For more than two hundred years, Americans have debated which institution or institutions should have the final say in deciding controversies over the meaning of constitutional provisions. The majority of Americans in most eras have accepted judicial supremacy—the view that the Supreme Court of the United States is the institution of last resort in settling federal constitutional controversies. A strong departmentalist strand also exists in the American constitutional tradition: departmentalists believe that each national governing institution should resolve constitutional controversies as those institutions think best. Before the Civil War, prominent Americans championed compact theory, which gave individual states the final authority over constitutional controversies, but after the war that position was largely abandoned. With rare exceptions, Americans have not been attracted to legislative supremacy, the view that national elected officials have the final say on the meaning of constitutional provisions.
Constitutional authority means different things in different contexts. The discussion here concerns how disputes over the meaning of the constitution are resolved. Most American institutions and the American people treat a judicial decision as the final word on what a particular provision of the constitution means. A court might have the power of judicial review—the power to declare laws or acts of the government unconstitutional in the context of resolving a particular case—but not the power of judicial supremacy—the power to determine how governing officials should act in analogous circumstances. In the United States the Supreme Court has both the power of judicial review and judicial supremacy. A hypothetical example illustrates the question of how far the Court's powers should extend: If the Supreme Court declares that California violated the First and Fourteenth Amendments when imprisoning Smith for burning a flag, will New York need to release Jones who is in prison for burning a flag, even though neither New York nor Jones were parties to Smith v. California and therefore not technically bound by the judicial decree in that case?
In other contexts constitutional authority refers to the authority of the Constitution, as to when and whether governing officials are bound by it. For example, American officials abroad may search the residences of foreign nationals without being bound by the Fourth and Fourteenth Amendments.
The Supreme Court regularly insists that the justices on that tribunal are constitutionally authorized to settle constitutional controversies. The justices first clearly asserted the authority to strike down a law of a coequal branch in Marbury v. Madison, 5 U.S. 137 ( 1803 ). In Marbury Chief Justice John Marshall claimed that it is “emphatically the province and duty of the Judicial Department to say what the law is” (5 U.S. at 177). Later, in McCulloch v. Maryland, 17 U.S. 316 ( 1819 ), Marshall indicated that, when judicial rulings made laws unconstitutional, they settled the entire constitutional controversy and did not merely announce the rights and duties of the parties before the Court.
Nearly a century and a half later, Chief Justice Earl Warren bluntly declared that no elected official had the power to challenge federal judicial decisions. In his unanimous opinion in Cooper v. Aaron, 358 U.S. 1, 18 ( 1958 ), he stated: “The federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has … been respected by this Court and the Country as a permanent and indispensable feature of our Constitutional system.” All nine justices in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 ( 1990 ), stated that Congress could not challenge judicial interpretations of the Fourteenth Amendment. Justice Sandra Day O'Connor's concurring opinion made clear that even those justices who thought the Court was wrongly interpreting the Fourteenth Amendment were nevertheless committed to the position that the Supreme Court had the final say on the meaning of that constitutional amendment.
Elected officials frequently endorse judicial supremacy. During the crises over the desegregation of public schools in the South in 1957, President Dwight Eisenhower ( 1890–1969
Justices and their supporters provide numerous justifications for judicial supremacy. Some claim that giving justices the final say on the meaning of constitutional provisions is the best means for ensuring constitutional governance. Justice Anthony Kennedy in City of Boerne v. Flores, 521 U.S. 507, 529 ( 1997 ), declared, “If Congress could define its own powers by altering the Fourteenth Amendment's meaning, … [s]hifting legislative majorities could change the Constitution.” Proponents of judicial power also insist that judicial supremacy protects powerless minorities. “Courts,” Justice Hugo Black declared in Chambers v. Florida, 309 U.S. 227, 241 ( 1940 ), “stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement.” Finally, some commentators celebrate the judicial capacity to establish clear constitutional rules. Larry Alexander and Frederick Schauer write that “settlement of contested issues is a crucial component of constitutionalism, that this goal can be achieved only by having an authoritative interpreter whose interpretations bind all others, and that the Supreme Court can best serve this role” ( 1997, 1359 ).
The Supreme Court claims supremacy only with respect to the proper interpretation of the Constitution of the United States. The justices do not interfere with decisions that are based entirely on state constitutional law or state statutes, unless those laws (or their interpretations) violate the federal Constitution. Supreme Court justices may not rule that a state official or court has misinterpreted state law. Most judicial supremacists treat the highest court in each state as the final authority on the meaning of the state constitution.
Departmentalism is the most prominent alternative to judicial supremacy in American constitutional politics. Departmentalists acknowledge that federal justices have the power to declare laws unconstitutional when adjudicating particular cases. They nevertheless deny that other governing officials must be guided by the principles announced by those judicial decisions. Abraham Lincoln offered a famous defense of departmentalism when he explained the ways in which the Republican Party would and would not resist the judicial decision in Dred Scott v. Sandford, 60 U.S. 393 ( 1856 ), which held that Congress could not ban slavery in American territories. During his debates with Stephen Douglas ( 1813–1861 ), Lincoln stated:
We do not propose that when Dred Scott has been decided to be a slave by the court, we, as a mob, will decide him to be free. We do not propose that, when any other one, or one thousand, shall be decided by that court to be slaves, we will in any violent way disturb the rights of property thus settled; but we nevertheless do oppose that decision as a political rule which shall be binding on the voter, to vote for nobody who thinks it wrong, which shall be binding on the members of Congress or the President to favor no measure that does not actually concur with the principles of that decision ( Davis and Wilson 2008, 222–3 ).
Thomas Jefferson, another prominent proponent of departmentalism, pardoned persons convicted under the Sedition Act of 1798 because, federal judicial decisions to the contrary, he thought that measure unconstitutional. When defending his decision, Jefferson declared: “The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment; because that power was placed in their hands by the Constitution. But the Executive, believing the law to be unconstitutional, was bound to remit the execution of it; because that power had been confided to him by the Constitution” ( 2009, 89 ). James Madison agreed. In an 1834 letter he wrote that “as the legislative, executive, and judicial departments are coordinate, and each equally bound to support the Constitution, it follows that each must, in the exercise of its functions, be guided by the text of the Constitution according to its own interpretation of it” ( 1867, 349 ).
Proponents of departmentalism give constitutional and democratic reasons for their preferred division of constitutional authority. Permitting any governing institution to have unchecked authority to resolve constitutional controversies may threaten the constitutional commitment to limited government. As modern controversies have highlighted, justices have demonstrated no more capacity to settle abortion rights than any other governing officials, and judicial decisions are often no more clear on crucial legal questions than pronouncements from the White House or Capitol Hill. Whether constitutional issues even need to be settled is unclear. Keith Whittington notes that “it is sometimes better for constitutional rules to be relatively unsettled because it can foster socially beneficial experimentation and allow political diversity” ( 2002, 791 ).
[T]he government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself, but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
Many slave states defended compact theory when considering secession. The South Carolina Secession Ordinance of 1860 declared “that in every compact between two or more parties, … where no arbiter is provided, each party is remitted to his own judgment to determine the fact of failure.”
Compact theory did not survive the Civil War. Southern state-rights advocates hardly inspired most Americans to take up their cause when they sought to revive that understanding of constitutional authority in the wake of the judicial decision in Brown v. Board of Education, 347 U.S. 483 ( 1954 ). Most Americans, even those who prefer departmentalism to judicial supremacy, stand with Justice Joseph Story, who, when defending the use of judicial power to review state court decisions, in Martin v. Hunter's Lessee, 14 U.S. 304, 348 ( 1816 ), noted the “jarring and discordant judgments” as well as the “public mischiefs” that would result if each state independently determined the meaning of the federal Constitution, federal laws, and federal treaties.
A few Americans insist that constitutional interpretation is reserved entirely for elected officials. Radical Jeffersonians at the turn of the nineteenth century insisted that federal justices should enjoy neither the power of judicial supremacy nor the power of judicial review. “The decision of a Constitutional question must rest somewhere,” Congressman John Randolph ( 1773–1833 ) asserted on the House floor in 1802, and in a democratic republic that authority was best “confided to men immediately responsible to the people” rather than “those who are irresponsible.” Jeremy Waldron ( 1999 ) and Mark Tushnet ( 1999 ) are the leading contemporary supporters of legislative supremacy. “When citizens or their representatives disagree about what rights we have or what those rights entail,” Waldron argues, “it seems something of an insult to say that this is not something they are to be permitted to sort out by majoritarian processes, but that the issue is to be assigned instead for final determination to a small group of judges” ( 1999, 15 ).
The United States is no longer an outlier in rejecting legislative supremacy. As Ran Hirschl ( 2004 ) has noted, an increasing number of countries after World War II moved to adopt judicially enforceable constitutions and bills of rights. Nevertheless, some regimes, most notably the United Kingdom, remain committed to legislative supremacy. Moreover, the United States is still one of the few nations in which no significant political opposition exists to the judicial power to declare laws unconstitutional in general, even though substantial opposition exists to judicial decisions in particular cases.
Constitutional authority in practice is messier than theories of judicial supremacy, departmentalism, compact, and legislative supremacy suggest. More often than not, different governing institutions share constitutional authority. Judicial supremacists recognize that the Supreme Court does not have a roving commission that permits the justices to decide any constitutional issue that arises anywhere in the United States. Cases must meet a variety of jurisdictional standards. The justices have announced that some issues raise political questions that are constitutionally entrusted to other branches of the national government. In these numerous instances when federal courts refrain from making constitutional decisions, elected officials have the authority, at least temporarily, to settle constitutional conflicts. Elected officials also share constitutional authority with justices. Presidents quite frequently appoint justices who they have good reason to believe will declare laws unconstitutional. Congress has regularly expanded federal jurisdiction, which gives the justices more opportunities to declare laws unconstitutional. Members of the executive and legislative branches frequently write amicus briefs, urging the justices to declare laws unconstitutional. In other instances Congress has passed legislation facilitating constitutional litigation.
The constitutional authority often ebbs and flows depending on the level of outside support. Susan Lawrence ( 1990 ) details how the Supreme Court began protecting the constitutional rights of poor people only after Congress established and generously funded the Legal Services Program. During the Nixon administration ( 1969–74 ), those funds were cut back, and, simultaneously, judicial activism on behalf of less fortunate persons was cut back substantially. Had Democrats not defeated President Ronald Reagan's nomination of Robert Bork to the Supreme Court in 1986, a fair probability exists that Roe v. Wade, 410 U.S. 113 ( 1973 ), would have been overruled.
The ways in which different governing officials share constitutional authority cast doubt on conventional understandings that judicial review and supremacy are countermajoritarian, that justices tend to defeat the policy making aims of most elected officials or American citizens. The justices tend to make their boldest declarations of constitutional authority only when they recognize that their power will be supported by the president and prominent members of Congress. When the justices sense that opposition to judicial power is too strong, they prefer to avoid making controversial decisions rather than abandon their claim to constitutional authority.
Walter Murphy ( 2007 ), Louis Fisher ( 1988 ), and other scholars conclude that shared constitutional authority is an expression of the idea that constitutional interpretation is, in the final analysis, a political process governed more by ongoing deliberation than any single determinative act. In this sense all Americans are interpreters of the Constitution. As Murphy puts it, “when matters of great public import are at stake, constitutional interpretation has been less the result of a proclamation from on high than the product of a protracted dialogue among public officials in different departments, with voters collectively serving as an absent-minded director of an opera” ( 2007, 469 ).
SEE ALSO Constitutional Interpretation ; Constitutionalism ; Departmentalism ; Judicial Review ; Judicial Supremacy ; Legislative Supremacy .
Alexander, Larry, and Frederick Schauer. “On Extrajudicial Constitutional Interpretation.” Harvard Law Review 110, no. 7 (1997): 1359–87.
Graber, Mark A. A New Introduction to American Constitutionalism. New York: Oxford University Press, 2013.
Fisher, Louis. Constitutional Dialogues: Interpretation as Political Process. Princeton, NJ: Princeton University Press, 1988.
Hirschl, Ran. Toward Juristocracy: The Origins and Consequences of the New Constitutionalism. Cambridge, MA: Harvard University Press, 2004.
Jefferson, Thomas. The Works of Thomas Jefferson. Vol. X. Edited by Paul Leicester Ford. New York: Cosimo, 2009.
Lawrence, Susan E. The Poor in Court: The Legal Services Program and Supreme Court Decision Making. Princeton, NJ: Princeton University Press, 1990.
Madison, James. “To Mr. ___, 1834.” In Letters and Other Writings of James Madison, vol. 4. Philadelphia: Lippincott, 1867.
Murphy, Walter F. Constitutional Democracy: Creating and Maintaining a Just Political Order. Baltimore: Johns Hopkins University Press, 2007.
Tushnet, Mark. Taking the Constitution Away from the Courts. Princeton, NJ: Princeton University Press, 1999.
Waldron, Jeremy. Law and Disagreement. Oxford, UK: Oxford University Press, 1999.
Whittington, Keith E. “Extrajudicial Constitutional Interpretation: Three Objections and Responses.” North Carolina Law Review 80, no. 3 (2002): 773–851.
Whittington, Keith E. Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History. Princeton, NJ: Princeton University Press, 2007.
Mark A. Graber
University of Maryland Carey School of Law