Reclaiming the Constitution… From the Supreme Court?


The National Review’s culture war blog, The Corner, makes little sense on its best days. But a new soon-to-be series, headlined by Rob Clinton’s “Judicial Supremacy and the Constitution,” appears to transcend the genre of reactionary, paleoconservative folklore, even as it re-invents it. Truly, Clinton’s opener may well approach the Form of political absurdity, from which all lesser daemons — your Goldbergs, your Becks — emanate. We can only pray that he’ll be re-secured to the wall of his cave, and fast.

N.B.: this is a long post. Skip to § III for the beginning of the main argument, if you must. -Ed.

I.     Just Lazy

I start with Plato because Clinton purports to do so, too: “Plato tells us in the Republic [sic] that democracies will always succumb to tyranny.” That’s already wrong, but in an interesting way. Clinton takes Plato at face value — a Cliff Notes mistake — and invites the reader to repeat his error by assuming that a “democracy,” as we mean it today, was Plato’s ideal, and the starting point from which all Good Governments fall, inexorably, towards tyranny. Quite the opposite. To Plato, democracy, by which he meant a “pure” or “direct” democracy, deciding all matters by direct vote and without any representatives, was a base form of government, and substantially removed from the ideal: the kind of government that would kill Socrates (the speaker, in The Republic) for so much as questioning popular myths. Plato actually set up a philosopher kingship as his ideal government — where a single autocrat makes enlightened decisions for the benefit of all — but this is quite the opposite of a democracy, and substantially undermines Clinton’s larger point. If you’re going to argue against the Supreme Court by styling it as anti-democratic, Plato, with his respect for learnèd autocrats, probably works against you.

II.     Words Without Meaning

This initial, clumsy error actually indicates a larger flaw in conservative thinking, such as it is. Clinton here evokes “democracy,” and implies that America is just that, to suggest the vital importance of popular sovereignty — how dare the Supreme Court halt the majority from its chosen course of action! But elsewhere we see the far right defend constitutional faith on the basis that we’re not a chaotic democracy (here taking Plato’s meaning), subject to the hurly-burly of the unguided mass: we’re a republic, operating within boundaries set by the Constitution; so repeal healthcare reform, already! This analysis suffers from its own shortcomings, but the point is that, for conservatives, The Peoples’ proper role in government — subordinated under their definition of a “republic,” supreme under their definition of a “democracy”  — seems to vary based on how The People are likely to vote.  Put another way, if conservatives can settle on neither a vocabulary of governmental structures, nor on which they prefer, might it be possible that when they talk about “liberty,” “democracy,” or the virtue of a “republic,” they’re just using the words as extended metaphors for getting their own way?


III.    “… To Say What The Law Is.”

This matter is incidental to the larger issues presented, to be sure, but gives some clue as to the kind of man with whom we’re dealing: we can trust that Clinton is either sloppy, or not too bright, or outright mendacious. Let’s see which one it is!

Clinton’s larger thesis, and the reason for his post, is the argument that the Supreme Court ought not be in the business of the conclusive (and exclusive) resolution of federal issues, so as to bind the whole country. His words:

In fact, during the past half-century, the Court and the country seem to have embraced the idea of judicial supremacy — the doctrine that the Court is the exclusive, ultimate authority on all constitutional issues. But the Constitution is very clear on the judicial role, and it does not authorize judicial supremacy.

This is a radical statement; and we’ll later see that it’s not one he intends to defend. Nor could he, because it’s patently wrong. From Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-78 (1803)

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

Such power can only be exercised within authorized limits, the contours of which Clinton tries, falteringly, to chart. See Legal Serv. Corp. v. Velazquez, 531 U.S. 533, 545 (2001) (“Interpretation of the law and the Constitution is the primary mission of the judiciary when it acts within the sphere of its authority to resolve a case or controversy”). Discussion of those limits follows, but we can begin by categorically rejecting his initial premise, as wrong today as it was 207 years ago.

IV.     Facial Invalidation as a Case of Judicial Economy; or, Taking Constitutionalism Seriously

As his first proposed limit on the judiciary, Clinton argues that the judicial power was only ever intended to permit the resolution of discrete controversies (which is axiomatically true), without any effect on non-litigants (which is axiomatically false, and indeed impossible). He argues that when a principle of law taken up by the Supreme Court binds non-litigants, the judicial power shades into an exercise of legislative authority (“enunciation”):

Judicial power is assigned to the Supreme Court (and lower federal courts that Congress chooses to establish) in Article III, Section 2. The judicial power is precisely stated to be the power to decide cases and controversies arising under the Constitution, laws, and treaties of the United States. This means that the decisions of federal courts are binding on the parties to the lawsuits. What it does not mean is that the decisions of these courts become laws in their own right or policies in the legislative sense. [. . . .]

First, judicial review is authorized in the Constitution, but only in a very restrictive form. It has nothing whatever to do with policymaking. Rather, constitutional judicial review is merely the power to disregard, or refuse to apply, a law that the court believes to be unconstitutional (not “pursuant” to the Constitution) when deciding a particular case. Strictly speaking, as Abraham Lincoln said of the notorious Dred Scott decision, the court’s decision applies only to the parties in that case — not to anyone else.

First, it may come as some comfort to Clinton that the use of a single case to bind the whole country is rare: when the Court is faced with a constitutionally deficient statute, it struggles, mightily, to invalidate it only “as applied” to the individual litigants. Sometimes, though, a statute will admit of no constitutional application. In those cases, “facial” invalidation — the Court’s statement that the statute cannot validly be enforced against anyone, and is therefore void — is a simple matter of judicial economy. If a law is written to state, “all men shall, in perpetuity, be slaves of Jonah Goldberg,” the federal bench will void it as applied to all parties after hearing the first case, because no factual distinction would ever permit that statute to be validly enforced. Re-litigating the issue would be duplicative, so facial invalidation becomes a matter of efficiency.

Any fear that this shades into substantive lawmaking misses the point. It’s true that, as an incident of the court’s power to resolve individual controversies (what separation of powers scholars call “particularization” — the application of the law through a mechanical, syllogistic process to individual cases), every now and again, the resolution of a case will “enunciate” a new rule that binds all of the country. But because this is a necessary incident to particularization, and because the Court cannot exercise its enunciation power except in the context of a live controversy, and then only if necessary to resolve that controversy, substantive lawmaking occurs only as a necessary incident to the Court’s role as particularizer.

Further, there’s an argument that, in that process, no new law is made anyways. If, in designing the institution, we trust that the Court can faithfully apply the Constitution, any individual case simply draws upon the Constitution, a very old law. The Court becomes the mechanism by which the modern state is bound by ancient pre-commitments. We can debate whether the Court discharges that role properly in a given case, but we can’t seriously dispute the theory, or we risk disputing constitutionalism itself.

VI.     The Court’s Relationship with the States

It’s not actually clear that Clinton would even let the Court handle individual controversies, properly presented. In fact, he appears to view the Supreme Court’s role as a restraint upon the states, and nothing more:

Second, the limited form of judicial review established in the Constitution is not an authorization for the courts to “strike down” or exterminate laws that the judges don’t happen to like. Rather, it is a device to prevent state courts from refusing to enforce valid national laws. Without such a device, it is unlikely that national law would ever have come to be enforced on a nationwide basis, and this means that there would never have been a “United States.”

Apparently the Supreme Court is just there to stop John Calhoun. Who knew?

But seriously. This argument — that the Court only exists to control the states — inverts the normal conservative narrative, premised on a distrust of the federal government, and an absolute trust in the states, and, more importantly, states the controversy over the Court in reverse. No-one since Marbury has seriously doubted the ability of the Supreme Court to handle federal questions, because the constitutional authority is beyond explicit (“The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States…” U.S. Const., Art. III, § 2).

State law is another issue. The Supreme Court’s power to bind state courts wasn’t settled until Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816), and the ability to control state legislatures wasn’t established until 1958, although it was assumed, arguendo, and used regularly for almost all of the prior two centuries. See U.S. v. Peters, 9 U.S. (5 Cranch) 115, 136 (1809) (“If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . .” ). This isn’t surprising, because the Founders would’ve been more comfortable with the idea that the Supreme Court could moot laws of Congress than they would’ve been with the idea that it could moot state laws. But any controversy as to either ended a long, long time go.

VII.     Is Supremacy New?

Thus far, Clinton’s piece has focused on casting the basic incidents of judicial power as somehow controversial, and limiting them accordingly. We’ve seen how those limits fail to stand up to history and practicality. Clinton goes farther: apparently, the controversy over judicial is also “new.”

What the Constitution does not do is establish the Supreme Court as the ultimate or exclusive arbiter of all constitutional questions, entitled to issue binding proclamations to other agencies of government on any constitutional issue whatsoever. Judicial supremacy, in this sense, was largely unknown throughout the first century and a half of our nation’s constitutional existence, and was not claimed even by the Court itself until 1958. In that year, the Court declared for the first time in its history that its constitutional decisions were the supreme law of the land, along with the Constitution itself, national laws, and federal treaties. This declaration effectively amended Article VI by judicial fiat, giving truth to the earlier remark of Chief Justice Hughes that “the Constitution is what the Court says it is.” Since that time, the Court has provided abundant evidence for the truth of Justice Scalia’s 1992 observation that “the imperial judiciary lives.”

Ultimately, this is what has to give the lie to Clinton’s larger argument. While the Court has changed in the last 50 years, it hasn’t changed in the ways he identifies. The Court’s power to declare that “its constitutional decisions were the supreme law of the land, along with the Constitution itself” is as old as Marbury, as Clinton really ought to know.  See Marbury, 5 U.S. (1 Cranch) at 180 (“a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.”). All that’s changed recently is how the power is used — today, the Court most often acts in defense of discrete and insular minorities, rather than in defense of big business. We can debate the merits of that approach, but Clinton’s attempt to transform his disagreement with the Court’s recent decisions into a disagreement with the Court itself must fail of necessity.

VIII.     Selective Outrage

The conservative core case against judicial power becomes even more disingenuous in the context of recent history. Almost immediately upon their relegation to the political wilderness, extremist conservatives rediscovered the Supreme Court — call it a judicial renaissance — and today, routinely pray to it for the most extraordinary relief. Among other issues, The National Review has led the charge against the recent health care bill as an “unconstitutional” exercise of federal power. I’ve explained before why this is a far-fetched argument, but it’s made all the more absurd given this apparent devotion to judicial modesty. One cannot pray to the Court for the extraordinary relief of invalidating a major domestic law and, at the same time, bemoan the Court’s tendency to invalidate major domestic laws. If we ever doubted that the conservative case against judicial review was purely political, we can, today, put those fears to bed.

IX.     The “Core Case,” Done Right

Finally, it would be unfair not to note that there is some intellectual basis to Clinton’s argument. Professor Jeremy Waldron famously wrote “The Core of the Case Against Judicial Review,” criticizing courts as modern philosopher kings, utterly bereft of the democratic pedigree necessary to allow them to resolve the moral controversies that routinely come before them. There’s something to that, and the rebuttal case, by Richard Fallon, isn’t entirely convincing.

Critically, though, all parties to that debate acknowledge the Court’s necessity as an arbiter of the democratic process. In making his argument, Waldron conspicuously assumes, inter alia, “a commitment on the part of most members of the society and most of its officials to the idea of individual and minority rights,” and “persisting, substantial, and good faith disagreement about rights . . . among the members of society who are committed to the idea of rights.” 115 Yale L.J. 1346, 1360 (2006). He further candidly acknowledges that, in the absence of those assumptions, a strong Court becomes necessary to the defense of liberty. See also generally John Hart Ely, Democracy and Distrust (1980) (stating, essentially, the failure of the same assumptions as the main reasons for judicial review).

Sadly, as it stands today, these are not assumptions we can make lightly, and Waldron’s argument collapses accordingly from the practical to the academic. The most controversial Supreme Court decisions, the kind that make Clinton bristle, and together prompt his long, disjointed screed, follow from society’s failures to live up to Waldron’s assumptions. The strong Court emerged during desegregation, and persists through the abortion debate, and the terrorism cases. In none of these cases have the parties been able to bargain in good faith, and at least in the first case, we now acknowledge just how crucial the Supreme Court’s intervention was, and just how lost we would’ve been without it. Debates about judicial power today must account for that historical fact, which Waldron does, by assuming it away, and Clinton does not. This failure, ultimately, constitutes the largest of the many shoals upon which his argument founders.

X.     Conclusion

There’s legitimate cause to question the modern Court. Sadly, conservatives like Clinton come to the debate with unclean hands and, by questioning the very reason for the Court’s existence, and eliding the centrality of the Court’s mission to the Founders’ original vision for America, show an unwillingness to actually engage this important question on the merits. Instead, as elsewhere, they hope to win by distraction, using words like “activism” and “supremacy” to make us forget the Court’s ancient and necessary role. The Court is powerful, and the sole arbiter of the law of the land, because that’s the way it was always meant to be.

On February 23, 1803, maybe we could’ve argued that the Supreme Court lacks the power to review federal legislation, and that its ability to resolve individual controversies should never affect others. But to quote then-Judge Thomas, “at least since Marbury v. Madison . . . that has not been the law.”  Lamprecht v. FCC, 958 F.2d 382, 392 (D.C. Cir. 1992).


  1. Excellent analysis of a very confused essay. I just have a couple additional comments:

    Firstly, it’s ironical that Clinton invokes Plato to create his tone of FUD. As you hint at yourself, Plato’s whole point (in Books 8-9) is that democracy transitions into tyranny because of an excess of liberty, and in particular because this excess creates a conflict between the mass of the people and the propertied classes. One of the most important reasons for having an independent judiciary is to prevent exactly that sort of conflict by setting limits on Congress as an expression of the public will, and besides, I don’t think you’ll find a stronger defender of property rights in the early Republic than precisely John Marshall.

    Secondly, his use of Robert “Brutus” Yates to argue his point is no less ironic or confused. Even leaving alone the fact that Yates was an opponent of the Constitution (which makes him a curious source for one who presumably wants to defend it), Yates was not a “prophet” as he says. Yates was a politician trying to defeat a proposal which he found dangerous. His whole point about the Judiciary was that the Constitution does permit the Supreme Court to exercise judicial review, that this would be reduce the rights of the states, and that for this reason the Constitution should be rejected (Anti-Federalist Papers #11 and #12). He wasn’t talking about what might happen in some remote future, he was talking about what this document would permit the Court to do then and there. This is a classic, even trivial error in how to use an historical source.

    Finally, even though he tries to claim “the Framers” via Madison for his point of view, a reading of another Clinton (Rossiter)’s 1787 shows there was a significant disagreement on the question in the Convention. It’s more accurate to say that as a compromise, the Convention left the possibility for judicial review in the text without explicitly neither approving nor denying it, both of which could have put its eventual ratification in danger. But it was certainly there in case a later Chief Justice had the opportunity to establish it, as Marshall later did – much the same as several other contentious issues were left for later generations to deal with.

    So in closing, I award Mr Clinton no points, and may God have mercy on his soul.

  2. Excellent use of Billy Madison (O’Doyle rules!). As for the compromise, I think you’re referring to the “Madisonian Compromise,” where the convention empowered Congress to create inferior tribunals, but did not so require. I wasn’t aware they ever considered judicial review itself specifically, except that they explicitly rejected a “Chamber of Review” that would’ve had the power to render advisory opinions. This, of course, is part of the reason for a strong “standing” requirement.

  3. Yes, the Convention’s discussion (and ultimate reasons for rejection) of a Chamber of Review throws a great deal of light on how they perceive judicial review as well. The basic conclusion seems to be that since the courts already have the power of “negativing” unconstitutional laws, as they express it, they would get too much power if they were tied together with the Executive in that manner.

    The whole debate (especially on Ferrand, II, pp. 73-80) is quite enlightening, and Mr Clinton would have done well to read it more thoroughly to get a better understanding of what Madison’s “cases of a Judiciary nature” actually means in context.

  4. Citing to Marbury v. Madison never strikes me as a good thing. For all that it’s old and oft-cited, it’s got the same problem most Marshall opinions had: it’s conclusory as hell. It is emphatically the province of the judiciary… thank-you, Mr. Marshall, but it would’ve been helpful if you’d said WHY rather than declaring as though it’s too obvious for words. That “why” is the whole reason judicial opinions matter, after all.

    1. More to the point, does Marbury really set the Judiciary up as the sole determiner of what the Constitution says, and if so does it do so validly? Marshall’s short explanation – we have to expound on the law in order to rule on cases – doesn’t by its own terms exclude other sources of constitutional interpretation. Nor, for that matter, does it explain away things like Article II Section 4 or Article 1 Section 8’s ultimate clauses. Those can be read as requiring the President and the Congress to exercise independent judgment as to what the Constitution means/says.

      But let’s say the Court is supposed to be the sole arbiter of Constitutional meaning… doesn’t that make Commerce Clause deference to Congress (or deference to the Executive, as with Chevron deference) an impermissible delegation of the judicial power?

  5. Marshall sets up a few reasons why the Court gets to claim that role, and while not all of them hold together (the oath one is kind of bullshit), but his main argument is that, given the Court’s textually-founded ability to resolve disputes arising under the laws & Constitution of the United States, there’s no way to effectuate the Supremacy Clause without mooting an unconstitutional law.

    Granting that it doesn’t exclude other sources of interpretation, there’s no vehicle for other bodies to exercise that power. When you say Art II § 4, I’m sure you mean the ultimate clause of Art II § 3, the “Take Care” clause. But the “Take Care” clause is advisory: it asks the President to dispense his official powers, like the veto, and the non-enforcement power, in defense of the Constitution. It provides no independent power.

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