I loved this class (Introduction to Constitutional Law: National Powers). When Prof Thomas spoke it often felt like I had Josh Lyman lecturing me and my ~5 classmates. And if I thought I could have made a living doing nothing but constitutional law I would have gone for it.
Question is indented at the beginning, all the rest is my paper.
In City of Boerne v. Flores, Justice Kennedy argued:
“Our national experience teaches that the Constitution is preserved best when each part of the government respects both the Constitution and the proper actions and determinations of the other branches. When the Court has interpreted the Constitution, it has acted within the province of the Judicial Branch, which embraces the duty to say what the law is.”
In support of this contention, Justice Kennedy cited Marbury v. Madison. But does Marbury support such a claim to judicial supremacy? Is constitutional interpretation the sole province of the judiciary? After all, seizing upon the first sentence of this quote, departmentalists like Abraham Lincoln have insisted that constitutional interpretation from the other branches is central to preserving the Constitution. Consider that Congress, too, has offered independent interpretations of the Constitution, some of which—the War Powers Act, for example—have never come before the Court.
Against this backdrop, who may interpret the Constitution? Is there a final interpreter?
The United States of America is a constitutional republic. There is a written Constitution and its word is unbreakable law. It is clear and simple — except when there are disputes about what a clause means or how it applies. The three branches of government, generally, have three views of constitutional interpretation: the judiciary believes in judicial supremacy, the legislature — thanks to party politics and a relatively less-educated group — schizophrenically varies between legislative supremacy and departmentalism, and the executive branch espouses departmentalism. In the following pages I will examine each of these three versions of interpretation, then conclude by determining which is best, which is practiced, and who the final interpreter is.
II. Forms of Interpretation
The roots of judicial supremacy come from Justice Marshall’s opinion in Marbury v. Madison and the doctrine of judicial review it espouses. But the case’s support for judicial supremacy is not so obvious as opinions today make it seem.
Marbury made the (perhaps startling) assertion that the Judicial Department may strike down legislation that it finds contrary to the Constitution. The assertion is well defended:
This doctrine [of no judicial review] would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express probation, is in reality effectual…Thus it reduces to nothing…a written constitution…
This determination leads inexorably to judicial review, for “If [an ex post facto bill] should be passed, and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavours to preserve?”
Marbury, though, only firmly establishes judicial review in the context of a court case. It says nothing about Congress’ ability to pass new interpretive bills, such as the Religious Freedom Restoration Act (RFRA). This bill directly responded to a precedent-changing court decision by declaring broad leeway in the exercise of religious freedom, even if it goes against existing statutory law; it offered a Congressional interpretation of Amendment 1 in statutory form. Striking RFRA down in City of Boerne v. Flores, Justice Kennedy offers strong language; for while he devotes most of the opinion to determining that RFRA is not enforcement legislation under §5 or Amendment 14, it is the closing paragraphs that are most memorable:
When the political branches of the Government act against the background of a judicial interpretation of the Constitution already issued, it must be understood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles, including stare decisis, and contrary expectations must be disappointed. RFRA was designed to control cases and controversies, such as the one before us; but as the provisions of the federal statute here invoked are beyond congressional authority, it is this Court’s precedent, not RFRA, which must control.
The language is striking in its force and apparent anger, and in its decision-making process: while Congress can interpret the Constitution, and “its conclusions are entitled to much deference,” Congress cannot offer conflicting interpretations of the Constitution after the Court has spoken. The opinion is unusually brief, and implies that the Supreme Court may strike down laws merely for conflicting with precedent. There is no co-equal status of the branches; the Court rules supreme and the other branches may not contest it.
Is this a departure from Marbury, or merely a fulfillment? It must be a fulfillment. For while Marshall stopped short of openly declaring the other branches constitutionally subservient, he did so implicitly. If Congress could somehow override the Court’s interpretation, the Supreme Court’s interpretive powers would mean nothing and Congress would be as illimitably powerful as if the Court were forced to make decisions while ignoring the Constitution. Judicial supremacy has thus been Supreme Court doctrine since 1803, and the country has generally (often grudgingly) accepted it ever since.
This form of Constitutional interpretation has received little attention in the United States, but legislative supremacy has been practiced implicitly in certain Congressional actions and is explicit in other countries around the world (such as the United Kingdom), so it deserves a brief analysis.
The issue with legislative supremacy is expressed in Marbury v. Madison: if the legislature is supreme a written Constitution cannot limit it. Indeed, the countries that practice legislative supremacy do not have written constitutions. Many of them function well and protect civil liberties, but some do not and the American people have long cherished a written Constitution.
What then is the argument for legislative supremacy? It is simple: the legislative branch is the only part of government that is directly elected by the people of the United States (or other respective country) and it makes the laws. As such, it should have a special place in interpreting the laws and the framework under which they operate. And indeed, Congress occasionally acts in this way: the War Powers Resolution is a document of either Constitutional interpretation or Constitutional amendment, enacted by Congress to limit the power of the presidency and bind the nation’s war powers more tightly to Congress. While the Supreme Court has never openly acknowledged legislative supremacy as viable, it has on occasion allowed the legislature practical sovereignty — as In Reconstruction following the Civil War — by avoiding certain cases.
The policy espoused by Presidents since the country’s inception, departmentalism holds that the branches of government are “co-equal and co-sovereign within themselves”
. Under departmentalism, each branch is responsible for interpreting its own powers and nothing else. In general departmentalism is articulated reflexively against the legislature attempting a power play over the executive (as in the case of presidents disavowing the War Powers Resolution), or as an executive power play over the legislature (as in the case of presidential signing statements, whereby a President offers his interpretation of statutory law and the enforcement thereof). Only rarely is departmentalism focused on the Supreme Court — but when it is so focused, as in the case of Lincoln’s first inaugural, departmentalism is dramatic.
Arguments for departmentalism are persuasive: this method of interpretation preserves the Federalist Papers’ clash of ambitions; departments are prevented from ignoring the Constitution via their interaction with the other two departments. It allows the correction of bad judicial decisions, so tempting in cases like Dred Scott v. Sandford (quickly ignored by Northerners, with Lincoln’s departmentalism argument as justification; and overturned by the Civil War and 13th Amendment) or Plessy v. Ferguson (which nobody refuted until Brown v. Board of Education). Departmentalism even has some judicial standing, for while the Supreme Court has never explicitly recognized the principal it does refuse to rule on certain “political” questions and interactions between Congress and the President.
Moreover, departmentalism embraces the unavoidable fact that each branch must interpret the Constitution in carrying out its everyday duties. Its disadvantage, of course, is that two branches can disagree over their constitutional interpretations and never resolve the issue; this has persisted most apparently in the case of the War Powers Resolution, which both sides have — for fear of the possible outcome — avoided bringing to court.
III. The Final Interpreter and their chosen form
It is easy to realize that every branch of the government should perform its own Constitutional interpretation in the course of daily business. Congress should not waste time passing a law that is unconstitutional, so if a law is over the line some member should say so and the law should be removed from the table. The President, in handling diplomacy, should be mindful of the tools he does and does not have at his disposal. The courts should not listen to cases that the Constitution denies them jurisdiction to hear. But determining which form of interpretation to follow is difficult from the text alone, which provides remarkably few hints. Luckily, determining the final interpreter of the Constitution is not so difficult, and the final interpreter can help us learn what form of interpretation to follow.
The Final Interpreter
The final interpreter of any Constitution must be the force that gives the Constitution its power. Under a dictator this is the military might of the tyrant; under a theocracy this is God — or, rather, the state church; under our constitutional democracy this is explicitly “we the people.”
The final interpreter of the Constitution is and must be the people of the United States. They gave the Constitution its form and the government its powers; they can unmake it as they please through the exertion of revolution. They can amend the Constitution through their elected representatives and special conventions and they elect the government. Thus the Constitution is what we the people will it to be. Of this there can be no doubt. But what is the best means of expressing this will within the government?
The Chosen Form
We the people have embraced all three forms of constitutional interpretation in the history of our country. Legislative supremacy was the expectation during Reconstruction; departmentalism generally reigned prior to that and pops up throughout our history; we follow judicial supremacy today (as evidenced by compliance with Roe v. Wade) even as we sometimes seek to undermine it with cries against “activist judges” and “legislating from the bench.” Nonetheless, there are clues to be gathered.
Because we the people are the final interpreter of the Constitution it would be easy to pick legislative supremacy — as our free brethren around the world have — as our chosen form of interpretation in the government. But the arguments against it in Marbury are too convincing to ignore, and we cherish our written constitution. We experimented with this form during Reconstruction, and the results damn it. Too much can be done in haste that we would not do if given time to think and a larger perspective. So we dismiss legislative supremacy as averse to our constitutional form.
We dismissed legislative supremacy as too democratic; perhaps we can dismiss judicial supremacy as too undemocratic. After all, if we embrace this form of government 9 unelected persons (even just 5) can define fundamental aspects of our lives, sometimes to the good, sometimes to the bad. Witness the Northern anger over Dred Scott, the southern discontent at Brown v. Board, the moral outrage at Roe v. Wade. People would have been angered at any choice in all of these cases, but Dred Scott was followed by a civil war; Brown took over a decade to implement, and Roe is still fought by legislative bodies throughout the country. And yet, the decisions in all these cases were followed — often grudgingly, often after time had passed, but all were followed. Judicial supremacy, however, leaves us with a serious problem: what if the Supreme Court makes the wrong call, as in the case of Plessy v. Ferguson?
What then of departmentalism? It has the noted advantage of allowing us to fight against judicial missteps and pitting ambition against ambition. But it has a serious disadvantage noted above: non-resolution of Constitutional questions. This is simply too large an issue to be ignored. Moreover, a strict reading of departmentalism in fact leads to the conclusion that the Supreme Court is supreme in matters of constitutional interpretation. Marbury v. Madison is an argument from the departmentalist point of view. If it were not, the Supreme Court would have adopted unlimited judicial review, not requiring the presence of a current case or controversy for it to strike down laws; it would feel free to advise the other branches on constitutional issues before they arose as a case; in short, if our understanding of judicial supremacy did not spring from a departmental reading of the text, our Supreme Court would be far more Supreme than it has grown.
I have explained why legislative supremacy cannot stand, and why departmentalism falls apart. Let me also explain why judicial supremacy is safe. Why, from a practical point of view, it works and does not flounder for the issues raised above. The argument boils down to power. The Supreme Court’s sole power consists of telling other people what to do. It has no means to force the Congress or the President to abide by its decisions; it can only order and hope that its orders are followed. If a case is decided so disastrously badly that the people disagree with it en masse, the President can follow in Lincoln’s footsteps and abide by the Court’s decision in that case and that one alone; for while the Court may find that interpretation unconstitutional, if the people disagree the Court cannot force the issue; if the people do agree with the Court the President will never be able to work in politics again. In the worst case, Congress and the President can pack the court and insert justices friendly to a different choice. If the courts were not the final judge they would not have any power to speak on the Constitution; while the Legislature (in passing laws) and the Executive (in vetoing them) both get an explicit opportunity to deny a bill’s Constitutionality, the Judicial branch would be forced to remain silent. Judicial supremacy, far from dismantling checks and balances, in fact fulfills them. Moreover, the courts have proven themselves cognizant of the people as their ultimate masters and final interpreters: The Supreme Court, initially hostile to FDR’s New Deal plans, abruptly changed their rulings after his landslide re-election in 1936. They have also strategically avoided hearing cases that they suspected would lead to unpopular decisions (as in Ex Parte McCardle).
Moreover, judicial supremacy is the best guard of civil rights. The legislature and the President are both encouraged to infringe upon rights in the pursuit of their duties; the sole purpose of the Courts is to interpret the law, and many justices believe their job is to be the last bulwark against unnoticed tyranny. Even if the Supreme Court rules an action Constitutional and they are wrong, other people must carry out the infringing action before anybody’s rights have actually been violated.
Lastly, despite the broad language used in Boerne v. Flores, the Courts have shown themselves amenable to sharing interpretive powers in contested areas. Many states and the Congress have enacted laws limiting abortion since Roe v. Wade, and the Supreme Court has only rarely struck them down. War powers are a highly disputed area of policy, and the Court generally leaves them and other political questions to be decided by the political branches with a more direct root in the people.
Judicial supremacy is a necessary and proper method of interpreting the Constitution. It maintains the checks and balances, allows each branch to fulfill its purpose, and best safeguards civil liberties. But Supreme Court justices are not the final interpreters of the Constitution. That esteemed highest place, as with all the high places in our government, upon we the people.