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.