Members of the International Criminal Court Need To Relearn The Lesson of Marbury v. Madison
Another semester, another section of constitutional law. This week I taught Marbury v. Madison for the umpteenth time. Beyond teaching the mechanics of the Original Jurisdiction clause and the Judiciary Act of 1789, I always try to convey to my students why Marshall wrote the opinion backwards: Why decide the merits question about the commission before the jurisdictional question? The answer, as all know, was that Marshall was trying to establish the principle of judicial review for federal legislation. (And no, he did not create judicial review; read Hamilton in Federalist No. 78.)
Yet, lurking in the background was a fear. If Marshall had in fact ordered Secretary of State James Madison, an appointee of President Thomas Jefferson, to deliver Marbury’s commission, it is likely the order would have been disregarded. It is not a certainty, but there was definitely that risk. If so, Marshall recognized what would happen if his court issued an order that was ignored: the court, as an institution, would be diminished.
At this point in class, I always ask students why do people follow court orders. The usual answer is that if you ignore the court, you will go to jail. That’s fine, but it is the executive branch that will actually arrest a person and incarcerate them. Judges do not get off their benches and place handcuffs on a person. As Hamilton explained in Federalist No. 78, courts have neither force nor will, only judgment. Courts depend on the executive branch to enforce their judgments.
I then ask why does the executive branch enforce a court’s judgments. The usual answer is that without that sort of enforcement, there would be anarchy and chaos in society. Maybe that’s right. But at bottom, the answer is that the executive branch enforces the court’s judgments because the executive branch thinks the court plays a valid role in society, even if any particular decision might be right or wrong.
I then ask whether the President should enforce a blatantly unconstitutional ruling (you can think of what that would be). At that point, students get a bit queasy. Some judicial supremacists (even if they do not know the term yet) say that court judgments should be enforced no matter what. Other departmentalists (even if they do not know the term yet) say that the President can decide for himsel
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