To their credit, a number of prospective GOP presidential candidates have been thinking critically and speaking publicly about the role of the judiciary in our constitutional system.
Three weeks ago, Rand Paul argued, before a skeptical Heritage Foundation audience, that “judicial activism” wasn’t the threat conservatives, for two generations, have thought it to be. A week and a half ago, Mike Huckabee suggested that a Supreme Court decision purporting to make gay marriage national would do no such thing until the states approved enabling legislation. Both drew heavy criticism for their remarks–some of it, at least, merited.
Republicans, nevertheless, would do well to rethink their general orientation toward the judiciary, which for too long has combined a general lament over its political activism with a general acquiescence in the results of that activism, dressed in the respectable garb of concern for the rule of law.
This is well-illustrated by the responses of several leading GOP candidates to questions regarding federal court action on gay marriage.
Jeb Bush recently released a statement affirming his belief in traditional marriage while calling for respect for the Court’s decision, whatever it may be. Marco Rubio did the same, in more expansive terms: “I wouldn’t agree with their ruling, but that would be the law of the land that we would have to follow until it’s somehow reversed — either by a future Supreme Court, or a U.S. constitutional amendment, which I don’t think is realistic or foreseeable.” Scott Walker too made a similar point after a federal court ruled against Wisconsin’s traditional marriage law last year: “The federal courts have ruled that this decision by this court of appeals decision is the law of the land and we will be upholding it.”
The underlying premise in both Walker and Rubio’s statements is that the courts, in determining a particular case, settles “the law of the land” until and unless the decision is reversed by the Supreme Court or the people. This, however, concedes too much to the courts–a notion of judicial supremacy at odds with republican principles and the best of the Republican Party’s history.
As we’ve noted in a previous essay, Abraham Lincoln, in responding to the Supreme Court’s Dred Scott decision, distinguished the results of the case (i.e. the resolution of the dispute between Scott and Sanford) with the reasoning that informed it (a misreading of the 5th Amendment and the history of American citizenship). While the former could not be gainsaid without endangering the rule of law, the latter did not immediately or automatically bind other office holders, especially in the case where there was good reason to believe politics or ideology, rather than a careful reading of the constitutional text, had guided the Court’s argument.
Lincoln’s position, however novel it may appear to most today, was thoroughly grounded in the principles of the founding and the specific understanding of the role of the judiciary found in The Federalist (and largely relied upon by Chief Justice Marshall in his Marbury v. Madison decision). The principle stressed by Alexander Hamilton in Federalist 78 is not the special right of the Court to determine the meaning of the Constitution, but the duty of the Court to set aside unconstitutional laws as a means of protecting the Constitution and demonstrating its own submission to the text.
The obvious objection to Lincoln’s position is that it seems to leave the meaning of the Constitution uncertain. The obvious objection to judicial supremacy is that it does what mere judicial review does not: asserts the “superiority of the judiciary to the legislative [and executive] power,” borrowing Hamilton’s language in Federalist 78.
But Lincoln’s position is not that the Constitution is perpetually indeterminate, but rather that no one Court decision settles its meaning. While a constitutional question is open, it is reasonable for all who take an oath to uphold the Constitution to act upon their best judgment of its meaning in exercising the legitimate powers of their office, informed by good arguments wherever they arise.
Thus, although the Supreme Court had affirmed the constitutionality of a national bank in McCulloch v. Maryland (1819), Andrew Jackson vetoed a renewal of the charter for the same bank in 1832 on constitutional grounds (among others). And in recent times, Rand Paul’s father was known for many years as “Dr. No” for refusing to vote for any law he believed to be unconstitutional, despite the many Supreme Court rulings upholding the constitutionality of the programs and appropriations to which he objected. Whatever the merits of President Jackson and Representative Paul’s particular readings of the Constitution, they got an essential point correct: each officeholder is responsible for his own fidelity to the Constitution.
Alexander Hamilton recognizes the difficulty of resolving some constitutional questions at the beginning of Federalist 82–but he doesn’t say that it is the Court’s job to supply the answers. Echoing James Madison’s commentary in Federalist 37 on the challenge of instituting a federal republic that properly grants and divides power between the national government and the state governments, Hamilton writes: “Tis time only that can mature so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent whole.”
How will Americans make progress in reconciling the parts of the Constitution into a “harmonious and consistent whole”? Start with the “natural and obvious sense of its provisions,” Hamilton posits in Federalist 83. However much there is a need for specialized expertise in exercising legal judgment, the Constitution should be interpreted “apart from any technical rules,” in keeping with its nature as a publicly-ratified expression of the fundamental will of the people.
Where questions remain, Hamilton argues, one ought to turn to “commonsense” rules of construction like “a specification of particulars is an exclusion of generals,” which, for example “evidently excludes all pretension to a general [federal] legislative authority, because an affirmative grant of special powers [as in Article I, Section 8, of the Constitution] would be absurd, as well as useless, if a general authority was intended.”
This approach leads him to conclude that:
[T]he States will retain all PRE-EXISTING authorities which may not be exclusively delegated to the federal head; and that this exclusive delegation can only exist in one of three cases: where an exclusive authority is, in express terms, granted to the Union; or where a particular authority is granted to the Union, and the exercise of a like authority is prohibited to the States; or where an authority is granted to the Union, with which a similar authority in the States would be utterly incompatible.
Officeholders committed to following such a procedure in “liquidating” constitutional questions will not always agree, but they will be much less likely to use the Constitution as an ideological cudgel–and they will be much less likely to embrace a doctrine of judicial supremacy so amenable to the judiciary’s pretensions. Rightly understood, state and national courts would view themselves, Hamilton reasons, “as parts of one whole,” carrying out the common task “to unite and assimilate the principles of national justice and the rules of national decisions.”
As might have been expected given human nature, American political history has played out somewhat differently. Many judicial officers, no less ambitious than their executive and legislative counterparts, have acceded to an arrangement in which questions of judgment and policy are turned into constitutional matters. And though it should strike all of us as highly improbable that a 225 year-old government charter, written and ratified by a diverse people and understood according to its plain (historic) meaning guided by “commonsense” rules of construction, would always produce results consistent with the present concerns of libertarians, conservatives, liberals, or progressives, that’s exactly the partisan expectation, by hook or by crook, that’s ruled our day.
A would-be Republican president’s to-do list should be long. But even before we get to energy policy, entitlement reform, and the like, we need institutional reform, bending all three branches back toward their constitutional responsibilities and a healthy, robust politics with room for reasonable debate within the boundaries of our republican system.
That reform will not amount to a new era of conservative or libertarian activism if it means forcing the Constitution to settle our contemporary political debates–as, so often, Progressives have done. Neither will it entail encouraging states to nullify federal court rulings since such counsel undermines “the principles of national justice and the rules of national decisions.” More rightly it will involve advancing an understanding of court and Constitution in which important social questions are not permanently resolved by ideologically-driven Court rulings and officeholder and citizen alike are emboldened to reacquire their independent constitutional judgment.
