The necessity of uniformity (9/13/2014)

The forthcoming celebration of the 225th anniversary of the Judiciary Act of 1789, virtually unrivaled as a statutory cornerstone of American constitutionalism, shines a light on a law enacted by the First Congress that created the federal judiciary and provided an indispensable tool for the maintenance of the republic and constitutional uniformity.

The old statute, challenged and cursed by its opponents at various points along our historical arc, provided for federal judicial review of state laws and court decisions. Justice Oliver Wendell Holmes was right when he wrote that the Union would be imperiled if the Supreme Court lacked authority to declare state acts unconstitutional.

The Judiciary Act was no ordinary statute, and the Congress that passed it was no ordinary legislature. The First Congress, characterized by scholars as an “ongoing session” of the Constitutional Convention, given that a majority of its members had been delegates to either the Philadelphia Convention or the various state ratifying conventions, has been shown great deference by the federal judiciary. In 1926, Chief Justice William Howard Taft explained the authority of the First Congress: “It was a Congress whose constitutional decisions have always been regarded, as they should be regarded, as of the greatest weight in the interpretation of that fundamental instrument.”

The decision of the authors of the Judiciary Act to vest in the U.S. Supreme Court the authority to declare state laws unconstitutional constituted a defining moment in our constitutional history. Justice Joseph Story, perhaps the court’s greatest scholar, laid bare in 1816 the importance of granting to the nation’s highest tribunal appellate authority to review state court decisions. The “necessity of uniformity” of constitutional interpretation across the nation required it. Varying interpretations of the Constitution from state to state would produce great “public mischiefs” that would be “truly deplorable.”

The fundamental principle that the Constitution cannot mean one thing in one state and something else in another — a predicate of the Supremacy Clause — was critical to the establishment and maintenance of the Union. The Judiciary Act of 1789 provided an enforcement mechanism for that principle, as Chief Justice John Marshall explained in 1821, in Cohens v. Virginia. The states, he declared, are not independent sovereignties; they are members of one great nation governed by a Constitution that grants to the Supreme Court authority to revise the decisions of state tribunals on questions affecting the nation.

Marshall’s opinion, a fundamental lesson in civics education and one of the great pillars of support for an enduring Union, meant that state efforts to make themselves the final judge of the meaning of the Constitution, treaties and laws of the United States, would meet defeat. The court’s affirmation of the Judiciary Act completed the authority of the federal judiciary to exercise judicial review, a unique contribution of the United States to the world of political thought, political science and law. It has not been without its critics, to be sure, but its innovation has offered perhaps a better, though not perfect, means of promoting the rule of law, securing limited government and preserving individual rights and liberties.

The Judiciary Act of 1789 will be justly celebrated across America on September 24, the date President George Washington signed the bill into law. This historic act also established the office of the U.S. Marshal. Locally, the U.S. Marshall and the Board of Judges of the U.S. District Court, for the District of Idaho, will commemorate the enactment and passage of the Act at a public gathering at 3 p.m. at the state Capitol.

Adler is the director of the Andrus Center for Public Policy at Boise State University, where he holds appointment as the Cecil D. Andrus Professor of Public Affairs.