Paul Jacob

This is the season for major Supreme Court decisions, and a fine time to rethink the union’s constitution — and the document, too, which we capitalize: The Constitution of the United States of America.

Now is especially propitious, in that recent decisions by the Robed Nine are solidifying a social revolution, gay marriage, and doing so while skirting some very bedrock notions.

The Supreme Court stands, in matters of law, supreme. That’s what I was taught in school. Three branches of the federal government — the Legislative, the Executive, and the Judiciary — work together to bind the states into one federation (original idea) or one nation (what we were taught with the Pledge of Allegiance). The two-housed Legislature makes the laws, including the setting up of taxes and budgets, and the declaring of war; the Executive branch enforces the laws, collects the taxes, manages the wars, all the while allowing the President to veto laws (while the Legislature can override vetoes, if it has the extra votes); and the Supreme Court interprets the laws. But the Supreme Court does more: it nullifies laws, too, finding some “unconstitutional.”

This power wasn’t mentioned in the Constitution, but grew up in case law. It was a natural outcome of the institutions, though, and complaints that judicial review is, itself, unconstitutional, seem weirdly archaic and fanciful, taking the standards of a counterfactual nature — of fiction — and applying them to the current world. But maybe that’s inevitable, too.

The above overview of the federal government might capture the main points from our civics lessons, but it misses something important: the states. The United States is a union of states; the Constitution is a compact amongst the states. And it is a principle of law that in compacts, the authority to interpret them is not limited to one party, unless specified in the document itself. And the ability to nullify laws “as unconstitutional” was not originally limited to the Supreme Court.

Indeed, the Father of the Constitution himself, James Madison, developed the notion of “interposition,” in which the states would act both separately and together — but “outside” the Congress and Presidency and Judiciary — to oppose unconstitutional laws. The Virginia Resolutions of 1798, written by Madison and adopted by the state legislature, opposed the federal government and its Alien and Sedition Acts on the grounds that the legislation exercised “a power nowhere delegated to the federal government.”


Paul Jacob

Paul Jacob is President of Citizens in Charge Foundation and Citizens in Charge. His daily Common Sense commentary appears on the Web and via e-mail.