the Supreme Court does not enjoy interpretative supremacy over the other two branches of the federal government when it comes to interpreting the Constitution.                                                                         Vince Haley, Policy Director                                                                                                 Newt Gingrich Presidential Campaign (Newt 2012)

Here’s a little factoid few Americans really know.  Nowhere in the Constitution is it written that the Judicial Branch has the authority to declare acts of Congress unconstitutional.  Nowhere in the Constitution is the Judicial Branch given the authority to declare actions of the President unconstitutional.  Just google “United States Constitution”, scroll down to Article III and read what the Founding Fathers wrote about the powers of the Courts.  Judicial Review ain’t one of them.

Newt Gingrich has taken the lead among Republican presidential contenders in pushing for a radical reduction in the power of the Judicial Branch vis-à-vis that of the Legislative and Executive branches.  Newt is appalled that the Courts have assumed the role of sole interpreters of constitutionality.  Vince Haley, the policy director for the Gingrich campaign, writes that all three branches of the federal government are equally empowered to determine the constitutionality of actions of the other branches. 

What does this mean in the real world?  What would happen if a President Gingrich believed the Court had acted in an unconstitutional manner?  According to Gingrich, the President would be in his rights to ignore the Court’s ruling.  Gingrich even provides historical precedence.  President Lincoln ignored certain Court rulings during the Civil War.  Andrew Jackson once famously derided a decision written by Chief Justice John Marshall by stating, “John Marshall has made his decision; now let him enforce it!”

The others running for the Republican slate aren’t about to let Newt stand alone on this topic.  Rick Perry wants to repeal the life-time appointments for federal judges.  That would require a constitutional amendment.  He also believes Congress should be granted constitutional authority to override court decisions with a two-thirds vote, just as it can with presidential vetoes.  Ron Paul wants to drastically reduce the jurisdiction of federal courts.  Rick Santorum turned up the rhetorical volume by stating he would fight back against the courts, specifically calling the Ninth Circuit Court “rogue” and “consistently radical.”

To his credit, Mitt Romney has stayed out of this fray, stating he has no desire to initiate a constitutional crisis.  John Huntsman has also remained quiet on this topic.  Romney and Huntsman are apparently the mavericks of this season’s Republican candidates.

How did we get here?  If the Constitution does not give the Courts the power to declare actions of other branches unconstitutional, then why have they assumed that authority?

To answer that question, you must go back 200 years.  Most of us remember studying about the conflicts between the early Federalists (think Alexander Hamilton and John Adams) and the Democratic-Republicans (think Thomas Jefferson and James Madison).  We may also vaguely remember one of the great political brouhahas from that era, the “midnight appointments”, when on his last days in office, John Adams appointed a large number of Federalists to government jobs.   One of those appointees was John Marshall, who became the nation’s Chief Justice.  Another of those midnight appointments was a man named William Marbury, who became the plaintiff in our nation’s most famous court case, Marbury v. Madison.

The story behind this momentous case is itself the stuff of drama, particularly the ingenious way Chief Justice Marshall’s ruling avoided resistance from his political rival, President Jefferson.  Marshall’s ruling gave Jefferson and the Democratic-Republicans a tactical victory over Marshall’s own Federalist Party.  By granting Jefferson that victory, however, he greatly and permanently increased the power of the federal government in general, and the courts in particular, something that was of paramount importance to the Federalists.

It is the long-standing consequences of Marbury v. Madison that today’s Republican candidates are trying to overturn.  In his ruling, Chief Justice Marshall wrote:

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule…

Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law [e.g., the statute or treaty]

This doctrine would subvert the very foundation of all written constitutions.

This is the heart of Marbury v. Madison, and it is the heart of modern jurisprudence as it relates to the interpretation of constitutional issues.  It has made the courts, and the courts alone, the definitive arbiter of constitutional conflicts.  Its impact cannot be overstated.  It enabled the United States to move beyond “separate but equal” schools.  It forced President Nixon to release evidence that he had personally engaged in criminal behavior.  It put to a stop attempts by a more recent president to make torture an acceptable means of law enforcement.  And every single Republican running for president is ardently hoping judicial review will force the repeal of President Obama’s health care law.

What Gingrich and others are proposing is not a total the repeal of judicial review.  They are arguing that this long-standing doctrine should be accompanied by something like “executive review” and “legislative review”, where those branches would have the power to override judicial decisions on constitutional grounds.  It’s a gigantic leap.  It would push us far away from the current balance of power between the branches of government.  It leaves unanswered what would happen if the branches unilaterally declared actions of the other branches unconstitutional.  Who has ultimate authority?  It’s a constitutional crisis just waiting to happen. 

Is that what we really need right now?