The Supreme Court is the Final Authority on the Meaning of the Constitution
The Supreme is the Final Authority on the Meaning of the Constitution
Matthew Brogdon, Utah Valley University
The Supreme Court is (usually) the final authority on the meaning of the Constitution. The Constitution is fundamental law and therefore more authoritative than ordinary laws passed by legislatures and enforced by the executive branch. The Preamble calls attention to the supremacy of the Constitution as an act of the sovereign people. “We the People. . .do ordain and establish this Constitution for the United States of America.” If the ordinary laws or actions of the government violate the Constitution, those laws are void and have no authority.
But why is it the job of the courts to decide whether an ordinary law violates the fundamental law of the Constitution?
As Alexander Hamilton argued in Federalist #78, the role of a court is to interpret laws, including the Constitution, and apply them to specific cases. If two laws conflict, the judges must give preference to the higher law. A law banning the printing and distribution of Bibles would violate the First Amendment by abridging the freedom of the press and prohibiting the free exercise of religion. The Supreme Court would declare such a law unconstitutional and thus unenforceable. The will of the people expressed in the Constitution must prevail over the will of the legislature expressed in an ordinary statute. Otherwise, the legislature would be the final judge of the extent of its own powers, and the Constitution would be a mere parchment barrier.
The text of the Constitution makes clear that judges can enforce the Constitution in this way. In Article III, it extends “the judicial power” to “all cases. . .arising under this Constitution” as well as the laws and treaties of the United States. A case “arising under” the Constitution is one in which the meaning of the Constitution determines the outcome of the case. In the example above, the Court must decide what “freedom of the press” and “free exercise [of religion]” mean to decide whether a Bible-publishing ban violates these rights.
When the Constitutional Convention in 1787 debated the language of Article III, delegates recognized that it gave the federal courts the power to interpret the Constitution and declare unconstitutional laws void. Some delegates, like James Madison, had doubts about the wisdom of giving this power to courts. But the Convention adopted the language anyway.
Later, in the ratification debates, Hamilton argued for judicial review in Federalist, seeing it as a reason to support the Constitution. Strikingly, the Anti-Federalist writer Brutus, a prominent opponent of the Constitution, agreed with Hamilton that the document gave the Supreme Court the power to declare laws void, but he saw it as a reason to oppose the Constitution.
Judicial power to interpret the Constitution is not without limits. To keep its authority, the Court must be speaking for the Constitution persuasively and in good faith. Its decisions are most powerful when its reasoning sticks closely to the clear meaning of the text. If the Court invents rights or principles not contained in the text and uses them to declare laws unconstitutional, it will lose its legitimacy. Some would even argue that such judicial overreach violates the standard of “good behavior” and is punishable by impeachment. This is why Hamilton argued in Federalist #78 that the judges have “neither force nor will, but merely judgment.”
Moreover, as a court of law, the Supreme Court can only decide questions that come before them in a justiciable case. Justiciable means a controversy between two litigants that can be decided by a court. Some constitutional questions may never come before a court of law. On these questions—sometimes called political questions—the Supreme Court is not final because it never decides them in the first place. But when a constitutional question comes before the Court in a justiciable case, the Court has authority to decide the meaning of the Constitution and its decision is final.
Of course, other institutions, including Congress, the president, or the states, often disagree with the Court’s interpretation of the Constitution. The Court, after all, is fallible. There is a difference between the Constitution itself and what the judges say about it.
In these instances, Congress or the states may seek to amend the Constitution and overturn the Court’s interpretation through the process laid out in Article V. Americans have done this at least three times with the Eleventh, Fourteenth, and Sixteenth Amendments.
More commonly, however, the political branches and the states try to convince the justices to reverse themselves. Typically, this involves an attempt to enforce similar laws or change existing laws to escape judicial review. People burdened by these laws will sue, citing the Supreme Court’s decision as a precedent—that is, an authoritative example to follow in future cases. Lower court judges, considering themselves bound by the Supreme Court’s earlier interpretation, will declare these laws void as well unless they can distinguish the new cases from the old in some way.
Sometimes the Court’s critics succeed. The Court may respond to these challenges by reversing itself. This happened in West Virginia Board of Education v. Barnette (1943), when the Court decided that states cannot coerce students to salute the flag or say the pledge of allegiance in public schools, overturning its decision from just two years earlier in Minersville v. Gobitis (1941). In other instances, it takes much longer for the Court to respond to criticism. Consider Dobbs v. Jackson Whole Women’s Health (2022), when the Court found that there is no constitutional right to obtain an abortion, overturning its 50-year-old decision in Roe v. Wade (1973). The Court had been using the “separate but equal” doctrine from Plessy v. Ferguson (1896) for 60 years when it declared racial segregation in public schools unconstitutional in Brown v. Board of Education (1954).
As these examples make clear, it can take a long time for the Court to change its mind. Or rather, it can take a long time to get new justices on the bench. In any case, if you cannot get a constitutional amendment, you must change the Court’s mind or change the justices. The ordinary and stable course of change in constitutional law is through the appointment of new judges, not defiance of judicial decisions.
