggests, the accumulation of institutional capacity is not the same thing as the ability to use that capacity authoritatively. For the Supreme Court to emerge as “the true seat of authority” something more than institutional building would be needed—and given Chief Justice Marshall's ambitions, was required.
Sylvia Snowiss has posited that Marshall was engaged in a fundamental transformation of the meaning of constitutional law and judicial enforcement of it during his time on the bench.
Snowiss suggests that during the period between the publication of Federalist 78 and Marbury v. Madison judicial review was regarded as an extraordinary mechanism of enforcing the fundamental law as made explicit in the form of a written constitution.
Id. at 1–3.
In line with this understanding, judges engaged in judicial review were seen to act in place of popular revolution against the “concededly unconstitutional act” and so ensure the continued observation of the accepted limits on sovereign power.
Id. at 6.
The written-ness of the Constitution in this sense was a mechanism for conveying and publicizing that fundamental law that provided the judiciary with no particular responsibility for, or power of, interpretation. Following Marbury, Marshall's innovations over subsequent cases nonetheless meant that “judicial enforcement of the Constitution lost its character as revolutionary defense of explicit fundamental law and became judicial application and interpretation of supreme written law.”
Id. at 4.
A central moment within this transformation was the opinion in McCulloch v. Maryland in which Snowiss suggests that Marshall treated the Constitution as “supreme ordinary law.”
Id. at 3.
Snowiss develops this claim in subsequent treatment to argue that Marbury and McCulloch represent distinct but linked moments.
Sylvia Snowiss, Text and Principle in John Marshall's Constitutional Law: The Cases of Marbury and McCulloch, 33 J. Marshall L. Rev. 973–1021 (2000); Sylvia Snowiss, The Marbury of 1803 and the Modern Marbury, 20 Const. Comment. 231–54 (2003).
In this reading, Marbury represented a development of earlier arguments attesting to the judiciary's responsibility to “expound” ordinary law and “its authority in common with other branches to “regard” or “not close its eyes to” explicit American fundamental law.”
The assertion in Marshall's Marbury opinion that it is the Court's role to “say what the law is” refers not to modern conceptions of judicial supremacy but instead to the judiciary's responsibility to expound ordinary law.
Snowiss, supranote 56, at 234; Snowiss, supranote 56, at 988.
The necessary consequence of this responsibility is that courts annunciate ordinary law in ways compatible with fundamental law—working to “preclude a court from enforcing an act that in its conceded unconstitutionality was void or not law.”
Id. at 234.
In contrast to this narrow reading of “judicial review” McCulloch advances a conception of the Constitution as a form of law substantively distinct from ordinary law. This latter form of constitutional law stresses that constitutional provisions “by design, lack the “prolixity” or substantive content of conventional legal text.”
Id. at 973.
Coupled with a concern for grants of power and the principles of the constitutional settlement, the Constitution of McCulloch allows for—even requires—judicial engagement in interpretation of the written text.
Positioned as an interpreter of the constitutional text rather than an enforcer of the widely understood fundamental law, the McCulloch Court is brought into contact with the question of authority in a new and significant way. As an expounder of ordinary law, the Court fulfilled a judicial function – and prior to Marbury acted in the place of the people when enforcing the fundamental law. But with the developments traced by Snowiss, constitutional enforcement became juridical rather than popular, and the Court acted not in place of the people but as a court in enforcing the constitutional law as expressed in the constitutional document.
Id. at 119.
This mode of enforcement saw “constitutionality [become] an external, continuously operating legal restraint on legislative and majority will analogous to the restraint of ordinary law on individuals.”
Id. at 119.
As a consequence “Marshall … introduced the judicial supremacy of [the post-Marbury period] and the unresolved tension between judicial review and democracy.”
Id. at 120. For Snowiss, this tension is never resolved—the place of Marbury within popular consciousness reflects the weaknesses of the McCulloch Constitution in explaining the basis of the powers it claims for the Court: “The Marbury constitution stays alive because the McCulloch constitution cannot legitimate authoritative judicial adaption of principle. However, the Marbury constitution has an equivalent defect, that it legitimates an enforcement or preservationist practice that does not and cannot exist.” Snowiss, supranote 56 at 1015–6.
In short, Marshall's innovations positioned the Court as the interpreter of the constitutional text, a position which—in the absence of the sword and the purse—it could only enact with the forbearance of those restrained by its interpretations (the people). To return to Flathman's view of authority, the Court sought “legitimate power” through an acknowledgement of its authority within the realm of constitutional interpretation. And as the previous discussion of Flathman suggests, to do so Marshall was required to make an appeal couched within the authoritative. In order to see how Marshall attempt this, we now turn to McCulloch v. Maryland itself.
John Marshall's McCulloch
Chief Justice John Marshall's role in the development of constitutional thought in the United States has scarcely been understated.
George Haskins would suggest that to Marshall, “more than to any other single person, belongs the credit for establishing the foundations of constitutional interpretation.” Robert Faulkner argued that “Marshall and his associates raised the Supreme Court from erratic obscurity to semipolitical eminence as the voice of the semisacred fundamental law.” More recently Matthew J. Franck has described Marshall as “the Socrates of American constitutional law.” George Lee Haskins & Herbert A. Johnson, Historyofthe Supreme Courtofthe United States: Volume II Foundationsof Power: John Marshall, 1801–15, 14 (1981); Faulkner, supranote 49 at 13; Matthew J. Franck, Union, Constitutionalism, and the Judicial Defense of Rights: John Marshall, in Historyof American Political Thought 248–68, 249 (Bryan-Paul Frost & Jeffrey Sikkenga eds., 2003).
Central to the popular mythology of Marshall is his role in authoring, and unifying the Court around, the opinion in Marbury v. Madison in 1803. But while Marbury sought to bind the Court to the Constitution (by positioning the Court as a protector of the Constitution), in McCulloch the Constitution is bound to the Court (by positioning the Court as interpreter of the Constitution). As noted above, this second development required an explanation of the Court's authority and so it is in the McCulloch opinion that we see a more systematic attempt to both justify the Court's responsibility for interpretation (rather than enforcement) and an attempt to locate this justification within the early republic's framework of the authoritative. Focusing here on the Marshall Court's second great case—and the one the generated the most contemporaneous discussion—we can trace Marshall's attempt to generate authority.
In the eyes of some not even second. Justice Frankfurter would regard McCulloch as Marshall's greatest opinion and Marshall's biographer, Beveridge, in typically triumphal fashion, notes the opinion “so decisively influenced the growth of the Nation that, by many, it is considered as only second in importance to the Constitution itself.” Richard K. Matthews, Marshall v. Jefferson: Beyond “Sanctimonious Reverence” for a “Sacred” Law, in John Marshall’s Achievement: Law, Politics, and Constitutional Interpretation 117–34, 118 (Thomas C. Shevory ed., 1989); Albert J. Beveridge, The Lifeof John Marshall: Volume IV 168 (1919).
Marshall taps the democratic spirit of the early Republic to offer an account of the founding in a manner aimed at persuading his audience of the authority of the Court and denying authority to its rivals.
Accounts of Marshall's opinion in McCulloch v. Maryland tend to focus upon what Richard Ellis has described as, given the historical context of the opinion, its “extremely nationalist interpretation of the Constitution.”
Richard E. Ellis, Aggressive Nationalism: McCullochv. Marylandandthe Foundationof Federal Authorityinthe Young Republic 105 (2007).
However, that nationalism can perhaps be productively be read through the prism of a sense of democratic nationalism which foregrounded the idea of the authority of a popular sovereign and which in turn was crucially mobilized in support of the Supreme Court's own authority. As Ellis notes, Marshall conceived of the case as a return to the Federalist and Anti-federalist debates of 1787–1788 in which States’ Rights proponents sought to return the United States to an institutional framework similar to that of the era of the Articles of Confederation. Ellis suggests that it is to this end that Marshall offers an “enduring nationalist interpretation of the origins and nature of the Constitution,” which even supporters of the decision found hard to stomach.
Id. at 4, 105.
Marshall's framework for interpreting the founding was, in reality, very similar to the one held by a majority of Federalists in the midst of the ratification debates (including Marshall himself), and partially by Marshall himself in 1803.
Marshall would reflect on his participation in the ratification debates of 1787–88 in later life by recalling “the wild and enthusiastic democracy with which my political opinions of that day were tinctured.” To Joseph Story [ca. 25 July] in The Papersof John Marshall: Vol. XI: Correspondence, Papers, and Selected Judicial Opinions April 1827-December 1830 35–49, 38 (Charles F. Hobson ed., 2002).
In addressing the challenges of the States’ Rights opponents of the Bank in 1819, Marshall returned to this model of the Constitution's creation in order to argue for the authority of the Court.
In this return to the Constitution's creation, Marshall offers a strong endorsement of the democratic spirit of the Constitution and as such endorses the authoritative frame of rule of the people. As Christian G. Fritz has documented, early America was gripped by a belief that “All lawful authority originates from the people” and elites—like Marshall—sought to advance their arguments within that framework.
Samuel Chase, quoted in Fritz, supra note 46, at 125. Original emphasis.
This is done in two stages—in the first Marshall narrates the founding as a moment of popular action and in the second he argues that the very nature of the constitutional document is suggestive of its popular nature. In order to support the idea that the Court held authority over the Constitution, Marshall offered an account of the founding that rejected the States’ Rights theory of a compact between sovereign states. In his opinion Marshall denied that the Constitution emanated from the “sovereign and independent” states rather than the people, and offered a strong articulation of the Constitution as the work of the people. Marshall stated that, “The Convention which framed the constitution was indeed elected by the State legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it.”
McCulloch v. Maryland, 17 U.S. 316, 403 (1819).
Echoing James Wilson during the Ratification debates, Marshall lodged the authority of the Constitution in the people's ratification of it: “From these [state] Conventions the constitution derives its whole authority. The government proceeds directly from the people: is “ordained and established” in the name of the people… the people were at perfect liberty to accept or reject it; and their act was final.”
Id. at 403–04. In James Wilson's oft-quoted words, the constitution opened “with a solemn and practical recognition of that principle: “We, the people of the United States […] do ordain and establish this Constitution for the United States of America.” It is announced in their name—it receives its political existence from their authority: they ordain and establish.” The Debatesintheseveral State Conventionsontheadoptionofthe Federal Constitutionas Recommendedbythe General Conventionat Philadelphiain 1787… in Five Volumes: Volume II, 434–35 (Jonathan Elliot ed., 1968).
Grounding his nationalizing ruling in the establishment of a nation by the people, he cut the states out of the Constitution's authorization process – as indeed Madison, and others in 1787, had hoped the ratification process would do. Rejecting the argument that the States had authorized the Constitution, Marshall stated “[t]he government of the Union … is, emphatically, and truly, a government of the people.”
McCullochv. Maryland, 17 U.S. 316, 404.
In McCulloch, then, he sought to expand and lay out the assumptions of popular authority as a basis for arguing for the Court's authority.
With regard to the claim that the form of constitutional document was indicative of its popular nature, Marshall linked the requirement of interpretation with democratic sanction. Dismissing the notion that the Constitution could be understood as only granting the powers explicitly listed, Marshall connected the possibility of implied powers to the nature of its adoption. While the opinion in McCulloch is noted for the idea that a constitution contains implied powers and must avoid the “prolixity of a legal code,” it is not as often noted how that observation is intertwined with the idea that a constitution is linked to popular ratification.
Id.
Partially, it was that the Constitution required authorization by the people which meant it could never “contain an accurate detail of all the subdivisions of which its great powers will admit.”
Id.
To do so would render it incomprehensible to the popular body that must approve it as it “would probably never be understood by the public.”
Id.
Instead it was necessary that it contain only the “great outlines.”
Id.
Marshall allied that argument about the procedural need for an expansive constitution within a democratic polity to an argument that the popular origin itself attested to implied powers. In a series of essays expounding and supporting the opinion written under the pseudonym “A Friend of the Constitution” he argued that the government was “created by the people, who have bestewed [sic] upon it certain powers for their benefit, and who administer it for their own good.”
John Marshall, Essays from the “Alexandria Gazette”: John Marshall, “A Friend of the Constitution”, 21 Stan. L. Rev. 456–99, 459 (1969).
Later in the same essays he expanded upon this point:
It [a constitution] is the act of a people, creating a government, without which they cannot exist as a people. … The object of the instrument is not a single one which can be minutely described, with all its circumstances. The attempt to do so, would totally change its nature, and defeat its purpose. It is intended to be a general system for all future times, to be adapted by those who administer it, to all future occasions that may come within its own view.
Id. at 467.
Against this background McCulloch's famous claim that “we must never forget, that it is a constitution we are expounding” bears more significance than as a claim that a constitution is of a particular nature and so must countenance implied powers – that observation is intimately tied to the origins of a democratic constitution in the latter's popular sanction.
McCulloch v. Maryland, 17 U.S. 316, 407 (1819).
The central basis of McCulloch's holding, that there are constitutionally implied powers, is firmly rooted in the depiction offered by Marshall of a democratic process of constitutional assent.
On this point Daniel A. Farber has written, “Constitutional law is generally thought to involve the interpretation of a text. But in McCulloch, it may be more accurate to say that Marshall was interpreting an action: the agreement of the peoples of the various states to transform the existing league into a nation, in the process transforming themselves from thirteen separate state peoples into “We, the People of the United States.”” Daniel A. Farber, The Story of McCulloch: Banking on National Power, 20 Const. Comment. 679–714, 714.
Having linked the authority of the Constitution to its historic democratic claims Marshall pushed this argument further in McCulloch. Using this understanding of the founding he not only affirmed the constitutional review proffered in Marbury—that the constitutional text could be used as a basis to strike down the acts of other departments (tying the Court to the Constitution)—he also used the narrative of the founding to frame the Court itself as the chosen inheritor of the people's authority (tying the Constitution to the Court). In both McCulloch's opinion and the A Friend of the Constitution essays defending it, Marshall would depict the Court as the constitutionally appointed institutionalization of the people's constitutional authority. In McCulloch the ability of the Court to make the ruling was itself presented as a result of the people's sanctioning of that ability through the Constitution, albeit without the explicit acknowledgement of that connection. Developing the tendency of Marbury, the authority of the popular founding was absorbed into the authority of the constitutional document. In McCulloch, Marshall merely stated without elaboration “On the Supreme Court of the United States has the constitution of our country devolved this important duty.”
McCullochv. Maryland, 17 U.S. 316, 401.
Implicitly the democratic authority of the Constitution established elsewhere in the opinion was put to the service of legitimizing the Court—“by this tribunal alone can the decision be made.”
Id.
In “A Friend of the Constitution” the discussion of this point was more thoroughly developed.
In the eighth and ninth essays of the series Marshall directly addresses the question of whether the Court has jurisdiction and in doing so considers at length the nature of the Constitution's creation. Once again, the authoritative concept of democratic government is invoked. Fundamental to his conclusion on this question is that the “constitution of the United States is not an alliance, or a league … but is itself a government, created for the nation by the whole American people, acting by convention assembled in and for their respective states.”
Once accepted, Marshall moves to his central point of examination: “the powers actually conferred by the people on their government.”
Id. at 491.
These include “a judicial department; which, like the others, is erected by the people of the United States.”
Id.
The conduit of this popular origin of the authority is once again the Constitution. Marshall emphatically declares that “[t]he right asserted by the court [to decide this case], is then, expressly given by the great fundamental law which united us as a nation. … this is not now a question open for consideration. The constitution has decided it.”
Id. at 494–95.
Moreover, to resurrect the question of the Court's authority is itself a challenge to the Constitution/people as the “judicial right to decide on the supremacy of the constitution, [is] a right which is inseparable from the idea of a paramount law, a written constitution.”
Id. at 495.
As with Marbury, Marshall moves in this line of argument to blur the distinction between sanctioned by the text and granted by the people, but the cumulative effect is to portray the Supreme Court as the popularly sanctioned defender of the Constitution. “It is the plain dictate of common sense, and the whole political system is founded on the idea, that the departments of government are the agents of the nation, and will perform, within their respective spheres the duties assigned to them.”
Id. at 497.
From this Marshall draws out extensive authority for the Court: “Each [department] is confined to the sphere of action prescribed to it by the people of the United States… On a judicial question then, the judicial department is the government, and can alone exercise the judicial power of the United States.”
Id. at 496.
In McCulloch then the authority of the founding as a popular act and the authority of the textual constitution as the product of that act are utilized to make an argument for the authority of the Supreme Court within the authoritative context of support for democratic modes of legitimation. Intertwined and blurred, Marshall utilizes them to position the Court as the adjudicator of an expansive and nationalizing Constitution. Defending this claimed authority against challenge in his A Friend of the Constitution essays, Marshall elaborates and shores up this view. Responding to his interlocutor Hampden's attack on the Court's role in the case, Marshall argues that it is an American principle that imposed on the judiciary “the duty, of preserving the constitution as the permanent law of the land.”
Id. at 458.
Taken together, the cumulative effect is to attach the people's authority in a constitutional text, and then to actualize that authority in the institution of the Court.
Norton has written of the Constitution in terms of transubstantiation, in which “we see not the word made flesh, but the flesh made word.” In these opinions we can see the flesh of the people made word (text), and then once more made flesh in the Justices of the Court. Anne Norton, Transubstantiation: The Dialectic of Constitutional Authority, 55 U. Chi. L. Rev. 458–72, 458 (1988).
Thus two transfers of authority are supposed; authority is moved from the people to the text, and then authority is transferred to the Court. Nonetheless, this transfer originates in the authority of the people—the authoritative frame of the early Republic. Throughout the opinion in McCulloch and the A Friend of the Constitution essays, Marshall makes his argument for the authority of the Court by a return to the claim that the people exercised direct and legitimate power in the creation of the Constitution—the Court's authority rest on a claim made through the early Republic's notion of the authoritative.
Conclusion: Authority and the Supreme Court
As the discussion above shows, Marshall's attempt to garner authority for the Supreme Court in the McCulloch opinion sought to locate that claim within the early Republic's authoritative understanding of democratic governance. In seeking to provide the Court with the “legitimate power” to constrain Americans to the former's constitutional interpretations, Marshall repeatedly and systematically invoked the democratic nature of the American founding and linked it to the very nature of the constitutional document. This approach closely follows the understanding of authority developed by Flathman in which authority is reliant upon the ability of the claimant to tap into the values and beliefs extant in the society around them. Marshall's emphasis on the people's involvement in the founding reflected the strong democratic ethos of the time and enabled him to advance an argument for the Court's (national, judicial) authority while acknowledging the break in tradition that the founding represented. Such an understanding allows the generation of authority at this crucial moment in the Court's history to cohere more readily with the Supreme Court's later history. The travails of the Lochner Court, the New Deal Court, and the difficult implementation of rulings including Brown v. Board of Education, bear witness to neither constant nor gradually receding authority but instead an ebb and flow as the Court is buoyed along the waters of public opinion – at times its authority is diminished only to recover at a later date. In essence, every Supreme Court ruling is a claim to authority that can be accepted or rejected, a claim bolstered or retarded by the Court's own broader institutional authority within that moment in time. Every court makes that claim anew against the authoritative frame of that given moment.
The above understanding of authority differs from the Arendtian understanding of the Supreme Court as deriving authority from its existence within a line of historical moments. In What is Authority? Arendt's view of the Supreme Court as a link back to the founding is predicated on the notion that authority operated in a similar mode to tradition—resting on a preexisting relationship and not reliant upon the imminent “consent” of the bound to the compatibility of the appeal and the authoritative. Albeit modified in On Revolution in order to present the founding as a moment of mutual promising, the Supreme Court in Arendt's thought was significant as a bridge to a necessarily chronologically earlier grounding of authority. The Supreme Court's authority to issue constitutionally binding rulings came because it in some way embodied the past in the present moment and therefore called to mind the “preexisting” relations of the constitutional order. As the third part of a Roman trinity along with religion and tradition, authority was similarly legitimated by its origin in the past.
Arendtian authority—even the authority of the founding as a moment of mutual promising—required a prior basis. Marshall's McCulloch certainly relies upon a narration of the past, in the form of a story about a democratic founding. Nevertheless, in McCulloch we do not see Marshall locate the Constitution within a longer tradition of contracting nor is it the case that the Court calls upon a continuous line of authority to make its claim. Instead, Marshall offers a defense of the Court's authority by utilizing the early Republic's belief in democratic values and showing how the interpretative authority of the Court can be located within that ethos. There is a past there, but its value lies in its ability to connect to the authoritative frame of the (Marshall Court's) present.
Marshall's actions in McCulloch suggest that in thinking about authority it would be productive to move away from Arendt's view of authority. Reliant upon her understanding of authority as dependent upon an unbroken trajectory, Arendt saw the rupturing of the lines of tradition and religion as necessarily fatal to authority. The Supreme Court remained a potent exception to this insofar as it kept alive the line that connected the American founding to the contemporary moment. But if the argument above is correct, then the Court does not represent that link so much as it represents the ability of the institution, person, or idea to generate authority by appeal to the authoritative. Authority is here not fragile and backward looking, but dynamic and contingent—authority does not disappear in moments of rupture but is always capable of actualization and renewal within a fresh conception of the authoritative. As I have shown elsewhere, the authority of the Constitution within the United States is periodically reinvented, even as those reinventions rely upon and recreate historical accounts that connect the present to a past.
Simon J. Gilhooley, “And Then They Begin to Look After the History of Their Founders”: (Re)configurations of the Founding in the early Republic, in Founding Momentsin Constitutionalism 93–112 (Richard Albert, Menaka Guruswamy, & Nischal Basnyat eds., 2019).
The continued authority of the Supreme Court is not evidence of a line connecting today to the founding, but rather evidence of the persistent capacity of actors to rearticulate such connections anew.
The view of authority as contingent and rooted in the present moment opens up new possibilities for understanding the Court's authority as a political claim. Identifying a modern rupture with the past, Arendt prescribed a decline of authority and an associated loss of its ability to make claims that transcend politics. The conception of authority as contingent developed here and located in Marshall's McCulloch opinion suggests that the U.S. Supreme Court's authority does not transcend politics but is rather intensely political insofar as its claims are made against a contemporary sense of the authoritative and subject to acceptance of the legitimacy of these claims on the part of subscribers. Where Arendt saw contestation of claims to authority as evidence of an absence of authority, we might more productively see the political struggles inherent in these authority claims. Constantly evolving and subject to contestation and consent, claims to authority are decidedly political. With particular attention to the authority of the Supreme Court and other such constitutional courts, it reminds us that even insofar as authority is deployed to differentiate them from more “political” institutions, courts and law are inseparable from the broader, and even contested, notions of the authoritative within any given political society.
