Constitutional Conscience: The Moral Dimension of Judicial Decision

By H. Jefferson Powell | Go to book overview

INTRODUCTION

Near the end of his opinion in Marbury v. Madison, Chief Justice John Marshall made an interesting suggestion. His topic, at that point in the opinion, was the justification he claimed for the judiciary's exercising the authority to disregard a statutory command when, in the judges' opinion, that command contravenes the Constitution of the United States. Having rested his claim primarily on the nature of a written constitution and the necessities of judicial decision, Marshall added, as an ancillary consideration, the import of the third paragraph of Article VI, which provides that all legislators and executive and “judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.” This requirement, Marshall asserted, was evidence that “the framers of the constitution contemplated that instrument, as a rule for the government of courts”—and thus that the courts so governed were empowered to follow the Constitution instead of Congress in the event of conflict, to exercise (in modern language) the power of judicial review:1

Why otherwise does it direct the judges to take an oath
to support it? This oath certainly applies, in an especial
manner, to their conduct in their official character. How
immoral to impose it on them, if they were to be used as
the instruments, and the knowing instruments, for vio-
lating what they swear to support?

The oath of office, too, imposed by the legislature, is
completely demonstrative of the legislative opinion on
this subject. It is in these words, “I do solemnly swear

-1-

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Constitutional Conscience: The Moral Dimension of Judicial Decision
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Preface ix
  • Introduction 1
  • 1: The Rule of Five 16
  • 2: Playing the Game 38
  • 3: A Question of Degree 56
  • 4: Men and Women of Goodwill 80
  • 5: Making It Up as We Go along 103
  • Conclusion: To Govern Ourselves in a Certain Manner 117
  • Notes 123
  • Index 145
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