Bloomberg columnist and Harvard professor Noah Feldman thinks that Dr. Ben Carson has a “wrong and dangerous” view of the law and the Constitution. But in no way does he actually show this is so. What he does show is that he—Feldman, that is—is thoroughly wedded to the truth claims of some propositions about the Constitution that in fact are highly contested.

Carson had been interviewed by Chris Wallace on Fox News Sunday, and here is the relevant portion of the interview in its entirety:

Chris Wallace: Finally in the area of these remarks, just this week, you said that the president must carry out a law passed by Congress, but you said he doesn’t necessarily have to pass what you called a judicial law — which raises the question: Do you believe that the president must observe a decision by the Supreme Court?
Ben Carson: Well, what I said is the president doesn’t have to agree with it.
CW: No, of course not. But does he have to — but does he have to enforce it?
BC: Well, Dred Scott, a perfect example. You know, the Supreme Court came up with this and Abraham Lincoln did not agree with it. Now, admittedly, it caused a lot of conflict and eventually led to a civil war, but we’re in a better place because of it.
CW: But does the president have to carry out a Supreme Court ruling?
BC: The way our Constitution is set up, the president or the executive branch is obligated to carry out the laws of the land. The laws of the land, according to our Constitution, are provided by the legislative branch.
CW: But, sir –
BC: The laws of the land are not provided by the judiciary branch. So –
CW: But, sir, since Marbury v. Madison in 1803, we have lived under the principle of judicial review which says, if the Supreme Court says this is the law, this is constitutional, the rest — the executive has to observe that.
BC: And I have said, this is an area we need to discuss. We need to get into a discussion of this because it has changed from the original intent. And –
CW: So, you’re saying this is an open question as far as you’re concerned?
BC: It is an open question. It needs to be discussed.

But no, says Professor Feldman, this does not need to be discussed — it’s all settled, in favor of judicial supremacy! In support of his argument, Feldman turns to Abraham Lincoln’s speech on Dred Scott, given in June 1857 — a strange source indeed, since it is one of our history’s most famous denunciations of judicial supremacy. In Feldman’s reading, Lincoln “wasn’t challenging the fundamental authority of the Supreme Court”; he was only reserving the right to disagree with it, perhaps rhetorically only, until such time as a new and divisive interpretation of the Constitution became “fully settled.” Where Carson goes wrong, says Feldman, is in his insistence that the president’s alleged obligation to “carry out a Supreme Court ruling” (in Wallace’s words) is “an open question.” It seems that for Feldman, in other words, it is all right for a president to disagree with Supreme Court rulings as long as he doesn’t actually do anything contrary to them. At most, it would be all right to veto legislation that the Court has said is constitutional—but as Feldman knows, this is no real defiance, since presidents can veto legislation on policy as well as constitutional grounds, and it is constitutionally a matter of indifference which ground they express.

But it is Feldman who has Lincoln wrong in historical context. Lincoln was not yet running for the Senate in 1857, but he did so the following year, and in that contest as well as his presidential campaign—and in his First Inaugural Address—Lincoln promised to act, in office, contrary to the reading of the Constitution given by the Court in the Dred Scott decision. He promised in 1858 that if elected senator, he would seek passage of legislation to re-establish the territorial ban on slavery struck down by the Court. In 1862, as president, he signed such legislation. He also instructed the State Department to issue passports to free black Americans, thus recognizing their citizenship under federal law, which had been denied by the Taney Court in the Scott case.

Feldman is alarmed that Carson questions the status of Supreme Court rulings as “the law of the land.” This is just what Lincoln did for four years running after the Dred Scott case. Perhaps Professor Feldman does not know this. He tells his readers that he “went back and reread” Lincoln’s 1857 speech. But the link he provides is to an abridged version of the speech, and the teacher who posted it on a college webpage left out these crucial lines (which can be found in the full text):

Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession.
If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.
But when, as it is true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country—But Judge Douglas considers this view awful.

So does Professor Feldman. He becomes truly exercised about Carson’s remarks about a president’s responsibility toward the law of the land, which may not necessarily (Carson suggests) entail the effectuation of a wrongful decision of the Supreme Court. Feldman writes:

The Constitution does indeed tell the president to “take care” that the laws be faithfully executed. The supremacy clause of the Constitution says that the Constitution and the laws made in pursuance thereof (plus treaties) are the supreme law of the land. But nowhere does the Constitution say that the judicial interpretation of law doesn’t count as the law of the land.

Hm, yes, that’s right, the Constitution does not say that. Funny thing is, neither does the Constitution — anywhere at all — say that judicial interpretations of the law are the law of the land. It should count for something that “judicial interpretation” is omitted from the categories of “supreme law of the land” in the supremacy clause. So the one silence encounters the other, leaving us with . . . a question. But Feldman is sure he knows the answer, and it is judicial supremacy:

What’s more, when it comes to the meaning of the Constitution, Congress has no particular authority under the Constitution. And the Constitution—not just laws passed by Congress—is part of the law of the land.

Yes, of course, the Constitution is “part of the law of the land.” It is the paramount part. But there is absolutely no warrant, in the text or the historical understanding of the Constitution, for saying that “Congress has no particular authority under the Constitution” to say anything about “the meaning of the Constitution.” This was not the view from the founding, it was not John Marshall’s view in Marbury v. Madison, and as we’ve seen, it was not even remotely Lincoln’s view.

Oh yes, what about that famous Marbury case? Notice what Chris Wallace said above:

But, sir, since Marbury v. Madison in 1803, we have lived under the principle of judicial review which says, if the Supreme Court says this is the law, this is constitutional, the rest—the executive has to observe that.

I guess I don’t expect a TV anchor to know better, but this is standard mythmaking about judicial power – Douglas’s view, not Lincoln’s — and Feldman (who should know better) applauds it, adding his own crashing example of question-begging:

[A]s Lincoln noted, when a precedent is settled, it takes on constitutional weight—and today it is settled precedent that the Supreme Court has the final say on the meaning of the Constitution. That’s not an open question.”

For Lincoln, so long as a constitutional interpretation was not “settled,” the other branches could act contrary to what the Court said about the meaning of the Constitution. If it were “settled” — as Feldman says it is “today” — that the Court “has the final say on the meaning of the Constitution,” then Lincoln’s entire position, which Feldman professes to admire (but which we now see he does not understand) comes crashing to the ground. The very question Lincoln professed to leave open—which branch of government is truly in charge of the Constitution’s meaning—Feldman declares is closed.

When, pray tell, did this question become closed? Not in 1803, as I have explained at length here. Not in 1857 or 1861. Maybe in 1958, when the Supreme Court for the first time declared that its pronouncements on the Constitution really are the Constitution? Maybe well before that at Harvard Law School, the corruptions of which have, happily, not reached the mind of Dr. Carson. Yet even at Harvard, Feldman might find his colleague Laurence Tribe and chat about why Marbury does not support a “juricentric” view of the “constitutional universe.” It’s unfortunate that the pat identification of judicial review with judicial supremacy, as though it grew inexorably out of . . . something or other in constitutional theory, is so clearly a matter on which the mind of Noah Feldman has closed.