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Chris
02-11-2015, 12:24 PM
This is a question about what has authority, the Constitution, as the Supreme Law of the Land, or the Court, and the final arbiter.

It arises out of the case for marriage for gays. Huckabee had declared a Supreme Court decision does not have authority. Gabriel Malor, conservative attorney at The Federalist, declared Marbury v. Madison had decided the court is the final arbiter. The following is a response to both....

Constitutional Conservatism Rejects Judicial Supremacy (http://www.thepublicdiscourse.com/2015/02/14410/?utm_source=The+Witherspoon+Institute&utm_campaign=b3cc885eae-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_15ce6af37b-b3cc885eae-84099261)


...As recently as one generation ago, mainstream conservatives understood the need to resist the contemporary culture’s embrace of judicial supremacy. Speaking at Tulane University in 1986, Edwin Meese—Ronald Reagan’s attorney general—made an effort to challenge the prevailing belief in judicial supremacy and to revitalize an older understanding more rooted in the wisdom of the founders. Constitutional law, Meese pointed out, is not the same thing as the Constitution. The Constitution is our fundamental law, ratified by the people and deriving its authority from their sovereignty. Constitutional law, by contrast, is only what the courts have said in cases about the meaning of the Constitution.

This distinction is essential to treating the Constitution seriously as a rule of law, binding on all parts of the government, including the courts themselves. Without it, as Meese observed, the Supreme Court would be in no position to overrule its own earlier decisions when it has come to view them as mistaken, something it has done on numerous important occasions, such as when the Court jettisoned in Brown v. Board of Education (1896) the “separate but equal” doctrine that it had embraced in Plessy v. Ferguson (1896). Such reversals only make sense if the Court views the Constitution as of superior obligation to its own rulings, something it could not do if it equated constitutional supremacy with judicial supremacy.

Malor would presumably not deny the Court’s authority to reverse itself. Conceding this right, however, while at the same time insisting that the Court’s pronouncements are themselves the supreme law of the land, inevitably fosters the impression that the Court on its own is empowered to determine—or even to create—the meaning of the Constitution from one case to the next. Needless to say, this understanding is incompatible with the rule of law. It would also be inconsistent with the founding commitment to separation of powers, since that doctrine can hardly be maintained if one branch of the three is held to have an unanswerable authority to determine the powers of the other two.

..Marshall’s argument [in Marbury v. Madison] points to the very thing that Malor is so eager to deny: namely, a legitimate authority in the elected branches to be guided by their own interpretations of the Constitution in the exercise of their own powers. The “framers of the Constitution,” Marshall wrote, “contemplated that instrument as a rule for the government of courts, as well as of the legislature.” If, however, the Constitution is equally a rule for legislatures as well as for courts, then the former have, no less than the latter, an obligation to act according to their best understanding of it, regardless of what the other branches may say.

...Judicial supremacy is dangerous: dangerous in some cases to the cause of law and justice, but in all cases to the American commitment to popular self-government....

Political conservatism is an effort to preserve an existing political order, not in all of its details, but in its essential principles. American conservatism, then, should aim to safeguard the essential principles of the American regime, which include the rule of law and popular self-government. Fidelity to those principles requires a repudiation of judicial supremacy.