For years, I have been working on the problem of judicial supremacy—the idea that the courts have ultimate control of the Constitution. Judicial supremacy is a problem because the explanations offered by those who wish to justify it really don’t work. The Constitution certainly doesn’t justify it. Neither does Marbury v. Madison—the case usually trotted out for its support.
A few months ago, I was attending a presentation by one of my colleagues on American elections. He reported that it was now settled among experts that American voters were “idiots.” After some reflection, I have concluded that here lies the real answer. The true explanation for judicial supremacy is elitism, pure and simple.
The notion of judicial supremacy has enabled the progressive elites that now run the country to discard the Framers’ Constitution and replace it with a “living constitution.” The idea of a “living constitution” dates back to the era of Woodrow Wilson, that consummate progressive who described the Constitution as a “vehicle of life.” In Constitutional Government in the United States, Wilson says: “As the life of the nation changes so must the interpretation of the document which contains it change, by a nice adjustment, determined, not by the original intention of those who drew the paper, but by the exigencies and the new aspects of life itself.”
In the same book, Wilson embraces judicial supremacy, describing the courts as “instruments of the nation’s growth,” who by determining “what powers are to be exercised under the Constitution . . . determine also the adequacy of the Constitution in respect of the needs and interests of the nation.” Pause for a moment’s reflection on that statement. No longer is the Constitution the benchmark by which we judge the work of the courts. Rather, the courts must judge the fitness of the Constitution to serve the current “needs and interests” of the nation.
Following Wilson’s view of constitutional interpretation, the modern progressive elites who champion “living constitutionalism” want the courts to lead us into a brave new world, imposing a constitutional order on American society based on values and beliefs that are alien to those held by the Founding Fathers (and by the majority of Americans today). These beliefs range from atheism and materialism to scientism and secularism. If they succeed, then the Founders’ Constitution is dead.
At the beginning, it was easier for elites to govern. The Founding Fathers did not set up a raw democracy when they drafted the Constitution. Elite and democratic elements were carefully balanced in a mixed, republican form of government. For instance, under the original Constitution, the senate was selected by state legislatures. The president was selected by the electoral college (without popular voting). Federal judges were selected by appointment. The only popularly elected agency of the national government was the House of Representatives. And even then there were many restrictions on who could vote even for House members, because the determination of qualifications for voting was left to the states.
Over time, however, things changed. First, popular voting for presidential electors became more common due to changes in state laws, and ultimately voting in presidential elections became almost universal. Second, the Seventeenth Amendment provided for popular election of senators in the early twentieth century. Third, barriers to voting such as sex, race, and property ownership disappeared over the course of the nineteenth and early twentieth centuries. As democratic pressure increased, counter-pressure was exerted on the elite to figure out some way to restrain the rising democracy.
Under the original Constitution, America’s elites could govern (within limits) without too much worry. But with the spread of democracy in the nineteenth century, it became more difficult for elites to govern without popular interference. So a “new” constitution was needed. The only problem was that the new constitution couldn’t be created via the established amendment process, because the amendment process under Article V of the old Constitution was infected with “democratic” procedures. The Framers may have been elitists when it comes to the day-to-day business of governing, but they were democrats—as we all should be—when it comes to fundamental constitutional change.
By the early twentieth century, the federal courts were the only agency of national government still untainted by the democratic surge, so the courts naturally seemed to be the only option. This was the beginning of a fundamental constitutional transformation outside the amendment process established in the Constitution, and inside the quieter confines of the American legal establishment.
The immediate result of this transformation was the revision of our constitutional history wrought by the progressive historians of the early twentieth century. These historians demonized the Framers, teaching that the men who drafted the Constitution were motivated not primarily by patriotism, but rather by the urge to safeguard their property and social position in the face of the economic disorders of the time.
On the legal front, influential late-nineteenth and early-twentieth century legal positivists such as Supreme Court justices Oliver Wendell Holmes Jr. and Louis Brandeis adopted a view that is best termed “legal progressivism.” Holmes and his allies regarded the law as inevitably “progressing” toward some “future state” that would always embody the interests of a dominant social and intellectual elite. As Bradley C. S. Watson has aptly put it in Living Constitution, Dying Faith, turn-of-the-century progressivism “was informed by an organic conception of a state unlimited in principle and whose only end was growth and development according to certain contemporary understandings of democracy.” The key word here is “contemporary.” The future is always better than the present (so long as we do whatever the progressive elites think best). The present is always better than the past (especially the distant past). We have come to see that this vision involves more government control of society by committees of “experts” who claim to know best how we should live.
One of these committees—arguably the most important of them all—is the Supreme Court. The Court has been smuggling the values of progressivism into its constitutional decision making for decades. It has done this by tacitly adopting “living constitutionalism” as its leading interpretive theory. According to this theory, a constitution is not a firm framework rooted in timeless principles, but rather is a malleable set of guidelines that may be “reinterpreted” in accord with the changing values of society—or more accurately, with the values of enlightened elites. The Court even said as much in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), declaring itself “invested with the authority to . . . speak before all others for their [our] constitutional ideals.” In other words, we must look to the Court—not to the Constitution—to determine what our true values are. Woodrow Wilson said as much in 1908 when he referred to the courts as “our conscience in matters of law and our opportunity in matters of politics.”
Let me venture an example of what might eventually be expected from our living constitution if we fail to reject judicial supremacy. Take the current controversy over same-sex marriage. Those favoring same-sex marriage have not, for the most part, been able to get their views enacted into law by legislatures because the majority of Americans believe that marriage is a special bond between a man and a woman. Instead they look to the courts to impose their idea of marriage on the American public. They rely on certain “rights” provisions of the Constitution that have little or nothing to do with marriage, as such. At first, the courts are hesitant, just as they were at the turn of the twentieth century when the captains of industry were pressing them to use the Constitution to invalidate public regulation of business. But as time goes by, we may expect that the courts will begin “progressively” to favor the special interests of the gay community (as they did in the earlier sodomy cases), under the guise of equal treatment.
If I am right, ultimately the Supreme Court will follow suit, because, at the end of the day, it will represent the values of the legal, social, and political elites that are more “enlightened” and “progressive” than the rest of us. I cannot say with certainty whether this scenario will play out as described, but it would certainly come as no great surprise if it does. And if it does, we will have taken another long stride toward replacing the Framers’ Constitution with the Progressives’ unconstitutional “living constitution.”
Our original Constitution is Madisonian. This means a balanced governmental framework in which no branch can claim ultimate authority to determine the constitutional power of another. Madison’s remarks in the 1789 congressional debate on presidential removal authority illustrate the point: “I beg to know, upon what principle it can be contended, that any one department draws from the constitution greater powers than another, in marking out the limits of the powers of the several departments. . . . There is not one government on the face of the earth, so far as I recollect, there is not one in the United States, in which provision is made for a particular authority to determine the limits of the constitutional division of power between the branches of the government.” Damning the Framers with faint praise, Woodrow Wilson agreed with Madison’s assessment, stating that the theory of checks and balances “was meant to limit the operation of each part and allow to no single part or organ of it a dominating force; but no government can be successfully conducted upon so mechanical a theory” (emphasis added).
Under the Framers’ plan, elitism and democracy were carefully built into the system and balanced against one another. Judicial supremacy destroys this carefully contrived balance by handing over the decisions that matter most to a single branch of government. The modern Court’s living constitution effectively turns the constitutional amendment process itself—initially designed to involve the widest possible participation of “We the People” in the process of fundamental constitutional change—over to one of the tiniest committees of “experts” on the planet: nine people appointed for life. As Justice Scalia has suggested, under the living constitution, it is only the imperial judiciary that lives.