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With the end of this Supreme Court term, dismayed citizens and legal specialists are wondering if we can still count on the Court to protect the rights of citizens. The underlying assumption of their worries: Only the justices can preserve our constitutional values. But such trust in the powers of one branch is and has always been misguided. It finds no foundation in either constitutional principles or democratic practice. The Constitutional Convention never intended to vest in the Court final authority over the meaning of the Constitution. And a majority of five justices (or a plurality of four) lacks both the legitimacy and the competence to claim to be an exclusive voice. Yet for far too long the study of constitutional law has been court-centered. The cost has been the undermining of the contributions that must come from Congress, the executive branch, the 50 states with their own constitutions, and the people themselves. JOHN MARSHALL’S DICTUM Over the past half century, the Supreme Court has asserted that it has the last word on the meaning of the Constitution by repeatedly invoking Chief Justice John Marshall’s famous declaration in Marbury v. Madison (1803): “It is emphatically the province and duty of the judicial department to say what the law is.” Marshall was voicing a truism, pure and simple. Cases are submitted to the courts to determine questions of law. Authority to interpret the law in a particular case, however, does not confer upon that interpretation finality or supremacy. Far from it. We could just as easily say, “It is emphatically the province and duty of the legislative department to say what the law is.” Another truism. The mere assertion of finality does not confer it. Our constitutional system rejects government by ipse dixit. Marshall knew better than anyone that he was in no position, politically or legally, to dictate to Thomas Jefferson and James Madison in the Marbury case. This was not a comfortable time for judges. U.S. District Judge John Pickering was impeached a week after Marbury, Justice Samuel Chase would be impeached the following year, and Marshall knew he too was within congressional sights. So the chief justice was not looking for a showdown, but rather for an ongoing dialogue between the branches. Marbury was carefully drafted to avoid a confrontation with Jefferson that the Court could not possibly win. In early 1805, Marshall wrote to Chase that “the modern doctrine of impeachment [of judges] should yield to an appellate jurisdiction in the legislature. A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than [would] a removal of the Judge who has rendered them unknowing of his fault.” This too is not the language of a headstrong justice insisting on the finality of his views. A POLITICAL DIALOGUE Although Marshall sat on the Court for another 30 years after Marbury, he never struck down another statute passed by Congress. Instead, he regularly used the authority of his branch to uphold legislation and give congressional policies added legitimacy, including on such sensitive constitutional issues as the Second Bank of the United States and the commerce clause. He fully understood that he was part of a political system that required conversation and shared construction among the branches of government, not a system that exalted judicial supremacy. In her 2003 book, The Majesty of the Law, then-Justice Sandra Day O’Connor explained how the Constitution is properly shaped by both judicial and nonjudicial forces. Commenting on the “dynamic dialogue between the Court and the American people,” she observed that no one “considers the Supreme Court decision in Roe v. Wade to have settled the issue for all time.” A nation “that docilely and unthinkingly approved every Supreme Court decision as infallible and immutable would, I believe, have severely disappointed our founders,” she wrote. O’Connor echoed Abraham Lincoln’s admonition that if government policy on “vital questions affecting the whole people is to be irrevocably fixed” by the Court, “the people will have ceased to be their own rulers.” The founding generation, rebelling against monarchical power and an abusive Parliament, bridled at the concept of unlimited power even from the bench. THE FINALITY SCHOOL What about Justice Robert Jackson’s famous claim in 1953 that decisions of the Court “are not final because we are infallible, but we are infallible only because we are final”? A witty remark, to be sure, but even the most casual observer of American history knows that the Court has been neither final nor infallible. Justice Byron White got closer to the truth in 1970 when he said that “this Court is not alone in being obliged to construe the Constitution in the course of its work; nor does it even approach having a monopoly on the wisdom and insight appropriate to the task.” Unflinching reliance on the Court for solutions to constitutional controversies finds little support in American history (it matters not whether we’re discussing structural issues or individual rights). In truth, the political branches have often enjoyed the final word on constitutional matters. Consider the infamous Dred Scott ruling. It was eventually overturned by constitutional amendments after the Civil War, but before the Constitution was reconfigured, the legislative and executive branches had already taken steps to eviscerate the Court’s decision. More recently, the branches have “debated” the so-called legislative veto. The Court struck down the legislative veto in Immigration and Naturalization Service v. Chadha (1983). Last word? Hardly. The decision has had to compete with the independent judgment of lawmakers — and, to a lesser extent, executive officials — that agencies must gain the approval of congressional committees and subcommittees for certain executive decisions. Hundreds of provisions requiring such approval have been enacted since Chadha. Presidents complain about them in their signing statements, but the accommodation persists, judicial decision or not. WHAT ABOUT THE CITIZENS? Looking solely to the courts to divine the meaning of the Constitution (or rather to divine the meaning of previous decisions about the Constitution) also undermines the republican responsibility of citizens to participate in the public affairs of their time. Changes to the constitutional text itself and to our understanding of that text properly begin with the people. The right of conscientious objection emerged from the public’s perception centuries ago that some individuals should be allowed to avoid military service because of religious and moral beliefs. The pressure to end slavery came not from government officials, but from ordinary citizens who viewed slavery as repugnant to fundamental political and legal principles, especially those embedded in the Declaration of Independence. Long, long before the courts became sensitive and protective of minorities, Congress, the branch most beholden to the voters, had intervened by statute to establish new rights. Legislation in 1879, for example, gave women the right to practice law after several negative rulings in the courts. Four years earlier Congress gave blacks equal access to public accommodations. The latter right, struck down by the Supreme Court in 1883, was not re-established until lawmakers again acted by passing the Civil Rights Act of 1964. In the Child Labor Tax case argued before the Supreme Court in 1922, Solicitor General James Beck urged the justices to exercise political prudence and restraint when reviewing and possibly overturning the decisions of Congress and the president — and warned about the perils of judicial supremacy. Kowtowing to judges “so lowers the sense of constitutional morality among the people,” he said, that neither in Congress nor among the people “is there as strong a purpose as formerly to maintain their constitutional form of Government.” The idea that the Court was “the sole guardian and protector” of the Constitution inevitably damaged what Beck called “the constitutional conscience.” He predicted that the Constitution will truly last only “as long as the people believe in it and are willing to struggle for it.” THE ROLE OF CONGRESS Just as the voters may abdicate their responsibility to defend the Constitution, some members of Congress believe that when constitutional issues emerge in legislative debate, those issues should simply be transferred to the courts. But tossing fundamental questions to the judicial branch undermines Congress and popular sovereignty. Members do not take an oath to defend the Court; they take an oath to defend the Constitution. And they have every obligation to analyze and resolve constitutional questions within the legislative arena. Indeed, because of threshold standards erected by the courts, including standing and the political-question doctrine, many key constitutional questions are never addressed by the courts. Moreover, when it acts, Congress has often proved to be the better guardian of minority rights and individual freedoms. In Goldman v. Weinberger (1986), the Court upheld the right of the Air Force to prohibit an Orthodox Jew from wearing his yarmulke indoors while on duty. The following year Congress passed legislation telling the military services to change their regulations to permit the wearing of religious apparel so long as it does not interfere with military duties. Final word here: Congress. PLUS 50 OTHER CONSTITUTIONS Last but not least, remember that Americans live under 51 constitutions, not one. By interpreting their own principal laws, states can reach constitutional decisions that differ markedly from the rulings of the U.S. Supreme Court. As that Court noted in PruneYard Shopping Center v. Robins (1980), each state has the “sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.” Many of the innovations credited to the Supreme Court, such as the exclusionary rule and publicly provided counsel for indigents, were, in fact, pioneered by the states. Unfortunately, states also can become too dependent on the high court’s views. The states need to revive their own capacity for independent interpretation of citizens’ rights. Although some think it is easier to let the Supreme Court decide, broad and vigorous participation by all elements of society strengthens our constitutional values. Dialogue among the three federal branches, the states, and the people renders the Constitution more vibrant, stable, and meaningful. Yale legal scholar Alexander Bickel used to describe the process as one in which constitutional principle is “evolved conversationally, not perfected unilaterally.” Only an open process, with the judiciary operating as one of many players, allows an unelected Court to function credibly in a democratic society.
Louis Fisher and David Gray Adler are co-authors of American Constitutional Law (7th ed., 2007), which analyzes the mix of judicial and nonjudicial contributions to constitutional interpretation.

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