There is a pattern in federal courts that anyone who has litigated a constitutional challenge will recognize. The case is filed. The constitutional argument is solid. The government has no good answer on the merits. So instead of fighting on the merits, the government argues that the court should not reach them at all. Standing problems. Ripeness problems. Exhaustion of administrative remedies. The goal is to keep the courthouse door closed long enough that the constitutional question never gets answered.
Cohens v. Virginia, decided unanimously by the Supreme Court in 1821, established the rule that forecloses this evasion. Chief Justice Marshall wrote that it is the duty of the Court to decide every case coming within its constitutional jurisdiction, to prevent the supreme law of the land from being prostrated at the feet of every state in the Union. That duty is not discretionary.
What the Case Was About
Philip and Mendes Cohen sold lottery tickets in Virginia that were authorized by a federal statute. Virginia courts convicted the Cohens. Virginia argued that the Supreme Court had no jurisdiction to review state criminal convictions. Marshall rejected that position completely. Article III gives federal courts jurisdiction over all cases arising under the Constitution and federal law. Declining to exercise that jurisdiction would allow the supreme law of the land to be prostrated at the feet of every state in the Union.
The Non-Discretionary Duty
Marshall’s language in Cohens was not accidental or rhetorical. A written constitution with a Supremacy Clause is not self-executing. Someone has to enforce it when it conflicts with a statute. The Founders placed that responsibility on the courts. Without courts willing to enforce constitutional limits against offending legislation, the Supremacy Clause is empty language.
Cohens establishes that the judicial duty is non-discretionary. When a case properly within the court’s jurisdiction raises a conflict between a statute and the Constitution, the court must decide it. The word must is not soft. It means the court’s constitutional role requires a decision.
What Cohens Requires
Every time a federal court dismisses a Second Amendment challenge on standing, ripeness, exhaustion, avoidance, or any other procedural ground without reaching the merits, it is doing what Cohens prohibits. It is allowing the supreme law of the land to be prostrated. It is choosing the statute over the Constitution. And it is doing so in the name of judicial restraint, which is exactly the kind of constitutional evasion with citations attached that the Supremacy Clause was written to prevent. The duty to decide is not optional. Marshall said so in 1821. Nothing in the Constitution has changed since then.