Eagle Forum Legislative Alerts

Tuesday, October 25, 2011

Explaining judicial supremacy

Harvard Law student Joel Alicea writes in National Review:
The most dramatic challenge to the Supreme Court’s authority as the ultimate constitutional interpreter has come from former speaker of the House Newt Gingrich, who gave a speech at the Value Voters Summit earlier this month asserting that the constitutional judgments of the president and Congress are entitled to as much respect as those of the Court. Mr. Gingrich promised that, as president, he would challenge the Court’s role as the final arbiter of constitutional meaning — he would even ignore a Court decision if he strongly believed that the Court’s judgment on an important issue was contrary to the true meaning of the Constitution.

Mr. Gingrich’s speech has caused a great deal of consternation among those accustomed to thinking of the Court as having the final word on the Constitution’s meaning, a doctrine known as judicial supremacy.
He goes on to explain what is wrong with judicial supremacy, and with yesterday's NY Times attack on the Republican candidates, also criticized here.

This is all crystal clear to a law student who has to actually read the US Constitution and the history of court cases. He has not yet been brainwashed by those Harvard professors who need judicial supremacy in order to achieve social goals that could not be achieved by democratic means.

The Constitution defines our system of government. None of the three branches is superior to the others. The courts are restricted to deciding cases and controversies, not to dictate policy. The President and other officers take an oath to uphold the Constitution, not to uphold the Supreme Court's interpretation of the Constitution. If a court opinion is in conflict with the Constitution, then the duty of the President and the Congress is to be faithful to the Constitution, not the court opinion.

The law schools taught all of this until 1958, when the US Supreme Court declared that it had supremacy over the over branches. Gingrich is objecting to that 1958 opinion, as it is contrary to the Constitution, and to the way American law was understood for most of its history.

Attacks on judicial supremacy are very upsetting to liberals:
The New York Times, happy to beg the question, declared that the Supreme Court’s own decision in 1803’s Marbury v. Madison “gave the Supreme Court the last word in interpreting the Constitution.” Think Progress’s Ian Millhiser was absolutely apoplectic; the upshot of his screed is that Mr. Gingrich’s argument is “obviously not a view that’s compatible with the rule of law. It deserves nothing more than scorn.”

Such reactions are to be expected. The idea of judicial supremacy is so entrenched in the popular mind that Nancy Pelosi once described a decision of the Supreme Court as being “almost as if God has spoken.” This explains why, when Rep. Michele Bachmann declared that the health-care-reform statute is unconstitutional at a GOP debate in August, Calvin Woodward of the Huffington Post was quick to point out what he saw as the obvious “fact” that “nothing is unconstitutional until courts declare it to be so.”
Because the proponents of judicial supremacy argue for it so vehemently, it takes some explanation to see how thoroughly wrong the idea is. See here for where Phyllis Schlafly wrote a whole book on the subject about 5 years ago, and where Gingrich has a recent position paper making the same explanations.

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