Judicial Review Is in the Constitution's Logic, and Judicial Supremacy Is Not

Somewhere along the way a generation of Americans was taught that the Constitution means whatever nine lawyers in Washington say it means, and that the other two branches of government are supposed to nod. Try asking where that rule is written. Try Article I. Try Article II. Try Article III. Go ahead; the text will wait, as it has for two centuries, and it is a patient document.

You will not find it, and that absence is the subject of this post. There are two propositions that sound alike and are not. The first is judicial review: a court deciding a case may refuse to apply a law that conflicts with the Constitution. The second is judicial supremacy: the Supreme Court's reading of the Constitution binds every other officer of government in every circumstance, and no other branch may act on a different understanding. The first follows from the logic of a written Constitution. The second does not, and the Founders did not build it.

Terms and claims

Let us define our terms with some care, because the whole debate turns on slippery words.

Judicial review is the power of a court, in deciding a case before it, to decline to enforce a statute or an executive act that violates the Constitution.

Judicial supremacy is the further claim that the Supreme Court's interpretation of the Constitution is the final and binding meaning for everyone, including the President and Congress, in all their constitutional judgments.

Departmentalism, sometimes called coordinate review, is the view that each of the three branches has an independent duty to interpret the Constitution within its own sphere, and that no branch is bound to adopt another branch's reading when it performs its own constitutional functions.

The argument runs in five steps.

1. A written Constitution is law, and law that conflicts with higher law must give way.

Two. Judges, deciding cases, must say which law governs, and so must sometimes decline to apply a statute. That is judicial review. Three. The President and members of Congress swear the same oath to the same Constitution, and each must therefore decide what it requires of him. Four. Nothing in the text makes the courts' interpretation binding on the others beyond the case decided. Five. The Founders and the great statesmen who followed them understood this, and said so.

Now let us earn each step.

Where judicial review comes from

The Constitution does not use the phrase "judicial review." It does not need to. Article VI, Clause 2 declares that the Constitution, the laws of the United States made in pursuance of it, and treaties are "the supreme Law of the Land." A statute not made "in pursuance" of the Constitution is not part of that supreme law. A judge deciding a case must choose between two conflicting rules, and the supreme one prevails.

Hamilton made the argument in Federalist 78. "The interpretation of the laws is the proper and peculiar province of the courts," he wrote. "A constitution is, in fact, and must be regarded by the judges, as a fundamental law." If a statute and the Constitution conflict, he reasoned, the judges ought to prefer the one that binds them more, and the Constitution, as the act of the people, binds them more than a statute made by the people's agents.

Chief Justice Marshall gave the argument its most famous form in Marbury v. Madison (1803), writing that it is "emphatically the province and duty of the judicial department to say what the law is." The reasoning was a matter of logic about cases. Courts apply law to disputes. When two laws conflict, the court must decide which applies. We discuss how modestly Marshall used that power in Marshall Gave Up William Marbury's Commission to Win the Bigger Argument.

Notice what Marshall claimed and what he did not. He claimed that in a case before the Court, the Court must say what the law is. He did not claim that the President and Congress are bound, outside the case, to adopt the Court's reading in everything they do. That claim came later.

Federalist 78 and Federalist 49: the Founders' own words

Federalist 78 is the best source for judicial review, and it is also a warning against exaggerating it. Hamilton calls the judiciary the "least dangerous" branch because it has "neither force nor will, but merely judgment." The courts hold neither the sword nor the purse. Their power is persuasion.

A branch with merely judgment cannot be the master of the others. Hamilton's argument for judicial review was an argument about the duty of a court in a case, and not an argument for a sovereign interpreter. We take up whether he was right in Federalist 78 Called Courts the Least Dangerous Branch. Was Hamilton Right?.

Federalist 49, by Madison, speaks directly to the question of who settles disputes between the branches. Madison rejected Jefferson's proposal that conventions be called whenever two branches disagree, but in the course of the argument he wrote that the several departments, being perfectly co-ordinate by the terms of their common commission, cannot pretend to an exclusive or superior right of settling the boundaries between their respective powers. That is as clear a statement of the departmentalist principle as the Founding offers. Neither branch has the last word over the others by right of position. The people, Madison concluded, are the only legitimate fountain of power, and recourse to them is the ultimate check.

The view from the three Presidents

The Founders' successors in the White House acted on this understanding. Three examples show it.

Jefferson

Thomas Jefferson believed the Sedition Act of 1798 was unconstitutional, and when he became President in 1801, he remitted the sentences of those who had been convicted under it. The courts had enforced the Act, and some had upheld it. Jefferson's view was that the executive, in deciding whom to prosecute and whom to pardon, was entitled to judge the Act's constitutionality for himself. In a letter to Abigail Adams in 1804, he argued that each branch is independent in deciding the Constitution's meaning within its own sphere, and that nothing gave the judges a right to decide for the executive, a view he said would make the judiciary a despotic branch.

Jackson

In July 1832, Andrew Jackson vetoed the bill to recharter the Second Bank of the United States. The Supreme Court had held the Bank constitutional in McCulloch v. Maryland (1819). Jackson, in his veto message, answered that the decision did not bind him. He wrote that each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, not as it is understood by others. He added that the opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and that on this point the President is independent of both.

You may think Jackson was wrong about the Bank. Many conservatives believe McCulloch was correctly decided, and we study how Marshall hedged it in McCulloch v. Maryland Opened a Door, and Marshall Swore It Had Walls. But Jackson's claim about the veto power was not an eccentricity. It was the working theory of the early republic: a President who believes a bill is unconstitutional may veto it, whatever the Court has said.

Lincoln

The most important example is Abraham Lincoln's response to Dred Scott v. Sandford (1857), in which Chief Justice Taney declared that Black Americans could not be citizens and that Congress could not forbid slavery in the territories. Lincoln accepted the decision as binding on the parties to the case, but he refused to treat it as a rule that bound the political branches or the people forever.

In his first inaugural address on March 4, 1861, Lincoln said that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal. He did not call for defying courts. He called for the people, through elections and legislation, to treat a decision as a decision in a case, and to contest it by lawful means.

Dred Scott is the warning every fan of judicial supremacy should read. We examine why in Dred Scott Is the Warning Every Fan of Judicial Supremacy Should Read. A doctrine that required Congress and the President to treat Taney's opinion as the permanent meaning of the Constitution would have required them to treat slavery as nationally protected.

Cooper v. Aaron and the claim of supremacy

The modern assertion of judicial supremacy has a precise source: Cooper v. Aaron (1958). Arkansas officials, including the governor and legislature, resisted a federal court order to desegregate Little Rock's Central High School, a few years after Brown v. Board of Education. The Court, in an unusual opinion signed by all nine justices, rejected the claim that the state could nullify the federal decision. It wrote that the federal judiciary is supreme in the exposition of the law of the Constitution, and that the interpretation of the Fourteenth Amendment enunciated in Brown is the supreme law of the land.

Let us be fair to the case. The result was right. State officials may not defy a federal court's order in a case, and the order in that case bound the state's officers as parties. Segregation was a violation of the Fourteenth Amendment, and Governor Faubus and the Arkansas legislature had no authority to nullify the judgment. A conservative who values the rule of law must say so plainly.

But note the overreach in the language. The opinion went beyond the point needed to decide the case and claimed that the Court's interpretation is the supreme law of the land, as though the Court's opinions were part of the Constitution. That is a different proposition from saying a judgment binds the parties. The first states a fact about courts and cases. The second claims a power over every public officer on every question.

The Constitution's own words do not support the second. Article VI makes the Constitution, not the Court's opinions about it, the supreme law. The oath in Article VI, Clause 3 binds all legislative, executive and judicial officers, state and federal, to support "this Constitution." It does not say "this Constitution as the Supreme Court construes it."

The strongest objection, stated fairly and answered

The best objection to departmentalism is the one the Court gave in Cooper itself, and the one many respected scholars give today. Put at its strongest, it runs: "A constitution that each officer reads for himself is no constitution. If the President can ignore a court's reading, and Congress can pass a law the Court has struck down, and states can do the same, we will have a different Constitution in every office. The point of a written constitution is stability and the rule of law. Someone has to have the last word, and the Court is the only branch whose job is to interpret the law."

It is a serious argument. We answer it point by point.

One. Departmentalism does not mean defiance of judgments. Every departmentalist of note, Jefferson, Jackson and Lincoln included, accepted that a judgment in a case binds the parties. The President must carry out a court's order against the government in a case before the court. What he need not do is treat the opinion's reasoning as a command about everything else he does. A President who believes a statute unconstitutional may decline to enforce it, or veto it. A court that disagrees may rule against him in a case.

Two. Stability does not require supremacy. The Court's precedents already have great weight through stare decisis, as Stare Decisis Explained, and the Factors Justices Weigh Before Overruling explains, and lower courts must follow them. Departmentalism leaves that structure alone. It addresses only whether other branches must adopt the Court's reading when performing their own constitutional duties, such as vetoing a bill or deciding whom to prosecute.

Three. The alternative concentrates power in a way the Founders feared. Madison wrote in Federalist 51 that the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. A rule that one branch's interpretation always binds the others removes that resistance. If the Court alone says what the Constitution means for everyone, then Congress and the President are no check on the Court.

Four. The judges themselves can be wrong, and have been. Dred Scott was wrong. Plessy was wrong. Korematsu was wrong, as Korematsu Was Finally Repudiated in 2018, and Its Lesson Is About Deference explains. A system that obliges the other branches to treat a mistaken opinion as the Constitution until the Court itself reconsiders is a system that depends on the Court being good. Hamilton would not accept that premise, and neither should we.

Five. The Court itself leaves some questions to the other branches. Its political-question doctrine says that certain constitutional disputes belong to Congress or the President. That doctrine makes sense only if the Court is not the sole interpreter of every clause.

What this means in practice

Departmentalism is a theory of restraint on all three branches. It tells the President to refuse to enforce a plainly unconstitutional statute. It tells members of Congress that they must ask whether a bill is constitutional before voting for it, rather than leaving the question to the courts. It tells judges that their power is a judgment in a case, not a pen to write the Constitution anew.

The point has a practical edge for conservatives. We spend a great deal of energy on who sits on the Court, and rightly so. But if the Court is the only interpreter of the Constitution, then the other branches have no reason to take the text seriously, and a justice's error becomes the nation's law. A healthier practice is one in which Congress debates constitutionality before it passes a law, the President thinks about it before he signs, and the people, at the ballot box, hold both accountable. That is the architecture the Founders drew. It reaches from The Exceptions Clause Gives Congress a Power Over the Courts It Rarely Uses, where Congress holds a check on the courts, to the oath each official swears.

There is also a caution. Departmentalism is not a license for any official to ignore any ruling he dislikes. It is a limited principle. It applies where the Constitution gives that branch its own function, such as a veto, a pardon or a decision whether to prosecute, and it never excuses refusing to obey a court's order in a case to which the official is a party. A President who defies a lawful judgment is not exercising departmentalism. He is breaking the rule of law. And a state that defies a federal court is acting without any constitutional support, as Cooper correctly held.

The case in brief

1. Judicial review, the duty of a court deciding a case to decline to apply an unconstitutional law, follows from the Supremacy Clause and the logic of a written Constitution, as Federalist 78 and Marbury v. Madison explain.
2. Judicial supremacy, the claim that the Court's reading binds every other officer on every question, appears nowhere in the text, and Article VI's oath binds officers to the Constitution itself.
3. Madison in Federalist 49, Jefferson, Jackson in 1832 and Lincoln in 1861 all held that each branch interprets the Constitution within its own sphere.
4. Cooper v. Aaron (1958) was right that state officials could not defy a federal judgment, but its language claiming supremacy went beyond what the case needed.
5. Departmentalism leaves judgments binding on the parties and precedent weighty, and it restores the Founders' check, with each branch resisting encroachment by the others.

What you can do: read Article VI, Clause 3 and write to your member of Congress asking whether he or she reviews the constitutional basis of a bill before voting for it.