The Law of the Constitution

By all accounts, today in Iowa, Speaker Gingrich goes to face a great defeat, with pundits expecting him to lose by something close to double digits to both the ideologically vacant Mitt Romney, and faux-constitutionalist crank Ron Paul. Gingrich’s fading fortunes come as a credit to the intelligence of Iowa caucus voters, but the continued popularity of some of his stranger theories prevents me from drawing the same conclusion about the Republican establishment. As one example, a growing number of commentators seem willing to sign off on Gingrich’s most dangerous idea yet: that decisions of the Supreme Court are (somehow) not binding on all members of the constitutional system. We’ve addressed this issue before, but because Jeff Jacoby (for the Washington Globe) appears to muster some new arguments, the issue merits another look.

We all seem to agree that a judicial decision binds the immediate parties to the action: that, at least, is a start. Mr. Gingrich and his surrogates, though, contest whether the higher principles involved in a decision by the Supreme Court immediately become the law of the land, applicable to all similar disputes. Jacoby for Gingrich cites some support — Abraham Lincoln’s pronouncement, for example, that Dredd Scott was not the end of the debate on slavery. But Jacoby confuses an easy issue for a hard one. Lincoln’s point — that Supreme Court decisions may be overruled by subsequent case law, by amendment, or confined to their facts and distinguished by skillful attorneys — is entirely beyond dispute. We need not (and in many cases should not) take the Supreme Court’s word as gospel truth. This is the thesis of former Attorney General Edwin Meese, from whose intellectual flame Gingrich has drawn heat, but no light (pdf).

But while fighting bad law, we should obey the law as it currently exists. This tees up the harder issue: Jacoby seems to imply, falsely, that a principled executive should ignore a Supreme Court decisions setting out constitutional principles with which he disagrees, so long as the law has not been formally applied to his particular controversy. No.

Public officers possess an independent duty to safeguard the Constitution, but that power has its limits. Some examples make the case clear. An executive may constitutionally decline to enforce a criminal law that he believes to be unconstitutional. But the same executive may not continue to enforce a criminal law that has been specifically determined to be unconstitutional.

There exists a middle ground. Due to the the Court’s role as a “particularizer,” in the business of applying general principles to specific disputes, there will often be a lag time between the time when a general rule is enunciated, and when it is applied to a specific controversy. During that time, it is possible to avoid the law’s application, and fight it. Meese’s point (and Lincoln’s) is that a principled executive may take advantage of that time, and needn’t anticipate the Court’s mandate. Gingrich’s point appears to be a principled executive may ignore even a specific application of the law to the facts, Andrew Jackson style. Though consistent with the right’s general disrespect for the law, that is not the case.

It has been said that the Supreme Court’s mandate is the beginning of the conversation, not the end. This is quite so: based on Dred Scott and Plessy and even Roe, no observer of American history could conclude otherwise, or imagine that the Supreme Court’s mandate is ever final in the historical sense. But it is final as to the parties bound, and those who live under the law before it is changed. I cannot imagine that the American people would elect a President who pledged, openly, to invite constitutional crisis. Thankfully, it doesn’t seem like they will.

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