The 1787 Project

The separation of powers is a structural feature of the Constitution, but the precise boundaries between the institutions of the federal government are not always clearly demarcated in the text. Each of the cases we explore today involve the contested boundaries marking the constitutional separation of powers: Youngstown v. Sheet and Tube Co. (1952); Powell v. McCormack (1969); and INS v. Chadha (1983).

Article I of the Constitution vests all the legislative powers of the federal government in Congress. Is that consistent with Congress' routine practice of delegating rule-making authority to executive branch agencies? The classic case on this is Schechter Poultry Corporation v. United States in 1935, when the Court articulated the non-delegation doctrine, but there has not been another successful constitutional challenge to a congressional delegation of power for the last 85 years. That might soon change. The recent case of Gundy v. United States (2019) gives the current state of play on the non-delegation doctrine.

In the coming weeks and months, the contentious deliberations about who will replace Justice Ruth Bader Ginsburg on the Supreme Court will occur within a broader constitutional framework. The Constitution lays the ground rules for this high-stakes game by vesting judicial power in a Supreme Court filled with judges who have life tenure; empowering Congress to decide how many judges will serve on the Supreme Court; giving the judicial appointment power jointly to the President and the Senate; and allowing the Senate to determine the rules of its own proceedings.

The Supreme Court is supreme in constitutional interpretation, except when it isn't. Sometimes it isn't supreme for the simple reason that it doesn't have the authority to hear a case, decides not to hear a case for some reason, or decides that some issue is political rather than judicial. But even here, the Court claims to be the authoritative interpreter of the constitutional limits of its own authority.

Marbury v. Madison (1803) may have established the doctrine of judicial review [actually, that may have been established earlier; see Keith Whittington's recent book Repugnant Laws], but it didn't necessarily establish the doctrine of judicial supremacy. Thomas Jefferson, Andrew Jackson, Roger Taney, and Abraham Lincoln help us understand the difference.

There is a story we tell about the development of judicial review that goes something like this: in Marbury v. Madison (1803), Chief Justice John Marshall established the doctrine of judicial review when he declared that an act passed by Congress was unconstitutional. The standard story isn't wrong so much as incomplete. The complicated history and background of Marbury shows how it emerged in a particular political context and was quite limited in its actual holding.

After the Supreme Court decides to hear a case by granting a writ of certiorari, how does it then go about the business of deciding what the Constitution means when the case involves a matter of federal constitutional law? This 18 minute episode offers a very brief overview of various approaches to constitutional interpretation, focusing on text, original meaning, doctrine, precedent, structure, and aspiration.

Much of the conversation about the Constitution's meaning centers on the work of the federal courts, but we often forget that the federal judiciary is largely the creation of Congress. The Judiciary Act of 1789 put in place the basic structure of the federal judiciary, and the Judiciary Act of 1925 gave the Supreme Court almost complete discretion over the cases it would hear through certiorari jurisdiction. Deciding whether to decide a case is one of the primary ways the Supreme Court exercises power today.

Article VI of the U.S. Constitution requires Senators and Representatives, members of state legislatures, and all state and federal executive and judicial officers to swear or affirm fidelity to the Constitution. Abraham Lincoln's First Inaugural Address, Martin Luther King's "I Have a Dream Speech," and the Supreme Court's litigation over the constitutionality of the Civil Rights Act each highlight a fundamental question related to that oath: "What does it mean to be faithful to the Constitution?"

One of the Constitution's most insightful critics, writing under the psuedonym of Brutus, argued that the federal judiciary was particularly dangerous to the authority of state governments and to the liberties of the people. In Federalist 78, Publius insisted that the judiciary was the least dangerous branch of the federal government, because it had "neither force nor will, but merely judgment." In a sense, they were both right.