Reflections upon Judicial Independence as we approach the Bicentennial of Marbury v. Madison: Safeguarding the Constitution's "Crown Jewel"
By 1787, the Revolution had been won and a new, independent nation born. But, the new nation had yet to clearly define a governmental structure with which to establish and maintain the noble principles over which the Revolution was fought. Thus, the fifty-five delegates to the Constitutional Convention who assembled in Philadelphia in May of 1787 had the daunting task of fashioning for the new country a governmental system that would implement and protect the ideals that sparked the birth of the United States-freedom and the rule of law. After five months of debate, controversy, and compromise, the Framers emerged with a document that would prove the most enduring constitution ever drafted by human hands. Shaped as much by the failure of the Articles of Confederation as the experience of European governments of the time, the United States Constitution creates a network of institutions intended to protect the people against intrusive government and the misappropriation of power by government leaders. One such institution central to this objective and unique to the American Constitution was the establishment of a Judiciary that was independent of both the Legislature and the Executive branches of government. Chief Justice William Rehnquist has called judicial independence enjoyed by federal Judges a "crown jewel" of our Constitutional design. The independence of our federal Judiciary unites two distinct principles. First, the Constitutional safeguards of protection against diminished salary and life tenure "during good behaviour" are meant to ensure influence-free judging. Thus, in affording federal Judges this protection to decide controversies impartially, our foresighted Founders provided the Judiciary with decisional independence. Second, in vesting judicial power in a Supreme Court and lower courts, Article III of the Constitution distinctly separated the Judiciary from the other branches as its own co-equal branch of government. By making the Third Branch an effective check over the Legislature and the Executive, the Constitution provides the Judiciary with institutional independence. The framers clearly understood the importance of this institutional division of power and the necessity of separating the judicial branch from the political branches of government. However, while the Constitution laid the groundwork for the political foundations of institutional and decisional judicial independence, it remained for the Supreme Court itself to entrench the rule of the law and to fully establish the role of the independent Judiciary as a co-equal branch of the government. Revolution and the rule of law are distinctly different systems, with the latter predicated on the accumulated set of beliefs in the aftermath of one revolution to deter the next. The American Revolution was fought for the freedom to live under a freely elected government, while the Constitution --the bedrock of our polity --expresses the extent and nature of limits on government. In Marbury v. Madison, Chief Justice John Marshall for the first time harmonized these two notions of self-government under a Constitutional rule of law, by holding our Constitution to be the supreme law of the land, while asserting the judicial power of review to protect it. Thus, the Constitution --as our fundamental law --is interpreted by an independent Judiciary acting in relatively rare circumstances as a limitation upon the policy branches of the Executive and Legislature. The power of Marbury in establishing the Judiciary as a co-equal branch of government cannot be underestimated. And, by protecting the courts from specific retaliation when they exercise the power of review, the institutional and decisional independence provided for in the Constitution cement the Judiciary's authority over the power of review. However these two lynch pins of the Third Branch were not achieved without obstacle, and even after Marbury, have not remained unquestioned.