The latest venture to confront the new Donald Trump era is what Hugh Hewitt calls his “conservative playbook for a lasting GOP majority.” This is the subtitle of The Fourth Way, his new book. Hewitt, the Chapman University Law School professor, former Reagan administration official, and talk radio host, is everyone’s favorite nice guy—a charming media personality, fair-minded debate moderator, and the author, so far, of 17 books. This one is his most ambitious.
“The notion that the Supreme Court comes up with the ruling and that automatically subjects the two other branches to following it defies everything there is about the three equal branches of government. Chris, the Supreme Court is not the supreme branch. And for God’s sake, it isn’t the Supreme Being. It is the Supreme Court.” –Mike Huckabee, Fox News Sunday, May 24 As superintendent of a national conversation on the Supreme Court’s hegemony over constitutional questions, former Governor Mike Huckabee (R-AR) is less than ideal. He implicitly but indefensibly denies the Supremacy Clause, more on which presently. Even by way of…
For the first post in this series, see here.
This post discusses the textual arguments supporting judicial review. In this area, there are two issues. The first is whether the Constitution takes priority over ordinary legislative action; the second is whether the courts get to determine whether legislation violated the Constitution.
It appears that virtually everyone agrees on the first issue that the Constitution takes priority over ordinary legislation. This appears to follow from the meaning of the Constitution (and perhaps as well from other provisions in the Supremacy Clause). It is the second issue where there is dispute: whether the courts get to determine whether legislation violated the Constitution or whether the courts should defer to the legislature’s determination that the legislation conformed to the Constitution. Put differently, where in the Constitution does it say the Courts get to say what the Constitution meant rather than the legislature?
During a recent trip to the National Archives, I saw one of the earliest known copies of Magna Carta in existence. And I remembered one of my favorite parts of Magna Carta, the “Law of the Land” clause:
No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny of delay right or justice.
This pronouncement, that neither life, liberty, nor property can be taken except by the “judgment of his peers or by the law of the land,” is the constitutional predecessor of our Due Process Clause. This also served as a basis for some notion of judicial review. Some argue that this history provides for a substantive component of law, rather than a mere procedural aspect.
Jonathan Mitchell’s recent article on Stare Decisis and Constitutional Text has received some attention. See here for the article’s abstract and here for a short post on it. While I have not studied the article carefully, I have digested its basic argument. Mitchell argues that the Supremacy Clause only establishes that the Constitution, federal statutes, and treaties are supreme law of the land. While the Clause therefore requires that these sources of law take priority over nonsupreme sources, such as state law, Mitchell maintains that it does not specify any rule of priority as between these supreme types of law. Mitchell also argues that judicial precedents are conspicuously absent from the listed types of supreme law. Therefore, such precedents are nonsupreme law that cannot take priority over the Constitution, federal statutes, or federal treaties.
Because Mitchell concludes that the Constitution is silent as to which of the three types of supreme law takes priority, the Courts are entitled to choose to which one to give priority. When they choose one type over another (such as the Constitution over federal statutes), they are not acting unconstitutionally. However, they could have chosen a different order of priority (such as federal statutes over the Constitution).
From this, Mitchell reaches some pretty unusual conclusions:
First, the Supreme Court cannot strike down federal statutes as unconstitutional based on a precedent that erroneously interpreted the Constitution. That would place a nonsupreme law (precedent) over a supreme law (a federal statute). But the Court can uphold a federal statute based on an erroneous precedent. The Constitution and federal statute are tied as supreme laws and therefore the Court has discretion to pick which one to enforce.
Thus, the Supreme Court can choose to follow erroneous precedents that expanded the Commerce Power during the New Deal. But, if the application of the Equal Protection Clause to the federal government is erroneous, the Court cannot follow that precedent, because that would place a nonsupreme law (precedent) over a supreme law (a federal statute).
Second, the Supreme Court cannot uphold as constitutional a state law based on a precedent that erroneously interpreted the Constitution. But the Court can strike down a state law based on a precedent that erroneously interpreted the Constitution. Neither the state law or the precedent is supreme law, so they are on a par and the Court can pick to which one to give priority.
Thus, if Home Building and Loan v. Blaisdell is an erroneous precedent that mistakenly allows contract impairments, the Court cannot allow a state law that effects such an impairment. That would permit a nonsupreme law (state law) to take priority over a supreme law (the Constitution). But if Roe v. Wade is an erroneous precedent, the Court can strike down a state law that restricts abortion based on Roe. That would involve two nonsupreme laws (precedent and state law) and the Court could decide to which one to give priority.