Op Ed: The Constitution Is More Than What Nine Justices Say It Is

This op ed. originally appeared on Dailycaller.com on February 21, 2017.

By: JEFF SIKKENGA

 ASHLAND, Ohio — February 24 is the 214^th anniversary of Marbury v. Madison, the landmark Supreme Court decision written by Chief Justice John Marshall in 1803.

We’re going to hear a lot about Marbury, the Supreme Court, and the Constitution during the Senate confirmation hearings of Judge Neil Gorsuch. Many people will say that Marbury established judicial supremacy – the idea that the Supreme Court’s interpretation of the Constitution is the final word on the meaning of the Constitution and must be accepted by the president, Congress, and the American people.

Judicial supremacy is taught widely in schools – from elementary school to law school – and accepted by almost everyone regardless of political persuasion or party affiliation, including the Supreme Court. In 1958, for example, the Justices cited Marbury in unanimously declaring that it is “settled doctrine” that the Supreme Court’s interpretation of the Constitution “is the supreme law of the land”.

But that’s a historical myth – and it can have some bad constitutional consequences.

The Marbury case itself involved William Marbury, one of the “midnight judges” appointed at the last minute by outgoing President John Adams, who had lost a bitter re-election campaign to Thomas Jefferson in 1800. Marbury’s commission as Justice of the Peace for the District of Columbia was never delivered because Jefferson ordered his new Secretary of State, James Madison, not to hand it over.

Marbury asked the Supreme Court to force Madison to deliver his commission under Section 13 of the Judiciary Act of 1789. While the Court agreed that Marbury had a right to his commission, it ruled that Section 13 was unconstitutional and void, and therefore it could not order Madison to give Marbury his commission. In this way, Marbury did affirm the Supreme Court’s power of judicial review – the power to interpret the Constitution and declare federal laws void if they violate the Constitution.

By “void,” however, John Marshall meant that the law did not control the legal decision of the Supreme Court, which must follow the Constitution above any contrary law. Marshall did not say that Congress had to obey the Supreme Court’s interpretation of the Constitution; he simply argued that the Court could not obey Congress’ interpretation. It had to decide Mr. Marbury’s legal case according to its own understanding of the Constitution.

For Marshall, judicial review was a shield to preserve the independence of the Supreme Court, not a sword to force the president, Congress, or the American people to accept its interpretation of the Constitution without argument or reason.

This is hardly a novel position. Thomas Jefferson, Andrew Jackson, and Franklin Roosevelt doubted whether the Supreme Court automatically has the only say on what the Constitution means. Even Abraham Lincoln declared in his First Inaugural Address 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.”

Obviously, we’ve come a long way from Marbury and Lincoln. In the weeks ahead, Americans will watch as the Senate holds hearings on Judge Gorsuch’s nomination, wondering what he’ll say about abortion, affirmative action, religious liberty, and guns. We’ll wait so anxiously because, to our minds, it is a Supreme Court justice’s job to tell us what the Constitution means. But if we adopt that view, we’ll forget that interpreting the Constitution is also the job of the president, Congress, the states, and especially the American people themselves.

On the 214^th anniversary of Marbury, we need to remember that while the Supreme Court may be the highest court in the land, the Constitution is higher still. While it is the Court’s job to interpret the Constitution, in our republic it is also the job of our elected officials – and, ultimately, our job too.

Jeffrey Sikkenga is Co-Director of the Ashbrook Scholar Program at the Ashbrook Center at Ashland University, Ashland, Ohio, where he’s a Professor of Political Science.