President Abraham Lincoln viewed the Supreme Court as a coequal, not a superior branch of government. In his celebrated Inaugural Address of 1861, Lincoln denied that constitutional questions could be settled solely by the Court. If governmental policy on “vital questions affecting the whole people is to be irrevocably fixed” by the Supreme Court, “the people will have ceased to be their own rulers.” The President and Congress, he explained, were entitled to exercise their own independent constitutional judgments, even if at odds with previous Court rulings. Lincoln was consistent on this point. In his famous debates with Stephen Douglas in the 1858 Senate campaign, Lincoln said that he accepted the decision in Dred Scott v. Sandford, decided a year before, but only with respect to its impact on the particular litigants. Lincoln was opposed to the extension of slavery to new territories and rejected the Court’s ruling as a basis for nationalizing slavery.
Lincoln’s advocacy of departmentalism was shared by Presidents Thomas Jefferson and Andrew Jackson. Jefferson’s observations about constitutional interpretation were triggered by the justly maligned Alien and Sedition Acts of 1798. In 1804, a year after Marbury v. Madison, he wrote to his frequent correspondent, Abigail Adams: “You seem to think it devolved on the judges to decide on the validity of the sedition law. But nothing in the Constitution has given them a right to decide for the Executive, more than to the Executive to decide for them.” The theory of “coordinate construction,” Jefferson explained, meant that each branch was “equally independent in the sphere of action assigned to them.” Thus, judges might sentence people to prison, and fine them, but the President, he noted, could exercise his pardon power and “remit the execution of it.” In anticipation of Lincoln, Jefferson declared that the act of vesting in the judiciary the exclusive authority to decide a constitutional question “would make the judiciary a despotic branch. “
President Jefferson and his colleagues were convinced that the Alien and Sedition Acts were unconstitutional and hoped the federal courts would strike them down. Federalist judges, however, declined to rule against statutes enacted by a Federalist Congress and signed into law by President John Adams. When Jefferson assumed the Presidency, he pardoned those convicted of violating the law. Congress later reimbursed those who had been fined under the Sedition Act, which it declared “unconstitutional, null and void.” While the Supreme Court was never presented with the opportunity to rule on the Sedition Act, it did in passing, in New York Times v. Sullivan (1964), observe that while the act never came before a court of law, it was rebuked by the “court of history.”
President Andrew Jackson, like Jefferson, was an advocate of departmental construction. In 1832, Jackson vetoed a bill to recharter the Bank of the United States on both policy and constitutional grounds. He did this despite the fact that members of Congress had urged him to sign the measure since the constitutionality of the Bank had been upheld by the Supreme in McCulloch v. Maryland (1819) and approved by previous Presidents and Congresses. In his veto message, Jackson advanced the theory of coordinate construction: Each official who takes an oath to support the Constitution, “swears that he will support it as he understands it, and not as it is understood by others.” Like Jefferson and Lincoln, Jackson announced that the opinion of judges had “no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.”
Ever since the days of Thomas Jefferson and Andrew Jackson, presidential assertions of coordinate construction have pursued the goal of minimizing the influence of the judiciary. The question of “finality” with respect to determining the meaning the Constitution, the question of who might as the “ultimate arbiter” on constitutional matters is of great moment. The stakes, both near and long, term, are high. For their part, James Madison and Alexander Hamilton considered judicial review a crucial mechanism in maintain constitutional government. In Federalist No. 78, Hamilton explained that the courts were “the bulwarks against legislative encroachments.” In the First Congress, Madison declared that the courts would be “an impenetrable bulwark against every assumption of power in the Legislative or Executive.” The availability of judicial review to bring an errant president to heel or to curb an unconstitutional law that threatens First Amendment freedoms, surely is a vital cog in the maintenance of constitutional government. The great appellate judge, Learned Hand, said the finality of judicial review was a “necessity.” And, advocates of coordinate construction certainly have had to do some hand wringing over the implications for their position found in President Nixon’s assertion of an absolute executive privilege. But perhaps it should be recalled that whoever has the last word in interpreting the Constitution is capable of abusing its power. That is a reminder that no matter how carefully constitutions are written, that there is no substitute for having good men and women at the helm.