The Supreme Court this morning declared that states cannot limit marriage to one man and one woman. But this is not the last word on the question.
Article VI of the Constitution reads: “This Constitution, and the laws of the United States made in pursuance thereof; and all treaties . . . shall be the supreme law of the land . . . ” The idea that Supreme Court interpretations of the Constitution are the supreme law of the land is a very recent contention.
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When the Constitution was written and for a long time thereafter, many doubted that the Court had the authority to interpret the Constitution at all — in other words, they believed that the Court had no power of “judicial review.” Alexander Hamilton, in Federalist 78, made the classic argument that, given a written constitution established by the sovereign people, the Court had no choice but to maintain the supremacy of the people’s Constitution when it was alleged to be in conflict with an ordinary law passed by their representatives.
Today’s legend of judicial supremacy begins with Chief Justice John Marshall’s opinion in Marbury v. Madison (1803). In fact, Marbury was quite a modest decision, in which Marshall held that Congress could not extend the jurisdiction of the Court beyond what the Constitution had provided. (And it is unlikely that the act in question did so anyway.) The decision was hardly ever cited for the next century.
Marshall never made any claim of judicial supremacy, nor did the country accept any such principle. Presidents Jefferson and Jackson resisted the idea that the Court had a monopoly on constitutional interpretation. Jackson vetoed the bill renewing the charter of the Second Bank of the United States on constitutional grounds, despite the fact that Marshall’s Court had upheld it in 1819. Jackson expressed what is known as the “departmental theory” of constitutional interpretation: i.e., that all three departments of the national government have an equal power to interpret the Constitution. If Congress had enacted a third bank, as it nearly did in 1841, the Supreme Court (now full of Justices appointed by Jackson) almost certainly would have declared it unconstitutional.
Abraham Lincoln expressed the departmental principle in his first inaugural, denying that the Court’s interpretation of the Constitution in the Dred Scott case was the last word. Lincoln did not dispute that the Court’s decisions in particular cases must be obeyed, and he admitted that such decisions were “entitled to very high respect and consideration, in all parallel cases, by all other departments of the government.” Nevertheless, the political branches and ultimately the people still had a constitutional role to play. “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.”
To that end, the Lincoln administration and Congress acted as if Dred Scott had been erroneous. Lincoln’s State Department issued passports, which were limited by law to U.S. citizens, to African Americans. Congress abolished slavery in the territories in 1862. The Civil Rights Act of 1866 declared black Americans, all free now, to be citizens entitled to equal rights. It did not take the 14th Amendment to overturn Dred Scott, though that amendment made it less likely that the substance of that decision would be revived politically.
The myth of judicial supremacy began near the end of the 19th century, when conservatives sought to justify unpopular Court decisions — especially the 1895 decision holding the income tax unconstitutional. The 16th Amendment more or less conceded that the Court’s opinion in that case had been correct — or, if it had been erroneous, that even wrong decisions could be overturned only by constitutional amendment.
Populist and Progressive unhappiness with a federal bench dominated by conservative Republicans continued for several decades. This culminated in Franklin D. Roosevelt’s 1937 threat to “pack” the Supreme Court (that is, to add six new justices) after it had struck down several pieces of New Deal legislation. Unlike Lincoln, Roosevelt made the mistake of attacking the Court as an institution rather than disputing particular decisions. He made no argument against the Court’s interpretations, and did not prepare Congress or the people for his remedy. The plan went down in flames, crippling Roosevelt’s presidency, and was the last significant political challenge to judicial supremacy.
Under Chief Justice Earl Warren, the Court went on to ever bolder exercises of judicial power. The first rhetorical expression of judicial supremacy came in Cooper v. Aaron (1958), when a federal district court, following the High Court’s decision in Brown v. Board of Education (1954), had ordered the desegregation of Central High School in Little Rock, Ark. The justices claimed that Marbury v. Madison had “declared the basic principle that the federal judiciary is supreme in its exposition of the law of the Constitution, and that principle has ever since been respected by this court and the country as a permanent and indispensable feature of our constitutional system.” For the first time, the Court now added that “the interpretation of the Fourteenth Amendment enunciated by this court in the Brown case is the supreme law of the land.”
Civil rights became such a popular cause that the Court has been living off the moral capital of Brown ever since. In retrospect, Americans concluded that the Court had done the right thing when the political authorities would not. But the principle of judicial supremacy has been applied to other, not so morally obvious cases, like abortion and now homosexual marriage. When, in Planned Parenthood v. Casey in 1992, the Court upheld its controversial Roe v. Wade decision, it said that whole idea of constitutional government depended on judicial supremacy. Americans’ “belief in themselves as . . . a people [who aspire to live according to the rule of law] is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideas. If the Court’s legitimacy should be undermined, then so would the country be in its very ability to see itself through its constitutional ideals.”
In other words, once the Court has spoken, it is the duty of the citizens and their elected officials to shut up and abide by it, because the rule of law means the rule of the majority of the Supreme Court. This was exactly the attitude of President-elect James Buchanan in anticipation of the Dred Scott decision (of the outcome of which he had been informed by a friend on the Court). It is one that the Founders, Lincoln, and most others until very recently rejected.
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— Paul Moreno is the director of academic programs at Hillsdale College’s Kirby Center for Constitutional Studies and Citizenship.