On Being "Bound Thereby"

Article excerpt

I propose revising Article VI, paragraph 2, of the United States Constitution to read as follows (my amendments noted in italics):

   This Constitution, and the laws of the United States which shall be
   made in pursuance thereof; and all treaties made, or which shall be
   made, under the authority of the United States, shall be the
   supreme law of the land. The judges in every state shall be bound
   thereby, anything in the Constitution or laws of any State to the
   contrary notwithstanding. The Supreme Court shall have appellate
   jurisdiction to review the decisions of the judges in the several
   states on questions concerning this Constitution, the laws of the
   United States, and treaties made under the authority of the United
   States.

As this redrafting suggests, I seek to fill in the textual gap between Article III and the Supremacy Clause on the question of the Supreme Court's power to review decisions of state courts that are based on federal law. The current state of the doctrine holds that the two provisions, read together, add up to something like a constitutional norm that the Supreme Court should have some power to review state-court decisions. This norm is a result of a form of common law constitutionalism in which the text has interacted with interpretations by judges, politicians, and the people to generate an almost supra-textual structural understanding. (1)

For many observers, that mix of text, caselaw, and underlying theory is sufficient to cement the Court's power of vertical judicial review of state-court decisions. In courses on federal courts and constitutional law, students and professors routinely spend hours flipping back and forth between Articles III and VI, reading them together and constructing chains of logic to arrive at a partially interstitial, partially extrapolated conception of what the document says about the Supreme Court's authority to overturn state courts' decisions. But t0r critics, this amalgam is not a sufficient basis for the Court to exercise this power, and it is in anticipation of future litigation-and in recognition of past controversies--that I propose making the power part of the constitutional text.

The accumulated common law of Supreme Court review of state courts' decisions rests on a triangulation among three sources: (1) reading Articles III and the Supremacy Clause together, such that the Court is both the ultimate structural repository of the "judicial Power of the United States" (2) and the force that determines when the "Judges in every State" (3) have failed to be bound by the supreme law of the land; (2) the Court's own decisions, from Martin v. Hunter's Lessee (4) and Cohens v. Virginia (5) in the early nineteenth century to Testa v. Katt (6) and Cooper v. Aaron (7) in the twentieth; and (3) section 25 of the foundational Judiciary Act of 1789, (8) which established the Court's review of state courts' decisions by the mechanism of a writ of error. Other bases for this authority include the debates at the Constitutional Convention and in the state ratifying conventions. (9) The supremacy of the Court, and its resulting authority to invalidate decisions of the highest courts of the states, have therefore been established through a blend of textual, doctrinal, and statutory sources. The power is supremacy in action, put into practice over the course of at least two centuries' worth of theory and interpretation. It is so central to the Constitution's federal structure that one might have a hard time imagining that it could be attacked.

Some foundational practices and concepts of the American constitutional structure are so deeply ingrained in the political and legal system, as well as the nation's self-narrative, that they do seem essentially unchallengeable. Examples include judicial review, the separation of powers, and federalism itself. None of these is explicitly set out in the Constitution, and yet each of them is a fundamental, supra-constitutional element of the nation's legal structure--perhaps due, at least in part, to the fact that none of them is confined to a mere textual provision. …