What can be done if and when the Supreme Court gets the constitution wrong? Can judicial supremacy be directly challenged?

8 Jul

From Political Scientist Paul DeHart:

The Supreme Court looms large in American politics. In fact, many accept the claim—made by the Court and others—that the Supreme Court gets the final say as to what counts as law under our system of government. Judicial review is now bound together with the doctrine of judicial supremacy, crafted by Chief Justice Roger Taney in Ableman v. Booth—the case that infamously upheld the Fugitive Slave Act.

Together with Thomas Jefferson, Abraham Lincoln, Carson Holloway, and Robert George, I dissent from this view. Judicial supremacy is contrary to republicanism (that is, to popular sovereignty) and to constitutionalism (that is, to the rule of law rather than men). Indeed, the doctrine of judicial supremacy unravels the entire fabric of our constitutional order.

Several weeks ago, I entered this debate publicly by critiquing an argument proffered by Gabriel Malor. In a column at The Federalist, Malor criticized Governor Mike Huckabee’s claim that states have the right to resist or refuse to comply with decisions of the Court that extend beyond their jurisdiction under the Constitution. According to Malor, such a view is pure “gobbledygook.”

On the contrary, I argued, our founders and framers held that no act of the federal government—the Supreme Court included—that goes beyond power granted in the Constitution or that is contrary to its express prohibitions possesses the power to bind. Other actors—the legislative or executive branches, the state government, and even individuals—therefore have the right to ignore decisions of the Court that exceed its jurisdiction. I demonstrated that this was the position of the framers of the Constitution, including not only James Madison but also Alexander Hamilton, the principal architect of judicial review. And I maintained that constitutionalism and republican form depend upon affirming that decisions of the Court that go beyond power delegated by, or contrary to, the Constitution are null and void.

In reply, Malor made two points that will serve as my point of departure here. First, he maintained that Huckabee “is off in fringe territory” when he claims that “the Supreme Court . . . cannot overrule the other branches of government.” Second, he maintained that my rejection of judicial supremacy turned on a normative rather than a notional account of law. While I describe the way things should be, Malor describes the way things are. In our current climate, he thinks, it’s just not possible to resist the decrees of the Supreme Court, and to suggest that things could or should be different is simply nonsensical.

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