Other bloggers have covered in detail President Obama’s expanding body of philosophical commentary on the judicial branch of government. Powerline’s John Hinderaker had a particularly strong post on Tuesday refuting the Obama backtrack, in which the president claimed that the Supreme Court had not invalidated laws relating to commerce and the economy for “decades.” Hinderaker lists recent instances of SCOTUS doing exactly that.
A furor of deductions and rumors has arisen around the president’s utterances on the judiciary. But what caught my attention was how quickly and with what language Obama clarified his Monday gaffe. This was the money quote:
And the point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it…
That actually bears no relation to what he said the day before, but it is telling in two ways. First, it is the language of social activists who insist that the Supreme Court has had the last word on issues like abortion and school prayer. And second, it is the rote principle Americans have been taught in the public schools for at least the last 50 years.
But it’s not how the Framers envisioned the role of the court system, and frankly, a constitutional scholar ought to know that, even if the average citizen no longer does. If you haven’t read Mark Levin’s excellent book Men in Black, do yourself a favor and get that checked off the to-do list. It’s well worth your time, especially if you learned American history and civics any time since about 1960. You probably have concepts like “judicial review” and “final say on our Constitution” melded together in your mind, because that’s what you were taught. But the Framers didn’t see it that way.
Their concept of interpreting law was that it is a responsibility shared by the three branches, with each acting as a check on the others. Legislators obviously construe the intent of the laws they write, and the executive places a construction on law in executing it. The court system’s role was never intended by the Framers to function as the sole venue in which law was interpreted. The latitude of the courts depends to a significant extent on what Congress and the executive will tolerate – something we now see in living color every time a new federal judge is nominated.
Americans have little awareness today that Congress is explicitly empowered by the Constitution to limit what the federal courts have jurisdiction over. The relevant passage is in Article III Section 2 of the Constitution. Congress actually uses that power on a routine basis, although it has never seen fit to limit the courts’ jurisdiction on the most freighted social issues.
Meanwhile, the president’s signature is required to enact new laws unless they are passed with a veto-proof majority, so the president also has a say in defining the courts’ jurisdiction. The president appoints judges as well, with the advice and consent of the Senate. The Constitution is designed to give the other two branches explicit powers over, and implicit influence upon, the judiciary. Clearly, the Framers did not intend for the courts to have “the final say” on the nature or scope of law. All three branches have a say in those matters. The courts were to function as a check on the other branches, on narrowly defined issues – not as a supreme arbiter of what the law is or may be.
That’s why the courts are given no power of execution or enforcement. Those powers reside with the executive. The quote itself may be apocryphal, but the famous challenge attributed to Andrew Jackson – “John Marshall has made his decision, now let him enforce it!” – captures accurately the division of powers in the US federal government. The executive can choose to ignore the judiciary – and if the executive has the agreement of the legislature, there is nothing the judiciary can do about it.
The same is true of other combinations among the three branches. If the legislature and the courts are in agreement, they can stymie the executive. If the executive and the courts concur, they can decline to implement something the legislature wants. The purposes of the separation of powers are to prevent a dictatorship by any one branch, and to force compromise, increase the likelihood of moderation, and – at least as important as anything else – bring the processes of government to an impasse when one branch has swung to an extreme.
The people, of course, are the ultimate arbiters of the Constitution. We can change it. The true sense in which it is a living document is that the people can amend it.
As regards the role of the judiciary, however, the original Constitution is set up pretty well. Our society has migrated – due to indoctrination, but also out of ignorance – to an understanding of it different from what the Framers had in mind. On balance, that “supreme arbiter” view of the federal courts has worked in favor of the leftist agenda on social issues. In correcting his previous, erroneous comment on the Supreme Court, Obama reverted reflexively to the “final say on our Constitution” mantra. Of all the things he could have said, that was what he considered important.