On Public Discourse today, political scientist Carson Holloway has an excellent article titled “Constitutional Conservatism Rejects Judicial Supremacy.” You’ll learn more from it—or at least more that is right—than most law-school students learn in a course on constitutional law. Some excerpts (underlining added):
The Constitution is our fundamental law, ratified by the people and deriving its authority from their sovereignty. Constitutional law, by contrast, is only what the courts have said in cases about the meaning of the Constitution.
This distinction is essential to treating the Constitution seriously as a rule of law, binding on all parts of the government, including the courts themselves. Without it, as [Edwin] Meese observed, the Supreme Court would be in no position to overrule its own earlier decisions when it has come to view them as mistaken, something it has done on numerous important occasions, such as when the Court jettisoned in Brown v. Board of Education (1896) the “separate but equal” doctrine that it had embraced in Plessy v. Ferguson (1896). Such reversals only make sense if the Court views the Constitution as of superior obligation to its own rulings, something it could not do if it equated constitutional supremacy with judicial supremacy.…
Marbury [v. Madison (1803)] is … the key precedent establishing the power of judicial review, or the authority of the courts to rule on the constitutionality of the acts of the other branches of government. Judicial review, however, is not the same thing as judicial supremacy. It is true that Chief Justice John Marshall’s opinion for the Court in Marbury holds that “it is emphatically the province and duty of the judicial department to say what the law is,” and that Marshall argued that this duty requires the courts to treat the Constitution as a law of superior obligation, giving preference to it when it conflicts with the acts of the legislature or executive. At no point in the Court’s opinion, however, does Marshall claim that the Court “gets the final say on whether laws passed by Congress or implemented by the executive branch are constitutional.”
On the contrary, Marshall’s argument points to the very thing that [judicial supremacists are] so eager to deny: namely, a legitimate authority in the elected branches to be guided by their own interpretations of the Constitution in the exercise of their own powers. The “framers of the Constitution,” Marshall wrote, “contemplated that instrument as a rule for the government of courts, as well as of the legislature.” If, however, the Constitution is equally a rule for legislatures as well as for courts, then the former have, no less than the latter, an obligation to act according to their best understanding of it, regardless of what the other branches may say.






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