Partisan. That’s the complaint many Americans have with the state of politics. The country would be better off, we are told, if only the Republicans and Democrats could put aside petty differences and work together. Can’t the left and right find some common ground and build on it?
Unfortunately, when it comes to the power of the courts, the answer is yes. Newt Gingrich recently learned this when he began discussing his policy paper “Bringing the Courts Back Under the Constitution.” In this paper, Gingrich challenged the accepted belief that the U.S. Supreme Court has the final say on what the Constitution means. For his efforts, Gingrich was exiled to the disrespectable fringe and criticized by pundits from across the political spectrum.
Slate.com complained that Gingrich’s policy paper “offends the basic constitutional principles of separation of powers, and judicial independence.” George Will warned that Gingrich had been gripped by a “sinister radicalism” that is “thoroughly anti-conservative.” Roger Pilon of the Cato Institute accused Gingrich of wanting to create a world where states can nullify desegregation rulings and oppress minorities. Jay Bookman of the Atlanta Journal-Constitution charged Gingrich with embracing his “inner fascist” by challenging the supremacy of the judiciary.
From high-school civics to law school, Americans are taught that the Framers of the Constitution designed the Court to be the ultimate arbiter of constitutional issues. Once the Court speaks, the president, Congress, states, and people must obey. By merely observing the operation of the courts over the last 60 years, one would guess that modern advocates of judicial supremacy are right. However, when we delve deeper into the evolution of the idea of sovereignty, we see that the judicial supremacists have their history wrong. They have placed the Supreme Court on a pedestal that the Framers reserved for the people themselves.
In the early 1600’s, when the Virginia Company established the first permanent English-speaking settlement in North America, the king was sovereign and ruled by divine right. Although the king received advice from his Parliament, he claimed unlimited dominion over his subjects’ lives and property. According to James I, a king was no mere man, but served as “God’s lieutenant in earth.” A monarch, James averred, is “a judge set by God over [the people], having the power to judge them but to be judged only by God.”
The Stuarts’ divine-right theory was challenged during the English Civil War and was ultimately destroyed in the Glorious Revolution of 1688. While the English retained the monarchy, Parliament effectively assumed control of the ship of state. What had begun as an advisory council of great magnates became the ultimate sovereign in the English political system.
Writing in the 1760’s, William Blackstone described the power of Parliament:
It hath sovereign and uncontrollable authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all profittable [sic] denominations, ecclesiastical, or temporal, civil military, maritime, or criminal: this being the place where absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms.
Nor was fundamental law beyond the reach of Parliament in Blackstone’s estimation: “It can change and create afresh even the constitution of the kingdom and of parliaments themselves.” Once Parliament takes an action regarding the constitution or a lesser matter, “no authority upon earth can undo” it.
This power of Parliament followed the colonists to the new world. Parliamentary sovereignty was accepted until the British began interfering with the inner workings of colonial government. The Americans had enjoyed significant home rule until the imperial restructuring of George Grenville and other ministers who followed him. The Sugar Act, Stamp Act, Townshend Duties, and other measures caused the Americans to quarrel with the Mother Country. Rather than seeing parliamentary sovereignty as the bedrock of liberty, Americans concluded that it was a liability.
In the course of our Revolution, Americans rejected the idea that a legislature, or any other branch of government, could possess ultimate power. In June 1776, for example, the Virginia Declaration of Rights averred that “all power is vested in, and consequently derived from, the People; that magistrates are their trustees and servants, and at all times amenable to them.” Similarly, the Massachusetts Bill of Rights declared that the people possessed “all power” such that government officers “are their substitutes and agents, and are at all times accountable to them.” As a derivative of this power in the people, they “alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity and happiness require it.”
At first, American judges were unsure of how popular sovereignty affected judicial functions. British judges did not review Parliament’s acts to determine constitutionality. Parliament, in some sense, was the constitution. Moving cautiously, state-court judges accepted that popular sovereignty mandated a form of judicial review—that is, the power of the courts to review decisions of other departments of government. The judiciary realized that it was a coequal branch of government bound to take note of relevant constitutional provisions when adjudicating a particular case. But no judge in the early Republic ever claimed to be the final interpreter of the federal or state constitutions. To do so would have been to attack the Revolution’s establishment of popular sovereignty—something an American patriot would not dare contemplate.
The prime example of this development of judicial power is Kamper v. Hawkins (1793), in which the en banc general court of Virginia was asked to decide whether the legislature could confer upon judges outside of the chancery (equity) courts the power to grant injunctions. The legislature had granted this equitable power to the general-court judges, but had not followed constitutional requirements of a joint ballot of both houses and an executive commission for good behavior. In Kamper, five judges issued opinions on the power of the judiciary. Each opinion began with the American Revolution and the transformation from parliamentary/legislative sovereignty to popular sovereignty. Reasoning that judges, just like legislators and governors, are agents of the people, the Kamper court concluded that it was bound to take notice of the state constitution when performing judicial duties. In the words of Judge St. George Tucker, as the body charged with expounding laws, the judiciary is obligated “to take notice of the constitution, as the first law of the land; and that whatsoever is contradictory thereto, is not the law of the land.” Accordingly, the general-court judges refused to exercise equitable powers because the legislature had ignored the joint-ballot and executive-commission requirements found in the state constitution.
What about Chief Justice John Marshall’s decision in Marbury v. Madison (1803)? Didn’t Marshall go a step further and claim to be the final word on the Constitution? No. If we read Chief Justice Marshall’s opinion in the context of popular sovereignty and state cases such as Kamper, we see that Marbury did not declare the Supreme Court to be the final arbiter of the meaning of the U.S. Constitution. Following in the footsteps of state-court judges, Marshall simply held that, as a coequal branch, the Supreme Court must take note of constitutional provisions when deciding a case or controversy. Marshall also suggested that the Court should show deference to the elected branches of government.
Contemporary reaction to Marbury supports a narrow reading of the opinion. Although President Thomas Jefferson was an archenemy of Marshall, Jefferson never objected to Marshall’s claim that the Court was a coequal branch that could exercise judicial review. Jefferson was a champion of the people and principles of popular sovereignty that denied to any branch of government the exclusive right to interpret or modify the Constitution. Had Marshall claimed such a power, Jefferson would likely have had him impeached.
Jefferson’s tripartite or departmental theory of constitutional interpretation is best explained in his September 11, 1804, letter to Abigail Adams. Responding to Mrs. Adams’ criticism of Jefferson’s decision to pardon the men convicted under the Sedition Act of 1798, Jefferson averred that “nothing in the Constitution has given [the judges] a right to decide for the Executive, more than the Executive to decide for them” on the constitutionality of the Sedition Act. Alluding to the separation of powers, Jefferson observed that all three branches of government “are equally independent in the sphere of action assigned to them.” Although he believed that the Sedition Act was unconstitutional, he conceded that “[t]he judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment.” Likewise, “the Executive, believing the law to be unconstitutional, was bound to remit the execution of it.”
As time has separated us from the founding generation, Marshall’s modest holding in Marbury has been twisted to cloak the Supreme Court with preeminent power in the federal system. The Court enjoys ultimate power just like James I did in the early 1600’s and Parliament did on the eve of the American Revolution. The judiciary is no longer a coequal branch but the most powerful branch of government.
The courts make the ultimate decision on such diverse matters as affirmative action in awarding contracts or in school admissions, restrictions on abortion, the medicinal use of marijuana, homosexual “marriage,” and capital punishment. Although reasonable people have different views on these subjects, the opinions of the judges become “constitutional law.” As such, the judges’ policy preferences are forced on the people and their representatives. Debate is quashed, and democracy atrophies.
In challenging judicial supremacy, Gingrich did not threaten separation of powers or judicial independence. Like Tucker, Jefferson, and Marshall, Gingrich simply argued that all three branches of government are agents of the people and have an equal right and duty to interpret the Constitution. The judicial supremacists are the people who actually threaten republican government by placing the Supreme Court above the other branches of government.
While not all of Gingrich’s remedies for modern judicial supremacy are equally meritorious, they are not off the reservation, as the critics allege. For example, Gingrich has taken much heat for his suggestion that Congress should set limits on federal-court jurisdiction—that Congress should remove certain issues from the Court’s docket. To modern ears, this sounds extraordinary. However, absent the few areas where the Supreme Court has original jurisdiction (e.g., in cases involving ambassadors or where a state is a party), the Framers via the Exceptions Clause delegated to Congress the power to curtail court action by a simple majority vote.
Similarly, Gingrich acknowledged that Congress could abolish rogue courts that refuse to adhere to the text of the Constitution. While this power has been infrequently invoked and should be used cautiously, Congress has the discretion to ordain and establish lower courts. This power has been interpreted as permitting Congress from time to time to create, to annul, or to modify the courts, as the public good may require. Congress did this in 1801 when it repealed a statute that had created numerous circuit-judge positions. This action was challenged in the Supreme Court and was upheld.
By bringing the issue of judicial supremacy to the fore of debate, Gingrich has done the country a favor. Americans have labored too long under the fiction that the Supreme Court is the be-all and end-all of the Constitution. Instead of a coequal branch, the Court is seen as the supreme branch of government. Americans need to rediscover the import of popular sovereignty and its role in our Revolution. A correct understanding of popular sovereignty will undermine modern judicial supremacy and can help us restore our government to one that resembles what our ancestors intended.