“How much power Congress has to block Supreme Court consideration of the constitutionality of its laws is an open question.” This, the Washington Post said in a September 23, 2004, editorial, is “somewhat surprising.” The Post shouldn’t be so astonished, for the real surprise is that judicial supremacy—the doctrine that the Court interprets the Constitution not only to decide the case before it but to establish rules for the other two branches and the country—is quickly moving from cherished folklore to exploded myth.
The House, the Post continued, is scheduled to take up the Republican leadership’s “latest attack on the federal courts.” In July 2004, the House passed, by a 233-192 vote, H.R. 3313 in reaction to the Massachusetts Supreme Court’s ruling that the state constitution protects “gay marriage.” Ever since the U.S. Supreme Court found a constitutional right to sodomize in Lawrence and Garner v. Texas, some have come to suspect that it will use the Full Faith and Credit Clause to impose a Massachusetts “gay marriage” on, say, Florida. Each state, under H.R. 3313, would decide for itself—but not for any other.
Now comes the Pledge of Allegiance. The Ninth Circuit, two years ago in Newdow, deleted the words “under God” from the pledge by saying that Congress had violated the First Amendment prohibition against enacting a “law respecting the establishment of religion.” The Supreme Court, on June 22, 2004, reversed the Ninth Circuit, but only on the convenient procedural ground that the case was not properly brought before it because a father had no standing to argue a case on behalf of a daughter of whom he does not have custody. Three justices, led by Chief Justice Rehnquist, wrote that they were ready to reverse on the merits but lacked a fourth and a fifth. That sent a fairly clear signal that the Court, as soon as the issue gets back to it, will probably delete “under God.”
The Pledge Protection Act (H.R. 2028), which the House passed on September 23, 2004, removes any case involving the pledge from the Supreme Court’s docket. The House passed the bill, 247 to 173, with 34 Democrats crossing over, after which the New York Times editorialized: “The House passed a measure yesterday retaining the Pledge of Allegiance’s ‘under God’ phrase and prohibiting any federal court—including outrageously, the Supreme Court—from judging the law’s constitutionality.” The House, the Times continued, “proposed to protect a patriot’s ritual by trashing the constitutional system it celebrates,” and the Pledge Protection Act “echoed the mean-spirited and unconstitutional” Marriage Protection Act, which the House had passed in July. Academics were no nicer: Prof. Marci Hamilton of Cardozo Law School called the bill “constitutional lunacy.”
The House Democrats who did not cross over, however, went well beyond “mean-spirited,” “outrageous,” or even “lunacy.” Rep. Jerry Nadler (D-NY) set the tone:
I ask my colleagues, is demagoging a case that they have won in court so far really worth destroying the enforceability of the Bill of Rights? I urge my conservative colleagues to shape up and act like conservatives for once. We live in a free society that protects unpopular minorities even if the majority hates that minority. Feel free to hate if my colleagues must, but please leave our Constitution, leave our liberties, leave our civil liberties that define this Nation and makes it what it is, leave it alone.
“Feel free to hate if my colleagues must” is not a good way to begin a discussion. House Democratic leader Nancy Pelosi (D-CA) followed up by calling the bill an “assault on our cherished Constitution and independent judiciary.” Rep. Barney Frank (D-MA) said it was “bizarre.” Zoe Lofgren (D-CA) queried, “I wonder, can they be that dumb, or are they being venal, or is it both?” The Republican Party, in Jay Inslee’s (D-WA) view, “today intends to treat the Bill of Rights the way the Soviet Union operated during their long tyranny.” This bill, said Maxine Waters (D-CA), “would destroy the Supreme Court’s historical function as the interpreter and ultimate arbiter of what the Constitution requires.” “Who will ultimately determine what is constitutional,” asks Melvin Watt (D-NC), the Supreme Court or “the arrogance of my colleagues here in this body?” Pete Stark (D-CA) notes that “everyone here realizes that if Congress could just pass whatever laws it wanted and throw in a line to keep this from being held unconstitutional” the Constitution would be rendered meaningless. Rep. Sheila Jackson Lee (D-TX) said she stood “here today formerly a second-class citizen in America, and if it had not been for the courts,” she would still be.
The two sides deeply disagreed about who should be running the country. Most of the Democrats believe in judicial supremacy; as Robert Scott (D-VA) put it: “We need the Federal courts to protect our rights.” On the other side, Todd Akin (R-MO), H.R. 2028’s author, disagreed. The Democratic Party “really sees [the Court] as supreme, as the final decision on everything, and regardless of what they say, we have to suck it in and live with it. What I am saying is, that is alien to the thinking of our Founders. It is completely wrong.” Indeed, as Thomas Jefferson wrote, “All just powers arise from the consent of the governed”; they are not imposed by Platonic guardians.
Jefferson believed that each branch should interpret the Constitution for its own purposes. In 1819, he wrote: “[E]ach of the three departments has equally the right to decide for itself what is its duty under the constitution without regard to what the others may have decided for themselves under a similar question.” His tripartite or departmental theory is perhaps best demonstrated by his approach to the Sedition Act (1798). Though the lower federal courts had found the Sedition Act constitutional, President Jefferson terminated all pending prosecutions and pardoned those who had been convicted. In 1804, Abigail Adams criticized Jefferson’s handling of the Sedition Act controversy, and the President answered:
You seem to think that it devolved on the judges to decide the validity of the sedition law. But nothing in the constitution has given them the right to decide for the executive, more than to the executive to decide for them. Both magistracies are equally independent in the sphere assigned to them. 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. That instrument meant that its co-ordinate branches should be checks on each other.
To give the judiciary the final say on constitutional matters would, in Jefferson’s words, make it “a despotic branch.”
Although they were certain in July that the bill was unconstitutional, by September, the Democrats had their doubts that the Supreme Court would quickly swat down H.R. 3313 if it passed. They took to talking more about the wisdom of H.R. 2028, the policy—do you want 50 different interpretations of the Constitution?—and the Court’s historic role. Why the change? Perhaps they had read the actual language of Article III, which explicitly grants Congress control of the jurisdiction of the federal courts. Or perhaps they had read Alexander Hamilton’s Federalist No. 81:
To avoid all inconveniences, it will be safest to declare generally that the Supreme Court shall possess appellate jurisdiction that shall be subject to such exceptions and regulations as the national legislature may prescribe. This will enable the government to modify it in such a manner as will best answer the ends of public justice and security.
They could also have read Justice William Brennan, who wrote that “virtually all matters that might be heard in Article III Federal courts could also be left by Congress to the state Courts.” Furthermore, in July 2004, the dean of Stanford Law School, Larry Kramer, published The People Themselves—Popular Constitutionalism and Judicial Review, which concludes: “The Supreme Court is not the highest authority in the land on constitutional law. We are.” The country’s elite law schools, of course, have been the breeding grounds of judicial supremacy. No more. The Court’s longtime allies are deserting ship.
Rep. Anthony D. Weiner (D-NY) strongly opposed the bill and wondered, What’s next? What is wrong with the bills in which you do not strip judicial review? Are they less important? Do you not love them as much? What about abortion? The answer, of course, as Representative Weiner knows, is that it is not a matter of love; Congress has to make a judgment when uniformity is important and when it is not. It might, for example, think that whether a town square can have a crèche at Christmastime could be handled at the state level.
Weiner also asks, “but if the courts are not interpreting the Constitution of the United States, who is going to do it?” The state courts will, as Justice Brennan said, as long as Congress lets them. In fact, Congress, believing that the state courts were competent to decide issues of constitutional law in the first instance, did not provide for “federal question” jurisdiction in the lower federal courts until 1875. In any case, under our system, constitutionality is not decided just by courts. Congress makes its implicit finding of constitutionality when it enacts a law. Then, the courts authorized by Congress may hear challenges to it. Finally, the executive must find it constitutional before enforcing it. Each branch determines constitutionality for its own purposes. Three branches, not one, decide constitutionality. If they disagree, they have to work out their differences. That arrangement may not satisfy Representative Weiner’s sense of neatness—and it may not be efficient—but it is the best a republic can do.
“Sometimes, it is said, that man cannot be trusted with the government of himself,” Jefferson wrote in his First Inaugural Address. “Can he, then, be trusted with the government of others? Or have we found angels in the forms of kings to govern him?”
What is next? H.R. 3313 and H.R. 2028 are reactions to the Court’s excesses. No sane person thinks a Massachusetts “gay marriage” should be imposed on Florida. No sane person thinks the pledge establishes a religion. Yet, in both cases, the Supreme Court has strongly signaled that, as soon as someone can get the right cases before it, it will decide in favor of “gay marriage” and delete “under God.” The House responded by using its Article III power to remove those cases from the Supreme Court’s docket and allow the state courts to decide them instead. The Court’s arrogance had finally wakened a sleeping giant.
The Senate did not consider either bill, but the basis for its inaction is unclear. In any case, the House, in the summer of 2004, exploded the myth of judicial supremacy. The legislature reasserted its constitutional power and duty, and democracy crept, on little cat feet, back into Jefferson’s country.