The Volokh Conspiracy

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The myth of judicial supremacy


My thanks to Eugene Volokh for inviting me to guest-blog this week on The Volokh Conspiracy, in part to introduce my co-authored book, just published by Basic Books, entitled "The Constitution: An Introduction."

I wrote the book with my son, Luke Paulsen—Princeton Class of 2014, and now a software engineer at a Silicon Valley start-up—over the course of nine summer vacations, during Luke's high school and college years. Our goal was to provide a reasonably short, reader-friendly, lively, intelligent introduction to the Constitution in all respects: formation, content, and history of interpretation. Our hope is that it might serve as a concise, accurate, useful modern primer on the Constitution, for all readers—not just lawyers and law professors.

The book is not aimed exclusively, or even primarily, at constitutional sophisticates. We genuinely hope to reach a broad, non-expert intelligent lay readership. Nonetheless, I hope that some of the book's claims will prove interesting, engaging and perhaps controversial to readers of this blog.

The book as a whole strives to be even-handed, objective, and fair to competing arguments. But some of the positions we take are doubtless controversial. In this series of posts, I will focus on some of those themes. In a way, this risks distorting somewhat the overall sense of the book. We self-consciously set out not to write an ideologically charged book. Still, it is impossible to write a (we hope) lively book about the Constitution and its history, and to engage the many issues presented thereby, without taking some positions and throwing a few punches.

In addition, we did set out to explode a few long-standing popular myths. Some readers will take exception to a few of the explosions we set off. In the book, we endeavor to be fair in laying out the relevant debates. Here, I will set forth some of the more explosive points—I hope without giving away too much.

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A consistent motif of the book is the recurrent myth of "judicial supremacy" in constitutional interpretation—a view that most textbook accounts (and law school casebook accounts) wrongly ascribe to the framing generation and to Marbury v. Madison. The power of constitutional interpretation, we observe at various points in the book, is not exclusively vested in the courts, with all other branches and officers of government bound to accept, unthinkingly and reflexively, whatever the courts decide. Rather, the power of constitutional interpretation is a divided, shared power incident to the functions of each of the branches of the national government—and to instruments of state governments, and of juries, as well—with none of these actors literally bound by the views of any of the others.

This is not an especially shocking position. "Departmentalism" in constitutional interpretation is familiar to legal scholars. (We never use that term in the book; we insist on avoiding legal and academic jargon wherever possible.) We go further than most, however, in explaining its implications across a range of situations.

For example, we offer a brief theoretical and practical defense of the propriety of executive and congressional non-acquiescence in judicial precedent that, in the independent judgment of these other actors, conflicts with the Constitution. We explain and defend Congress's prohibition of slavery in national territories notwithstanding the contrary decision in Dred Scott and Lincoln's non-enforcement of Chief Justice Taney's constitutional judgment and order in Ex parte Merryman. Further, we take seriously (at least as an original matter) the idea that Congress might legitimately use the impeachment power to remove executive and judicial officers for their perceived flagrant departures from the Constitution. We also discuss seriously the theoretical arguments of Madison, Jefferson, and Calhoun for the propriety of state "interposition" and "nullification" of federal actions on constitutional grounds—and also discuss the limitations of and errors in their approaches. And we also embrace the propriety of independent jury interpretation of the Constitution.

On each point, the book stakes some fairly controversial ground. We introduce the general idea of independent interpretive authority fairly early on. We then take up various instances and variations on this theme as they arise in the course of the Constitution's history of interpretation. (I will give a few examples today, and develop this theme further in subsequent posts.)

Chapter Two of the book describes the "Superstructure" of the Constitution—its core structural features. (Chapter One, "Upheaval," concerns the formation and adoption of the Constitution, raising the prospect that the Constitution was illegally adopted.) In setting forth the Constitution's familiar separation and division of powers among independent branches, we note "the checking power of the courts—and the checks on the courts' exercise of that power." We emphasize the independence of the judiciary but pair it with the independence of the other branches:

The independence of the judiciary operates as a formidable check on the actions of the other two branches. But Congress and the President have checks on this check, too. Congress largely controls the courts' jurisdiction—their authority to hear and decide cases. And if the courts' decisions conflict with the Constitution itself, Congress and the President possess the power to disregard them (and have done so on certain occasions, as we will see in later chapters). After all, Congress and the President are bound by oath to support and defend the Constitution, and must resist unconstitutional actions by the courts, and by each other, just as the courts are bound to resist violations of the Constitution by Congress and the President.

The courts have power to decide cases—and thus check Congress and the President—but little practical power to enforce their decisions, and none to command the other two branches. As Alexander Hamilton wrote in The Federalist No. 78, the judicial branch "may truly be said to have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." Indeed, if the courts could command the other two branches, that would violate Madison's (and Montesquieu's) rule that the accumulation of all power in one set of hands is "the very definition of tyranny." Traditionally, however, Congress and the President have deferred to the constitutional judgments of the Supreme Court—with only a few notable exceptions—even in cases of extraordinary errors risking great harm to the nation. The courts' very weakness thus has become a source of their strength.

Chapter Three ("Powers") describes the respective powers of the three branches of the national government, including the nature of "the judicial Power" of the courts. With respect to the courts, we maintain (conventionally) that the independence of the judiciary, combined with the status of the Constitution as supreme law, entirely justifies the idea of constitutional judicial review of legislative and executive acts. However, we suggest (less conventionally, but historically correctly) that the power of judicial review cannot be taken to imply supremacy of the judiciary over the other branches in constitutional interpretation, but only independence of those branches in the performance of its judicial duties:

The power of independent judgment as to the meaning and application of the law is especially significant under the US constitutional regime precisely because the Constitution itself is designated as the supreme law of the land. Courts interpret and apply the law as part of their regular function of deciding cases, and the Constitution is part of "the law"—indeed, the supreme law—that courts are to apply. Thus, the courts—with the Supreme Court at the top of the hierarchy—possess an independent power to interpret and apply the Constitution, as a consequence of their customary power to interpret and apply the law in cases before them.

This does not make the Supreme Court supreme over the other branches—recall Madison's statement in The Federalist No. 49 concerning the Constitution's separation of powers: "The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers." But it does mean that the framers envisioned the judicial power of constitutional interpretation as a meaningful check on the other branches.

Readers will find other points of possible controversy in Chapter Three's description of the powers of Congress and of the president: We tend to lean in a somewhat "Hamiltonian" direction in our understanding of the sweep and practical potential of the Constitution's grant of powers to Congress. (Some legal conservatives will take exception to this.) And we defend a strong, unitary presidency with comprehensive executive and foreign affairs powers—again somewhat Hamiltonian—and with plenary war-waging powers as commander-in-chief (anathema to many on the left) but no war-initiating powers (at odds with some on the right). There's a little something to provoke everyone.

For those interested in more about the book itself or the backstory behind writing it, here are links to the book's Web site, its page on Amazon, an e-mail interview with Jack Balkin, posted in two parts for "Balkinization," and a podcast interview with Kevin Walsh for the Federalist Society.

I will write more on Wednesday on the themes and claims of the book with respect to judicial power under the Constitution. Later in the week, I'll address some other themes.