Monday, October 3, 2011
Today at Public Discourse, I offer some reflections on the South Carolina Republican presidential forum where I had the privilege of being one of the questioners. I asked each of the candidates a question about the authority of Congress, pursuant to the power delegated to it by Section Five of the Fourteenth Amendment, to protect the unborn by enacting legislation enforcing the Section One due process and equal protection rights of persons. Of course, such legislation would represent a direct challenge to the ruling of the Supreme Court in Roe v. Wade. So my question invited candidates to state a position on the issue of judicial supremacy. In my Public Discourse essay, I note that
[n]othing in the Constitution itself confers upon the Supreme Court supremacy in constitutional interpretation. Even those founders, such as Hamilton, who interpreted the document as implying a power of judicial review (the Constitution does not expressly confer such a power) did not interpret that power as establishing the supremacy of the judicial branch over the others. Nor is judicial supremacy consistent with the structure or logic of the system of government established by the Constitution. It is true that under Article III of the Constitution the Supreme Court is supreme over the “inferior” federal courts, but that does not mean that its usurpations of the powers assigned by the Constitution to other branches of government, when they occur, must be treated by the president and Congress as beyond challenge.
Abraham Lincoln could not have been clearer in his rejection of judicial supremacy or more forceful in his denunciation of it as a mortal threat to republican government—government by and for the people, the type of government for which Lincoln was willing to fight a bloody civil war. The issue presented itself in his era in the context of a decision remarkably like Roe v. Wade. That was the Supreme Court’s ruling in the case of Dred Scott v. Sandford, denying the authority of Congress to restrict slavery in the federal territories and depriving blacks, even free blacks, of the rights of citizenship. Like Roe, Dred Scott was a case of extravagant judicial overreaching. It lacked any basis in the text, logic, or original understanding of the Constitution. It was a gross usurpation of the power of the people acting through their elected representatives in Congress.
In his First Inaugural Address, with the threat of Southern secession and civil war looming, Lincoln went out of his way to confront the Supreme Court on the issue:
[I]f 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.
For anyone interested, here is a link to my essay: http://www.thepublicdiscourse.com/2011/10/4055