Bench Memos

Law & the Courts

On Originalism and Judicial Supremacy—Part 1

The myth of judicial supremacy is logically incompatible with the supremacy of the written Constitution. According to the myth of judicial supremacy, the Constitution means whatever five Supreme Court justices claim it means and all other governmental actors are duty-bound to abide by that supposed meaning—even if it is in clear conflict with the actual meaning of the Constitution—until such time as five justices revise it or a constitutional amendment overrides it.

Writing on the Originalism blog, law professor Michael Ramsey acknowledges this incompatibility between judicial supremacy and constitutional supremacy, as he observes that judicial supremacy “binds the political branches to erroneous judicial interpretations at the expense of the true meaning of the Constitution.” Yet, taking issue with Mike Paulsen’s and my recent criticisms of judicial supremacy and, more notably, setting himself against Lincoln, he presents what he sees as “several originalist problems” with our position.

Mike Paulsen tells me he’s temporarily unavailable, so, borrowing some from his new book, I’ll offer a first response to Ramsey’s points in this post and a follow-on post:

1. Ramsey observes that in 18th-century England, “if an English judge ordered a person released on a writ of habeas corpus, the king would not be entitled to refuse because (in the king’s view) the judge got the law wrong.” How could it be, he asks, that “the President would have more power than the king in this regard”?

The short answer, I think, is that the Constitution’s separation of powers does not follow the British model of mixed government. The federal separation of powers instead means that no branch is supreme over any other. As Madison puts in in Federalist No. 49:

The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.

And what is the claim of judicial supremacy but a claim that the judiciary has a “superior right” to settle the boundaries governing the executive and legislative branches?

2. Ramsey contends that clipped passages from Hamilton’s Federalist No. 22 and Marbury v. Madison support his proposition that “at least some framers expressed views that indicated a privileged role for judges in interpreting the law.” (Consistent with his broader argument, I understand him to use “privileged” as a shorthand to mean, as he puts it a few sentences later, that judicial decisions must be “regarded as authoritative statements of the law by other governmental actors.”)

I find Ramsey’s reading of Federalist No. 22 (which sets forth defects of the Articles of Confederation) very strange. Here’s the full paragraph (emphasis added) from which Ramsey partially quotes:

A circumstance which crowns the defects of the Confederation remains yet to be mentioned, the want of a judiciary power. Laws are a dead letter without courts to expound and define their true meaning and operation. The treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations. To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL. And this tribunal ought to be instituted under the same authority which forms the treaties themselves. These ingredients are both indispensable. If there is in each State a court of final jurisdiction, there may be as many different final determinations on the same point as there are courts. There are endless diversities in the opinions of men. We often see not only different courts but the judges of the same court differing from each other. To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice.

This passage, it’s worth emphasizing, doesn’t even address the lesser power of judicial review (the power of courts to review the constitutionality of laws they are called upon to apply), so it’s an odd foundation for the much greater claim to judicial supremacy. Hamilton is specifically addressing the advantages of having a “supreme tribunal” to achieve a uniform interpretation of treaties as they bear on private rights and obligations.  

Ramsey opines that “Hamilton does not appear to be talking about courts merely establishing a rule for themselves”—about, in other words, the supremacy of the Supreme Court, on questions of federal law, within the judicial hierarchy. But, as the italicized passages indicate, that is very much what Hamilton is addressing. Read broadly, Hamilton is explaining that a “supreme tribunal” is needed in order to “produce uniformity” in “judicial determinations” and to “avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories.” The “general superintendence” that this “supreme tribunal” possesses is over the other courts on questions of federal law. A “supreme tribunal” is the “last resort” because it is the top stage in the judicial hierarchy. I acknowledge that, in isolation, the phrase “uniform rule of civil justice” might be ambiguous, but, given the context, it is most sensible to read it as referring to what the lower courts are to administer.

As for Marbury: Ramsey “agree[s] that technically Marbury need not be read to include judicial supremacy.” But he strips Marbury’s famous statement—“It is emphatically the province and duty of the judicial department to say what the law is”—out of context as he posits that Marshall is asserting the authority to declare “the meaning [of the law] for everyone.” The fuller passage (emphasis added) shows that this statement from Marbury supports the distinct and lesser power of judicial review and that it rests on the supremacy of the Constitution, not the supremacy of judges:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.  So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

3. Ramsey is “doubtful that anyone in the founding era reliably expressed” a view contrary to the concept of judicial supremacy. But, as noted above, the concept of judicial supremacy conflicts with Madison’s exposition of separation of powers in Federalist No. 49. And it also clashes with Hamilton’s statement in Federalist No. 78 that “the judiciary is beyond comparison the weakest of the three departments of power.”

4. Ramsey finds unattractive the alternative to judicial supremacy, with “every branch a law unto itself.” As I’ve noted, he acknowledges that judicial supremacy will privilege “erroneous judicial interpretations at the expense of the true meaning of the Constitution,” but he observes that it will also “allow courts to block erroneous political branch interpretations that undermine the true meaning of the Constitution.”

Ramsey’s objection strikes me as exaggerated. For starters, apart from the myth of judicial supremacy, the power of judicial review already gives the courts significant power “to block erroneous political branch interpretations.” Further, the specter of “every branch a law unto itself” ignores both the respect that the president and Congress will generally be inclined to accord judicial rulings and the significant institutional advantages that the Court has in entrenching its readings of the Constitution.

What Ramsey denigrates should instead be celebrated as our system of separated powers, with checks and balances that operate against the judicial branch as well. As Mike Paulsen has written:

The framers of the Constitution quite sensibly considered the power of constitutional interpretation—the power to interpret all the other powers, and all the rights of the people—to be far too important a matter to vest in a single set of hands.

The framers instead left constitutional interpretation to the pull and tug of competing interpreters and competing branches of government. The president (and the executive branch) interprets and applies the Constitution within the scope of the president’s constitutional powers. Presidents swear a unique, constitutionally prescribed oath to “preserve, protect, and defend” the Constitution. They also promise they will faithfully execute the laws, including the Constitution. How could they do that without interpreting the Constitution independently? Congress also interprets the Constitution in the course of exercising all of its powers: legislation, impeachment, proposing constitutional amendments, checking presidential appointments, treaty ratification, and more. 

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