NOM BLOG

The Myth of Judicial Supremacy

 

In a recent National Review article, constitutional law expert Ed Whelan has taken up the argument against the myth and practice of judicial supremacy. He posits that judicial supremacy (“the Constitution means whatever five Supreme Court justices claim it means and all other governmental actors are duty-bound to abide by that supposed meaning") is in direct conflict with the constitution itself. Whelan writes:

JusticeThe myth of judicial supremacy is logically incompatible with the supremacy of the written Constitution. According to the myth of judicial supremacy, the Constitution means whatever five Supreme Court justices claim it means and all other governmental actors are duty-bound to abide by that supposed meaning—even if it is in clear conflict with the actual meaning of the Constitution—until such time as five justices revise it or a constitutional amendment overrides it.

Writing on the Originalism blog, law professor Michael Ramsey acknowledges this incompatibility between judicial supremacy and constitutional supremacy, as he observes that judicial supremacy “binds the political branches to erroneous judicial interpretations at the expense of the true meaning of the Constitution.”

Whelan continues to bring four informed arguments against judicial supremacy, which has led to judicial activism, and quotes Mike Paulsen (also an expert on constitutional law) on the framers' opinion on the matter.

The framers of the Constitution quite sensibly considered the power of constitutional interpretation—the power to interpret all the other powers, and all the rights of the people—to be far too important a matter to vest in a single set of hands.

The framers instead left constitutional interpretation to the pull and tug of competing interpreters and competing branches of government. The president (and the executive branch) interprets and applies the Constitution within the scope of the president’s constitutional powers. Presidents swear a unique, constitutionally prescribed oath to “preserve, protect, and defend” the Constitution. They also promise they will faithfully execute the laws, including the Constitution. How could they do that without interpreting the Constitution independently? Congress also interprets the Constitution in the course of exercising all of its powers: legislation, impeachment, proposing constitutional amendments, checking presidential appointments, treaty ratification, and more.

Source and quotes via National Review.