Judicial Paramountcy Doctrine in the United States

In 1880, Madison wrote: “In a government whose vital principle is responsibility, it never will be allowed that the legislative and executive departments should be completely subjected to
the judiciary, in which that characteristic feature is so faintly seen.”

In Canadian constitutional law, the paramountcy doctrine becomes relevant where both the federal and provincial are competent. The doctrine of paramountcy establishes, in Canada, that where there is a conflict between valid provincial and federal laws, the federal law prevails. Justice Gonthier held that the provincial legislation was inoperative. This is also the view of Justice Bastarache.

Interjurisdictional Immunity

See the entry Interjurisdictional immunity and the relation with Judicial Paramountcy.

Interpretation Doctrines

The Judicial Paramountcy doctrine is ond of the interpretation doctrines applied by courts. See more.

Judicial Paramountcy in the legal literature

In the article “The Supreme Court and Unconstitutional Acts of Congress”, authored by Edward S. Corwin and published in the Michigan Law Review (Vol. 4, No. 8, Jun., 1906, pp. 616-630), he mentioned the idea of Judicial Review and Judicial Paramountcy in the following terms, in relation with the Judicial Review issue and the entry in this legal encyclopedia about the legislation held unconstitutional by the Supreme Court:

“(…) perhaps the most basic assumption of the argument for judicial paramountcy: the assumption of the impersonality of the courts. “The question may be asked,” says a critic of the Supreme Court’s decision in the Income Tax Case, “what power is there to prevent Congress from passing an unconstitutional act, if the Supreme Court has a right to prevent it?. This
question may be answered, Yankee fashion, by asking another. If the Supreme Court should make an unconstitutional decision, what is there to prevent that?.”

The first of these queries proceeds on the supposition that the Supreme Court knows and speaks the unvarying language of an immutable Constitution; the second insinuates that that tribunal is not quite so aloof from the here and now. In the light of history, the Supreme Court stands forth as nearly immaculate as any similar human institution ever did, and we need not trouble ourselves for a moment with crude considerations of that sort. On the other hand, it is perfectly obvious that the impersonality of the Supreme Court is merely fictional and tautological.

It always speaks the language of the Constitution, merely because its opinion of the Constitution is the Constitution. But would any one assert that the Constitution has not been extended and amended by the Supreme Court?. Such an assertion would deprive that body
of one of its chief claims to fame. Yet once grant this, and the question at once arises: what is the real basis of such judicial legislation-or rather judicial amendment of the Constitution?. The
truth is that the major premise of most of the great decisions of the Supreme Court is a concealed bias of some sort-a highly laudable bias perhaps, yet a bias.

For example, the question at issue in McCuzllough v. Maryland was the meaning of the phrase “necessary and proper”: did it mean “absolutely necessary” or “convenient”?. Marshall said it meant “convenient.” But why, except because he was a nationalist? No.w, however, suppose he had decided that the phrase in question had borne the other meaning. His particularlistic bias would have resulted in the overthrow of the will of the federal legislature. Or to put the whole matter in a sentence: the real question at issue when the validity of an act of Congress is challenged before the Supreme Court is not whether the fundamental Constitution shall give way to an act of Congress, but whether Congress’ interpretation of the fundamental Constitution shall prevail or whether it shall yield to that of auother human, and therefore presumably falible, institution,-a bench of judges.

The existence of a rigid Constitution, therefore, does by no means inevitably depend
upon its final interpretation by the judiciary. Throughout the period between the formation of the government and the outbreak of the Civil War the discussion of the constitutionality of proposed measures was the predominant characteristic of congressional debates, and in that entire period but two decisions of the Supreme Court determined the constitutional merits of. congressional acts adversely: One, Marbury v. Madison, the decision by which the right of the court to take such a step was determined; the other, the Dred Scott case. Lastly, it should be remembered that the rigid constitutions of France, Belgium, and Switzerland are finally construed by the legislatures of those countries, in the ordinary course of legislation.

But now if most constitutional decisions rest actually upon a concealed premise, and if the right of the Supreme Court to pass upon the validity of Congressional legislation must be referred to such a decision, upon what concealed premise does that decision rest?. The answer is: a certain theory of government, embodied in the Constitution itself. The constitutional fathers and the Federalist party were thorough-going individualists of the school of John Locke.

They believed that individual rights, and particularly property rights, took their origin in natural law and antedated the formation of government and even of society, and that the sole function of government was to afford protection to those rights. They believed that whenever government, even the “supreme legislature,” transcended its trusteeship to the derogation of any of these rights, the right of revolution resulted.

On the other hand, indications werenot wanting at the moment of the assembling of the Constitutional Convention that notions of popular sovereignty were leavening and
democratizing the masses. Accordingly, the federal convention presents a very interesting paradox. Brought together for the purpose of creating a government competent to repress popular disorders, the men of 1787 expended no small fraction of their united ingenuity in devising an elaborate system of checks and balances, with the view of holding the government of their creation-particularly the popular organ thereof, the legislature -in permanent leash,
against the day when the people should come into their own.

The very populace to curb whom new governmental machinery was being erected might some day capture the whole fortress and turn its guns upon its erstwhile defenders. Those guns must be spiked in advance, and the more completely the better. The Constitutional Fathers seized with avidity upon Montesquieu’s picture of a constitution, whose well devised checks kept the organs of government most normally in a “state of repose or inaction.”

The federal government was balanced against the states and these against the government;
each portion of a triple-branched legislature was set against the others; the people were made a curb upon their representatives, and they upon the people. It was then but a step farther,
and a very rational one, to set the judiciary against the legislature.

The courts were at once the authors and interpreters of the common law, the most usual source of individual rights; they had often, in both England and the Colonies, intervened in the defense of individual rights against administrative usurpation; they were the ancient defenders of the Rule of Law against prerogative; and if the common law sometimes fell short of expectations, the courts were occasionally willing to invoke Natural Law, as was done in Rutgers
v. Waddington, and in other cases.

Finally Natural Rights were rapidly being reduced to writing and introduced into the state constitutions in the form of Bills of Rights. Indeed, this practice, the efficacy of which Madison, consistently enough, was very sceptical of, may be looked upon as a very distinct contribution to the cause of judicial paramountcy; as the addition of the first ten amendments to the federal Constitution in I791 may be looked upon as a distinct step forward the adoption of that doctrine into the federal government twelve years later. The real logic upon which the right of the federal Supreme Court to question the validity of acts of Congress rests, is the logic of a certain way of looking at the relation of the individual to government.

The extension of the doctrine of judicial paramountcy subsequently to the foundation of the federal government may be traced along two lines: its acceptance by the judiciary, state and federal, and the attitude taken toward it by political leaders. By 1805, the doctrine had been thrice judicialy asserted in South Carolina; twice in Pennsylvania; twice in New Jersey; once in Maryland; and twice in North Carolina. The Courts of the new states to the west also took up with the notion very promptly. It secured admission in Kentucky in I80o, in Ohio in I806, in Tennessee in I807, in Vermont in 1814, in Louisiana in I813,19 etc.

On the other hand, there was a severe contest over the doctrine in the New Jersey court in 1804, in the case of State v. Parkhurst; and as late as 1825, JUSTICE GIBSON of the Supreme Court of Pennsylvania, in deciding Eakin v. Raub, overrode and denounced the doctrine, which he declared was held, “as a professional dogma … rather as a matter of faith than of reason.” Yet twenty years later, even this last heretic renounced his error, because of his “experience of the necessity of the case.”

But of course we are primarily interested in the adoption of the doctrine by the federal Supreme Court. The steps toward this consummation in Marbury v. Madison were very gradual. By the 25th section of the Judiciary Act of 1789, the Supreme Court was vested with the power to review and either to affirm or reverse, any decision of the highest court of a state, denying the validity of a law, treaty, commission or other authority of the United States. The fact that
Ellsworth, a believer, it will be remembered, in the doctrine by judicial paramountcy, was chiefly instrumental in framing this measure, has given color to the notion that its enactment represents the deliberate acceptance by Congress of the same doctrine.

The debates in the House of Representatives do, not favor such a conjecture.
Gerry alone, of all the speakers, asserted that the Supreme Court would have a veto upon atts of Congress, and even he, as previously, in the Constitutional Convention, limited the applicability of that veto to acts encroaching upon the constitutional rights of the judiciary. That, to his mind, was the meaning of coordinate departments.

On the other hand, the other speakers who referred to the 25th section regarded it simply as securing the federal government against the possible bad faith of state judges. Of course, it may be insisted that the Supreme Court is given the power to affirm as well as reverse adverse decisions, but this right may have been confined in the contemplation of the authors of the act to cases involving “commissions,” and “authorities,”-presumably of an administrative character.

The first case in which the Supreme Court was called upon to declare an act of Congress void was the Hayburn Case in I792. No decision was rendered. ‘The second case was that of Hylton v.
Ware, in which the constitutionality of an excise on carriages was challenged. The contention was overruled by JUSTICE CHASE, in the following language: “As I do not think the tax upon carriages is a direct tax, it is unnecessary for me at this time to determine whether this court constitutionally possesses the power to declare an act of Congress void, on the ground of its being made contrary to and in violation of the Constitution; but if the court have such power, I am free to declare that I will never exercise it, but in a very clear case.” In Ware v. Hylton et al, JUSTICE CHASE, again delivering the opinion of the court, made the same declaration with reference to treaties.

But four years afterward, in his opinion in Cooper v. Felfair, CHASE offers conclusive testimony of the imminent adoption into the federal government of the doctrine of judicial paramountcy: “It is … a general opinion, it is expressly admitted by all this bar, and some of the judges have, individually in the circuits decided, that the Supreme Court can declare an act of Congress to be unconstitutional, and, therefore invalid; but there is no adjudication of the Supreme Court itself on the point. I concur, however, in the general sentiment.” This was in I8oo. Three years
later, Marbury v. Madison was decided. As far as the courts and the lawyers were concerned, “that point was settled.”

But now what of the attitude of the political branches of the government and of the political leaders?. The debate on the Judiciary Act of I80225 drew forth a number of very long and elaborate arguments in behalf of judicial paramountcy. Breckenridge of Kentucky alone made explicit protest: “To make the Constitution a practical system,” said he, “the power of the courts to annul the laws of Congress cannot possibly’exist”; and further, since this is a government
of equal departments, if the courts have such a power, Congress must needs have the correlative power to annul the decisions of the courts. Breckenridge-the author, by the way, of the Kentucky Resolutions of 1799-spoke the language of the new democracy making war with the old-time Federalism, driven already to its last ditch, the courts themselves. Jefferson’s battle with the federal -and federalist- judiciary, comprising defiances, attempts at impeachment,
and, when these failed, efforts to secure an amendment of the Constitution to make judges removable upon the address of both Houses of Congress, is too complicated a matter to decipher in these pages.

The great Republican regarded the federal judiciary as “a subtle corps of sappers and miners constantly working to undermine the foundations of our confederated fabric. (…) An
opinion is huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence of lazy and timid associates, by a crafty Chief Justice, who sophisticates the law to his mind by the turn of his own reasoning.”

Yet I cannot find that Jefferson ever actually denied the right of the Supreme Court to judge of the validity of acts of Congress. His remarks on Marbury v. Madison are sometimes quoted as if they constitute such a denial, but without reason: they refer rather to the obiter dictum portion of that decision. Instead, he seems to have been inclined to make banal concession of the right in question, but by seizing upon the dogma of co6rdinate departments, which, as we have seen, is one of the main pegs of the argument justifying this very right in the courts, to have ridded the actual exercise of that right either of binding force upon the other departments or of the
characteristics of legal precedent. “Each department of the government,” he declared, “is truly independent of the others, and has an equal right to decide for itself what is the meaning of the Constitution and the laws submitted to its action.” This was likewise Madison’s position, and that of Jackson and Lincoln.
Jackson’s words in his famous Bank veto message are well known: “Each public officer who takes an oath to support the Constitution,” he declared, “swears that he will support it as he understands it, and not as it is understood by others. … The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the executive when acting in their legislative capacities.”

And he might have added, “nor the latter in his executive capacity”; since this is the plain inference from his refusal to enforce the Supreme Court’s decision in Worcester v. George.. Had he gone one step farther and insisted upon enforcing some law which the Supreme Court had declared unconstitutional, he would have succeeding in pressing the theory of coordinate departments to selfevident absurdity.

The right of the judiciary to pass upon the validity of legislation, tentatively broached in an insignificant commonwealth case, in 1782, by way of pure obiter dictum, became the foundation rule of American constitutional law and the characteristic function of American
courts, whether state or national, in little more than two decades.

This may have been a fortunate development, but it is also inevitable whether or not fortunate that aggressive popular statesmen should never willingly give over to juristic hands the entire keeping of,the keys of constitutional truth.

Said Lincoln, in his first inaugural, apropos the Dred Scott decision: “If the policy of the government, upon the vital questions affecting the whole people, is to be irrevocably fixed by the decisions of the Supreme Court the moment they are made, as in ordinary cases between parties in personal actions, the people will have ceased to be their own masters, having to that
extent resigned their government into the hands of that eminent tribunal.” One would like to know whether President Roosevelt, in defining the “sovereign,” in his last message, as the government which represents the people as a whole,” intended to include more than the political departments within his designation.”

Further Reading

The Doctrine of Judicial Review: Its Legal and Historical …, Edward S. Corwin (2014)