The Passive-Aggressive Virtues: Cohens V. Virginia and the Problematic Establishment of Judicial Power

By Graber, Mark A. | Constitutional Commentary, Spring 1995 | Go to article overview

The Passive-Aggressive Virtues: Cohens V. Virginia and the Problematic Establishment of Judicial Power


Graber, Mark A., Constitutional Commentary


In his celebrated "Foreword" to the 1961 Harvard Law Review, Alexander Bickel coined the expression "passive virtues" to refer to certain jurisdictional doctrines or judicial "techniques" for "withholding ultimate constitutional judgment."(1) Warren Court Justices could dodge dangerous political altercations, Felix Frankfurter's former clerk declared, by making greater use of such devices as denials of certiorari, mootness, ripeness, desuetude, and statutory interpretation when they were confronted with seemingly intractable constitutional controversies. Bickel urged the use of these "passive virtues" for both normative and pragmatic reasons. Federal Justices should hesitate before invalidating the policies preferred by the people's elected representatives, he insisted, because judicial review was "a deviant institution in a democratic society."(2) Moreover, Bickel thought that prudent Justices rationed judicial rulings on constitutional matters in order to protect the Court's scarce political capital. Too many controversial decisions would expose "the inner vulnerability of an institution which is electorally irresponsible and has no earth to draw strength from."(3) This need to preserve judicial power justified certain deviations from otherwise binding canons of legal interpretation. In Bickel's view, Justices could strive for convenient results rather than doctrinal consistency only when they chose to avoid making constitutional decisions. "[T]he techniques and allied devices for staying the Court's hand," he concluded, "cannot themselves be principled in the sense in which we have a right to expect adjudications on the merits to be principled."(4)

The Marshall Court made substantial use of similar legal techniques, which I describe as the "passive-aggressive" virtues. Federal Justices in the early nineteenth century frequently expounded on the constitutional controversies that divided the new nation, even when such expositions were not strictly relevant to the ultimate outcome of the case they were adjudicating. Contemporaries and future commentators note how Chief Justice John Marshall frequently "went out of his way" to discuss constitutional "issues not necessarily presented" by the fact situation before the Court.(5) Thomas Jefferson, in particular, complained bitterly that the "practice of John Marshall, of travelling out of his case to prescribe what the law would be in a moot case not before the court, is very irregular and censurable."(6) Nevertheless, anticipating Bickel's institutional concerns and recommendations, the Marshall Court frequently manipulated various federal statutes and jurisdictional grants in order to avoid handing down blunt judicial challenges to hostile political forces. Although Marshall penned many bold constitutional assertions, the tribunal he led hardly ever issued bold judicial orders. Strict Jeffersonians, old Republicans, and Jacksonians may have frequently been enraged by the tone of early Supreme Court opinions, but Marshall and his brethren rarely reached decisions that these political leaders could actually disobey.

Marbury v. Madison is the best known and quintessential example of how the Marshall Court used the passive-aggressive virtues to insulate controversial constitutional claims from direct political attack.(7) This paper discusses Cohens v. Virginia,(8) an additional, less appreciated, instance of the passive-aggressive virtues in action. In the face of a sharp challenge from Virginia, the Marshall Court unanimously held that persons convicted of state crimes could appeal that judgment in federal courts. The Justices also ruled that the supremacy clause barred states from interfering in any way with congressional efforts to govern the District of Columbia. Nevertheless, in the spirit of Marbury, the Justices upheld a state court decision that fined two Maryland entrepreneurs for selling tickets to a congressionally sanctioned lottery. Although the Court decided every constitutional issue against the Old Dominion, the Justices ruled that the federal law authorizing the lottery did not preempt Virginia's ban on the sale of out-of-state lottery tickets.

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