The Answer to Judicial Supremacy

This long post, which seems to violate my resolve to avoid long posts, was almost complete when I began my blogging hiatus in August 2015. I took a bit of time today to finish it.

INTRODUCTION

I begin with the supposed similarity of Kim Davis’s refusal to issue same-sex “marriage” licenses and George Wallace’s anti-integration “stand in the schoolhouse door.” The similarity, some would say, is that both acts of defiance against rulings of the Supreme Court were acts intended to deny “equal protection of the laws” to certain groups (namely, homosexuals and blacks). But “equal protection” has too often been the Court’s tool for imposing on Americans the social preferences of its members (or a majority of them). The Court hasn’t just used its constitutional power to resolve “cases and controversies”; it has assumed law-making power. That power arises from “judicial supremacy,” which was conceived in Marbury v. Madison (1803) and attained maturity in Cooper v. Aaron (1958). Judicial supremacy is unconstitutional. Secession is a legal (constitutional) remedy for judicial supremacy — and much else that is rotten in the state of the union.

HOW ARE THESE THINGS THE SAME?

“What is the difference,” Timothy Sandefur asks rhetorically, between a county clerk in Kentucky defying the Supreme Court by refusing to issue marriage licenses to same-sex couples and George Wallace defying the Supreme Court by refusing to integrate the public schools of Alabama?

I take this as Sandefur’s point: There is no difference. In both instances, government officials defied the “law of the land” and denied “equal protection of the laws” to members of an “identity group” because of their membership in that group.

There is another similarity, which is omitted from Sandefur’s liberaltarian view of such acts of defiance. In both the segregation and same-sex “marriage” cases, the “law of the land” was peremptorily established by the Supreme Court, not by the passage of bills duly signed into law by the president of the United States or a governor of a State.

JEFFERSON’S PREMONITION

This raises the issue of judicial supremacy: the supposed power of the Supreme Court to enforce the Constitution for the other branches of the central government and the States. The truth of the matter was expressed more than 200 years ago, in a letter from Thomas Jefferson to Abigail Adams:

You seem to think it devolved on the judges to decide the constitutionality of the sedition law [the Alien and Sedition Acts, which Jefferson opposed] . But nothing in the Constitution has given them the right to decide for the Executive, more than the Executive to decide for them. Both magistracies are equally independent in the sphere of action assigned to them. The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment; because that power was placed in their hands by the Constitution. But the Executive, believing the law to be unconstitutional, was bound to remit the execution of it; because that power was placed in their hands by the Constitution. That instrument meant that its co-ordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the Legislature & Executive also, in their spheres, would make of the judiciary a despotic branch. [Quoted by Michael and Luke Paulsen in The Constitution: An Introduction, p. 136.]

(Jefferson was right to fear judicial despotism.)

Jefferson went further and proclaimed that the States, as the parties to the constitutional “compact” (his word), were the supreme arbiters of the Constitution. James Madison — father of the Constitution — sided with Jefferson at the time (though he back-tracked later in his life).

Michael Stokes Paulsen and Luke Paulsen, while characterizing Jefferson and Madison’s assertion of State supremacy as “inconsistent with the Constitution’s design,” say this:

Madison and Jefferson were right that state authorities have the right and duty to resist unconstitutional actions of the national government. Thus, the proper answer is that state government actors are legitimate constitutional interpreters, but not supreme ones. State officials, no less than federal officials, swear an oath to support the Constitution. And the structure of federalism, as we have seen in Chapter 2, makes states and state officials independent checks on the national government. It is therefore not at all outlandish to think that officers and instrumentalities of state governments possess an independent power of faithful constitutional interpretation— the power to interpret the Constitution (to borrow President Jackson’s words on a later occasion) as they understand it, “not as it is understood by others.” As demonstrated by Virginia’s and Kentucky’s resistance to the Alien and Sedition Acts, that power sometimes can be a valuable check on unconstitutional action by the national government.

But there is an important constitutional limit to this independent state interpretive power— a boundary that Madison defined inconsistently, that Jefferson disregarded entirely, and that (as we shall see) nullification and secession would attempt to breach violently: independent state power to interpret the Constitution does not mean state supremacy over the Constitution. No state, group of states, or state actor within them has the power to interpret the US Constitution in a way that binds the nation as a whole. Just as states are not literally “bound” by the federal government’s interpretations of the document, the federal government cannot be controlled in its actions by the interpretations of the state. The two levels of government operate as checks on each other, just as the several branches of the national government check one another. [Op. cit., pp. 135-136.]

I am satisfied by the Paulsens’ formulation. It should go without saying that a single State or group of them cannot dictate to all States. But it should also go without saying that the Supreme Court’s power is limited to deciding particular “cases and controversies” (Constitution, Article III, Clause 1), not to making law.

JUDICIAL LAW-MAKING AND THE “EQUAL PROTECTION” RACKET

But making law is precisely what the Supreme Court does when its members (or a majority of them) torture the Constitution to suit their political aims. And that’s what happened in Brown v. Board of Education and Obergefell v. Hodges.

Brown wasn’t decided on the basis of the Constitution, but by deference to Kenneth and Mamie Clark‘s phonydoll experiments.” This was clearly a stretch to justify the Court’s emotional disdain for Southern segregation. As Justice Clarence Thomas later put it:

Brown I [the name later applied to Brown v. Board of Education] did not say that “racially isolated” schools were inherently inferior; the harm that it identified was tied purely to de jure segregation, not de facto segregation. Indeed, Brown I itself did not need to rely upon any psychological or social-science research in order to announce the simple, yet fundamental truth that the Government cannot discriminate among its citizens on the basis of race…. At the heart of this interpretation of the Equal Protection Clause lies the principle that the Government must treat citizens as individuals, and not as members of racial, ethnic or religious groups. [Missouri v. Jenkins, 1995]

Separateness — voluntary economic and social segregation — is an inexorable force. Most of the segregation that existed in the nation, North and South, was voluntary and based on socioeconomic differences between the races. (Witness the gradual resegregation of public schools since the hay-day of the “Civil Rights Era” in the 1960s and 1970s.) It follows that Court-ordered integration (like State-ordered segregation) couldn’t be implemented without infringing on freedom of association, a right implicitly recognized by the Ninth Amendment. But infringement on freedom of association — along with violence and heightened racial animosity — predictably followed Brown. Brown III, for example, resulted in tests of “racial balance” (i.e. quotas). Brown also set the stage for the revocation of property rights ten years later, in the name of “public accommodations.”

The majority in Obergefell likewise relied on “equal protection.” But there the resemblance ends, pace Sandefur. The form of segregation targeted specifically by the Brown Court was government-enforced and thus also a denial of freedom of association, if not “equal protection.” The form of marriage targeted specifically by the Obergefell majority was a traditional religious and civil relationship that has been commandeered by government. Its heterosexual character was natural, not discriminatory, having arisen and endured because of the stabilizing social value of heterosexual attachments and the familial bonds that accompany them.

The Court’s resort to “equal protection” in Obergefell (and elsewhere) is a sham:

By the “logic” of [proponents of the legalization of same-sex “marriage”], it is unconstitutional to discriminate on any basis. Thus no one should be found unfit for a particular job (that saves Carpenter and Walker); no one should be found unfit for admission to a university; there should be no minimum age at which one is permitted to drink, drive, wed, or join the armed forces; there should be no prohibition of marriage between siblings; churches should be required to ordain atheists; and on and on.

Above all — by the same “logic” — the laws should not have any basis in morality. Because the imposition of morality results in “discrimination” against persons who cheat, beat, steal from, rape, and murder other persons. [“Getting ‘Equal Protection’ Right,” Politics & Prosperity, November 23, 2014]

THE MYTH OF “JUDICIAL SUPREMACY”

In any event, Brown and Obergefell are among the hundreds of cases in which the Supreme Court has made law, unconstitutionally. I say that will all due respect for Chief Justice John Marshall, who asserted that

[i]t 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.

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure….

The judicial power of the United States is extended to all cases arising under the constitution…. Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?

This is too extravagant to be maintained.

In some cases then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey?…

[I]t is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!

The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: ‘I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States.’

Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him.

If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.

It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument. [Marbury v. Madison, 1803]

Marshall’s one-sided analysis omits the very real possibility that the courts will err (deliberately or not) in their interpretation of the Constitution.

Marbury led eventually to Cooper v. Aaron (1958), in which a unanimous Court

held that since the Supremacy Clause of Article VI made the US Constitution the supreme law of the land and Marbury v. Madison made the Supreme Court the final interpreter of the Constitution….

This is rather like a batter presuming to call balls and strikes for himself.

THE MYTH EXPOSED

But Marbury did not make the Supreme Court the final arbiter of the Constitution. I return to the Paulsens:

The Constitution’s words and structure do not set up one single, authoritative interpreter of the Constitution— contrary to the myth that has grown up around the often misunderstood case of Marbury v. Madison. The Constitution does not establish judicial supremacy, but constitutional supremacy: the supremacy of the document itself. And the Constitution’s system of separation of powers and even federalism set up a framework in which multiple actors— presidents, legislators, juries, and voters, as well as judges— each have a legitimate role to play in giving the Constitution practical effect and in checking the errors of the others. No one branch or institution has the sole power of constitutional interpretation. The Supreme Court did not write the Constitution, does not own the Constitution, and has not always correctly interpreted the Constitution. Our constitutional system has worked best when each and every government official and citizen has taken a full, active, faithful role in interpreting the Constitution. [Op. cit., pp. 320-322]

That is only the conclusion of a long, compelling analysis. I urge you to read it for yourself. Though you will be forgiven if you disagree with the Paulsens’ nationalistic view of the Constitution. I disagree with it, vehemently. (See this post, for example.)

NO WAY OUT?

The problem is that Congress — even when its majorities oppose the Court’s decisions — has failed to use (or to use often enough) the constitutional tools at its disposal: impeachment, jurisdiction-stripping, and outright defiance. Alexander Hamilton was unduly optimistic (or just trying to sell nationalization of the States) when he wrote this:

It may … be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments. [Federalist No. 81]

Hamilton’s misplaced faith in the Constitution’s checks and balances (if it was that) is an example of what I have called the Framers’ fatal error:

The Framers underestimated the will to power that animates office-holders. The Constitution’s wonderful design — horizontal and vertical separation of powers — which worked rather well until the late 1800s, cracked under the strain of populism, as the central government began to impose national economic regulation at the behest of muckrakers and do-gooders. The Framers’ design then broke under the burden of the Great Depression, as the Supreme Court of the 1930s (and since) has enabled the central government to impose its will at will. The Framers’ fundamental error can be found in Madison’s Federalist No. 51. Madison was correct in this:

…It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure….

But Madison then made the error of assuming that, under a central government, liberty is guarded by a diversity of interests:

[One method] of providing against this evil [is] … by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable…. [This] method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.

In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased….

Madison then went on to contradict what he said in Federalist No. 46 about the States being a bulwark of liberty:

It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE.

Madison understood that a majority can tyrannize a minority. He understood that the States are better able to prevent the rise of tyranny if the powers of the central government are circumscribed. But he then assumed … that the States themselves could not resist tyranny within their own borders. Madison overlooked the importance of exit as the ultimate check on tyranny. He assumed (or asserted) that, in creating a new central government with powers greatly exceeding those of the Confederacy, a majority of States would not tyrannize the minority and that minorities with overlapping interests would not concert to tyrannize the majority. Madison was so anxious to see the Constitution ratified that he oversold himself (possibly) and the States’ ratifying conventions (certainly) on the ability of the central government to hold itself in check. Thus the Constitution was lamentably silent on nullification and secession.

What has been done by presidents, Congresses, and courts will be very hard to undo. Too many interests are vested in the regulatory-welfare state that has usurped the Framers’ noble vision. Democracy (that is, vote-selling) and log-rolling are more powerful than words on paper. Even a Supreme Court majority of “strict constructionists” probably would decline to roll back the New Deal and most of what has come in its wake. [“Liberty and Federalism,” Liberty Corner, March 12, 2006]

THE CONSTITUTION AS A USEFUL TOOL

It is no wonder that I have come to view the Constitution cynically:

1. The Constitution was a contract, but not a contract between “the people.” It was a contract drawn by a small fraction of the populace of twelve States, and put into effect by a small fraction of the populace of nine States….

2. Despite their status as “representatives of the people,” the various fractions of the populace that drafted and ratified the Constitution had no moral authority to bind all of their peers, and certainly no moral authority to bind future generations….

3. The Constitution was and is binding only in the way that a debt to a gangster who demands “protection money” is binding. It was and is binding because state actors have the power to enforce it, as they see fit to interpret it….

4. The Constitution contains provisions that can be and sometimes have been applied to advance liberty. But such applications have depended on the aims and whims of those then in positions of power.

5. It is convenient to appeal to the Constitution in the cause of liberty, … but that doesn’t change the fact that the Constitution was not and never will be a law enacted by “the people” of the United States or any State thereof.

6. Any person and any government in the United States may therefore, in principle, reject the statutes, executive orders, and judicial holdings of the United States government (or any government) as non-binding.

7. Secession is one legitimate form of rejection, though the preceding discussion clearly implies that secession by a State government is morally binding only on those who assent to the act of secession.

8. An  act of secession may be put down — through legal process or force of arms — but that doesn’t alter the (limited) legitimacy of the act.

9. Given the preceding, any act of secession is no less legitimate than was the adoption of the Constitution.

10. The legitimacy of an act of secession isn’t colored by its proximate cause, whether that cause is a desire to preserve slavery, or to escape oppressive taxation and regulation by the central government, or to live in a civil society that is governed by the Golden Rule. The proximate cause must be evaluated on its own merits, or lack thereof. [“How Libertarians Ought to Think About the Constitution,” Politics and Prosperity, February 22, 2014]

There is, in sum, a strong legal case for secession, pace the Paulsens, who (strangely) view the Civil War — a war mind you — as legally dispositive. I have spelled out the legal case for secession (and the legal irrelevance of the Civil War) in several posts at Politics & Prosperity, including “Secession” (April 17, 2009), “Secession Redux” (July 2, 2009), “A Declaration of Independence” (March 30, 2010), and “The States and the Constitution” (September 6, 2014). I recommend that you read all of the posts (and the ones linked to within them), but if you don’t have the time to do that, consider this passage from “The States and the Constitution”:

Finally, in The Federalist No. 39, which informed the debates in the various States about ratification,  Madison says that

the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves….

That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act…. [underlining added]

As each State was free to ratify the Constitution (or not), so is each State legally free to withdraw its ratification, that is, to secede.

THE ONLY WAY OUT

When all is said and done, the only escape from the judicial tyranny that has arisen under the Constitution is to withdraw from the union it represents. Though an act of secession cannot represent the will of all the people of a State, it would almost certainly represent the wishes of a vast majority of the people of the seceding State. Given the impossibility of unanimous consent, I would gladly side with the pro-liberty secessionist forces of my State. The alternative is to march in lockstep to the incessant drumbeat that measures America’s descent into “soft” despotism.