Document Type

Article

Publication Date

2022

Abstract

Ralph Waldo Emerson once suggested that we read not for instruction but for provocation. By that standard, in The Words That Made Us, Akhil Reed Amar has written a characteristically great book. This is not to deny that there is abundant instruction in its many pages: Amar offers a synoptic and yet still nuanced description of the great constitutional conversation that engulfed American political life in the eighty or so years around the founding. One of the chief values of the book, though, is that it will provoke a whole new set of additions to the constitutional conversation that it so ambitiously describes. The present symposium is a testament and a preview.

My symposium essay will isolate and attend to one voice in the constitutional polyphony: the judiciary. A remarkable transformation takes place over the course of Amar’s narrative. In the beginning, the institutional voice of the judiciary is scarcely audible. The courts’ contributions to the constitutional conversation pale in comparison to the much more significant contributions of Presidents, cabinet officials, members of Congress, pamphleteers, litigators, and citizens. By the end of Amar’s story, however, the Marshall Court has become a major voice in America’s constitutional conversation. How did that happen? What accounts for this dramatic change in the relative volume of the judicial voice?

The passage from judicial inaudibility to judicial preeminence is a complex sociopolitical event that cannot be reduced to a single cause, and that is not my intention here. But this essay will suggest that a series of subtle, and now largely forgotten, institutional changes that occurred in the early decades of the Supreme Court’s existence laid the groundwork for the dramatic growth in the Court’s importance on the constitutional scene across that same period. And that growth, of course, has only continued: By the twenty-first century the Supreme Court “has by a very large margin the loudest institutional voice in constitutional debate.” These early institutional choices, then, though subtle, have powerfully defined the character of our constitutional conversation ever since.

After briefly discussing the judiciary in the colonial period, this essay begins with two interconnected developments between the Revolution and the ratification of the Constitution that bolstered the idea of judicial review: The appreciation, at least among elites, of the danger of unrestrained legislative power, and the advent of written constitutions with special democratic authority that could serve as sources of justiciable limits on government power. This essay then turns to the period after the Constitution went into effect and the federal judiciary materialized, when the early Supreme Court made a series of critical institutional choices to define and strengthen its voice. In particular, the Justices separated themselves from the executive branch, they tamped down on extracurricular partisan activities, they started to coalesce around unified “opinions of the Court,” and they enlisted Congress to create an official reporter. Blended together, these reforms enabled the Supreme Court to speak in a powerful and distinct institutional voice. On top of these reforms, Justice Joseph Story’s appointment to a professorship at the fledgling Harvard Law School cemented a close connection between the courts and the intellectual study of law that continues to this day, further enhancing the Court’s prestige and influence. In all, these institutional reforms enabled the Court to achieve the preeminence it now enjoys in our constitutional conversation.

Disciplines

Courts | Law | Legal History

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