Politicizing the Constitution Is Necessary and Proper


“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 dispute, he may share his opponents’ ill-conceived views of constitutional conflict.

The conversation is worth having, nonetheless.

Huckabee’s recent denial of judicial supremacy appeared to scandalize Foxs Chris Wallace. The reason is the lawyerizing of constitutional affairs. Americans search for precision and finality in a constitutional system that is instead built for ongoing conversation and conflict. The question is not which branch is “expert” enough to have the final say at any particular moment, but rather the balance between the branches over time.

Constitutional conflict should upset neither Wallace nor the rest of us. It might be more problematic were it limited to discrete moments that led to institutional crisis or paralysis, but Publius’ model holds it to be an organic and ongoing process. The Constitution does not render authoritative, final meanings captured as snapshots in time. These meanings instead resemble time-lapse photographs articulated by interaction between the executive, legislature, and judiciary.

This is not to say that a timeless meaning is absent from the Constitution. The question is how that timeless meaning is authoritatively rendered in politics. This is obscured by Huckabee’s making his case via what constitutional lawyers call a bad vehicle: the Supreme Court’s likely ruling requiring the recognition of same-sex marriages. States, he says, could defy it. But a Calhounian state defying the national government by obviously violating the Supremacy Clause is entirely different from a branch of the national government asserting its authority in conflict with a coordinate branch of the national government.

The better hypothetical is the one about which Wallace interrogated Huckabee: Richard Nixon’s tapes, which the Supreme Court, by an 8 to 0 vote, ordered him to surrender to the Watergate prosecutor. Would it be “up in the air,” Wallace asked, whether a President Huckabee in such a situation “is going to obey the Supreme Court?”

That gets to the heart of the matter: a sitting President asserting executive privilege vis a vis a Supreme Court asserting judicial authority. Huckabee, who quickly “want[ed] to get back to the main point here,” was unwilling to provide the answer that would not have shocked the Founders, which is: Yes, up in the air. Nixon would have been within his constitutional authority to tell Chief Justice Burger he was welcome to come and get the tapes if he thought he could get past the guys posted at the front gate of the White House with Tommy guns.

The conversation, of course, does not end there—if we thought it did, we would be trying to replace judicial supremacy with presidential supremacy. Had Nixon defied the Court, he would then have been subject to impeachment. Had Congress acted recklessly with impeachment, it would then have faced the voters. All knew this and acted accordingly, which is another way of saying that, in the final analysis, deliberate public opinion—public opinion deferred and therefore seasoned by the separation of powers—held sway.

To be sure, the Nixon example reflects all three branches dealing with ultimate issues and therefore ultimate authorities: defiance of court orders, impeachment, and the like. But the branches can conflict and converse in any number of other less fundamental ways. Congress corrected Employment Division v. Smith (1990) with the Religious Freedom Restoration Act of 1993, for example, which eventuated in Burwell v. Hobby Lobby (2014).

The problem today—what does make acts of presidential unilateralism unilateral, and acts of judicial supremacy supreme—is that this system only works in the context of an ongoing conversation-cum-conflict in which all three branches engage. When one capitulates, as Congress has, the others are allowed to stand supreme, as the Court now does where constitutional interpretation is concerned.

Yet as Michael Stokes Paulsen and Luke Paulsen have recently reminded us, the ethic of total deference to Supreme Court opinions is a relatively recent constitutional innovation. The fuller, more original American tradition, they argue, is Lincoln’s, which held that at least until precedents were “fully settled,” the Supreme Court was owed deference only with respect to the immediate parties to a case. Meanwhile, the political system was permitted—and in fact duty-bound—to continue asserting its understanding of the Constitution.

This was Jefferson’s understanding, and Madison’s too. Jefferson wrote that “certainly there is not a word in the Constitution” elevating the judiciary over the other branches with respect to constitutional interpretation. Madison, significantly, objected not to the decision in McCulloch v. Maryland (1819) but to its method. He wished the Court had stuck to deciding the immediate case rather than promulgating abstract doctrine about constitutional meaning, and intriguingly, he also preferred that justices deliver their opinions seriatim—one by one—rather than decreeing a single, authoritative opinion. That approach would have allowed precedent to accumulate more gradually rather than in sweeping pronouncements of abstraction.

Seeing this as a matter of intra-branch conversation and conflict does not render what people have come to expect: absolute finalities when it comes to constitutional meaning. But that expectation is an artifact of a contemporarily legal, rather than a classically political, understanding of the Constitution.

To see this, we must overcome the static conception of conflicts assessed at a single moment in time. So must Huckabee. The question is not who prevails concerning one  issue at one moment. By hitching his argument to a single case, decided at a discrete moment—and an intensely controversial one at that—Huckabee becomes susceptible to a static interpretation in which he simply substitutes the supremacy of another branch (or worse, as he articulates it, the states) for the judiciary.

We do not have a static model, though. The Constitution has a fixed meaning, but its mechanisms of authority are more fluid. Its authority is captured in that motion, not in the discrete, dramatic peaks (or valleys) in our public affairs. The enduring stability of Publius’ system transcends these dramas precisely because all three branches participate in achieving it across time rather than at single moments in time.

Reader Discussion

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on June 04, 2015 at 17:23:31 pm

Donald Devine had a brilliant essay in this blog, "When Is “the Law” Violated Under the Constitution, Anyway?", April 28, 2015, that discussed the same topic.

I don't have much, if anything, to disagree with in this post. But it's my lunch hour and I'm bored, so I'll throw a wildcard into the deck just for conversation's sake, this, one of my pet topics.

Another power not discussed (in either post) is the role of the states in controlling their government through their power to amend the Constitution. Where most of the activity in the national government occurs between the three branches, the states can also contribute to the fray by threatening to impose amendments directly through their Article V power. This has happened in the past, where the states have approached the two-thirds majority needed to trigger an event.

The states' Article V power as originally created is somewhat impolitic. It has the states condemning their own national government by implying incompetence on the part of some members of government, especially Congress, since Congress should be making any necessary amendments itself. If pressed by the states, a convention of states could have negative ramifications on international relations as well as national disruptions such as fiscal harms.

The more recent attempts at a COS have been generally unworkable, since they are attempts to implement single item reforms. Single item reforms are always partisan in character, otherwise they would be handled in Congress, so they have difficulty getting two-thirds support, and would have even greater difficulty getting three-fourths approval.

The most interesting thing I find about the COS is a theoretical. What if the states actually got together and applied for a COS and Congress ignored it? And then the states went ahead and held the COS anyway, and three-fourths approved the amendments?

As a political matter, the amendments would be made to the Constitution.

What this theoretical shows is that the state governments have a dominant role in limiting the national government. In the great scrum between the executive, legislative, judicial and the states over which way to go, even though the states are rarely heard from in this respect, the states have the dominant role. The states have the ultimate say. The states can overrule the three federal branches if absolutely necessary.

Will that ever happen?

Nah. The three branches are too good at brinksmanship.

Will a COS ever happen?

Not without a great deal of statesmanship. The convention would have to be an open convention, not a limited one, to eliminate partisan negation. So the topic of the convention would have to be general and non-partisan in nature. It would probably have to be something like a consideration for a second Bill of Rights, to help give guidance to the three branches, per their stately request of course.

A large group of states would have problems coordinating something like this, so a single state would probably drive the effort. Per the First Amendment, it probably would write a petition for redress of grievances, backed with a temporary nullification of some related federal taxes as a motivator while the petition is being considered. It would include in the petition a bill of rights to address some problem areas in government. It would include an open addendum so other states and the branches could add items to the petition. It would address the petition to its sister states in their amending role, and not to the legislature, court or executive. The special convention would, if set up well, be made up of state judges and constitutional scholars, probably two or three from each state.

In theory, the states could impose firmer limits on the national government, assuming that the states understand the general theory and the need for statesmanship, and assuming that a small but vocal minority didn't mess it up by spreading Fear, Uncertainty and Doubt. The public would never support any amendment that made substantial changes to the Constitution. But a expanded bill of rights? Maybe.

The fluid motion of authority of government also includes the power of states themselves, although that power remains implied and abstract and has yet to be fully applied to a national issue.

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Scott Amorian
on June 04, 2015 at 22:16:06 pm

I agree with Huckabee, but I don't think he is making the straw man argument that you are saying he is making. He is saying that the court is just one branch of government, that it cannot write laws. That is true. But it can say what is unconstitutional, it just cant create law. So lets say, after a ruling that the court says it violates the equal protection clause for the state to recognize marriages between hetrosexuals but not homosexuals. Well the legislature of a state could decide to stop recognizing any marriages at all. Maybe it decides to instead have domestic partnerships for everyone (homosexual and hetrosexual), and leave marriage to the churches. Surely that would be constitutional and not a Calhounian argument right? Meanwhile a president Huckabee could try to appoint judges to get it overturned. The constitution doesn't just mean whatever the Supreme Court says it means, it is ultimately up to the people to decide that. Now I am not saying that Huckabee's interpretation of the constitution is correct as to the equal protection clause (I suspect I quite disagree with him on that), but on his rejection of judicial supremacy I think he is quite right.

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Devin Watkins
on June 05, 2015 at 08:45:25 am

[…] Politicizing the Constitution Is Necessary and Proper […]

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Excuses, Excuses - Freedom's Floodgates
on June 08, 2015 at 22:00:08 pm

Due Process applies to persons, not sexual desire/inclination/orientation. Regardless of our desires/inclinations, persons are, in essence, sons and daughters, brothers and sisters, husbands and wives, fathers and mothers.
What separates marriage from every other form of Loving relationship, is the ability and desire to exist in relationship as husband and wife. Marriage cannot be both existing in relationship as husband and wife, and not existing in relationship as husband and wife, simultaneously. The Court has already ruled that it is not unconstitutional to exist in relationship as husband and wife and thus be married. Every man is free to choose a woman to be his wife, and every woman is free to choose a man to be her husband, as long as that particular man and woman have the ability and desire to exist in relationship as husband and wife. In order to expand the marital relationship to same-sex couples, the Court would first have to show that existing in relationship as husband and wife, which consists of both a man and woman united in marriage as husband and wife, is discriminatory. Then, In order to accommodate two persons of the same sex, the Court would have to remove the necessary requirement for a marriage contract, which is the ability and desire to exist in relationship as husband and wife, thus invalidating the validity of a valid marriage contract, while promoting marriage fraud and adultery. If the Court then rules that the Constitution requires that they give special marital privileges to some persons who do not have the ability and desire to exist in relationship as husband and wife, they must grant these same marital privileges to all persons who do not have the ability and desire to exist in relationship as husband and wife, as any relationship can know be defined as marriage if one so desires as marriage is no longer, in essence, existing in relationship as husband and wife. The State, no longer having the ability to recognize the essence of marriage, would no longer have the authority to declare a man and woman have been joined together as husband and wife.

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on June 10, 2015 at 11:10:13 am

One could argue that it is not politicizing the Constitution to provide one's citizens with a means of acquiring affordable Health Insurance that serves to affirm and sustain human life. It is totally unconstitutional for an Administration Agency, to change the letter of a Law, after a Law was passed, through a Contraception Mandate, that is not Life-affirming or Life-sustaining, and in some cases, destroys a human life, and has served as a means to violate our inherent Right to Religious Liberty, before said Law was "ripe", by letting it be known that the Administration Agency intends to impose an obscene fine of $36,500 per employee per year, on those employers who desire to provide their employees with Health Insurance, and not contraception, when the fine for not providing Health Insurance at all is $2,000 per employee per year, clearly a violation of the principle of proportionality, that can logically be construed as an attempt to "influence the recipient" of said fine, while violating The First and Eighth Amendment, simultaneously.

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.