Posted: September 20, 2006
onservatives are quietly optimistic and perhaps even secretly gleeful at the recent confirmation of two Republican appointees to the United States Supreme Court. To be sure, anyone who can count knows that the Court's disposition on cultural questions is unlikely to change. The majority remains in place that declared sodomy a constitutional right in Lawrence v. Texas (2003), and on federalism issues it hardly seems possible that the states could find better friends than the two they lost. Besides, as Nelson Lund and Craig Lerner of the George Mason University School of Law have pointed out, President George W. Bush didn't exactly fulfill his pledge to appoint judges in the mold of Antonin Scalia and Clarence Thomas, proponents of textualism and original intent. In John Roberts and Samuel Alito, the president chose men who've stressed judicial craftsmanship and adherence to precedent. Of course good craftsmanship and sound jurisprudence are hardly incompatible; nonetheless, the first notable mark of the Roberts Court was not its reversal of some liberal precedent but its prompt unanimity in cases thought to be controversial.
Despite the new justices' virtues, then, one might still doubt that the crisis of judicial supremacy has passed. To begin with, it is possible that the Court's modern role results from deep and maybe even irreversible changes in the polity itself, not from accidents of judicial personality. After all, the Court's most egregious recent assertion of its own supremacy in interpreting the Constitution (about which more shortly) was signed by Justices Sandra Day O'Connor and Anthony Kennedy—both appointed by Ronald Reagan. Even stalwart conservatives such as the late Chief Justice Rehnquist and Justices Scalia and Thomas joined the majority that struck down a congressional attempt to substitute the legislature's good-faith understanding of the 14th Amendment for the Court's in City of Bourne v. Flores (1997). And it was a conservative majority in Bush v. Gore (2000) that apparently thought the nation needed judicial action to settle a disputed election, rather than relying, as in the previous century, on Congress to count the votes.
Moreover, public opinion widely accepts the notion that the Supreme Court has the final word in interpreting the Constitution—the loudest dissenters, nowadays, coming from the law-professor Left, which distrusts the bench's Right. Conservatives still find plenty of Court decisions upsetting, but they often regret that there is nothing that can be done except to wait for a responsible majority. Interpretive anarchy, they suppose, is the only alternative to judicial supremacy, and the prospect of anarchy makes judicial despotism seem prudent even though distasteful. Finally, there is of course no guarantee that conservatives placed on the Court will fulfill, over long years of service, the promise of their appointment. The annals of presidential retirement are littered with regrets about judges who turned out differently than their nominators had expected.
Nevertheless, I want to suggest that there remains latent in American constitutionalism a serious alternative to judicial supremacy. By "judicial supremacy" I mean the doctrine that the Supreme Court has the final say about the meaning of the Constitution, at least in the absence of a new constitutional amendment. Never was this point of view expressed more boldly than by the justices themselves in Planned Parenthood v. Casey (1992), in which the Court reaffirmed the abortion right created in Roe v. Wade (1973). In Casey, supremacy was derived from the very legitimacy and historic role of the Court itself:
Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court's legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court's concern with legitimacy is not for the sake of the Court, but for the sake of the Nation to which it is responsible.
We the People
To this doctrine of judicial supremacy, I offer in reply the spirit of constitutional resistance. By this I mean, as Richard Morgan and I have elsewhere explained, the peaceable and provisional withholding of voluntary compliance with outrageous court decisions by aggrieved parties and especially by those similarly situated, in an effort to test the Court's action in the wider political arena. In Abraham Lincoln's words, constitutional resistance is the view that the Court's pronouncements need not be made a "rule of political action" by citizens at large or by political office-holders, at least until the interpretation in question becomes a settled part of the Constitution in the public mind. The principle underlying constitutional resistance is that the people, who ordained and established the Constitution, have final authority over its meaning. Of course that is implicit in the Constitution; the question is how, in practice, the people's authority is made to stick, and how the people's interpretation is formed.
Although judicial supremacy is now the textbook standard, political scientists in recent years have increasingly pointed to what they call "constitutional politics," recognizing that judicial supremacy does not describe the original norm, the historical norm, or even contemporary habit. Instead, they note that much constitutional interpretation or "construction" takes place outside the courts. Louis Fisher, for example, refers to "constitutional dialogues" among the branches, a useful notion, though vitiated by his concession of the realists' claim that judges legislate. Granted, if they do, it is better that they share the task, but better still if judging and legislating can be made distinct. Scholars such as Keith Whittington and George Thomas have sought to recover this distinction, describing what Thomas calls a "Madisonian Constitution" in which the complexities of constitutional structure influence the course of constitutional development, with wide participation in the process across the branches and a full range of political considerations at play. Whittington usefully draws attention to "constitutional construction," which he distinguishes from judicial interpretation. In such moments of construction—he cites the Senate's determination of impeachable offenses in the trials of Justice Samuel Chase and President Andrew Johnson, as well as the solution to the nullification crisis in 1832—political creativity exerts itself within the parameters of the Constitution, as issues of constitutional dimension are settled without the formal, written document having to be changed.
To speak of constitutional resistance rather than constitutional politics is not to reject these latter approaches. But it is to admit that there is something special about the role of the courts in establishing constitutional law and thus in settling the Constitution's meaning: resistance of any sort defines itself against authority. I concede, in other words, that judicial supremacy, first asserted in the 1790s, is a recurrent risk in the American constitutional regime. Like many risks, this one is concomitant to something valuable, namely, the judge's admirable image as an impartial arbiter under the law. Activist judging violates this standard, but the solution is not for judges to think of themselves as soldiers taking commands or as bureaucrats following a rulebook. The federal judicial oath includes obedience to the Constitution, but it also speaks of doing justice (even echoing the biblical passage on which England's common-law judges once swore): to "administer justice without respect to persons, and do equal right to the poor and to the rich, and...faithfully and impartially discharge and perform all the duties incumbent upon [the judge]...under the Constitution and laws of the United States."
When judges forget that judgment is their specific virtue and knowing and following law is their specific task, the constitutional solution is to find a way to bring them back to it. This can be done, not by treating them as treacherous soldiers or errant bureaucrats who need a sanction, but by extending legal disputation to the other branches and indeed to the polity at large. When judges overreach, in other words, there are constitutional means by which politicians and citizens may resist. Besides executive energy and legislative compromise—besides political pragmatism—constitutional government needs a capacity for judgment, bringing to bear the wisdom inherent in first principles and settled traditions on the resolution of a particular issue or dispute. When judges fail to supply this wisdom, others must step into the breach.
Lincoln and Dred Scott
Lucidly and forcefully Abraham Lincoln made the classic case for resisting judicial supremacy in his First Inaugural Address. He had formulated the argument in his 1857 address on the Dred Scott decision and a year later had pressed it in several interesting exchanges with Stephen Douglas in their celebrated debates. Its reiteration at the moment he assumed the presidency in the middle of a crisis caused by state ordinances of secession, gives it special focus and force. His words are worth quoting at length:
I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit, as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be over-ruled, and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having, to that extent practically resigned their government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink, to decide cases properly brought before them; and it is no fault of theirs if others seek to turn their decisions to political purposes.
The gentleness of these last phrases might be explained by the presence of the justices of the Supreme Court on the platform with the newly inaugurated president, but the sentences that precede it are crafted with lawyerly precision. He does not claim that the rise of judicial supremacy means the end of democracy pure and simple, but that "to th[e] extent" that the Court insists on having sole authority over the Constitution, self-government is diminished. He does not deny that Court decisions can become a settled part of our constitutional order—only that they earn that status instantly, without regard to their reception by the polity at large. Far from encouraging the habit of angry resistance to judicial errors, Lincoln counsels "respect and consideration" of Court decisions by other "departments" of government, even as he reminds these branches that they are not, like the actual parties to a particular case, bound by the judicial decision of that case.
Indeed, the context of Lincoln's discussion makes clear that he thinks resisting an assertion of judicial supremacy is a moderate alternative compared to secession, the constitutional merits of which he had just finished discussing. Whatever position one takes on the theory of the Union Lincoln expounds to refute secession, the nerve of his argument is a sophisticated account of constitutional disagreement that acknowledges the legitimacy of differing interpretations but insists on the peaceful settlement of disputes, which settlement turns on an appeal to the public mind. In the background, of course, is the Supreme Court's Dred Scott decision, which the Republican Party could not accept without abandoning its platform's principal plank, the call for restoring the congressional ban on slavery in the territories. Lincoln had both to argue against a constitutional claim of utter resistance to the federal government as a whole—secession—and in favor of moderate resistance to the judicial supremacy evident in the Dred Scott decision. These two claims are obviously related: the strongest case for secession depended on showing that lawless partisans had seized control of the federal government and were preparing to do serious mischief to the constitutional order.
In the passage just quoted Lincoln draws his distinctions carefully and successfully. However much the Constitution would be strained in the decade that followed, especially after his assassination, its integrity after the addition of the Civil War Amendments did not undermine but rather reaffirmed his case against judicial supremacy in constitutional interpretation.
Lincoln meant his First Inaugural to embody the results of more than half a century of the American people's constitutional experience. From the beginning, Americans had developed a series of answers to the question, what should be done if political authorities violate the Constitution? The answers developed in the first decade or so form, so to speak, the original understanding of constitutional resistance.
Amending the Constitution
American constitutional law is typically traced to the Supreme Court's decision in Marbury v. Madison (1803), but the truer—though less auspicious—beginning lies a decade earlier in Chisholm v. Georgia (1793). In this case, the Supreme Court held that the provision of Article III of the Constitution giving the federal courts jurisdiction over "Controversies...between a State and Citizens of another State" authorized a South Carolina citizen's executor to sue the state of Georgia for payment of a debt, a suit forbidden to a citizen of Georgia against the state of Georgia (or a citizen of South Carolina against the state of South Carolina, or a citizen of the United States against the United States) by the common-law doctrine of sovereign immunity. The state of Georgia took the position that, as it was immune to a suit initiated by any citizen, it was not even obliged to answer in the Supreme Court; but given a postponement, the state consented to send attorneys to explain its refusal.
The Supreme Court upheld its jurisdiction of the suit, over the sole dissent of Justice James Iredell, who emphasized both the lack of a jurisdictional statute and the existence of clear common-law principles justifying sovereign immunity in the absence of state waiver. The seriatim opinions of Chief Justice John Jay and Justice James Wilson were strongly nationalistic in tone and argument, insisting that the plain words of the Constitution overrode any contrary legal principles and that the nature of the Union established by the Constitution was such as to deny sovereignty to the states in any serious sense of the term. The question whether federal jurisdiction extended to suits for the recovery of state debts, wrote Wilson, "may, perhaps, be ultimately resolved into one no less radical than this—'Do the people of the United States form a Nation?'" Jay, too, thought something fundamental was at stake: "The [sovereign immunity] exception contended for would contradict and do violence to the great and leading principles of a free and equal national government, one of the great objects of which is to insure justice to all."
The country responded unequivocally to the Court's ringing invocation of nationalist first principles. With Virginia and Massachusetts in the lead, the legislatures of almost every state passed resolutions calling for a constitutional amendment. Obligingly, the Federalist Congress passed, and all but three of the state legislatures ratified, the 11th Amendment:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
It is hard to imagine a more decisive rebuke to the Court. As for Chisholm and a number of similar plaintiffs, they never collected: in 1798 the Supreme Court unanimously ruled that the 11th Amendment had vacated the judgments they had won against the states.
The Sedition Act
The next crisis over constitutional supremacy took place against the background of the French Revolution, and served to lay the foundation for permanent political parties in the United States. At issue was the constitutionality of the Alien and Sedition Acts, passed by Congress and signed by President John Adams, providing for the deportation of aliens that the president "shall judge dangerous to the peace and safety of the United States," and for the punishment of "any person [who] shall write, print, utter, or publish...any false, scandalous, and malicious writing or writings against the government of the United States...Congress...or the President of the United States, with intent to defame...or to bring them...into contempt or disrepute; or to excite against them...the hatred of the good people of the United States...." Passed by Federalists in Congress, the acts were deplored by opposition Republicans, led by Thomas Jefferson and James Madison, who found a voice in the legislatures of Kentucky and Virginia, which passed resolutions the two leaders respectively had drafted condemning the acts as unconstitutional.
The arguments for considering the acts unconstitutional are interesting in themselves, but with regard to judicial supremacy, what matters is the doctrine of what to do about unconstitutional legislative acts. Both Jefferson and Madison, and hence both Kentucky and Virginia, insisted that the states, as parties to the constitutional compact, had a right to vindicate the instrument that they had created, the Constitution, against its creature, the federal government. Jefferson for Kentucky wrote of a right in the states to nullify such a law, though he did not ask that Kentucky now exercise that right, preferring what he called in his draft "a committee of conference and correspondence" to communicate with other state legislatures, a process recalling the colonial response to the Intolerable Acts in 1774. Madison, more cautious, had Virginia assert on the other states' behalf only a right "to interpose, for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights, and liberties appertaining to them." There, too, the call was for communication with the other states.
For our purposes, his comments on "interposition" are most significant. In a follow-up report for the Virginia legislature, Madison explained that, by their terms, the Virginia Resolutions limit the occasions for interposition. The constitutional violation must involve a "deliberate, palpable, and dangerous exercise" of powers not granted by the Constitution. Moreover, he denied that interposition would occur "either in a hasty manner or on doubtful and inferior occasions." Though the argument depends on seeing the Constitution as a compact among the states, he distinguishes between "ordinary conventions between different nations" and "an intimate and constitutional union," saying that within the latter, "interposition of the parties, in their sovereign capacity, can be called for by occasions only deeply and essentially affecting the vital principles of their political system." As for the acts of interposition themselves, Madison did not specify what form they would take. The word "interpose" means to place in between, and therefore to obstruct, delay, interfere, intervene, or interrupt. He did not deny, but neither did he assert, that interposition could entail nullification of an act of Congress, or even of the compact itself. Instead, he noted that the resolution in question speaks of the object of an act of interposition in a carefully restrained way. The purpose was "solely that of arresting the progress of the evil of usurpation, and of maintaining the authorities, rights, and liberties, appertaining to the states as parties to the Constitution." Jefferson spoke of nullification as a natural right of parties to a compact; Madison spoke more guardedly of a sort of constitutional right or duty to resist.
One of the most remarkable paragraphs of Madison's remarkable discussion is the objection he raised and answered: "that the judicial authority is to be regarded as the sole expositor of the Constitution in the last resort." Here, before judicial review is even exercised on the federal level, was the idea of judicial supremacy that would become familiar to Americans later on. Madison refuted it on three grounds. First, not all usurpations would be subject to judicial process; there are wrongs that will not give rise to a legal controversy or case. Second, the judiciary being only one department of the federal government, its supremacy over its cases and controversies would imply the supremacy of the federal legislative and executive powers in those matters that do not find their way to court; judicial supremacy is thus federal supremacy by another name. Finally, the doctrine of interposition is reserved for precisely those usurpations that cannot otherwise be met by ordinary constitutional means; for example, if the judicial branch itself might be the usurper. In short, even if the Court might be final in relation to the other branches of the federal government, it is not final "in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments, hold their delegated trusts." Madison did not deny the power that came to be called judicial review, but he did deny that it is supreme over the Constitution.
For all his caution, however, Madison concluded his discussion of interposition with a justification of "a frequent recurrence to fundamental principles" as "a necessary safeguard against the danger of degeneracy, to which republics are liable." Compare the present cause to the Revolution, he insisted to the reader, and see "whether the declaratory recurrence here made to those principles ought to be viewed as unseasonable and improper, or as a vigilant discharge of an important duty." The spirit of interposition, then, is the spirit of republican self-government, which is not reserved for moments of extraordinary creativity but is intended to animate constitutional life. That the movement Madison here defends succeeded not through the states' interposition, but rather by electoral victory in what Jefferson liked to call "the Revolution of 1800," thus seems altogether appropriate, though perhaps paradoxical. Elections take place within the framework of the Constitution, but constitutional interpretation is often at stake in them. "The authority of constitutions over governments," wrote Madison, "and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind." That a people can be constitutional as well as sovereign, or sovereign only because constitutional, is a truth also worthy of reflection.
Jefferson, Marbury, and Judicial Review
Chisholm v. Georgia and the 1800 election are, then, the real beginnings of American constitutional law, and their lessons point more to constitutional resistance than to judicial supremacy. In this context, Marbury v. Madison, the case that established federal judicial review of legislation, appears less as an assertion of judicial preeminence and more as John Marshall's carefully wrought effort to preserve a place for the judiciary in constitutional interpretation. The case did not come to the Court as an attempt to test a law's constitutionality; it did not pit the judicial branch against Congress, though there was precisely such a case coming along more or less contemporaneously, Stuart v. Laird (1803), testing the constitutionality of the repeal of the Judiciary Act of 1801 (the repeal was upheld in a cursory opinion). Marbury was from the start a case of constitutional dimension, but this was because it seemed to pit the Court against the president. What Marbury sought was a court order, a mandamus, commanding President Jefferson's secretary of state, none other than James Madison, to deliver a commission sealed by the Adams Administration. From the beginning, Jefferson made clear his intention to ignore any order that the Court might issue. He instructed Madison not to acknowledge the Court's jurisdiction—rather like the state of Georgia in Chisholm, Madison only came to Court via the attorney general, who did not answer the claim but briefly testified as a witness. Jefferson's theory of "departmentalism" justified his instructions. Each branch, according to Jefferson, is exclusively responsible for the constitutional duties placed upon its members, and each is authorized to interpret the Constitution according to its conscience in matters that concern itself. We have already seen a preview of this constitutional theory in Madison's Report on the Virginia Resolutions, where it was used to explain the judiciary's limited role in constitutional interpretation. Now it stood ready to defy the Supreme Court, indeed, almost to put it to a dare.
The genius of Marshall's solution in Marbury is that it avoided such an outcome while clearly asserting the Court's important role in the determination of constitutional disputes. In the first place, by refusing to issue the mandamus, Marshall denied Jefferson the opportunity to defy the Court. Second, by speaking at length to the question of Marbury's right to the commission, the Chief Justice seemed partially to reject Jefferson's constitutional theory: there are indeed political duties of the executive that cannot be reviewed by a court of law, but an official's ministerial acts as prescribed by statute are not among them. Third, Marshall's assertion of judicial power in Marbury was circumscribed by a certain acknowledgment of Jefferson's theory, for Marbury can be construed in terms consistent with departmentalism. The legislative act in question was the Judiciary Act, and the Court's ruling concerned the provision in Article III about its own jurisdiction. Whatever one thinks of Marshall's legislative and constitutional interpretation, even Jefferson could not reject the Court's right and power to determine such vital matters without making the case, not for departmentalism, but for legislative supremacy.
From the point of view of some subsequent Democrats, Jefferson's position seemed undemocratic, for it made each branch of government—rather than, say, the people at large or through their representatives—judge of its constitutional powers and rights. Without enshrining Jefferson's departmentalism as law—perhaps it is a specifically executive understanding of constitutionalism, after all—Marshall prudently defined the Court's interpretive power over the Constitution in the context of the judicial function, thus invoking the departmental principle even as he read his department's charge in a grand way.
The Future of Constitutional Resistance
It is difficult to invoke the original understanding of constitutional resistance as a model for the present time. To say resistance plays a crucial role in the Constitution's interpretation is already to appeal outside the text alone—as Publius himself does when he writes in The Federalist, "'Tis time only that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent whole." Through a series of controversies and disputes—for example, the Virginia Court of Appeals' repeated denial that the U.S. Supreme Court had jurisdiction to take its cases on appeal, or President Jackson's Veto Message declaring the Bank of the United States unconstitutional despite the contrary decision in McCulloch v. Maryland (1819), or Northern personal freedom laws meant to prevent capture of free blacks as fugitive slaves—a tradition developed of testing Supreme Court doctrine in the court of public opinion. These efforts did not encourage disobedience to final decrees of undoubted authority, but they did firmly reject what were thought to be mistaken precedents. The judges knew that if they were to make unpopular decisions, they would have to be willing to persist and be able to persuade.
The Civil War obviously changed thinking about state resistance to judicial decisions, and Congress passed several statutes in the 1870s designed to enhance the federal courts' institutional authority. Still, in the political struggles over the growth of a central regulatory and welfare state, judicial decisions striking innovative legislation did not silence legislative attempts, especially in the states, to modify a rejected scheme, to pass similar legislation in another venue, or to keep an issue before the courts. It is probably only with the discrediting of the "massive resistance" campaign organized against the Supreme Court's decision in Brown v. Board of Education (1954) that the spirit of resistance fell into general disfavor. It was precisely in response to this civil unrest that the Supreme Court for the first time asserted that its own decisions are, like the Constitution itself, the "supreme Law of the Land." But even here it would be wrong to jump to conclusions. What discredited public opposition to Brown was in part its ugly violence, while the constitutional resistance I have been writing about is peaceable if sometimes stubborn. Besides, if resistance is an appeal to the public mind, the failure of some particular appeal does not argue against the right to make it, and in fact vindicates the winning side. The settled consensus in favor of civil rights emerged in the wake of the opposition's failure, and it has been argued thatBrown's chief practical effect was as a catalyst to win civil rights, not as a precedent for judicially imposed integration.
What, then, is the status of constitutional resistance today? At first it might seem odd to say that its spirit has waned with the rise of judicial supremacy. Civil disobedience, after all, is almost routine as a tool of political protest, in causes across the political spectrum, and it remains a ready avenue to media attention. But while law-breaking as a form of expression is tolerated, challenging the court within the constitutional frame has come under severe pressure. Section 1983 lawsuits—brought under a statute originally passed to enforce Reconstruction and extended in recent years as a promiscuous license to challenge state and local officials who, acting "under the color of law," violate rights—stand as a threat to authorities inclined not to implement the Supreme Court's latest whims. Moreover, the power of the federal courts to issue injunctions—once a separate power of equity not available in ordinary suits at law—vitiates the old adage that judges have "neither force nor will." The practice of fining officials who delay obedience to judicial decrees quickly determines the price of dissent. These are the real weapons of judicial supremacy, and while they are partly statutory in origin, they are quickly becoming accepted practice. We complain of incivility in public affairs today, and yet here is an example of how it is encouraged. Loud disobedience to grab public attention is commonly accepted. The traditional chess-like game of resistance and compliance in the forging of consent for constitutional doctrine within a complex framework of institutions, by contrast, meets the heavy hand of state coercion.
There are, of course, still avenues for constitutional resistance when the courts overreach, and possibilities for innovative, constitutional response come readily enough to mind to those who can free themselves from the shibboleth that the Supreme Court has the final say over the meaning of the Constitution even when the justices are wrong. Leaving aside the attention-getting gimmicks, the outcry against the recent decision in Kelo v. New London (2005) promises real change in the government policy of using eminent domain to take people's homes for planned development. The pro-life movement, after years of frustrated attempts to overturn Roe v. Wade (1973), is discovering, step-by-step, how to build up a body of acceptable statutes and moderate precedents to seek better judgments eventually on when life begins and deserves protection. Nor have those who oppose affirmative action been dissuaded from seeking policy change or, for that matter, constitutional reversal, by the Supreme Court's decision in Grutter v. Bollinger (2003) that race may be used as a criterion in university admissions for the time being.
In the long run there is no substitute for an elected official's willingness to defy activist judicial claims to the full extent of his constitutional authority. We often read the middle papers of The Federalist as though making ambition counteract ambition in the scheme of the separation of powers were a matter of raw competition. I think Madison's understanding in the 1800 Report is truer to the spirit of the Constitution and perhaps what he meant all along. At issue in the competition is not raw power but reputation: who can persuade the public mind that they have the public interest and the Constitution on their side? It is good to have Supreme Court judges who profess adherence to the principle of judicial self-restraint. It would be even better if that self-restraint were reinforced by awareness that they are not infallibly final in the American constitutional system—that they must content themselves with exercising "neither force nor will but merely judgment," proud and confident in doing justice according to law, nothing less and nothing more.