I concur with William J. Quirk in his discussion of the jurisdiction of federal courts (Cultural Revolutions, January). However, he missed a related strategic point.
In truth, the judiciary is no “final arbiter” of what the Constitution means. If it were, one branch of government would be supreme rather than coequal. So-called judicial supremacy is simply a myth invented by the Supreme Court in 1958 in Cooper v. Aaron.
The president needn’t bother with getting Congress to add a “stripper” clause to legislation that would limit the Court’s jurisdiction. He could simply say, in any given instance, “As head of a coequal branch of government, I assert executive authority to interpret the Constitution. In this case, we find no such right or authority as defined by this Court to be in the Constitution and therefore declare this Supreme Court decision null and void. We will not enforce it. We will ignore it. The Court be damned.”
The judiciary has no enforcement mechanism of its own other than the willingness of the other branches of government to defer to judicial authority. They would be powerless to do anything. There is no need to “strip” what you can simply disregard.
“That would lead to chaos!” critics say. I reply, “Any worse than the chaos created by the courts?” Or, better still, “Very well. Let the president declare executive supremacy, and the Court can defer to him. Or let the Congress. Why let only the judiciary claim the privilege to be supreme?” Jefferson himself called this stalemate feature “a necessary imperfection.”
I send no money to the pro-life movement, because it perpetuates this false notion of supremacy of one branch of government. The truth is, the president or Congress could end (or largely curtail) abortion tomorrow if they were serious about it (which they aren’t). Bush and the Republicans are complete phonies on this issue. Their pro-life supporters assist them in perpetrating a fraud.
For a fuller discussion of this point, see Mustard Seeds by the late L. Brent Bozell II (Christendom Press, 2004).
—Frank J. Schmidt
Professor Quirk Replies:
Mr. Schmidt writes that “there is no need to ‘strip’ what you can simply disregard.” There is no question that Thomas Jefferson was right—and acted legally—when he released the writers and publishers imprisoned under the Alien and Sedition Acts even though the federal courts found the acts constitutional. Similarly, most think that Lincoln was right to disregard Dred Scott. More recently, if Mitt Romney, as governor of Massachusetts, had disregarded the Massachusetts Supreme Court on “gay marriage,” the country would probably be better off.
The power to disregard has to be used rarely, however, or we would be swapping judicial supremacy for executive supremacy. Congress is the first branch of our government, established in Article I of the Constitution. As Madison wrote, “in republican government, the legislative authority necessarily predominates” (Federalist 51). If Congress wants the troops out of Iraq, they are out. But sometimes, as with Iraq, Congress prefers not to exercise its powers. Sometimes, it pretends it doesn’t have them. Article III of the Constitution provides for Congress to define the jurisdiction of the Supreme Court—that is, what cases the Court may hear. If Congress chooses, the Supreme Court can be limited to cases involving ambassadors and those between states.
The problem is that the people don’t know how limited the Court’s power really is. They have been misled by academics, judges, and politicians who tell them the Court has the last word on interpreting the Constitution. It’s not true: Each branch, as Mr. Schmidt writes, has an independent duty. Congress, since abortion appeared on the radar in the early 70’s, has been happy to let the Court decide the hot-button cultural issues that will get an elected representative in trouble with a lot of his constituents no matter which way he votes. We just need to educate the people so that they will make their congressmen decide what issues should be removed—“stripped”—from the Court’s docket to be handled at the state level, and what can be left to the Court to set a national rule. We have to have a little faith in democracy.
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