By David C. Reardon, Ph.D.
Hardly a year passes without five of nine Supreme Court justices declaring “the final word” on a controversy in constitutional law while their four dissenting colleagues complain that the majority is subverting the Constitution. This year the “final word” established a constitutional right to same-sex marriage.
Is this what the original 13 states ratifying the Constitution intended?
No. Ironically, the idea that the Supreme Court has the final word on interpreting the Constitution is not in the Constitution.
Instead, all three branches of government have equal authority to interpret the Constitution.
This was argued by President Andrew Jackson in 1832: “Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. … The opinion of Judges has no more authority over Congress than the opinion of Congress has over the Judges, and on that point the President is independent of both.”
Similarly, Chief Justice John Marshall in 1804 argued that Congress could and should exercise its authority to reverse “legal opinions deemed unsound” through legislative powers rather than impeaching wayward justices.
In our system of checks and balances, the Constitution explicitly provides Congress the authority to limit the jurisdiction of the courts. This means that with sufficient congressional will, nearly every constitutional issue taken up by federal courts could be reversed by a statute that includes a prohibition against federal courts hearing challenges of that statute. Alternatively, Congress can set up courts with special jurisdiction specifically to enforce that statute.
Wisely, Congress has rarely restricted the jurisdiction of the courts. After all, there is real value in allowing the courts to take up almost any issue precisely so new issues can be vetted, debated and analyzed in adversarial proceedings that help to inform public debate.
Heading the government’s enforcement arm, the president has an even more direct opportunity to refuse to enforce laws or judicial orders he believes are unconstitutional. This was done by President Obama, for example, when he refused to defend the Defense of Marriage Act. Similarly, a president who believed states have a constitutional right to religious memorials could (and should) order federal marshals to ignore a federal court order to remove a Ten Commandments monument from an Alabama state building.
In short, all three branches should be equally yoked to defending and interpreting the Constitution. What is unclear is how the three branches can do this more efficiently.
To fill this gap, I suggest passage of an Equal Authorities Amendment (EAA) akin to the following:
“The President, the majority of Congress, and the majority of the Supreme Court shall have equal authority to issue opinions interpreting the provisions of this Constitution. Whenever two of the three branches concur on a single opinion, that opinion shall be binding on the third branch and all inferior courts, otherwise the most recent published opinion of each branch shall carry equal weight in all subsequent judicial deliberations.”
In practice, the EAA would both contribute to stability and accelerate constitutional jurisprudence precisely because it would introduce an explicit process for all three branches to discuss, negotiate and resolve constitutional issues through an exchange of legal opinions.
Moreover, because this process would not allow a single branch to unilaterally assert that the issue is settled and binding on the other two branches, the opinions rendered by each party would be more attuned to anticipating and addressing the issues raised by the others.
For example, in the recent same-sex marriage ruling, though the Supreme Court majority knew President Obama was prepared to support their opinion, under the EAA they would also have known that their decision might lead voters to elect a president and Congress that would reverse their decision. Under the EAA, it is unlikely they would have been so bold in their efforts to engage in social engineering.
Passage of the EAA would remind the Court, and pundits, that their decisions are subject to an appeal to the voters. Even the lobbying for the EAA would remind Congress and future presidents of their authority to assert their own interpretations of the Constitution.
At its core, democracy is a discourse. It is most alive when discourse is encouraged. Conversely, democracy is threatened when five of nine judges (and eight of 10 pundits) declare that “settled law” requires an end dissent.
The EAA would restore the right of voters, through Congress and the president, to continue the conversation whenever it is the Supreme Court’s decisions that are unsettling.
David C. Reardon, Ph.D., director of the Elliot Institute, is a biomedical ethicist and author of “Making Abortion Rare: A Healing Strategy for a Divided Nation.”
