Published May 20, 2015
Review: The Constitution: An Introduction, by Michael Stokes Paulsen and Luke Paulsen (Basic, 368 pp., $29.99)
We live in a legal culture besotted by the myth of judicial supremacy. According to this myth, the Constitution means whatever five Supreme Court justices claim it means, and all other governmental actors are duty-bound to abide by that supposed meaning.
This mistaken concept of judicial supremacy is often confused with the power of judicial review — the ability of courts to review the constitutionality of laws and regulations that they are asked to apply. It is one thing for the Supreme Court to decline to apply a law that it deems to be unconstitutional; it is quite another for it to maintain that presidents, members of Congress, and state officials must likewise regard the law as unconstitutional and, further, must accept and follow the rationale of the Court’s decision.
Thus, Abraham Lincoln, in his first inaugural address, famously defended his rejection of the Dred Scott ruling: “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 people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” Lincoln’s actions as president were faithful to his words. In defiance of the dual holdings of Dred Scott, he signed into law a bill that outlawed slavery in the federal territories, and he instructed the State Department to issue passports to free blacks (thus recognizing them as citizens). Lincoln also refused to obey Chief Justice Taney’s order, in Ex parte Merryman, to release a prisoner from military custody.
The Court did not propound the myth of judicial supremacy until 1958. But when it did so (in Cooper v. Aaron), it tried to concoct a venerable history. It falsely contended that Marbury v. Madison — the landmark 1803 ruling that expounded the power of judicial review — “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution.” Even more brazenly, without any mention of Lincoln’s compelling refutation (or of Thomas Jefferson’s and Andrew Jackson’s similar contestations), the Court asserted that the concept of judicial supremacy had “ever since [Marbury] been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.”
The myth of judicial supremacy pervades our legal culture, even if it is often invoked only selectively to protect and leverage favored rulings. Although there are some scholars, both on the right and on the left, who challenge it, most lawyers across the ideological spectrum, having suffered the detriment of a modern legal miseducation, embrace it. In our modern regime of government by judiciary, the non-lawyer may readily be pardoned for doing the same.
This impressive book by the father-son duo of Michael Stokes Paulsen and Luke Paulsen dispels with admirable clarity this and other common and “thoroughly engrained misconceptions about the Constitution, constitutional history, and constitutional law.” Paulsen père is an accomplished professor of constitutional law and has long ranked very high in the small group of legal academics whose work I admire. (At my encouragement, he recently joined me as a regular contributor to National Review’s Bench Memos blog.) Paulsen fils is a recent graduate of Princeton. Their book, which they worked on together as a vacation project over eight summers, is in its own way an eloquent testament to the Constitution as a covenant across generations.
The Paulsens intend their book both for college students and for the general public, but most lawyers and law students would also benefit from it. They recount the history of the Constitution as a gripping story: The Constitution begins in 1787, as “a group of distinguished Americans gathered in Philadelphia . . . plot the overthrow of their own government.” It is “dramatically preserved and radically transformed” by the Civil War, the “single most important act of constitutional interpretation in America’s history.” And it survives or thrives, through eras of betrayal, restoration, and controversy, to the present day.
In their first five chapters, the Paulsens explore the genesis and design of the original Constitution. They highlight its four cornerstone features — the novelty of a written “supreme Law of the Land”; its creation of a republican, or representative, form of government; the separation of powers among the three federal branches; and the federalist division of power between the federal government and the states. They then examine in detail the powers of each federal branch, and they survey the package of Bill of Rights amendments. Alongside their praise for the genius of the Framers, they expose and condemn the several critical respects in which the Constitution protected slavery. While pointing out that the common attack on the three-fifths clause has things backward (it was in the interest of the slaveholding states to count slaves fully for purposes of representation), they explain how the clause gave the South a “huge, distorting advantage” in favor of pro-slavery presidents and Congresses.
In their second set of five chapters, the Paulsens provide a lively and informed overview of how the Constitution has played out over our nation’s history. They take positions — often firmly, sometimes less so — on a host of constitutional cases and questions. Although they don’t label themselves advocates of “judicial restraint,” they do maintain (soundly, in my view) that the Constitution leaves “the bulk of policy choices to the people, through elected, representative institutions” and that “it is improper to read one’s views of desirable policy into” the Constitution. Yes, courts may override democratic enactments, but only when those democratic enactments are, after careful analysis, clearly incompatible with the Constitution.
Libertarians will bristle at the Paulsens’ condemnation of the so-called Lochner era (from 1905 to 1936) as part of a broader post-Reconstruction perversion of the Fourteenth Amendment “into a device for invalidating state legislative policy choices on matters of social welfare and economic regulation.” And liberals will object to their criticisms of the “modern era of judicial activism” (from 1960 to the present), including their cogent denunciations of the Court’s pro-abortion diktats in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).
It is inevitable, of course, that virtually no one will agree with all of the Paulsens’ assessments. For my part, I’m skeptical — to cite but one example — of their claim that the Court “deserves credit” in sex-discrimination cases for supposedly “working its way toward a principled standard” that is consistent with the original meaning of the equal-protection clause. More broadly, the Paulsens’ rosy take on how the Constitution “has arguably worked itself pure” seems belied by their critique of so many of the Court’s persisting precedents. But the Paulsens seek to spur conversations about the Constitution, not to end them.
Far from being heavy-handedly didactic, the Paulsens allow their lessons to emerge organically from the stories they tell. Consider, for example, their case against the myth of judicial supremacy. In the debate over ratification, they present Alexander Hamilton’s famous defense, in Federalist 78, of the power of judicial review. That power, Hamilton understood, derives from the supremacy of the Constitution, not of the judges. Because the Constitution is supreme over ordinary laws, judges must give effect to it rather than to laws that conflict with it. Chief Justice Marshall’s reasoning in Marbury “tracks almost precisely Hamilton’s argument” and, the Paulsens show, does “not rest on any claim of judicial supremacy.” They recount in detail Lincoln’s fidelity to his own readings of the Constitution and his refusal to abide by Dred Scott or Merryman. The attentive reader will glean that the myth of judicial supremacy is flatly contrary to the principle of constitutional supremacy from which the power of judicial review flows.
The Court, to be sure, has significant institutional advantages in advancing and entrenching its mistaken readings of the Constitution. More than four decades after the Court’s power grab on abortion, and on the apparent cusp of a radical ruling that would forbid the people in the various states to retain the perennial definition of marriage, it is difficult to be hopeful that citizens will soon reclaim their rightful powers of self-government on these and other matters. Reading and reflecting on the Paulsens’ book would be a very good way to start.
– Mr. Whelan is the president of the Ethics and Public Policy Center.