It seems like an obvious question: What branch of government is responsible to interpret the Constitution for the other branches? Many people would immediately reply that the Supreme Court has the final say on any constitutional question.
Commentators mocked presidential hopeful Ben Carson for saying that the president does not have to enforce any “judicial laws,” since his job is to enforce only those laws that come from the legislative branch. Here are his comments:
First of all, we have to understand how the Constitution works, the president is required to carry out the laws of the land, the laws of the land come from the legislative branch. So if the legislative branch creates a law or changes a law, the executive branch has a responsibly to carry it out. It doesn’t say they have the responsibility to carry out a judicial law.
One response to this was predictably dismissive:
As should be obvious to anyone who passed Civics 101 at a high-school level, the U.S. Supreme Court has the final word on the constitutionality of American laws. Sometimes, the legislative branch passes a law, but it’s challenged in the courts, and if a high court majority strikes it down, then it can’t legally be enforced by the executive branch.
There is no such thing as “a judicial law.”
That seems reasonable on its face. But there are in fact “judicial laws” if the Supreme Court is effectively creating legislation. And many political pundits have talked about “legislating from the bench” for some time. It’s a real danger. But let’s backtrack a bit to the first claim. Does the US Supreme Court have the final word on constitutionality? Is that what the Founding Fathers intended?
We can begin with the most common case cited in the establishment of judicial supremacy: Marbury v. Madison (1803), which forever enshrined the principle of judicial review. But that case does not ensure judicial supremacy, as is often thought. It rested on the co-equal status of all three branches of government, as argued by John Marshall.
Is it odd to anyone else that a Supreme Court decision is referenced to substantiate judicial supremacy? So the Supreme Court says it has final say on the Constitution, and therefore it does? But even this indicates that judicial supremacy was not the original arrangement determined by the Constitution.
As Thomas Jefferson noted in an 1804 letter to Abigail Adams:
You seem to think it devolved on the judges to decide on the validity of the Sedition law. But nothing in the Constitution has given them a right to decide for the Executive, more than the Executive to decide for them. Both magistrates are equally independent in the sphere of action assigned to them. The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment; because the power was placed in their hands by the Constitution. But the Executive, believing the law to be unconstitutional, were bound to remit the execution of it: because that power has been confided to them by the Constitution. That instrument [the Constitution] meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the Legislature and executive also, in their spheres, would make the judiciary a despotic branch. 1
Indeed, Mr. Jefferson. And that is exactly what has happened.
So, according to the Founding Fathers, there was no final or supreme arbiter of the Constitution. Each branch of the civil government had the responsibility of determining the constitutionality of its action within its own sphere. The President was the final arbiter of the constitutionality of enforcement. The Supreme Court was final arbiter of the constitutionality of its judicial decisions. And Congress was the final arbiter of the constitutionality of its laws. And the states could challenge the constitutionality of any of the general branches. This was necessary to check despotic power.
Perhaps Ben Carson didn’t word his statement very precisely, but the effect of what he is saying is constitutionally and historically sound.
We can see that judicial supremacy, in direct contradiction to the original intent of the Constitution, has become so accepted as to be a commonplace. It’s apparently taught in Civics 101. In spite of the fact that it is completely unconstitutional. And teaching it as fact is an Orwellian distortion of history.
Judicial supremacy isn’t just unconstitutional. It’s also destructive to this nation. The Supreme Court acts like it can decide for every other branch, and all the states, what should or should not and what can or can not be done. This has created innumerable injustices in local governance. And it needs to stop.