Earlier this month, the Supreme Court opened what promises to be a term of exceptional significance. It is widely expected that the Court will consider the constitutionality of the recently enacted health-care law, and it may examine laws that define marriage as the union of one man and one woman. But outside the Court, there will be a struggle of far greater significance: a fight over whether the decisions of the Court are the final word on the meaning of the Constitution.
The most dramatic challenge to the Supreme Court’s authority as the ultimate constitutional interpreter has come from former speaker of the House Newt Gingrich, who gave a speech at the Value Voters Summit earlier this month asserting that the constitutional judgments of the president and Congress are entitled to as much respect as those of the Court. Mr. Gingrich promised that, as president, he would challenge the Court’s role as the final arbiter of constitutional meaning — he would even ignore a Court decision if he strongly believed that the Court’s judgment on an important issue was contrary to the true meaning of the Constitution.
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Mr. Gingrich’s speech has caused a great deal of consternation among those accustomed to thinking of the Court as having the final word on the Constitution’s meaning, a doctrine known as judicial supremacy. The New York Times, happy to beg the question, declared that the Supreme Court’s own decision in 1803’s Marbury v. Madison “gave the Supreme Court the last word in interpreting the Constitution.” Think Progress’s Ian Millhiser was absolutely apoplectic; the upshot of his screed is that Mr. Gingrich’s argument is “obviously not a view that’s compatible with the rule of law. It deserves nothing more than scorn.”
Such reactions are to be expected. The idea of judicial supremacy is so entrenched in the popular mind that Nancy Pelosi once described a decision of the Supreme Court as being “almost as if God has spoken.” This explains why, when Rep. Michele Bachmann declared that the health-care-reform statute is unconstitutional at a GOP debate in August, Calvin Woodward of the Huffington Post was quick to point out what he saw as the obvious “fact” that “nothing is unconstitutional until courts declare it to be so.”
Curiously, no such “fact” appears anywhere in the Constitution. Indeed, the idea that the Supreme Court should be the last voice on constitutional meaning has been contested throughout American history. Thomas Jefferson called the idea of judicial supremacy “a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” Since the founding, the other branches of government have not only refused to pass laws they thought were unconstitutional when the Court said otherwise — they have even directly defied the Court’s orders.
Andrew Jackson famously vetoed a bill reauthorizing the Bank of the United States on the grounds that it was unconstitutional, even though the Supreme Court had said otherwise in McCulloch v. Maryland. But the most striking example is undoubtedly that of Abraham Lincoln, who issued passports to free black citizens in contravention of the Court’s ruling in Dred Scott v. Sandford. It was Lincoln who, delivering his first inaugural address under the cloud of Dred Scott, warned that if the meaning of the Constitution was “irrevocably fixed by decisions of the Supreme Court, the instant they are made . . . the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”
This long history of challenges to judicial supremacy has been well documented by scholars including Dean Larry Kramer of Stanford Law School and Keith Whittington of Princeton University. Yet, this election season marks the first time since Attorney General Edwin Meese’s 1986 Bicentennial Lecture that a major political figure has challenged the Court’s authority over the Constitution. And Mr. Gingrich is the not the only candidate to explore these ideas. In a recent radio interview, Mrs. Bachmann maintained that the health-care law must be repealed as unconstitutional even though the Court is very likely to consider the matter this term. Her statement indicates a willingness to assert a constitutional judgment regardless of whether the Court has already spoken on the matter.
Perhaps, then, the political branches are moving beyond what Harvard Law professor Mark Tushnet calls the “judicial overhang,” the idea that politicians “may define their jobs as excluding consideration of the Constitution precisely because the courts are there.” Mr. Gingrich has forcefully rejected judicial supremacy, and Mrs. Bachmann and Sen. Mike Lee (R., Utah) both take the position that they must interpret the Constitution in the manner they believe is correct — irrespective of the method by which the Court interprets the document. If that is the case, the question that naturally arises is this: How should the political branches interpret the Constitution?
It is high time for elected officials to be held accountable for the oath of office they swore.
SOP for the political class for the past 80+ years has been to identify an expansion of government, then concoct a theory, however improbable, that the Constitution somehow authorizes the impulse. Put another way, we are operating under the theory that anything government chooses to do is licit if the advocates get away with it. Tyranny is the inevitable result of such a system.
Rarely do we see atrocities equal to that of GWB singing McCain-Feingold into law and offering at that time the opinion that the measure is probably unconstitutional. That performance was an impeachable offense by my lights.
Every American citizen who has read the plain language of our Constitution has as much right to define the constitutionality of the laws being forced upon them as 9 other citizens who wear black robes. Congress won't pass the "Enumerated Powers Act" because some of our "representatives" KNOW the legislation they're proposing is unconstitutional, and most of the others, I would suppose, haven't even READ our Constitution. The founders expected our nation to be guided by the plain meaning of our Constitution and even explained it in their minutes of the convention as well as the Federalist Papers. Judicial supremacy isn't under attack. Judicial supremacy IS the attack.
The author misleads you. Look at the three instances he cited, as opposed to the thousands of instances where the bedrock principle of American jurisprudence begun with Marbury has been respected.
This is not an issue with two equal sides. There's the established, accepted rule, and every once in a while someone takes a jab at it, such as Andrew "let them enforce it" Jackson or Abraham "we're at war, stupid" Lincoln. You can find professors to write clever, "what if" papers on just about anything.
What conservative would advocate such a radical departure from two centuries of established jurisprudence?
Marbury wasn't cited as authority for the Court's ability to review the constitutionality of cases until 1878, just as the Progressive movement was getting its start. Congress and the President have the authority, and the duty, to determine the constitutionality of laws they enact and sign. An originalist view of judicial review is perfectly compatible with the responsibility of all branches to hew to their oath to defend the Constitution. If precedent conflicts with that view, the Court is under no constraint to follow it; in fact its duty is to throw out the rotten fruit of the bad limb.
Yes, Mike. The great judicial battle cry of the liberal, "Stare Decisis!" An activist judiciary has succeeded for decades in taking us away from constitutional principles. The last thing the left wants is a return to those principles, so it becomes the left's position that a judicial decision that contravenes the original intent of the Constitution must carry more weight than the actual document. Ridiculous.
The established, accepted rule, by LAW, is the Constitution. Precedent be damned if it was not established accordingly. EVERY law, including previous "law" and newly proposed legislation, should be subject to review of its constitutionality by original interpretation. Otherwise unconstitutional precedent leads to further unconstitutional precedent until the original has become indecipherable.
All three branches have a constitutional veto. Congress can refuse to pass a law, the executive can refuse to enact it, and the judiciary can refuse to enforce it. None of the three can declare a law constitutional and it be so.
As I see the problem with the courts is that they legislate when they should adjudicate. For example, Dred Scott was a legislative decision, as were Plessy v. Ferguson and Roe v. Wade. The question is, what is to be done when the courts act uncostitutionally? IMHO the answer is embedded in the Constitution where it says in Art. III Sect. 2: "In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." It would seem, if the political will is there, that Congress can simply override the courts. Congress can pass a bill undoing the Court's decision and simply make the bill not subject to appellate jurisdiction.
Roe vs Wade.
Made up from thin air. Resulted in the murder of 55 million inncoent children. Let the defneders of our court system defend the greatest holocaust in world history.
We have this magnificent legal foundation built of the strongest granite. The Framers made something truly remarkable that has stood the test of time like no other governmental framework. For more than two centuries what they created has enabled a nation to grow and flourish beyond imagination.
Nothing is so profoundly wrong with what we've built on that foundation that you need to go after the foundation itself with jackhammers.
The foundation is the Constitution. To the extent that the Court's decisions have departed from the ideas enshrined in that document, that jackhammer just may be appropriate.
One could cite dozens of decisions that, like zebra mussels clogging a city water supply, have gummed up the legitimate work of the federal government and restricted our liberties by ignoring the 9th and 10th Amendments. Removing them, like getting rid of those zebra mussels, will take something closer to a jackhammer than an emery board.
Congress has generally not bothered to identify the source of Constitutionality of any legislation they chose to consider. Some members of Congress have asserted they can pass any law they want, with no Constitutional restrictions. Others have said the commerce clause or general welfare clause give them carte blanche.
We have no Constitutional definition of anyone as the ultimate arbiter of the constitutionality of any laws. On top of that, we have no requirement to review or approve regulations allegedly based on a given law. What we do have is the phrase about powers being left to the states or to the people.
So perhaps a solution would be, rather than to leave it all up to the SCOTUS, to have a national referendum. If the SCOTUS thinks something is unconstitutional, let there be a referendum at the next election, and let the law be suspended until then. Sure, it's a pain to have to think about things but I think the American people are up to it. Both parties would run ads advocating for or against a given law, and people would vote to approve/accept legislation that was contested, just as they do for candidates. It would return the ultimate governmental authority to the people.
In the absence of a defining authority, we can have Congress pass laws that the SCOTUS strikes down, and then Congress re-institutes. The Executive Branch can unilaterally choose what to enforce -- wait, they do that already. Anyway, internecine war between the branches of government serves no one well.
I was taught in elementary school that the Constitution gave us a “system of checks and balances”, but during the last fifty years or so of my life, I have noticed that there seems to be no practical check or balance for the judiciary’s excursions into Wonderland, if we allow the Court’s self selection as the final word in 1803 to stand unchallenged and unregulated.
Judges appointed for life by politically motivated executives have proven repeatedly throughout the history of this republic that they need adult supervision and an occasional pruning back and they haven't gotten it. The other 'co-equal' branches of the government need to get off their thumbs and set up a means of checking and balancing a judiciary that is increasingly usurping the legislative process.
True, but going to war against another sovereign nation without a formal declaration of war should be an impeachable offense also. Alas, Congress has (since 1945) been willing to pass the buck to the executive on matters of war. This way, if things go sour, it doesn't get the blame.
There is a reason there are three branches of government, as others have already pointed out, and each has a responsibility to uphold the Constitution. Each has a veto to override the other two branches, while 2 have more active powers (legislate and execute).
What this means is that the other two non-judicial branches shouldn't just take the politically expedient route of passing popular-but-unconstitutional legislation (e.g., McCain-Feingold) and relying upon the SC to declare it as unconstitutional.
What it doesn't mean is that it's a way for the president/congress to override "judicial activism" decisions like Roe v Wade other than to amend the Constitution to make it more clear.
Failure of any government representative to uphold or defend the Constitution should be considered treason. Death by firing squad should take greed and personal rewards out of national politics. After the first two politicians are executed, the rest will see the error of their ways and revert to a Constitutionally mandated government.
John Marshalls reasoning in Marbury vs. Madison was so illogical that it has to be classified as power grab using disparigate pieces of separate lines of thought that were not compatible. I puzzled over the reasoning behind M vs. M.
Talked with a Judge Advocate. He agreed M v. M is a piece of poor judicial reasoning that violates any rules of rational logic!. My head ached after I figured out how Marshall arrived at his conclusion.
