Conservatives seek to be defenders of the Constitution and the rule of law. This task requires that they understand the Constitution and the rule of law correctly—that is, as the founders understood them and as they have been understood in the American political tradition that conservatives seek to perpetuate. This understanding requires a special effort in our own day, when even educated people have been misled by myths about the Constitution and the rule of law it aims to establish.
This challenge was illustrated recently by a dispute among conservatives about how best to respond to a possible Supreme Court ruling declaring same-sex marriage to be a constitutional right. Commenting on this possibility, former Arkansas governor—and probable future presidential aspirant—Mike Huckabee suggested that other government officials would not have to take such a ruling lying down. The three branches of the federal government, Huckabee noted, are equal under the Constitution. Therefore, he indicated, no Supreme Court ruling constitutionalizing a right to same-sex marriage could really be authoritative unless the executive and legislative branches endorsed it, too.
Huckabee’s remarks, in turn, provoked a spirited condemnation at The Federalist. Writing for the conservative website, attorney Gabriel Malor called out Huckabee for betraying a fundamental misunderstanding of the Constitution and the rule of law in America. According to Malor, while there are indeed three equal branches of government, “only one of them,” the judiciary, “gets the final say on whether laws passed by Congress or implemented by the executive branch are constitutional. This was settled all the way back in the founders’ era in a little case called Marbury v. Madison.” Huckabee, Malor concluded, was therefore quite wrong to suggest “that Congress and the president get to determine that the Constitution means something contrary to what the Supreme Court decides.”
Although he presents himself as the defender of constitutional common sense, Malor’s response betrays a misunderstanding of the Constitution and the American political tradition as problematic as anything Huckabee said. My aim here is not to defend Huckabee. His comments were poorly thought ought and poorly expressed. A Supreme Court ruling declaring a right to same-sex marriage would be a momentous development, and a proper conservative response would require great wisdom and prudence. Huckabee’s remarks—especially his suggestion that state officials could on their own decide to ignore the orders of federal courts—do not indicate that he has yet exercised these essential virtues in thinking through the problem.
It is just as important, however, and maybe even more important, to correct Malor. Malor’s views, although they are erroneous, wear the appearance of common sense. They represent a contemporary legal and political consensus that, while it appears self-evidently right to all who propound it, is in fact a serious departure from an older and better tradition of American constitutionalism. Malor defends—or rather insists upon—judicial supremacy: the view, in his own words, that the Supreme Court gets to have the “final say” on the meaning of the Constitution and that the other branches of government may not contradict it. He equates this position, moreover, with the supremacy of the Constitution and therefore with the rule of law itself. This is clear in Malor’s presentation of Huckabee’s criticism of “judicial supremacy” as an attack on “constitutional supremacy.”
As much as conservatives should defend the Constitution and the rule of law, they should not defend judicial supremacy. Contrary to what Malor suggests, the supremacy of the Constitution is not the same thing as the supremacy of the judiciary. Equating the two is not conservative, not correct, and not safe.
Judicial Supremacy is Not Conservative
As recently as one generation ago, mainstream conservatives understood the need to resist the contemporary culture’s embrace of judicial supremacy. Speaking at Tulane University in 1986, Edwin Meese—Ronald Reagan’s attorney general—made an effort to challenge the prevailing belief in judicial supremacy and to revitalize an older understanding more rooted in the wisdom of the founders. Constitutional law, Meese pointed out, is not the same thing as the Constitution. 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 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.
Malor would presumably not deny the Court’s authority to reverse itself. Conceding this right, however, while at the same time insisting that the Court’s pronouncements are themselves the supreme law of the land, inevitably fosters the impression that the Court on its own is empowered to determine—or even to create—the meaning of the Constitution from one case to the next. Needless to say, this understanding is incompatible with the rule of law. It would also be inconsistent with the founding commitment to separation of powers, since that doctrine can hardly be maintained if one branch of the three is held to have an unanswerable authority to determine the powers of the other two.
The Real Lesson of Marbury v. Madison
Malor’s judicial supremacy is not just a departure from recent respectable conservatism, it is also incorrect as a reading of the landmark Supreme Court case that he seeks to press into its support: Marbury v. Madison (1803). Marbury is, as Malor suggests, 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,” as Malor wrongly claims.
On the contrary, Marshall’s argument points to the very thing that Malor is 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.
Marshall also observed that the courts’ power of judicial review is implied by the oath that the Constitution requires of judges, an oath that binds them to “support” the Constitution. The Constitution, however, requires a similar oath of the president and members of Congress. Thus, the same obligation that binds courts to dissent from the constitutional errors of the executive and legislature similarly binds presidents and legislators to dissent from the constitutional errors of the courts.
Judicial supremacy is dangerous: dangerous in some cases to the cause of law and justice, but in all cases to the American commitment to popular self-government. We can learn about these dangers by following the career of one of our greatest presidents and most thoughtful statesmen, Abraham Lincoln.
Abraham Lincoln and the Dangers of Judicial Supremacy
The most obvious problem with judicial supremacy is captured by the question: what if the Court is wrong? What if it sides with lawlessness and injustice? Malor’s argument tends to banish this question from our minds by emphasizing a recent history in which almost everybody agrees that the Court was right and those who questioned it were wrong: the civil rights movement, and specifically the movement to rid the nation’s schools of racial segregation.
If Malor had gone more deeply into our history, however, he would have reminded himself and his readers that the Court has not always been on the right side on such questions and therefore that a denial of judicial supremacy has been necessary to correcting its errors. A century before giving us Brown v. Board of Education, the Supreme Court gave us Dred Scott v. Sandford (1857), in which it held that the Constitution gave Congress no power to forbid slavery in the federal territories and that even free blacks could never be citizens of the United States.
Lincoln advanced his criticism of the Dred Scott decision in conjunction with a denial of judicial supremacy. The Court, Lincoln conceded, had a right to determine the outcome of the case at hand, and everyone was bound to respect its judgment in that matter. The Court had found Dred Scott to be a slave, and there was nothing anyone could do about it. At the same time, however, Lincoln denied that the Court’s flawed reading of the Constitution laid down a rule for the future that the other branches of government, or the people at large, were bound to respect.
Lincoln made these arguments in the context of running for the Senate in 1858. He was running on a promise to restore the Missouri Compromise of 1820, which meant making slavery unlawful in the federal territories despite the Supreme Court’s claim that Congress had no authority to do it. He was calling on citizens to support what the Supreme Court said was unconstitutional, and he was pledging as a legislator to try to enact a law that the Supreme Court had said was unconstitutional. This was perfectly appropriate because, as Lincoln well understood, fidelity to the Constitution is different from and more obligatory than fidelity to the constitutional opinions of the Supreme Court.
Judicial supremacy is dangerous to the cause of self-government. By giving the judiciary the “final say” on the meaning of the Constitution, judicial supremacy effectively empowers the Supreme Court to govern the country when it wishes to, displacing the rule of the people with the rule of an unelected body that is not accountable to the people. Lincoln emphasized this point in his First Inaugural address as president. After again conceding the right of the Court to determine the outcome of the particular cases it heard, he famously added that “the candid citizen must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, 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.”
Political conservatism is an effort to preserve an existing political order, not in all of its details, but in its essential principles. American conservatism, then, should aim to safeguard the essential principles of the American regime, which include the rule of law and popular self-government. Fidelity to those principles requires a repudiation of judicial supremacy.