In a recent article, Gabriel Malor rakes Mike Huckabee over the coals. Huckabee’s sin? In an interview on Hugh Hewitt’s radio show, Huckabee rejected judicial supremacy. Huckabee says the courts can neither make nor enforce law. The context of his comments concern the ruling of federal courts on the matter of same-sex marriage and on the rights of states to resist what he considers judicial overreach.
I haven’t read Huckabee’s book, and I don’t plan to. Nor did I hear his interview. My concern here is not with Huckabee but only with Malor’s strange view of the Constitution. What I found striking was Malor’s facile dismissal of the notion that states might ever resist or fail to comply with the decisions of federal courts. He calls Huckabee’s insistence that they can “gobbledygook.” As Malor sees it, any failure of states to comply with federal law is analogous to the resistance of state governments to desegregation. I would like to set the issue of marriage to the side and focus on Malor’s understanding of the Constitution, which I find deeply misguided at best.
According to Malor, only one branch of the federal government “gets final say on whether laws passed by Congress or implemented by the executive branch are constitutional: the judicial branch.” This, he says, was settled, once and for all, by Marbury v. Madison. Consequently (and over and against a claim Huckabee makes in the interview), neither Congress nor the president “get to determine that the Constitution means something contrary to what the Supreme Court decides.”
Malor next invokes the Supremacy Clause: “[T]he U.S. Constitution, Article VI, Cause 2, provides that the Constitution, federal laws, and treaties are the supreme law of the land and bind the states notwithstanding ‘anything in the constitution or laws of any state to the contrary.’” Thus, “Huckabee’s claim that a state or state officials could simply ignore a Supreme Court ruling . . . is . . . plainly false. The states do not, outside of the amendment process, get to determine that the Constitution means something other than what the Supreme Court decides.” Finally, Malor analogizes any state resistance to Supreme Court decisions to Gov. Orval Faubus’s 1957 attempt to resist the Supreme Court decision in Brown v. Board of Education by ordering the Arkansas National Guard to block the entry of black students into what had been a “whites-only high school.” He notes that Eisenhower nationalized the Arkansas National Guard “to ensure that desegregation went ahead as ordered by the Supreme Court.” He concludes, “the federal courts are not lightly ignored.”
The People Who Wrote the Constitution Beg to Differ
I won’t here dispute Malor’s understanding of Marbury, though I think his interpretation is a stretch. For the sake of argument I’ll concede his understanding of John Marshall’s famous decision. On Malor’s account, not only do we have judicial review—when it comes to final say about what counts as law for our regime, Malor argues for judicial supremacy. But to say that this is the settled view of our founders and framers or of some of our most prominent statesmen is utterly (indeed, laughably) false. Malor’s view of the power of the Court vis-à-vis the coordinate branches of the federal government (in particular, vis-à-vis Congress and the president) was rejected by Thomas Jefferson, Andrew Jackson, Abraham Lincoln, Franklin Delano Roosevelt, and Ronald Reagan (a la Meese), among others. His view of the power of the Courts and the nature of judicial review, in relation to the states, was rejected not only by James Madison and Thomas Jefferson, but by Alexander Hamilton, as well. Finally, his claim about the effectiveness of judicial power has been demolished by Gerald Rosenberg in “Hollow Hope.”
Speaking of the power of the Court in relation to the coordinate branches of the federal government, Jefferson maintained that “each department [of the federal government] is truly independent of the others, and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action most especially where it is to act ultimately and without appeal. . . . Each of the three departments has equally the right to decide for itself what is its duty under the Constitution without any regard to what the others may have decided for themselves under a similar question.”
At one point during the Jefferson administration, Abigail Adams sent a letter to the president asking why he decided to pardon those convicted under the Sedition Act of 1798. Jefferson replied, “The Judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment; because that power was placed in their hands by the Constitution. But the Executive, believing the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided to him by the Constitution. The instrument meant that its coordinate branches should be checks on each other. But the opinion which gives to the Judges the right to decide what Law are constitutional, and what are not, not only for themselves in their own sphere of action, but for the Legislative and Executive also in their spheres, would make the Judiciary a despotic branch.”
In his veto message of 1832, in which he explained vetoing a charter renewal for the national bank, Andrew Jackson reiterated Jefferson’s position: “The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. . . . The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.”
According to Lincoln, in his first Inaugural Address, “[T]he candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by the decisions of the Supreme Court, the instant they are made . . . 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.” The position staked out in the inaugural preceded the decision of Lincoln and his administration to issue passports of citizenship to freed slaves in defiance of the Dred Scott decision. Franklin Roosevelt proved himself heir to this tradition when, in a March 1937 fireside chat he condemned the Court for having become a “super-legislature.”
Indeed, FDR had prepared a radio address explaining why he was not going to comply with a Supreme Court decision to strike down a law taking the U.S. off of the gold standard. The Court upheld the law, so the address was never delivered. When it comes to constitutional interpretation and what counts as national law, presidents have rarely been inclined to think that the Court has the final say. And in the clash between Court decisions and presidential resistance, presidents tend to prevail. Having heard the Court’s decision in Worcester v. Georgia (1832), Jackson is alleged to have said, “John Marshall has made his decision, now let him enforce it.”
More to the point, Jackson refused to enforce the federal decision on Georgia (at least until the cotton crisis in South Carolina). I note, for good measure, that Congress has also disregarded Supreme Court decisions with which it disagrees—the prevalence of so-called legislative vetoes, after the Court forbid them, being a paradigmatic example. According to Madison (Federalist 51), “In a republic, the legislative necessarily predominates.” He concurs with Jefferson and Lincoln that to accord the judicial department predominance as to what counts as law is to sacrifice republican form.
States Have Long Maintained Freedom to Interpret the Constitution
Not only have presidents often ignored the Court, maintaining that they interpret the Constitution, the states have, as well. To be sure, state resistance to federal courts has sometimes been tragic and unjust. We should note, as Malor does not, that state and local resistance to Brown was, tragically, successful. A decade after Brown, with the exception of a few, high-profile cases in the media, there had been virtually no desegregation of public schools in the South. Significant movement on desegregation did not occur until after the Civil Rights Act passed. As political scientist Gerald Rosenberg has demonstrated, the Court decision, by itself, had virtually no effect.
Now, I think Brown was obviously constitutional precisely because segregation certainly violates the Thirteenth and Fourteenth amendments. It follows that (the very successful) state resistance to the decision was illegal and unjust. But the abuse of a power—here the ability of the states to resist the federal courts—is not an argument against rightful use. And instances of the rightful use of this particular power are not hard to find.
The Alien and Sedition Acts jump immediately to mind. According to the Virginia Resolutions (December 21, 1798) Madison authored, “the powers of the Federal Government” are “not further valid than they are authorized by the grants enumerated” in the Constitutional Compact. And “in case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact, the States, who are the parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them.”
The Kentucky Resolutions (November 10, 1798), authored by Jefferson, in response to Alien and Sedition, maintain, “That the several states composing the United States of America, are not united on the principle of unlimited submission to their general government; but that by compact, under the style and title of a constitution of the United States, and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government, and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.”
In his Report to the Assembly on the Virginia Resolutions, Madison extends this reasoning to the matter of judicial power. He writes, “The resolution supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but by that the judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority as well as by another—by the judiciary as well as by the executive, or the legislature.” Indeed, according to Madison, to delegate to the judiciary final say as to the meaning of the Constitutional compact—and so as to what counts as law for our regime—would be to “annul the authority delegating” the power.
Judicial Supremacy Ends Constitutionalism Itself
Two points must be noted here. First, the point of a written constitution is both to empower and to limit government. The point of the Constitution of 1789 is to empower and also to limit the national government—both as a whole and every part therein. Consequently, the Constitution aims at limiting not only legislative and executive power but judicial power as well. To hold that the Constitution does not function as an effective limit on judicial power (save for in the rare instance of Constitutional amendment) is, more or less, to hold that we don’t have a Constitution at all. Malor’s understanding of judicial power under the Constitution is the overthrow of constitutionalism.
Second, in their reasoning in the Virginia and Kentucky Resolutions (and in Madison’s Report to the Virginia Assembly), Madison and Jefferson merely applied the logic justifying judicial review (especially in Federalist 78) to the instance of federal overreach or usurpation (including overreach or usurpation by the federal judiciary) vis-à-vis the states. Constitutionalism—and, in particular, the idea of a government that has only those powers delegated by the Constitution—entails that any governmental actions that go beyond powers granted or delegated are null and void and not authoritative. According to Hamilton, the idea of judicial review presupposes not that the Court is superior to the legislature but that the Constitution is superior to both. The very logic (necessarily) entails the possibility of unconstitutional Supreme Court decisions—decisions that either go beyond power given or are contrary to constitutional prohibitions. But the logic of constitutionalism and the argument of Federalist 78 entail that all such decisions are null and void.
The argument that states can rightly (that is, consonant with the Constitution) resist the unconstitutional actions of the federal government was not newly made in the Virginia and Kentucky Resolutions. It had already been defended by Publius in Federalist 46. There Madison argues that “an unwarrantable measure of the Federal Government” may well rightly (to wit, constitutionally) meet with the “refusal to cooperate with officers of the Union” or “embarrassments [of the federal law] created by [state] legislative devices.” For the most considerable of federal usurpations he even countenances the right of armed resistance. Yes, such a power can and has been abused. But Madison, like Hamilton, would remind us that the abuse of a power is not an argument against rightful use.
To all of this Malor has but one reply: the Supremacy Clause of Article VI. He says that the Supremacy Clause provides “that the Constitution, federal laws, and treaties are the supreme law of the land and bind the states notwithstanding ‘anything in the constitution or laws of any state to the contrary.” Anyone familiar with the Constitution will notice immediately the severe redaction of the clause in Malor’s formulation. The clause actually reads as follows: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” In other words, the clause says that the Constitution and all laws of the United States made pursuant to the Constitution are the supreme law of the land.
According to Hamilton (Federalist 33), “It will not follow from this doctrine [i.e., the Supremacy Clause] that acts of the larger society [the nation] which are not pursuant to its constitutional powers but which are invasions of the residuary authorities of the smaller societies [the states] will become the supreme law of the land. These will be merely acts of usurpation and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union . . . only declares a truth, which follows immediately and necessarily from the institution of a Federal Government. It will not, I presume, have escaped observation that it expressly confines this supremacy to laws made pursuant to the Constitution” (italics in original). But it did escape Malor’s notice. The price of that failure of observation is the soundness of his view of the Constitution and of the place of the courts within our constitutional order, and so the cogency of his argument. At day’s end, I should choose rather to side with Hamilton, Madison, Jefferson, and Lincoln rather than to adopt Malor’s convoluted doctrine, one which would overthrow republicanism and constitutionalism in one fell swoop.