Judicial Power in the Constitutional Theory of James Madison
Rakove, Jack N., William and Mary Law Review
One might have thought that the defendant in the most celebrated case in the canon of American constitutional law would have left history a record of his reaction to the famous decision in Marbury v. Madison. (1) After all, the defendant whom William Marbury sued for delivery of his famed commission was none other than Secretary of State James Madison--the same statesman who played so essential a role in the adoption of the Constitution and its first amendments, and who certainly cared deeply about the place of judicial power in the federal republic. Perhaps Madison saw Marshall's opinion not as the exalted judicial decision its modern worshipers and idolaters have adored, but simply as an irritatingly adroit but limited political slap at the administration in which he played second fiddle to Jefferson's violin. (2) Whatever the explanation, Madison left no comment on the case to ponder (which might itself confirm a skeptic's notion that the decision has been completely overrated).
There were, however, two other periods when Madison did reflect on the nature of judicial power and its particular importance in maintaining the equilibrium of both republican and federal government. One came during the mid-to-late 1780s, the point when he emerged as the leading constitutional theorist of the new republic (not to mention the Atlantic world). The second came a full three decades later, when Madison, only recently retired from the presidency as well as forty years of political service, was drawn into discussing other decisions of the Marshall Court that loomed far larger in the legal consciousness of the era than Marbury. In 1819, Spencer Roane, the leading critic of McCulloch v. Maryland (3) (and subsequently Cohens v. Virginia), (4) attempted to recruit both Madison and Jefferson into his campaign to demonstrate that the Supreme Court could not be the proper final arbiter of controversies affecting the boundaries of national and state power. Madison was no fan of Marshall's jurisprudence which, especially in McCulloch, relied too heavily on the same Hamiltonian arguments that had helped to drive him into political opposition in the early 1790s. But neither was he willing to join Roane in asserting that state and federal courts could be equally competent and authoritative in interpreting the federal structure of the Constitution. Madison's criticism of the reasoning of McCulloch and other concurrent decisions has to be weighed against his sympathy for the role that the Marshall Court was contriving to play--or at least should play, if it showed more restraint in framing its opinions. A careful reading of Madison's thoughts about judicial power, both in the late 1780s and again after 1819, casts useful light on his larger constitutional theory.
Three critical concerns drove Madison's approach to the underlying problems of constitutional government in the 1780s. One was his appreciation of the implications of the principle of legislative supremacy that would naturally predominate in a republican form of government. This appreciation covered both the political and the institutional advantages that the legislature would enjoy over the two "weaker" departments of executive and judiciary, in part through its capacity to speak as the immediate voice of the people, but also by exploiting its very rulemaking authority to mask its encroachments on their proper functions. Madison's understanding of the nature of legislative power was extremely precocious and modern; he grasped the key fact that a republican assembly would exist not only to monitor the potential abuses of power by the executive, but also to make law in the positive sense of the term. (5)
That perception was closely related to his second preeminent concern. The legislature might be politically and institutionally supreme, but its actions, Madison feared, would finally be driven by the interests and passions of its constituents, mustering as popular majorities or coalitions that would seek to use government instrumentally to pursue their own advantages. …