The Supreme Court is not the Final Authority on the Meaning of the Constitution
The Supreme Court is not the Final Authority on the Meaning of the Constitution
Kody W. Cooper, University of Tennessee at Chattanooga
The highest court in the United States claims judicial supremacy, i.e., that the Court is “supreme in the exposition of the Constitution,” as in Cooper v. Aaron (1958). Hence the Court has rejected Congress’s claim to authoritatively interpret the Constitution in ways it doesn’t like, such as in Boerne v. Flores (1997). Yet such pronouncements do not suffice to decide the truth of the matter, for the Court’s authority flows from the Constitution itself, which is the “supreme law of the land” and grounded in the sovereignty of the people. Judicial supremacy claims a form of sovereignty for the Court that the people did not confer upon it and which, indeed, the American people have rejected since the Founding.
In the transatlantic pamphlet debates leading up to the Revolution, Americans contested British claims to absolute sovereignty. In the Declaratory Act, Parliament claimed that it had “full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America. . .in all cases whatsoever.” In the spirit of the imperial vision of the British Constitution, judicial supremacists contend that there needs to be some ultimate backstop to settle constitutional meaning to avoid rebellion and anarchy. This argument echoes that of the British pamphleteers like Samuel Johnson who, channeling seventeenth-century philosopher Thomas Hobbes, contended that “there can be no limited government. There must, in every society, be some power or other, from which there is no appeal. . .[and] is irresistible, for it can only be resisted by rebellion.”
But American patriots, from James Otis to Alexander Hamilton, rejected this Hobbesian notion of sovereignty, arguing that natural law, natural rights, and their expression in common law and local legislative authority that the colonies enjoyed by traditional right limited Parliament’s (and all rightful) authority. As Hamilton put it, “the pretensions of parliament. . .are subversive of our natural liberty, because an authority is assumed over us, which we by no means assent to.” The American Revolution was fought to reject just the sort of sovereignty that the judicial supremacist, at least implicitly, pretends to.
There was a deep reason for this related to human nature: the Founders affirmed the essential fallibility of man. “If men were angels, no government would be necessary,” Madison famously wrote in Federalist #51. In other words, there is a potential for evil in human beings that drives the need for “auxiliary precautions,” i.e., dividing authority by separating the legislative, executive, and judicial powers and dividing sovereignty between the federal government and the states (Federalist #51). The idea that one institution staffed by nine berobed judges would have the final say-so as to the meaning of the fundamental American bargain is deeply at odds with the Publius’s philosophical and theological understanding of human nature underlying the Constitution.
In truth, the Constitution contemplates departmentalism, the idea that each branch, and even the states, have a capacity to interpret the Constitution. This is directly implied by Congress’s impeachment power. How can it judge whether an official has violated their constitutional oath without interpreting the Constitution? In addition, the president has the veto power. How can a President veto a piece of legislation as unconstitutional if he does not have interpretive authority? Indeed, some of the most consequential United States presidents have advanced their own constitutional interpretations in the spirit of departmentalism, including Jefferson, Jackson, Lincoln, FDR, Reagan, and Obama—and not only by appointing judges who advanced their visions.
The defender of judicial supremacy might reply that vetoes and impeachments are non-justiciable. But the departmentalist must wonder: according to whom? If the Court is the final authority regarding the nature and limits of each branch’s core powers, including the nature and extent of the judicial power, then it follows that justiciability itself is a self-imposed limit rather than a superior one, which turns out to be no limit at all. This is illustrated by what the Supreme Court has called the “political questions” doctrine. That doctrine turns out to be a fig leaf when the Court changes its mind about what constitutes a political question, as it did in the case of redistricting, in Colegrove v. Green (1946) and Baker v. Carr (1962). In one transparently Hobbesian moment of judicial supremacy, the Court went so far as to deny that Congress can strip away its authority to hear habeas appeals from foreign enemy combatants captured on the battlefield, even though a plain reading of Article III and the Court’s own precedent indicates this is a core power of Congress as asserted in Ex Parte McCardle (1869) and Boumediene v. Bush (2008) .
The fact that departmentalist presidents have illustrated Madison’s conception of humans aligning their honorable ambitions with the constitutional powers of their branch is not surprising when one understands that the Constitution sets forth a framework of constitutional conflict over constitutional meaning. While the Supreme Court has a significant role in that process that includes the power of judicial review, no particular decision can pretend to finally settle constitutional meaning.
Consider Dred Scott v. Sanford (1857), the disastrous decision on the eve of the Civil War which held that African Americans were not citizens of the United States. Lincoln ran and won election in opposition to the Dred Scott Court’s constitutional interpretation. In his First Inaugural Address, Lincoln contended that judicial supremacy is incompatible with self-government:
[T]he 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.
The conflict over constitutional meaning entailed by departmentalism can be messy because self-government in an extended republic is messy. Still, judicial supremacy’s finest promise, civic peace characteristic of a unity of order, turns out to be a mirage. Indeed, the Court’s most grandiose attempt to finally settle the most contentious constitutional conflict since slavery (abortion) in Planned Parenthood v. Casey (1992), was a fiasco that was discarded in Dobbs v. Jackson Women’s Health Organization (2022) Like Dred Scott, Casey is a byword that teaches us this truth: the Supreme Court is not the American Leviathan.
