Most Americans have been taught that when the Supreme Court speaks, the constitutional question is settled. But that raises a very important question:
Krisanne Hall @KrisanneHall.com
Who gave the Supreme Court the authority to be the final judge of the limits of federal power?
The Constitution does not.
The Supreme Court is one branch of the federal government. Congress is another. The President is another. All three are created by the Constitution, and all three are limited by it.
That distinction matters.
The Constitution, Not a Branch of Government, Is Supreme
Article VI tells us what holds the highest legal authority in our constitutional system:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof…shall be the supreme Law of the Land.”
— U.S. Constitution, Article VI, Clause 2.
Notice the order.
The Constitution is supreme. Federal laws are supreme only when they are made in pursuance of the Constitution.
That means Congress cannot make something constitutional simply by passing a law. The President cannot make something constitutional simply by issuing an order. And the Supreme Court cannot transform an unconstitutional exercise of power into a constitutional one simply by approving it.
Every branch of the federal government is beneath the Constitution.
Then Who Is the Final Judge?
To understand that, we have to remember where government gets its authority in the first place.
The Constitution did not create the people. The people created the Constitution, and through it they created the federal government.
The Declaration of Independence expresses the principle plainly: governments derive their just powers from “the consent of the governed.”
Government possesses delegated authority. It does not possess inherent authority over the people who created it.
James Madison explained that this principle also applies when determining whether the constitutional compact has been violated. In his Report of 1800, Madison wrote that the right of the states to judge a dangerous violation of that compact must extend to violations by “the judiciary as well as by the executive, or the legislature.”
Think about the alternative.
If the federal government (SCOTUS) possesses the exclusive authority to determine the limits of its own power, then those limits exist only so long as the federal government chooses to recognize them.
That is not limited government.
The People Act Through Their States
The constitutional system did not place every safeguard against federal power inside the federal government itself.
The states retained their own sovereign authority.
Madison explained in Federalist No. 45 that the powers delegated to the federal government are “few and defined,” while those remaining with the states are “numerous and indefinite.”
The Tenth Amendment confirms the same structure:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The states were never intended to function as administrative subdivisions or colonies of the federal government.
Madison described the state legislatures as essential guardians against federal assumptions of power. In other words, the people were not expected merely to watch Washington exceed its constitutional authority and hope another part of Washington would correct it.
The people exercise political authority through their states.
They elect governors and state legislators. Those officials possess constitutional responsibilities of their own. And the people must hold them accountable to defend the authority reserved to the states and the people.
So, What Is the Supreme Court Supposed to Do?
The Supreme Court absolutely matters.
The judicial branch has an essential constitutional function. Courts decide actual cases and controversies and apply the Constitution and the law to the matters before them.
But application is not the same thing as invention.
The Constitution was written with meaning. The role of a judge is NOT to decide what the Constitution ought to mean today and then impose that meaning upon the nation.
When the meaning of constitutional language is disputed, the proper inquiry is into the text, the historical context, and the understanding of those who drafted and ratified it.
Think of it as you would a contract.
When lawyers and judges encounter disputed language in a contract, they do not simply assign the words whatever meaning seems preferable at the moment. They look for the meeting of the minds: What did the parties understand themselves to be agreeing to?
The Constitution deserves at least that much discipline.
It is written in English, not Mandarin. It doesn’t need interpretation. It needs application.
The Supreme Court therefore has constitutional authority to decide cases before it. That does not mean it possesses exclusive authority to redefine the Constitution or determine the limits of federal power for every other constitutional actor.
Judicial opinions matter. Precedent matters.
But neither replaces the Constitution itself.
No branch of government can logically be both limited by the Constitution and at the same time possess an unlimited authority to define the extent of its own power.
The Final Responsibility Belongs to the People, Through Their States
This is the part of constitutional government that is easiest to forget.
The Constitution begins with three words:
We the People.
A constitutional republic requires more from its citizens than voting every few years and then waiting for federal officials to tell us what the Constitution allows.
We must know what authority we delegated.
We must know what authority we did not delegate.
We must know the structure our Constitution created.
And we must elect state representatives who understand their responsibility to hold the federal government within its constitutional boundaries and then hold those representatives accountable when they fail to do so.
The Supreme Court is not the author of the Constitution.
It is not superior to the Constitution.
And it is not the exclusive final judge of the limits of the federal government of which it is itself a part.
The Constitution remains the supreme law of the land. The people remain sovereign. And in our federal system, the people exercise one of their most important constitutional checks through the states they created.
The article, although correct as to the position of our forefathers has since been changed through precedence. Sorry to break the news but the Supreme Court took this as their right in. . It’s basically NON-REVERSIBLE!
It did so as early as 1803, when almost all founding Fathers were still alive. The SC established the power of judicial review—the authority to interpret the Constitution and strike down conflicting laws—in the landmark 1803 case Marbury v. Madison. [1] (https://www.supremecourt.gov/about/constitutional.aspx), [2] (https://constitution.congress.gov/browse/essay/intro-8-1/ALDE_00001302/%5B'issues‘,%20’and’,%20’controversies’,%20’of’,%20’congress’%5D)
In Marbury v. Madison (1803), Chief Justice John Marshall asserted the judiciary’s role in deciding what laws conform to the Constitution… The Principle: The Court argued that an ordinary act of legislature cannot override the supreme law of the land, giving courts the duty to say what the law is.
EQUAL JUSTICE UNDER LAW”-These words, written above the main entrance to the Supreme Court Building, express the ultimate responsibility of the Supreme Court of the United States. The Court is the highest tribunal in the Nation for all cases and controversies arising under the Constitution or the laws of the United States. As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.
The Supreme Court is “distinctly American in concept and function,” as Chief Justice Charles Evans Hughes observed. Few other courts in the world have the same authority of constitutional interpretation and none have exercised it for as long or with as much influence. In 1835, the French political observer Alexis de Tocqueville noted the unique position of the Supreme Court in the history of nations and of jurisprudence. “The representative system of government has been adopted in several states of Europe,” he remarked, “but I am unaware that any nation of the globe has hitherto organized a judicial power in the same manner as the Americans. . . . A more imposing judicial power was never constituted by any people.”
The unique position of the Supreme Court stems, in large part, from the deep commitment of the American people to the Rule of Law and to constitutional government. The United States has demonstrated an unprecedented determination to preserve and protect its written Constitution, thereby providing the American “experiment in democracy” with the oldest written Constitution still in force.
The Constitution of the United States is a carefully balanced document. It is designed to provide for a national government sufficiently strong and flexible to meet the needs of the republic, yet sufficiently limited and just to protect the guaranteed rights of citizens; it permits a balance between society’s need for order and the individual’s right to freedom. To assure these ends, the Framers of the Constitution created three independent and coequal branches of government. That this Constitution has provided continuous democratic government through the periodic stresses of more than two centuries illustrates the genius of the American system of government.
The complex role of the Supreme Court in this system derives from its authority to invalidate legislation or executive actions which, in the Court’s considered judgment, conflict with the Constitution. This power of “judicial review” has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a “living Constitution” whose broad provisions are continually applied to complicated new situations.
While the function of judicial review is not explicitly provided in the Constitution, it had been anticipated before the adoption of that document. Prior to 1789, state courts had already overturned legislative acts which conflicted with state constitutions. Moreover, many of the Founding Fathers expected the Supreme Court to assume this role in regard to the Constitution; Alexander Hamilton and James Madison, for example, had underlined the importance of judicial review in the Federalist Papers, which urged adoption of the Constitution.
Hamilton had written that through the practice of judicial review the Court ensured that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of the people. And Madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. If every constitutional question were to be decided by public political bargaining, Madison argued, the Constitution would be reduced to a battleground of competing factions, political passion and partisan spirit.
Despite this background the Court’s power of judicial review was not confirmed until 1803, when it was invoked by Chief Justice John Marshall in Marbury v. Madison. In this decision, the Chief Justice asserted that the Supreme Court’s responsibility to overturn unconstitutional legislation was a necessary consequence of its sworn duty to uphold the Constitution. That oath could not be fulfilled any other way. “It is emphatically the province of the judicial department to say what the law is,” he declared.
In retrospect, it is evident that constitutional interpretation and application were made necessary by the very nature of the Constitution. The Founding Fathers had wisely worded that document in rather general terms leaving it open to future elaboration to meet changing conditions. As Chief Justice Marshall noted in McCulloch v. Maryland in 1819, a constitution that attempted to detail every aspect of its own application “would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. . . . Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.”
The Constitution limits the Court to dealing with “Cases” and “Controversies.” John Jay, the first Chief Justice, clarified this restraint early in the Court’s history by declining to advise President George Washington on the constitutional implications of a proposed foreign policy decision. The Court does not give advisory opinions; rather, its function is limited only to deciding specific cases.
The Justices must exercise considerable discretion in deciding which cases to hear, since approximately 5,000-7,000 civil and criminal cases are filed in the Supreme Court each year from the various state and federal courts. The Supreme Court also has “original jurisdiction” in a very small number of cases arising out of disputes between States or between a State and the Federal Government.
When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.
Chief Justice Marshall expressed the challenge which the Supreme Court faces in maintaining free government by noting: “We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”