"The Supreme Court v. the Constitution of the United States of America"

By Michael M. Uhlmann at Claremont Review of Books:

.... The proposition that the federal judiciary is the fons et origo of constitutional meaning has in our time acquired the status of a religious conviction that only fools, cranks, or the impious would contest. The dogma of judicial supremacy draws added strength from two related beliefs, namely, that a written Constitution implies no less and that its roots can be traced to the American founding era. Did not the Great Chief Justice declare as much in his celebrated opinion in Marbury v. Madison (1803)?

The answer is that John Marshall did no such thing, notwithstanding that Marbury is commonly cited in support of the proposition. Judicial supremacy is in fact a thoroughly modern development that scarcely antedates the late 20th century. It was invented, not surprisingly, by the Supreme Court itself and asserted for the first time in Cooper v. Aaron, the 1958 Little Rock schools case. The justices, whose patience had been exhausted by the opposition to Brown v. Board of Education (1954), there decreed that its decisions were "supreme in the exposition of the law of the Constitution." No prior Court had ever made such a broad claim, and none had ever declared, as the Cooper opinion did, that the Supremacy Clause effectively equated the authority of federal judicial opinions with that of the Constitution's text. One can sympathize with the justices' ire in the face of Southern "massive resistance," and had their claim of supreme authority been limited by the immediate context of school desegregation, one might chalk it up to rhetorical hyperbole prompted by justifiable anger.

The Court's declaration, however, did not long confine itself to the conditions that occasioned its birth. In the ensuing decades, the justices have reiterated their claim of exegetical supremacy on numerous occasions. Significantly, their most forceful assertions seem to occur in cases in which the Court has broken new ground, or in which the justification for one of its prior novelties has been aggressively challenged. In Planned Parenthood v. Casey (1992), for example, the Court faced just such a challenge to its abortion decisions. While noting the severe criticisms that had been leveled against Roe v. Wade's reasoning (1973), the justices nevertheless rejected the argument that Roe should be reversed. Overruling Roe, it averred, would not only undermine the Court's authority as the definitive interpreter of the Constitution but, no less, undermine the very rule of law itself. Indeed, American citizens' desire to live according to law, the plurality opinion said, "is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals." Having invested the judiciary with the authority to declare "constitutional ideals," among them the protection of liberty, the opinion went on to define liberty as a category without apparent limits: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Perhaps, but we have only the Court's word for it. Armed with that definition, one could drive a bulldozer through every statute book in the country, which is precisely what many accuse the Court of having done these past 40 years....

(Thanks, Scott.)

Lane Core Jr. CIW P — Thu. 07/13/06 05:42:21 PM
Categorized as More Than Readworthy.