Our Founders never thought the courts had the final say — and neither should we

"Whenever a free people should give up in absolute submission to any department of government, retaining for themselves no appeal from it, their liberties were gone." ~Abraham Lincoln, citing Thomas Jefferson

As a conservative who believes both in conservative policy outcomes and the authentic interpretation of the Constitution and the Fourteenth Amendment, I wish we had nine Clarence Thomases on the Supreme Court and like-minded judges on the lower courts. I wish every policy emanating from Congress or state legislatures that I felt violated my interpretation of the Constitution would immediately be placed in front of this eminent tribunal with life tenure so that it could be vetoed. Yet I recognize that this is a system more tyrannical than the one we fought in 1776. However, it is indeed the system we now face, except that the overwhelming majority of judges – both Republican and Democrat – do not interpret the Constitution but make it up as they go.

A republic or a dictatorship of the robes?

It is clear that Democrats believe the courts are the final say on every constitutional question – no matter how absurd their ruling is. They further believe that once a court uses this phantom “veto” power a single time on the progressive side of the question, even when that ruling is overturning 200 years of laws, political practices, customs, and prior court precedent, it is unassailable, not just by the other branches of government but even by a subsequent court.

Republicans disagree with the latter point, as they feel another court can overturn a previous court, but they fundamentally accept the premise that a court opinion in an individual case can set broad precedent that is self-executing and universally binding as the law on everyone and out of reach of the other two branches. As both Sen. John Cornyn, R-Texas, and Judge Kavanaugh indicated during questioning last week, the only recourse for Congress is to attempt to pass a constitutional amendment.

This is simply not true and is a threat to the very foundation of our system of government. It is true that there is a concept of res judicata – finality in judgement – for individual plaintiffs in civil and criminal cases. But if the courts in that process are going to engage in review of legislation and broad political issues affecting the entire country in order to resolve a case or controversy, there was never any understanding that we’d apply res judicata to judicial review.

The truth is that court opinions are not self-executing and universally binding as broad legal and political precedent on the other two branches. There are numerous tools at the disposal of Congress to prospectively and retrospectively check the judiciary through legislation, not by constitutional amendment, and the federal courts only have the jurisdiction vested in them by Congress.

Ultimately, each branch of government has a responsibility to interpret the Constitution as it relates to its respective powers, and each has tools and avenues through which to assert itself. The judiciary has the fewest and weakest, and the legislature has the strongest and most numerous. Judges can merely issue judgment in a case that has legitimate standing before a court of law. If the constitutional rationale used in a case in order to reach an opinion portends a specific precedent on a constitutional matter affecting the rest of the country and the other branches, it’s the right and responsibility of everyone to push back against that when they believe it is wrong.

That is the system of government we adopted in 1789, yet now the courts have sustained, enduring, and exclusive or final power to veto legislation or policies and can often even dictate new policies.

The question of who decides the Constitution was obvious to our Founders

From the beginning years of our republic until the 20^th century, the question of who is the final arbiter of the Constitution was not an important question to answer. The disagreements over policy rarely spilled into disagreements over the Constitution, and in the few instances they did, they weren’t over broad and consequential issues. It wasn’t like today, when you have one side that believes what is antithetical to an inalienable right is a right and what is a right is not a right; what is a federal power belongs to the states and what belongs to the state is actually federal. You didn’t have people who believed that redefining marriage, life, human sexuality, and national borders is in the Constitution.

As such, when in the course of a case or controversy the courts opined on a constitutional question (which actually happened in the 1790s before Marbury), the other branches would usually (but not always) defer to the judiciary. The issues weren’t overly consequential, the opinions were often persuasive, and overall Congress was so powerful that it never feared, with the power to legislate and the power of the purse, that the courts would one day rule the country. Additionally, Congress regularly anchored everything it did to constitutional moorings and never dared outsource that to the Supreme Court. As the Congressional Research Service explains, “the early history of the United States is replete with examples of all three branches of the federal government playing a role in constitutional interpretation.”

There were some, especially Thomas Jefferson and the anti-federalists, who feared that judicial review would grow into into judicial exclusivity, but nobody ever thought the courts would be the final say, especially if they concocted revolutionary adulterations of the Constitution and the contours of fundamental rights.

Judicial supremacists as heirs to the Dred Scott legacy

Because the proponents of slavery viewed human beings as property, slavery was not only a political dispute but a constitutional one, as slaveholders asserted that the Missouri Compromise of 1820, which barred slavery in most of the new territories, denied them their property rights. The Supreme Court in Dred Scott v. Sandford ruled that the Missouri Compromise indeed violated the constitutional property rights of Mr. Sandford. This was the first moment when it became relevant to ask who is the final arbiter of the Constitution, especially when the court was so wrong and with such devastating consequences. That was the critical point of debate between Abraham Lincoln and Stephen Douglas in the 1858 Illinois Senate race. Lincoln was right, yet both parties of the political swamp, including most of the “conservative” legal profession today, have adopted the Douglas/Dred Scott view.

At the first debate in Ottawa, Illinois, Douglas accused Lincoln of waging “warfare” against the Supreme Court, “the highest judicial tribunal on earth” whose “decision becomes the law of the land, binding on you, on me, and on every other good citizen whether we like it or not.”

Lincoln showed Douglas’s hypocrisy: that he never propagated such a novel and tyrannical notion of governance until he needed it to promote slavery, and that his entire career stood against this proposition. He noted how the very same Douglas who felt the court’s opinion – that banning slavery was akin to banning property rights — was “the law of the land” claimed to support the individual territories themselves banning slavery if they so chose. But if the Supreme Court’s ruling that black slaves were property was a self-executing Constitutional proclamation binding on every branch of government and universally binding on non-parties, then how could Douglas’s popular sovereignty get off the ground? That was the trap Lincoln set for Douglas throughout the infamous debates.

According to Lincoln, where the high court fits into the structure of constitutional construction is very simple. The Constitution, not any one branch of government, is the law of the land. Thus, when a court renders an opinion, it is only binding on that party and only serves as precedent within the judicial branch of government.

Despite the Dred Scott decision, Lincoln as president signed laws prohibiting slavery in the territories, and, as head of the executive branch, he not only declined to treat black people as property, he treated them as citizens and issued them official government documents, such as passports. Those issues are within the province of the other branches of government, who must interpret the Constitution as they understand it.

Sadly, not only did Lincoln lose the 1858 Senate election to Douglas, he lost the fight over what would eventually become the most consequential political question of our time. Our current view of the judiciary is a legacy of the insidious plot to maintain slavery.

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What did the Founders think about the final say on the Constitution?  

Much to the consternation of Thomas Jefferson, there were some at our founding who felt that the other branches should defer to the judiciary when they rendered a constitutional opinion in a given case, but that was merely a political view, not a legal one. Nobody could suggest that the judiciary serves as an absolute veto the same way the president has a veto on Congress or the same way James Madison originally wanted to construct the veto power, as a shared venture between the president and the Supreme Court. Such a binding and vital role would have needed explicit affirmation in the Constitution. It’s clearly not anywhere in Article III.

What greater authority on this topic than James Madison? This is the man who originally proposed that the Supreme Court be joined with the president for the purpose of vetoing legislation in a “council of revision,” instead of (not in addition to) the solo presidential veto. But once our current system was adopted, thanks to the Connecticut Compromise, and an independent executive with a solo veto on Congress was created, no rational person conceived of the additional layer of a judicial veto. Madison explained in a June 17, 1789, floor speech that, although in practical cases “the exposition of the laws and the Constitution devolves upon the judicial,” there is no “principle” upon which it can be “contended” that “any one department draws from the [C]onstitution greater powers than another, in marking out the limits of the powers of the several departments.”

Thus, the fact that many believed that the judiciary, for its purposes and its own branch of government, can ignore a law it deemed unconstitutional, makes it obvious that the other branches most certainly had a similar obligation to ignore unconstitutional court opinions for its purposes. What happens when there is disagreement? Ultimately, each one uses its powers to vie for the public support of its position. “If the constitutional boundary of either be brought into question, I do not see that any one of these independent departments has more right than another to declare their sentiments on that point,” said Madison.

So, what happens when the legislature and the president disagree? Do we call in the courts as the final and ultimate arbiter, as nearly everyone on both sides of the Kavanaugh confirmation hearing believed? Not at all. Madison wrote in his anonymous “Helvidius” essays (number 2), debating Hamilton on the Washington administration’s posture towards France, that such friction is healthy and part of the process. "It may happen also that different independent departments, the legislative and executive, for example, may in the exercise of their functions, interpret the constitution differently, and thence lay claim each to the same power. This difference of opinion is an inconvenience not entirely to be avoided. It results from what may be called, if it be thought fit, a concurrent right to expound the constitution." Hence, the branches fight it out. This is healthy republicanism, as imperfect as it is, much superior to North Korean-style vestment of all power in the unelected branch of government we have today.

When answering the question of “what is to control Congress when backed and even pushed on by a majority of their Constituents” to enact something unconstitutional, Madison said that ultimately the power resides with the people. “Nothing within the pale of the Constitution but sound argument & conciliatory expostulations addressed both to Congress & to their Constituents.” Again, petitioning a court is definitively one of those avenues, but not the final avenue. As Jefferson said toward the end of his life, “Each 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." Ultimately, public engagements and elections will wind up tipping the balance of power to one side.

Restoring this balance of power away from judicial supremacism as our Founders envisioned does not require a constitutional amendment the same way it would if we wanted to alter a presidential veto or congressional control over the purse. The notion of the Supreme Court as a categorical veto of law and policy for the purposes of the other branches is likely the most dangerous legal fiction in American history. Besides, nothing ever forces the other branches to actively give force to unconstitutional opinions, such as using funds or sending our law enforcement to police the ever-evolving rights discovered by the judicial tribunal.

Until this question is resolved, we will continue to suffer from a dysfunctional government unbecoming of a republic.