McCoy, Charles N. R.

English

The Catholic University of America Columbus School of Law

Catholic University Law Review Volume 6 Issue 2 Article 3 1956 The Doctrine of Judicial Review and Natural Law Charles N. R. McCoy Follow this and additional works at: https://scholarship.law.edu/lawreview Recommended Citation Charles N. McCoy, The Doctrine of Judicial Review and Natural Law, 6 Cath. U. L. Rev. 97 (1957). Available at: https://scholarship.law.edu/lawreview/vol6/iss2/3 This Article is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact edinger@law.edu. THE DOCTRINE OF JUDICIAL REVIEW ANDNATURAL LAWby(REV.) CHARLES N. R. McCoY*The title of this article suggests that judicial review bears a uniquerelation to natural law, that it is related in a way that the legislativepower and the executive power are not. This is indeed the case: judicialreview immediately evokes the idea of "jurisdiction"; on the other hand,"legislative power", "executive power" signify government. The distinctionbetween government and jurisdiction is at the heart of the whole theoryof constitutional or limited government.Before speaking of John Marshall's use of judicial review in estab-lishing the jurisdiction of government, it might be well to spend a momentinquiring into the original source of this notion of government limited byjurisdiction. Professor Charles H. McIlwain has spoken of the "riddle" ofconstitutionalism: this riddle is expressed most strikingly in the dictumof mediaeval courts that the king is above the law and under the law;it may be expressed in more contemporary fashion by pointing out thatlimited government is not one which is not in full control of affairs. Weknow for example that Marshall not only established effective limits tothe authority of government, but that he made that authority absolutelyeffective within its limits,-within the limits of its jurisdiction. It mightbe well to take a preliminary glance at the source of this important po-litical conception.As in other matters, so in these it is Aristotle who, by attending tothe most elemental things, attained the most profound and far-reaching.And so, although it may seem at first irrelevant, a consideration of Aris-totle's doctrine is, on the contrary, most useful for a beginning under-standing of the meaning of limited government.In the first book of his Politics, Aristotle observes: "... there are manykinds both of rulers and subjects...; for in all things which form a com-posit . . . and which are made up of parts ... a distinction between theruling and subject element comes to light. Such a duality exists in livingcreatures; but not in them only; it orginates in the constitution of theuniverse.. . . At all events, we may ... observe in living creatures a ...constitutional rule; for . . . the intellect rules the appetites with a constitu-* Chairman, Department of Political Science, The Catholic University of America.tional and royal rule".1 Now the term "royal" here signifies (as could bedemonstrated if we went back to Aristotle's Psychology and Ethics) thefull perfection of the governing principle; the term "constitutional" signi-fies the jurisdiction under which the governing principle operates. Thevirtuous man is said to rule himself "royally" because he is in full controlof himself-he does the good easily and with pleasure. His self-govern-ment is not weak-he is not weak. At the same time he is said to rulehimself "constitutionally" because what he does easily and with pleasureis what he ought to do-what he is bound to do by the constitution of hisnature, by the law of his nature, by the natural law. It is the things thathe ought to do that he does with full control. Now the virtue by which aman chiefly does what he ought to do is the virtue of prudence-a virtuewhich St. Thomas Aquinas says is the virtue proper to all government.Prudence-the virtue proper to government-operates with respect tomeans, not to ends: hence when we say that government is in full controlof affairs it is with respect to finding the means to ends which are fixedby man's constitution as a rational animal, by the law of his nature, by thenatural law. These ends may very conveniently and appropriately for ourpurposes be summed up by the terms "substantive rights" and "proceduralrights." By the first is meant all that is implied in living and living well;and by the second, all the procedures that prudence entails-e.g. delibera-tion, counsel, judgment.As I said at the beginning that judicial review is related to naturallaw in a way that the legislative power and executive power are not. This isnot to say government itself is not also related to natural law: the decreesand statutes of government are said to be derived from natural law byway of determination of common principles of the natural law: for ex-ample, one's substantive right to life is made determinate by the statuteproviding for a living wage, social security, etc. As St. Thomas pointsout, a positive law derives its force from human agreement, from humandetermination or convention; it does not of itself have the force of naturallaw. But-and this is the important point-"the human will can, bycommon agreement, make a thing to be just provided it be not, of itself,contrary to natural right" And within this area lies the function of judi-cial review.When John Marshall established the doctrine of judicial review in1803 in the case of Marbury v. Madison', he not only confined the1 POLITICS I, ch. 5, 1254a20-1254b.2 SUMMA THEOLOGICIA II-II, q. 57, Art. 2, ad 2.3 1 Cranch 137 (U.S. 1803).authority of the Federal government to the jurisdictional limits imposedby our written Constitution (this is a somewhat complicating point aris-ing out of our unique Federal system, and a point of comparative unim-portance since Marshall might have interpreted the Judiciary Act of 1789in such a way as to allow the Court jurisdiction in the Marbury Case);but the important point is that Marshall held the authority of the FederalGovernment bound by a jurisdiction more fundamental than that of thewritten constitution. To understand this we must examine briefly theissues involved in Marbury v. Madison. The facts of the case were brieflythese: near the end of the term of his office President Adams nominatedWilliam Marbury to the office of Justice of the Peace in the District ofColumbia. The nomination was confirmed by the Senate, the commissionsigned by the President and the Great Seal affixed. On the expiration ofAdams' term, Marbury applied to the Secretary of State-now JamesMadison under President Jefferson-for the delivery of his commission.Jefferson refused, holding that the appointment had not been completedsince the commission had not been delivered. Marbury moved for a Writof Mandamus before the Supreme Court to have Madison deliver thecommission.The legal issue turned out to be a very simple and narrow one:Marbury had moved for a Writ of Mandamus before the Supreme Court;the question was: does the issuing of a Writ of Mandamus fall within theoriginal jurisdiction of the Court? Now the importance of the case liesnot so much in the answer given by the Court to this question nor in theCourt's finding that the Judiciary Act of 1789 Sec. 13 was void becausecontrary to Art. III, §2 of the U.S. Constitution. The deeper significance ofthe case lies in Marshall's answers to two questions which he raised beforecoming to the special legal issue. Paradoxically, after having concludedin his own mind that the Court was without jurisdiction, Marshall pro-ceeded to decide the merits of Marbury's claim. And it is this portion ofthe decision that is of greatest import.Marshall approached the decision by asking three questions. Thefirst question asked was: had the applicant a right to the commission?The second question was: if he had a right, and that right had beenviolated, did the laws of his country afford him a remedy? The thirdquestion contained the legal issue: if the laws of his country did affordMarbury a remedy, was this remedy a mandamus issuing from the Su-preme Court?In answering the first question, the Court, having come to the con-clusion that the appointment was made when a commission had beensigned by the President, and that the commission was complete when theseal of the United States had been affixed to it by the Secretary of State,declared that the right to the office was in the person appointed and there-fore to withold his commission was "an act deemed by the Court notwarranted by law, but violative of a vested legal right".4 The thing to beobserved is that this ruling was based neither upon the special languageof any statute nor upon the language of the Constitution. It was based onprinciples of natural justice.The answer to the second question was likewise reached not by astudy of federal statutes but instead by an application of common lawprinciples. Marshall observed: "The government of the United States hasbeen emphatically termed a government of laws, and not of men. It willcertainly cease to deserve this high appellation if the laws furnish no rem-edy for the violation of a vested legal right". Note then, that Marshallis saying that the laws must furnish such a remedy (for the violation of avested legal right) whether there is specific statutory provision or not. AsProfessor Carl Brent Swisher puts it: "Having made this assumption,which was based on no constitutional or statutory provision, he examinedthe case to see if there was anything in it to exempt it from the generalrule, and he found nothing".6 Hence, note the argument of the Court:Marbury has been found to have a legal title to the office, "a refusal todeliver which is a plain violation of that right, for which the laws of hiscountry afford him a remedy"-the laws of his country, although, as wehave seen, no specific statute so provided.We may observe then, that there was a federal statute (the JudiciaryAct of 1789) which provided Marbury with a procedural right (the Writof Mandamus) but the issuance of such a writ by any court would dependon proof of neglect of ministerial duty in the Secretary of State, whichneglect would itself depend on proof of Marbury's substantive right tothe office to which he had been appointed. It was this substantive rightthat was not provided for in any statute, but which according to Marshall,the laws of the country must enforce.Having said all this, Marshall found (somewhat amusingly it mustbe conceded) that the Court lacked original jurisdiction to issue a writ ofmandamus. It was the first time that the Supreme Court had declaredvoid a law of Congress, and it was not to do so again for over half a cen-tury. Now the greatness and significance of the Marbury decision are4 This is a somewhat complicating point arising out of our unique Federal system, anda point of comparative unimportance since Marshall might have interpreted the JudiciaryAct of 1789 in such a way as to allow the Court jurisdiction in the Marbury case.5 Id. at 162.6 Id. at 163.usually said to lie in this invalidation of the federal statute. This was in-deed significant, but it was not the matter of deepest significance; it in-volved, after all, merely finding one written law (the Judiciary Act of1789) incompatible with another written law (the United States Consti-tution). Furthermore, we may notice that it would not have been at allimpossible for Marshall-had he been so disposed-to have found theJudiciary Act of 1789 §13 quite constitutional. The specific legal issuebefore the Court was this: the Court was acting in this case not as anappellate tribunal but as a court of original jurisdiction. Section 2, Art. IIIof the Constitution, listed types of cases in which the Supreme Court wasto have original jurisdiction. It stated that in all other cases within thejudicial power of the United States the Supreme Court should have appel-late jurisdiction, with such exceptions and under such regulations as Con-gress should make. There was doubt as to whether the power of Congressto make exceptions applied both to the original and appellate jurisdictionof the Court, or only to the latter. Marshall concluded that it applied onlyto the latter. The description of the original jurisdiction of the SupremeCourt in the Constitution, he reasoned, was complete. Congress had nopower to add to that jurisdiction. Among the items listed in it he did notfind authority to issue writs of mandamus. The relevant provision of theJudiciary Act was, therefore, not authorized by the Constitution. Thisline of reasoning enabled Marshall to expound the principle that an act ofCongress repugnant to the Constitution is void Granted the significanceof this principle, it is still subordinate to the other principle that Marshalllaid down in answering his two preliminary questions, namely, that theauthority of government is regulated by a jurisdiction more fundamentalthan any written law---even that of the Constitution.I should like to add a brief coda to the considerations we have beenmaking. I think we have seen that the Constitution is not of itself aguarantee of basic natural rights: the Constitution needs always to beinterpreted and applied. The principles of constitutionalism are philo-sophical principles, but they were inherited in this country through thelegal structure-especially the common law---of England. The philosophi-cal principles underlying constitutionalism were, in the Eighteenth Cen-tury, undergoing that corruption whose full issue is now evident in whatMr. Walter Lippmann calls our Jacobin education. I may point out thatProfessor Carl Brent Swisher, a very distinguished authority in the field ofConstitutional Law, in speaking of those portions of Marshall's decisionswhich rest on natural law principles, uses the terms "fictions", "assump-tions", and "devices", and observes that we find in Marshall "an inter-mingling of conceptions of law as emanating from government and oflaw as emanating from a source superior to any earthly government whicheffectively closes the channels of thought and reasoning".7 This view ex-presses what is by no means an uncommon contemporary appreciation ofMarshall. Professor Swisher's position leads directly to the abandonment ofthe distinction between government and jurisdiction: the only law thatcounts is what the government says. The unfortunate truth is that today,behind the magnificent facade of our legal structure, the substance ofwhat Mr. Lippmann calls the "Public Philosophy" is fast being eatenaway by "the acids of modernity". Let me illustrate this point by conclud-ing with two questions relative to two basic rights guaranteed by theConstitution-that of property and that of religion. Is the right of prop-erty, as guaranteed by the Fourteenth Amendment, a right that under-stands property as an instrument of living and fundamentally instrumentalin the perfection of family life? Or is it to be understood in the Lockeansense, which is primarily designed to protect large and abstract financialinterests? I needn't say that it was the Lockean sense that largely deter-mined the opinion of the Court from 1900 to 1930 and has been re-sponsible for that breakdown of the social structure which the Popes haveceaselessly sought to have remedied. Secondly, is the guarantee of religiousfreedom by the First Amendment a declaration-as Father John C.Murray S.J. seems to believe---of the traditional doctrine of the independ-ence and superiority of the spiritual? Or is it, as Karl Marx understoodit (and he was an astute student of the 18th Century revolutions) aformal relegation of religion to what he called "the refuse heap of arbitraryprivate whims"? If students and scholars of the caliber of ProfessorSwisher have come to think of natural law principles as "devices", "fic-tions", "assumptions" that effectively close the channels of thought andreasoning, what-one wonders-becomes of supernatural principles? Imention these unpleasant things merely as a caution against supposingthat John Marshall's fine spirit must inevitably animate the laws of ourland.7 AMERICAN CONSTITUTIONAL DEVELOPMENT p. 162 (1943).

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