Written vs. “Unwritten” Constitutions

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On August 28, 2019 Boris Johnson, Britain’s Prime Minister, suspended (or in Brit-speak, prorogued) Parliament to prevent it from meddling in his Brexit plans. Many Britons were outraged. Parliament, after all, is the paramount branch of government. Though seemingly a legal move, the suspension (in this case) violated established norms and practices or, as they say across the pond, it was “bad form” verging on authoritarianism. Less than a month later, after a series of legal challenges, the Supreme Court of the United Kingdom ruled the suspension null and void.

In response, Johnson promised — in an earthier phrase employed by others in government — to “get the judges sorted” by establishing a commission on the constitution, democracy, and the separation of powers in order to, possibly, consider pruning the court’s powers of judicial review and its ability to challenge the legality of executive actions. Perhaps, even, “the country’s most senior . . . judges” would “sit in the House of Lords . . . rather than in a separate Supreme Court” (as the February 20, 2020 issue of The Economist reported).

Could this — the curtailment of the legitimate power of one of the branches of government by one or more of the other two — in Oscar Lewis’ famous phrase, “happen here”? Senate Minority Leader Chuck Schumer (D-NY), oblivious to the Constitution’s separation of powers clauses, threatened Supreme Court justices on March 11: "I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind and you will pay the price! You won’t know what hit you if you go forward with these awful decisions." (His comment was prompted by oral arguments concerning a Louisiana abortion bill before the court.) So much for his pedigree from Harvard Law.

As they say across the pond, it was “bad form” verging on authoritarianism.

In contrast, there seems to be little danger to the separation of powers clauses from the executive branch — so far — under President Donald Trump. Though he exercises the presidency’s executive privilege with determination, as evidenced by his refusal to kowtow to the many demands of the 116th Congress which impinge on that privilege, he opts to have the disputes be adjudicated by the judiciary. And he didn’t attend Harvard Law.

A greater threat to the separation of powers was the Judicial Procedures Reform Bill of 1937, proposed by President Franklin D. Roosevelt to add more justices to the US Supreme Court in order to obtain favorable rulings regarding New Deal legislation that the Court had ruled unconstitutional. Though technically not an infringement on the Supreme Court’s bailiwick, and retaining the constitution’s strict separation of powers provisions (Articles I, II, and III), the bill was an artful attempt by the executive and legislative branches to control — albeit only temporarily — the judicial branch. I say temporarily, because judges’ lifespans are finite, their views are not perfectly predictable, and control of the Senate, which ratifies the appointment of judges, is often in flux. Bad luck, delays in committee, and general disapproval among the public killed Roosevelt’s bill.

But FDR’s attempt to pack the court wasn’t the first time that the executive and legislative branches had ganged up on the judiciary. Not 13 years after the ratification of the Constitution, John Adams, our second president and a Federalist (on the Right) — in cahoots with a Federalist-controlled Congress — attempted to “pack” the judiciary with like-minded Federalists, though in a slightly different manner from FDR. His means was the Judicial Act of 1801.

Chuck Schumer, oblivious to the Constitution’s separation of powers clauses, threatened Supreme Court justices: "You won’t know what hit you if you go forward with these awful decisions."

Adams had lost his reelection bid in 1800, running against Thomas Jefferson, a Democratic-Republican (on the Left, and otherwise known as the Republicans). In addition to the Federalists’ loss of the presidency, they lost control of both houses of Congress. Jefferson’s Republicans had won a stunning victory. In spite of George Washington being identified (and identifying) as a Federalist, the Federalists’ stock had plummeted when they had sponsored — and then enforced to the hilt — the Alien and Sedition Acts of 1798, which effectively nullified the First Amendment’s guarantee of free speech and freedom of the press by criminalizing criticism of the President or Congress. To the Republicans — and a majority of voters — that was a step too far.

The Midnight Judges Act, as the Judiciary Act of 1801 has been colorfully labeled (the act was largely executed within a scant two days before Jefferson was to assume office), created 16 new federal judgeships to sit in the circuit courts. In the interest of bipartisanship, some of the new judges were Republicans. The new judges would relieve the Supreme Court’s justices from having to “ride circuit,” an onerous responsibility for elderly men traveling long distances over muddy or corduroy roads on horseback or carriage. Fairly soon after Jefferson and the Republicans took office, the circuit judgeships created under the Judicial Act of 1801 were abolished (although judges appointed by the act with lifetime tenure remained in office), and the Supreme Court justices resumed and continued riding circuit until 1879.

Rock, Paper, Scissors

When it was ratified, the Constitution did not go far enough in specifying how the legislative, executive and judicial branches were to interact or mesh with one another, only that each was separate, and by implication, equal. Alexander Hamilton had elaborated his vision of how the federal judiciary meshed with the other branches in Federalist #78. But that vision lacked the power of law. Like characters in Monty Python’s “The Philosophers’ Football Match” skit, each branch believed it reserved the right to interpret the rules — the Constitution — as it saw fit, a right also assumed by many to apply to the states, based on the perception of their autonomy.

However — and probably because the Supreme Court couldn’t initiate much of anything — the Court, as the “Third Branch,” was perceived as the least important, least powerful branch, and therefore the least respected. When conflict inevitably arose over jurisdictional overlaps by the branches, fundamental constitutional crisis loomed.

When it was ratified, the Constitution did not go far enough in specifying how the legislative, executive and judicial branches were to interact or mesh with one another.

For the nation’s first 12 years, Federalists controlled the presidency, Congress and Supreme Court, so little conflict arose. Consequently, the Supreme Court’s secondary — ahem, tertiary — importance was further reinforced in the public’s mind. It seemed of so little import that when first offered a seat on the court by President Adams in 1798, John Marshall — the fourth and, arguably, greatest Supreme Court chief justice — turned it down.

But with the radical Jefferson about to take office in 1801. President Adams appointed Marshall, a lawyer, former congressman, diplomat, secretary of state, and moderate Federalist, as chief justice of the Supreme Court, a position he this time accepted. Conflict immediately arose. William Marbury, one of the appointed “midnight judges” failed to be officially notified of his appointment by Jefferson’s Secretary of State, James Madison — no other than one of the primary authors of the Constitution, and the person whose job it was to inform Marbury. The stage was set for a showdown between the Executive, Legislative and yes, the Judiciary branches when Marbury filed suit to have his judgeship appointment honored.

It is beyond the scope of this article to examine in detail the case of Marbury v. Madison. Not only is it complex, but its reasoning is subtle. Suffice it to say that it set a fundamental precedent for the Court’s power of judicial review — the authority of the Supreme Court to rule on the constitutionality of Congressional legislation (in this particular case, the Judiciary Act of 1789). As Marshall summarized, “It is emphatically the province and duty of the judicial department to say what the law is.” Republicans failed to notice the full import of the decision’s underlying result because Madison, the defendant, was let off the hook. With the Court’s power of judicial review entrenched in the decision, the basic relationship between the legislature and the judiciary was firmly established. But what about the Court’s relationship with the president?

The stage was set for a showdown between the Executive, Legislative and yes, the Judiciary branches when Marbury filed suit.

Marbury v. Madison went further, clarifying the Court’s role vis à vis the executive. As James F. Simon says in What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States, “Marshall’s opinion also served notice that the Court, not the President, would be the ultimate judge of claims of executive privilege, an authority of seismic proportions [emphasis added].” That authority was further cemented in the treason trial of Aaron Burr, Jefferson’s estranged former vice president. In what he thought would be a tricky move, Burr requested that the Court subpoena President Jefferson to testify . . . a request or order Burr knew Jefferson would be unlikely to comply with, given his uncompromising belief in the president’s absolute independence from the judiciary.

But Marshall again outwitted Jefferson. Reasoning that since the president could be impeached under Article II, Section 4 of the Constitution, Marshall opined that he was subject to the law. Proceeding in what seemed a spirit of compromise, instead of requiring the president’s personal appearance to testify at the trial (under the 6th Amendment’s guarantees), Marshall announced that he’d be satisfied with the relevant documents and even allowed the president to redact whatever he believed to be of a political or national security nature irrelevant to the question at hand. Jefferson agreed but stipulated that, based on executive privilege, he did not have to comply. Still, he’d been hooked. He swallowed the bait. As Simon says, Marshall’s “opinion in U.S. v. Burr was later cited as precedent for the US Supreme Court’s position that no one, not even the president, is above the law . . . 167 years after the Burr trial in U.S. v. Nixon, when Chief Justice Warren Burger, writing for a unanimous Court, rejected President Richard Nixon’s claim of executive privilege, insisting that he must turn over the Watergate tapes to the special prosecutor . . . Nixon released the tapes.”

With those decisions, John Marshall created a framework analogous to the rock-paper-scissors game for the relationship among the three branches of the US government, while keeping to the separation of powers principle in our written Constitution. Yet Jefferson, upon reflection, didn’t like the outcomes: “The opinion which gives to the judges the right to decide what laws are constitutional, and what not . . . would make the judiciary a despotic branch.” Like Boris Johnson today, Jefferson concocted a “plan to support a constitutional amendment to curb the independence of the judiciary,” as Simon puts it. Fortunately, legislative delays and waning enthusiasm killed the proposal.

Burr requested that the Court subpoena President Jefferson to testify, an order Burr knew Jefferson would be unlikely to comply with, given his uncompromising belief in the president’s absolute independence from the judiciary.

The short answer to the question posed at the beginning of this article — can the executive or legislative branches of the US government fundamentally alter the Supreme Court’s independence — is no. Though the US has amendment procedures for changing the Constitution, these require supermajorities of Congress and the states (participation of the executive is irrelevant).

Rock, Rock, Rock

Great Britain’s unwritten constitution is an amalgam of conventions (traditions, norms, customs, etc.), and court judgments (precedent). It is constantly changing as the particular ingredients change or are added to. It may be changed by changes in judicial decisions or customs or by a simple act of Parliament without any special procedure or special majority. It is what some in the US would call — and advocate — a “living constitution.”

As to a separation of powers in Britain . . . it’s a mixed bag. The monarch, or head of state — as opposed to the head of government (two positions combined in the presidency of the United States) — enjoys the “royal prerogative,” a body of customary authority, privilege, and immunity attached to the monarchy. He or she has sovereign immunity, under which the monarch may do no wrong under the law. Yet the prerogative of immunity seemed to be no impediment to the deposition of one Stuart king and the deposition and beheading of another; in fact, it was an issue that led to those events.

The British constitution is what some in the US would call — and advocate — a “living constitution.”

Prior to the Constitutional Reform Act of 2005, the British supreme court, legislature (Parliament), and executive (prime minister) were all members of Parliament. That piece of legislation carved out the judiciary as an independent agency. Since 2005, judicial power is now vested in the various judiciaries of the United Kingdom, who by constitution and statute have judicial independence of the Government. And that is what Boris Johnson has set his sights on: reinserting the judges of the Supreme Court into the House of Lords, Parliament’s upper house.

When the United States drew up its constitution, our founding fathers consciously abjured this kind of procedure, preferring a more immutable structure not subject to passing whims or the unconscious vicissitudes of ever-changing tradition over the course of time. As Marshall put it, “A Constitution is framed for ages to come, and is destined to approach immortality as nearly as human institutions can approach it.” But adjusting to the new regimen took time . . . even for Marshall.

At the beginning of the republic, American judges, “trained in the English common law, regularly applied common law [principles] in the federal courts, much to the chagrin of Jefferson and other Republicans, who believed that the only legitimate law was statutory, created by elected legislatures”, as Simon contends in What Kind of Nation. Prior to the Burr treason trial, Marshall had resorted to the common law definition of treason. But he had to eat his words in the Burr case when defense attorney John Wickham pointed out that the definition of treason in our Constitution was much narrower than the common law definition. Since the evidence against Burr did not meet the Constitution’s strict standards, Burr was acquitted.

Britain’s prime minister can be removed for any reason by a “vote of no confidence,” which only requires a simple majority. Imagine such a system in the US.

Much of the confusion between statutory and common law continues today. President Trump, not a slave to convention, is continually criticized for violating established norms and traditions, not only by the left but also by many Republicans and especially by The Economist, a free-market periodical out of London. Though in Britain it may be subject to parliamentary action for the prime minister or chief justice to be crass, vulgar, and narcissistic, inclined to tweet personal opinions implying policy positions, constantly resort to hyperbole, flipping the bird — actually or metaphorically — at his adversaries, paying off prostitutes, banning members of the media from his press conferences, and preferring fast-food burgers and cola to arugula with quinoa complemented by a tart pinot grigio, and indulging in other objectionable levels of moral turpitude, in the United States these are not unconstitutional behaviors and are certainly not “high crimes or misdemeanors.” Britain’s prime minister can be removed for any reason by a “vote of no confidence,” which only requires a simple majority. Imagine such a system in the US.

During the congressional term of 2015–2017, the Republican majority Congress would doubtless have dumped President Barack Obama. And on the 17 previous times in American history when the president belonged to one party and both houses of Congress were controlled by the opposition (the first instance was during President Washington’s second term, when the Republicans gained a majority in Congress), removal from office would have been a distinct possibility. In contrast to the British parliamentary system in which the executive and legislature are always of the same party — in order to “get things done” — American voters often consciously choose the twain from separate parties in order to keep the government from getting too much done.

But I digress. A parliamentary system is not intrinsic to an unwritten constitution. During the impeachment preliminaries in the House of Representatives, when the House managers subpoenaed documents from the executive, President Trump confounded those constitutional journeymen, Adam Schiff and Nancy Pelosi, by invoking executive privilege. He simply refused to comply. Schiff and Pelosi exhibited shock and indignation. They knew better . . . but they were in a hurry. Instead of appealing their subpoena demands to the Supreme Court — the appropriate procedure in a separation of powers dispute — they played politics and damned their case by basing it on the president’s failure to comply with Congress’s subpoenas under Article 2 of the constitution (obstruction of Congress), without judicial review. Had they followed proper procedure, perhaps things might have turned out differently.

In a future article I will offer some additional ideas about the American impeachment and removal process.




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Comments

Bill Merritt

Fine article, Robert. Thanks.

Reading it reminded me that my wife has an exceptionally annoying friend who’s a transplanted Brit, and runs on ad nauseam about how the US should would be better off under a parliamentary system. I thought she was wrong because countries run by legislatures don’t have checks and balances. I still think that’s true but, about halfway through the second Bush’s second term, it occurred to me how grand it would be if the Republicans could dump him and appoint somebody more psychologically nimble in his place. That wouldn’t have just been good for the country, it would have been good for Bush’s own party. In our current situation, Republicans could decide for themselves whether they were happy with Mr Trump, or they’d prefer somebody in his place. Leaving that kind of decision to the opposition is the sort of thing that could cost a lot of them their jobs come November but, under our system, they can’t do anything about it.

Robert H. Miller

I must apologize if I've given the impression to some readers that this article is an apologia for Donald Trump. Nothing could be further from the truth. The article is not about Trump. Criticisms of the president are legion--from Democrats, Libertarians and even Republicans. Many are spot on. There are few novel insights I could add--I would just be preaching to the choir. But Liberty has higher standards. It provides original perspectives and analyses from a libertarian point of view which, in today's polarized political climate, are no longer perceived as fringe, but rather as refreshingly middle-of-the-road.

Visitor

It seems baffling that anyone would see a constitutional threat from Chuck Schumer, surely one of the most ineffective and impotent figures ever to take up space in the Capitol, and not one from Donald Trump, who has run the presidency like a mafia organization, purging the disloyal and pushing the "unitary executive" to its breaking point.

I remember when Liberty went after George W. Bush every bit as hard as they went after Bill Clinton. Now it seems to be just another GOP rag.

Rusty Baillie Visitor

As our nation moves rapidly into its next serious crisis, propelled by the Novel Coronnavirus Pandemic, we are already seeing an inevitable tendency for our political leaders to use their own imagined executive power, instead of following the strict Rule Of Law.

If our Constitution, and the ideals it embodies, is to survive, we need to follow carefully Mr. Miller's astute observations of how we control such despotic tendencies.

Thomas L. Knapp

"In contrast, there seems to be little danger to the separation of powers clauses from the executive branch — so far — under President Donald Trump."

Well, except for the part where he's declared himself a dictator with the power to spend money on things other than Congress has appropriated that money for, to wage war at will, etc.

But yeah, other than the "dictator with unlimited power regardless of what Congress says" stuff, no separation of power problems.

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