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tv   Heritage Debate on Role of the Judiciary Branch  CSPAN  November 6, 2018 4:41pm-5:54pm EST

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good afternoon, ladies and gentlemen, welcome to on behalf of the heritage and the center for legal and judicial studies to this further event in our series on preserving the constitution. today we're going to deal with the subject of theories of supreme court supremacy. the definition and interpretation of the law. the respective rules of the three separate branches and so on. the fact that we have this
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debate today really goes back to as early as 1787. the tasks that the founders had, that time, was to try to put together a central government to handle those functions that couldn't be handled by the states themselves. or even the states combined. there needed to be some form of central government which would have the authority and the energy to deal with such things as foreign governments, foreign armies on the borders of the united states to protect ships, virgin ships at sea from both pirates and the navys of other countries. to engage in diplomatic subjects, diplomatic intercourse with other nations. to create things like post routes and a postal system within the united states itself and to deal with interstate commerce. these are things that had gone astray because there had been no way in which those different
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matters and other truly national subjects could be handled. but they had a problem. the dilemma was how could you have a central government with sufficient energy as they called it, to carry out those necessary functions? and at the same time not risk the danger and jeopardy of having a central government that would oppress the people. they had just gone through a very difficult war. very costly war in both blood and treasure. and they didn't want to make the same mistake again as they had, that would allow people to suffer as they had under the british rule. and so these men who were really experts, many of them had studied very hard, the civilizations of the past. they had studied previous governments around the world. over various periods in history. and they came to the conclusion that the best way to control a government was to concentrate on the subject of power. and so what they did was, they
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divided power both horizontally and also vertically. it was divided vertically by having only limited subjects, limited topics and limited authorities given to the federal government. and the rest of all governmental power remaining with the states and with the people themselves. local governments. and then even can be sure that they had sufficiently diffused power within the federal government. they then divided it into the three separate and independent branches and that word "independent" is the key to why there has been considerable conflict since the earliest days as to what the role of each of those branches were. how they, operated with each other. and as a result of that, we come to the topic that we have today. the idea of having separate and independent powers, one in the
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legislative power of course with congress. the executive power, the responsibility of carrying out the laws and protecting the security of the people with the executive branch and particularly the president. and then the ultimately the supreme court to interpret the laws. and the question really at the originally was kind of assumed that the, the federal, that the supreme court would be the weakest of the three branches. i think it was hamilton in i believe it was the federalist 78 that said, that the court would be the weakest and was not something to be feared. now hamilton was probably a great officer during the revolutionary war. he was probably a great secretary of the treasury, but he was a lousy profit. so today, actually that, the role of the supreme court is one that is has always been in contention. you know, in order to make this whole system work, and also again to protect against owe
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preparation, the founders also developed some other precautions you might say. the separation of powers being one, but also such things as the fact that laws had to be, could be vetoed by the president. and that laws really required two groups, the congress on the one hand, the bicameral legislature itself was a further check on power. particularly as the constitution originally read when the senators were elected by the legislatures of the regular states and that was of course to protect the powers of the states in this federalist organization. so various other things such as that. so from the very early days there was a great deal of what you might say conflict between the branches. which was worked out in various ways. and this was not at all a
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surprise to those who had originally written the constitution. because as the federalist papers said, the whole idea was that ambition would counter ambition so each of the three branch was make sure that the other branches, the other two branches, one would be sure the other two would not get too powerful. so that's why we don't have something that was, you might say mechanically efficient. rather we had something that was designed to have a certain amount of conflict in order to protect the liberty of the people. from the very start there was a great deal of concern by presidents, about the role of the supreme court. and the first one to raise this and to great extent was thomas jefferson. and so he, he wrote for example in 1819 in a letter, he was talking about those who said that the constitution should be interpreted primarily by the
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supreme court or only by the supreme court, he said the constitution, if that were true is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please. they went this is very different in that each department is truly independent of the others and has an equal right to decide for itself what is the meaning of the constitution. then he went on to say, this is sort of a low blow. he said the judiciary of the united states is the subtle corps of minors constantly working underground to undermine the foundations our con fed rated fabric. that's pretty strong language for a president of the united states. later on a few years later. a couple of decades later. andrew jackson entered the scene and he was a strong executive
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branch advocate. and when congress, when the supreme court made a decision he didn't like, he entered those famous words that had been repeated many times. john more shall, the chief justice has made his let him en indicating that his -- it was up to the court since they had made a wrong decision from his standpoint, they had the responsibility to try to enforce it. well, abraham lincoln was one president who had a great deal of concern about the role of the supreme court. he -- particularly when the court ruled, as it did, in the dred scott decision and other decisions they made in some other cases, and he said, the candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people is to be
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irrevii irrevocably made by the supreme court, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal, the supreme court. well, that's some of the rhetoric, you might say, that went on by various presidents concerning the supreme court. more recently, the supreme court itself has struck back to enlarge its power. from the first days of our republic until more recently, the idea of the conduct of war was left to the president of the united states and the executive branch. after all, the constitution says that the president is the commander in chief, and so basically the rules of war -- the rules of war are actually the rules of governing the troops, the rules of conduct were left to congress, but the president basically, from an operational standpoint, had the
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authority to go forward and to handle things pretty much as the executive branch thought appropriate. but more recently, particularly since the 11th of september of 2001 and the fighting and the military operations in iraq and in afghanistan, a series of supreme court decisions have thrust the supreme court into the conduct of war and particularly the handling of the -- the unlawful combatants who had been captured on the battlefield in both the iraq and afghanistan. the supreme court has gotten into that to an extent and handling matters never before believed to be in the province of the federal judiciary. so that has made, then, the question that we were just talking about today even more relevant to the present time and
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raises to an even higher level of questioning what is the role of the supreme court, what is the relationship of the supreme court, and what is the responsibility of the president and the congress to obey the orders and the decisions of the supreme court. and so that leads us to today's debate where the topic is resolved, congress and the president are required to obey the supreme court's interpretations of the constitution. to moderate today, we are fortunate to have tom jipping, deputy director of the center for legal and judiciary studies and a senior legal fellow, and he is part of the institute for constitutional government here at heritage, of course. he's joined us in may of this last year. he was on the staff of orrin hatch, who received the story award just last week.
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he was on that staff for 15 years. he was -- spent several of those years as chief counsel in the senate judiciary committee. he's been -- before that, he spent over a decade in various public policy organizations in the conservative movement. he has a national reputation among both liberals and conservatives as an expert on the federal judiciary, which will stand him in good stead in this particular event today. he's written a number of articles on law and public policy and several of journals, op-ed pieces, articles in both print and online publications, and he will be taking on the responsibilities of refereeing -- excuse me, of moderating this, today's civil debate on the subject as i mentioned before, the responsibility of congress and president vis-a-vis the interpretations of the supreme court. so, please join me to now ring the bell for the first round,
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tom jipping. >> thank you, general meese. today's debate is the final event in the preserve the constitution series that we do every fall here at the heritage foundation. it was originally scheduled for september 27th, but a certain well publicized hearing before the senate judiciary committee sort of intervened. when we control the universe, it won't be like this. we'll be able to do things just the way we want. the debate today is billed as an oxford style debate, which means that our debaters will be supporting or opposing a particular proposition which general meese just identified. our debaters will have up to 15 minutes for an opening statement, up to 5 minutes partnfor rebuttal, and up to 3 minutes for a closing statement.
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we have one of our meese center interns in the front row here who will indicate when there's one minute left and then when it's time to stop. so, let me ask everyone to please silence your devices that you may have with you. thank you. so we can give full attention to our debaters. up first, arguing in the affirmative, is dr. roger pilon, vice president for legal affairs at the cato institute where he's also the founding director of the robert a. levee study for constitutional studies. he served in several senior posts in the reagan administration and has published extensive commentary and scholarship. he holds a b.a. from columbia and a j.d. from george washington university. as you may know, matthew frank was to be arguing against the proposition. he had an illness in his family and couldn't be here, but we're grateful, stepping in, in his shoes, will be edward whelan, who's the president of ethics
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and public policy center where he directs the program on the institution, the courts, and the culture. he has served in all three branches of the federal government as a law clerk for judge jay clifford wallace and justice antonin scalia. he's also a senator hatch alumnus. and as principal deputy assistant attorney general in the office of legal counsel. he also has published extensive commentary and scholarship, holds a b.a. and j.d. from harvard where he was an editor of the harvard law review. so roger and ed, thank you very much for participating. and roger, the first 15 minutes is yours. >> okay. well, thank you, tom. and thanks to the heritage foundation as well for sponsoring this debate on judicial supremacy and, more broadly, on the judiciary's place in our governmental system. as the debate invitation states.
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i also want to thank my old nemesis, ed whelan, for stepping up on short notice when matt frank had to bail out. ed and i have debated these issues more than once over the years, and he hasn't budged a bit. when jessica kline first approached me about this debate, she said that based on what she's read, she wasn't sure whether i took the affirmative side of this question, and she was right to wonder that, because, as i told her, i'm not an absolutist on the question of judicial supremacy. in fact, the more i've thought about it, since then, the more i've come to appreciate how complicated and unresolved many of the questions it raises. so, let me start by saying that only a fanatic would take the absolutist view on judicial supremacy that's found in our proposition, and i'm not a fanatic. there are rare times when
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presidents and congress must ignore courts. we've seen a few such times in our history from jefferson to jackson to lincoln and more, each of which seemed to me to have been legitimate. i'm assuming, therefore, that ed isn't going to pull the old debater's ploy by saying that, given the proposition before us, all he has to show is that there's at least one case in which the court can be ignored, which i've just conceded, so the debate's already over. we know that the law is replete with nuances, but beneath the nuances, there are serious differences between us, which i'll get to shortly. so, just to be clear, i'll be arguing the judicial supremacy to simply stated as the idea that political actors will bound by the supreme court's rulings is not an absolute principle in our system but rather is a very strong presumption, more akin to a social norm. because if the president or congress or any state were free, regularly, to read and act on its own interpretation of the
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constitution, we'd have legal chaos. it would be the end of the rule of law. so, let's look a bit more closely at this idea of judicial supremacy. most agree it rose from the 1958 decision in cooper v. aaron where the court ordered desegregation of arkansas schools pursuant to 1954's brown v. board of education. but after deciding the case, the court went on to assert two principles, judicial supremacy and judicial universality. under the first, the court can declare and manifest the supreme law of the land. under the second, its decision is binding not only on the parties in the case but on all parties in similar cases as well as oath bound public officials. and further, the court purported to draw those principles from justice marshall's opinion in
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marbury v. madison. but in doing so the court read the constitution's supremacy clause which makes the constitution the supreme law of the land coupled with marshall's famous declaration that is emphatically the province of the -- and duty of the judicial department to say what the law is as holding that the court's decisions are the supreme law of the land, and that can't be right. not least because the court sometimes gets it wrong. moreover, there's nothing in the constitution to support that leap. on the contrary, what is in the constitution, the supremacy clause, makes the constitution the supreme law of the land, not the supreme court's perhaps mistaken reading of the constitution. in short, there's all the difference in the world between the constitution and the court's reading of the constitution. as i'm fond of saying, there's all the difference in the world between modern constitution law and the constitution itself. similarly, the doctrine of a
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judicial universality has its own set of problems. certainly, the parties to a case are bound by the court's decision but what about other parties similarly situated or public officials bound by oath to see that the law is being faithfully executed. as a strict legal matter, of course, such others are not bound until separately ordered in subsequent litigation in a conceivably cascading string of such decisions, all of which would undermine the idea of precedent, to say nothing of binding precedent. yet, all of this brings us to the need to make sense of these principles because today, they are broadly accepted. perhaps it's best, as josh blackman argues, to treat them not as legal doctrines but as cultural norms. in a comprehensive article on cooper v. aaron that's forthcoming in the georgetown law journal, blackman goes on to cite our own attorney general meese who wrote in 1987, and here, i'm quoting blackman with
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quotes from mr. meese interlarded in. that although meese rejected cooper's dictum, in his judgment, officials in arkansas and other states with segregated school systems should have changed their systems to conform with brown, not based on a constitutional myth but on a social norm that was supported by arguments from bruprudence, need for stability in the law, and the respect for the judiciary. on these bases, blackman continues, government agents should abide by the decision of the court, meese concluded, for it would have been highly irresponsible not to conform their behavior to precedent, end of quote. before moving on, let me adjust one point. it's one thing to live with judicial supremacy as a social norm. but what if the underlying decision is legally problematic or not widely accepted? will others still be bound by it? in president lincoln's hands, dred scott stood alone with no
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progeny or further mischief. more recently, by contrast, we have the court's 2015 decision, the same-sex marriage decision, writing in its immediate aftermath, matthew frank seemed to hold that it would go the way of dred scott. but after some initial resistance in alabama and a few other places, and the still unresolved difficulties with a masterpiece cake shop kinds of cases, the issue seems to be settled and the assault on traditional marriage feared in some quarters hasn't materialized and isn't likely to. but what about roe v. wade? in the matter of public acceptance, does that decision stand between dred scott and oberkaville? we'll see. let me sharpen approximathe dif between ed and me in a different way. cooper v. aaron rose when
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conservatives were developing their arguments in opposition to what they saw as that and the later berger court's excesses which would reach their apotahes with roe v. wade. seeing what he and other conservatives thought to be judicial activism, bickle asked two main themes. the very practical judicial review raised -- the very practice of judicial review raised a countermajoritarian difficulty, he said, counters overruling the will of the majority, and that counsel in turn the pass of virtues, judicial deference to the political branches. underlying bickle's thesis, of course, was a theory of political legitimacy. firmly rooted in small d democracy. that theory would reach a larger
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audience three decades later in the hands of an anti-trust and law and economics colleague of bickle's who took much of his constitutional instruction from bickle. in his magnificent tome, he summarized bickle's theory of legitimacy by stating what he called the madisonian dilemma, which runs as follows, and i quote. america was founded on two opposing principles, which must continually be reconciled. the first principle is self-government, which means that in wide areas of life, majorities are entitled to rule, if they wish, simply because they're majorities. the second principle is that there are nonetheless some things majorities must not do to minorities, some areas of life in which the individual must be free of majority rule. end of quote. well, that gets madison exactly backwards. america's first political principle may indeed have been self-government, but its first moral principle and the reason
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we instituted government at all was individual liberty, which the declaration of independence makes plain, the constitution's preamble articulates, and the fourth amendment incorporated at least against the states -- at last against the states. that means that in wide areas, individuals are entitled to be free simply because we're born free with natural rights and thus are so entitled while in some areas, majorities are entitled to rule not because they're inherently so entitled, but because we've authorized them to. that gets the order right, individual liberty first, self-government second, as a means towards securing that liberty. what bickle gave short shopliri was the majoritarian difficult. they wrote and amended a
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constitution to guard against that difficulty, but that edifice was lost when progressives grabbed effectively unrestrained political power during the new deal following president roosevelt's infamous threat to pack the supreme court with six new members. precisely there, not earlier during the so-called laudner area, was the systematic start of judicial activism, with the court eviscerating the numerated powers doctrine, bifurcating the bill of rights and inventing scrutiny theory a year later and finally jettisoning the nondelegation doctrine in 1943. the new deal court was deferential to the political branches, to be sure, deferential to the point of abdication of its judicial duty, but active in turning the constitution on its head. but the court got its second wind in the 1950s and not a moment too soon in the case of civil rights. in some cases, however, it went
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too far in the other direction, deferring too little to the political branches in the states, especially when it found rights that could not be found even among our unenumerated rights. cooper v. aaron's judicial supremacy claim, whatever its value as a cultural norm, is perhaps the clearest manifestation of this judicial hubris but taken as a whole, this activism is what generated a conservative reaction and a call for judicial restraint which all too often reduced to bickle's passive virtues and judicial about occasion. abdication. and that led, ironically, to the growth of government that conservatives were otherwise opposing. on the one hand, they were railing against this massive government, but on the other hand, conservative jurisprudence were stripping the courts of the constitutional means the framers
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had provided for checking that unconstitutional growth. and that conservative jurisprudencetial posture has continued to the present but not without optician from within from a number of us in the classical liberal or libertarian cadre who from the mid 1970s have urged conservatives to rethink their position on the role of the courts. we have argued asij usually that conservatives took the wrong turn in the '50s, focusing on behavior rather than misreading the constitution as a small "d" democratic document, they've missed the forest for the trees. we've got to get back to the theory of the constitution, to its theory of legitimacy, which is grounded not in democracy but in liberty and is manifest in the document's text properly read. so that, at a general level, is what separates me from my fellow classical liberals and my fellow
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classical liberals from ed and from many other conservatives, although not from many other conservatives for the tide has been changing for some time now. i'll illustrate these developments with a few cases in my rebuttal or closing statement, but that's enough for now. thank you. >> thank you very much. it's great to be here. thank you, general meese, for that enlightening introduction. thank you, roger, i've always thought of you as my friend and sometimes sparring partner but not my nemesis. roger has, i think, conceded the debate. and indeed, has tried to shift it to a very different topic. and i'm nonetheless going to address the basic question that
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was presented here, that is, the proposition that i am contesting. congress and the president are required to obey the supreme court's interpretations of the constitution. required to obey. now, again, this is not a position that roger is embracing. he's saying, no, it's a cultural norm, and i think we may have a lot of agreement there that we can explore later but there are a lot of people in this legal culture who profess, i think, uncritically, the position that the supreme court expressed in cooper v. aaron. many of them teach on law school faculties. and the myth of judicial supremacy pervades our legal culture. so, this required to obey suggests that there's a legal obligation that isn't merely a question of respectful consideration of what the supreme court has had to say or deference as a usual rule or even a rule of prudence. it treats the supreme court as though it is our government's supreme leader, treats the
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adjective "supreme" as though it doesn't merely modify court, not merely the supreme entity and the federal judiciary, but is somehow supreme over all of government. likewi likewise, again, the proposition we are debating refers not to judgments or rulings of the court, that is, the respect that they are owed, but interpretations of the constitution. as once the court has said that a -- the commerce clause, for example, should be interpreted as is, that everyone else, congress, president, have to embrace that. i'm not surprised that roger does not accept this position, but again, there are lots of folks out there who do and for that reason, i'd like to run through why i think it is basically clearly wrong. abraham lincoln, i think, would be surprised that this question is still up for debate. it was 160 autumns ago that he
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and steven douglass had their famous debates in the campaign for the senate seat from illinois, and one big part of that debate was exactly what -- how the dred scott ruling should be treated, how it should be regarded. recall that in dred scott, the court had two basic rulings. first, it ruled that free blacks could never be citizens of this country and therefore dred scott hadn't satisfied the jurisdictional requirement for his lawsuit in federal court because there was not diversity of citizenship. it ruled further that congress had no authority to bar slavery in the federal territories. that was a ruling in early 1857. and douglas came right out and basically said, the exact quote here, whoever resists the final decision of the highest judicial tribunal aims a deadly blow to
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our whole republican system of government. by resists, he meant questions, criticizes, disagrees with. whoever does that. now, lincoln, in his first inaugural, in the passage that general meese read, set forth a proposition, i think, that is quite correct. i'm going to read it again to emphasize it. the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be fixed by decisions of the supreme court, the instant they are made in ordinary let allegation between parties and personal actions, the people cease to be their own rulers, having to that extent practically resigned their government at the hands of that eminent tribunal. he went on to contest douglas, again, nor is there, in this view, any assault upon the court or the judges. so this is not an attack on the
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courts. this is upholding basic constitutional principles, departmentalism, the independent authority of the president, the independent obligation of the president and of members of congress in fulfilling their oath to uphold the constitution, to determine what the constitution means. the only questions we can get into how one goes about doing that responsibly, but for prent purposes, i'll confine myself to the proposition that lincoln correctly understood that he had an independent obligation to do so. consistent with his understanding, linking proceeded to defy the interpretations of federal law that the supreme court had offered in its dred scott ruling. he, for example, issued passports and patents to free blacks. the buchanan administration had said, no, we're going to abide by what the supreme court said, free blacks can't be citizens, therefore, no passports, no patents for free blacks. again, lincoln's administration reversed that. he also signed into law bars on
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slavery in the federal territories. again, direct defiance of the holding of dred scott. he did that in a district of columbia emancipation act, april 16, 1862, ended slavery in this district, and he did that two months later in an act that barred slavery and all federal territories then existing and to be acquired. now, i'd like to explore the distinction between judicial review and judicial supremacy, because i think it's a basic confusion between these two concepts that fuels a lot of the all too ready acceptance of the myth of judicial supremacy. judicial review is the rather odd term that we lawyers use to refer to the power of courts to review the constitutionality of statutes that they're asked to apply and to decline to apply statutes that they deem to be
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unconstitutional. judicial review rests on the supremacy of the constitution over ordinary statutes, on the doctrine of constitutional supremacy. you can see this in hamilton's federalist 78 where hamilton explains that the constitution is, in fact, and must be regarded by the judges as a fundamental law. note this. must be regarded by the judges. the constitution constrains what judges can do. it therefore belongs to them, to judges to ascertain its meaning as well as any meaningful act proceeding from the legislative body and if there's an irreconcilable difference, that which has the superior obligation and validity is to be preferred. the constitution is supreme over ordinary law. he goes on to explain that this does not reflect the concept of judicial supremacy, nor does
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this conclusion, by any means, he says, suppose a superiority of the judicial to the legislative power. it only supposes that the power of the people is superior to both and that where the will of the legislature declared in statutes stands in opposition to that of the people, declared in the constitution, the judges ought to be governed by the latter rather than the former. again, the judges ought to be governed. judicial supremacy holds that the constitution means whatever five justices say that it means and that all other governmental actors are obligated to accept that. there is a deep irreconcilable incompatibility between the concept of constitutional supremacy from which judicial review flows, and the concept of judicial supremacy. so where did this myth of judicial supremacy arise from? as roger has indicated, cooper v. aaron is a very first time the court articulated this myth,
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and it -- in doing so, it spelled out a pseudohistory that you think would get someone a flunking grade in a high school history course. here's what it had to say. in 1803, chief justice marshall, speaking for a unanimous court, referring to constitution as the fundamental and paramount law of the nation, all good so far, declared that it is emphatically the province and constitute of the judicial department to say what the law is. that's all correct so far. of course, it strips out the very context in which we made this statement, which is simply to say, because the courts must determine what the law is, they have to give supremacy to the constitution over ordinary laws. this decision, he goes on, declaring the basic principle that the federal judiciary is supreme in exposition of the law of the constitution. there's not one in marbury versus madison that supports that claim. and he goes on.
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that principle has ever since -- ever since 1803 -- been respected by this country -- by this court and the country as a permanent and indispensable feature of our constitutional system. never mind jefferson, jackson, lincoln. never mind, you know, lincoln standing up to dred scott. somehow this has always been respected as a permanent and indispensable feature. this same myth is reinforced by common mislocutions that i think all of us can fall subject to. it's routine to refer to supreme court decisions as the law of the land. the supreme court has spoken. it's the law of the land. well, the constitution says that the constitution and laws pursuant to it and thereaties me under the authority of the united states are the supreme law of the land. it does not say that the supreme court's interpretations to the constitution are and the idea that the supreme court's mistaken interpretations of the
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constitution are. it's saying that the constitution means x when the constitution means y, that that should be the law of the land. that's, i think, an absurdity. we also tend to say things like, oh, the court struck down that law. as though the -- once the court rules, a law disappears from the statute books. as law professor jonathan mitchell has put it, there is no writ of eray sure. there's no power of the courts to go in and erase these laws in the books and indeed, you'll see that some of these laws that have been ruled unenforceable by the supreme court remain on the books and are very open to springing back into enforceability if and when the supreme court were to reverse its position. we see this in the famous legal tend tender cases from the 1870s. in 1870 itself, the court ruled that the legal tender act of
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1862, allowed to pay debts with u.s. notes, could not constitutionally be applied to contracts made before its enactment. just one year later, the court reversed course and held that the act could be applied to contracts made before its enactment. well, how could it have reversed course if the law that it was ruling on had been erased from the statute books in the meantime. it wasn't, obviously. now, again, i'm glad to hear -- i'm not surprised, but i'm glad to hear that roger does not embrace what he calls the absolutist version of the proposition here. and imagine if -- imagine anyone who did. imagine what this would mean, for example, that even if you thought that, say, the court's commerce clause decisions were wrongly decided, somehow it would be incumbent upon members
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of congress never to urge that a bill be defeated because it's beyond a proper view of congress's commerce clause power. there's a view that doesn't comport with that case. likewise, with respect to -- and indeed, i suppose it would be illegitimate for a member to even vote with what's -- with such a view in his mind. likewise, on, you know -- you can go on and on. again, i think this proposition of judicial supremacy is not one that can be maintained seriously by any person, and indeed, we see it invoked selectively to protect rulings that people favor. look, i'd love to have a rule of judicial supremacy that said the court is supreme on those rulings i like and not on those
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that i don't. and everyone tends to, in practice, adopt a position like that. you have to take the bitter with the sweet, and so you know, there will be plenty of decisions that we all or most of us like that we have to recognize that, you know, might well be vulnerable to good faith challenge. the complexity here really comes in when we try to explore just what this strong presumption or social norm that roger raised really means, how strong should it be, how does one go about contesting it, and i think the very existence of this myth of judicial supremacy makes it difficult for us to really -- for our culture, at least, to really explore that question in a serious manner. so, if we can dispel this, then we can, i think, think in a more
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constructive way about just when and where and how the president, members of congress, state actors for that matter, can go about contesting supreme court interpretations and work to get supreme court decision making closer in accordance with our actual constitution. thank you. >> all right, i've got five minutes to rebut, but unfortunately, there's not much to rebut, because i agree with essentially everything that ed said. so, let me play devil's advocate for just a moment. the whole issue of judicial supremacy arises because the court sometimes gets it wrong, and therefore, the claim that the court's decision is the supreme law of the land raises
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the question, well, was the court's decision in plessy the supreme law of the land or was its decision in brown the supreme law of the land? but let's suppose that there was a question -- there was a decision about which there could be no question. would we then be able to say that the court's decision was the supreme law of the land? suppose, quite beyond imagination, that a case came before the court about whether the president was 35 years old or not and the facts were clear on the matter and the question would be, what is the law on the matter? well, there's not room -- much room for wiggling on that kind of question. so, would the decision that the constitution says that the president must be at least 35 years old be construed properly as the decision -- as a decision
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that becomes the supreme law of the land. i leave it to ed to wrestle with that hypo. anyway, i notice he didn't go after the kinds of things that i threw out which i threw out simply to goad him into responding to them, so let me follow up on my promise to give you a decision that brings to the fore the question not so much of judicial supremacy but judicial review, which i moved over to because judicial supremacy couldn't be thought of as the extreme form of judicial review. and i'll choose the case of granville, the 2000 decision which was a challenge of washington state statute that authorized grandparents and others to go into state court to get an order to allow them to visit the children of parents who may not have wanted those people to visit their children.
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the grandparent visitation statute, as it was called. now, this is a statute that put conservatives to something of a dilemma, because on one hand, they are family values folks and in particular, valuing the right of fit parents to control access to their children. but on the other hand, they tend to be deference to the legislative branch and in particular at the state level, and so they were torn both ways in this. we libertarians were not torn in the least. we stood for the idea that this was absolutely an unconstitutional measure under the -- properly under the privileges of immunities clause but actually under the due process of law clause. and that's exactly the way the washington state supreme court and the u.s. supreme court came down. but justice scalia dissented and in his dissent, he said the right of fit parents to control access to their children is one
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of the inalienable rights the declaration of independence speaks of and one of the unenumerated rights the ninth amendment refers to, but that amendment does not authorize him, he said, to say what those rights are, much less to enforce them. well, the problem he's got there is that he's already said that this is a constitutional amendment insofar as it is recognized under the 14th -- under the 14th amendment through the 9th amendment. and so, the question is, as with all such constitutional rights, it falls to the court to protect them from the kind of majoritarian tyranny that fit parents were put to by this statute. and so he left it to the -- he would leave it to the state. well, the state has spoken, and it said, there isn't this constitutional right, which he himself said there is. so, he's in something of a
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dilemma there and i'm just curious how ed would handle a case like this. my time is up, so i'll leave my real zingers to the conclusion, and it's all yours, ed. have at it. >> thanks. i'll just sit here at this point. look, again, i appreciate the fact that we have consensus on the major question. >> relative consensus. >> and so roger's trying to bait me on some other matters. let me first address -- >> this is a debate. >> well, bait does not mean -- debate does not mean bait. but so roger's question is, is a clearly right supreme court decision the supreme law of the land? no, a clearly right supreme court decision is a clearly right supreme court decision and it is, therefore, you know, compelling evidence, one would say, of what the constitution means, but i don't think that that changes the fact that
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the -- when the constitution says that it and federal laws pursuant to it are the supreme law of the land, it doesn't say that supreme court rulings are, and there's no reason to treat them as such. you know, the 9th amendment, i know, is a perennial source of dispute between roger and me, so i will let myself get baited here. like roger, i believe that the text of the 9th amendment should be strictly followed. unlike roger, i don't think that the text of the 9th amendment remotely says what he imagines it to say. the 9th amendment reads, the enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people. by its express text, it merely sets forth a rule of construction governing other
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constitutional provisions. its text, i would submit, cannot plausibly be read as a font of any rights. that obviously is a divide between -- among originalists, especially, i think, between libertarians and those of us who are more in the judicial restraint camp. i readily plead guilty to not reading into the constitution my preferences on, you know, grandparent visitation or anything else. >> all right. so, i guess we will draw this to a conclusion with a couple of quick summaries and i will pick up on this 9th amendment business by suggesting that -- that ed is half right. that it is a rule of construction, but it is not a mere rule of construction, for it says, the enumeration in the constitution of certain rights shall not be construed, what, to deny or disparage others
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retained by the people. notice, you can't retain what you don't first have to be retained. now, people like robert bork said, we don't know what the 9 th amendment means. it's like trying to find something under an inkblot. well, we do know because the framers, as it happens, addressed that issue in the last days of the convention and it was addressed further in the -- in the constitution or the ratifying conventions. the objection -- and it was addressed in the form of objections to adding a bill of rights. wilson, hamilton, and others objected for two reasons. one, a bill of rights would be unnecessary and second, it would be dangerous. unnecessary because why declare,
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for example, that there's a right to freedom of speech when no power is given with respect to limiting the freedom of speech? in other words, they took the doctrine of enumerated powers, the idea that congress has only 18 powers, very seriously. the logic being that where there is no power, there is a right. moreover, and here we come to the point, the failure to ena enumerate all members of the category by ordinary principles of legal construction -- will be construed as meaning that those that are not enumerated shall not be protected. and it was to guard against that that they wrote the 9th amendment, which makes it clear that just because you don't find a right among our enumerated rights, doesn't mean that we don't have those rights. and if those indeed are
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constitutional rights, as justice scalia said, then it falls to the court to determine what they are. but it does not follow that the court has to go about that by actually enumerating unenumerating rights. rather, all it has to do is ask whether the power that is before the court is legitimate, and i'll give you one simple example and conclude with that. and that is, griswald v. connecticut, which was a challenge to the connecticut statute that prohibited the sale and use of contraceptives. there, it was enacted under the police power, the principal purpose of which is to secure our rights. whose rights were secured by this statute? whose rights are violated by my
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selling you contraceptives or you using them? the government, as in lawrence, could come up with no reason other than the morality of one part of the population against the morality of another part of the population. in other words, it was pure majoritarian tyranny in the domain of morality. and that's why it fell and rightly so. >> i'll be very brief. first, roger earlier took judge bork to task for getting madison backwards. as i understood it, he objects that bork said that here are two principles, one and two, and here are two principles, two and one. i really don't think that affects the analysis to say that these two principles and present a sort of tension that needs to be resolved. on the question of the 9th amendment, there's a sort of sleight of hand or sleight of
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word going on here. the essential point is that the rights that are protected by the 9th amendment, the limits on governmental power, are not rights of constitutional stature, scalia did not say otherwise in his dissent. as michael mcconnell has argued, and he did this years ago at cato and i don't think anybody -- he went in the belly of the beast to make this point. i don't think anyone has yet responded to him. >> i have. >> 9th amendment merely provides a clear statement rule for abrogating unenumerated natural rights, unenumerated natural rights not of constitutional stature. but let's get back to what this debate is all about and i just want to remind you that i think i've had a concession at the beginning, that the myth of judicial supremacy is unsound, and i encourage you to be attentive as you hear people talk about legal issues. you'll see this pop up in all sorts of ways, and we're not
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ever going to get our legal culture corrected. we're not going to be able to think seriously about when and where the president, congress, can challenge supreme court interpretations unless we first dispel this unsound myth. thank you. >> please join me in thanking both of our debaters. in the minutes that we have left, we're able to take a few questions from the audience. please identify yourself and indicate whether your questions is directed at one of the debaters or both. also, please, if possible, have the first question -- the first sentence after you identify yourself end with a question mark. first sentence after you identify yourself. we'll start right here. >> devin watkins. to bring it back to the question that was asked in this. say that the supreme court -- the court -- someone sues the
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government over something and the court says that statute is unconstitutional, i'm going to ignore it, and the executive branch says, i'm going to ignore that opinion to all the other parties and forces each and every person to go sue the government and get a declaration and injunction against them. this seems, at least, to kind of undermine that -- maybe it's cultural norm, but is there -- it seems like there's quite a bit of a problem if the executive is actually doing that, especially if it's doing it on a regular basis. >> is that a question to me? >> to both of you. >> that was the point i made in my formal remarks, namely, you would see a cascading series of suits, each one -- not only would you have to sue arkansas, then you would have to sue oklahoma, then you would have to sue mississippi and so forth, each one saying i will not
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desegregate until i am ordered, expressly, to do so, because there is no precedent here. >> look, obviously, the significance of this concern depends on the particular matter that's at issue. i would just add, just emphasize, that the president and congress have been come publici complicit in promoting the myth of judicial supremacy. they love to say things like, the court has ruled, it's the law of the land, it's no longer for us to have to deal with. they love to have these issues removed from their baliley wick and in particular attorneys' fees statutes operate to entrench judicial rulings in a way that makes it very costly for anyone to resist a ruling and require that plaintiff after plaintiff pursue it. i actually think that it would be a good thing, lots of reasons
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this won't happen, for congress to reconsider its sweeping attorneys' fees statutes. >> great. down here? hi. excuse me. carl, we've been led to fixate on supreme court decisions as setting precedents extending beyond the specific subject matter and does that lead us away from the central truths of the constitution, and as a reference for my question, roger sherman's caveat against injustice or an inquiry into the fluctuating medium of exchange written in 1752 and andrew jackson's farewell address, the essence of this being we've been led away from the constitution, and also we've been led away from that as protecting the wealth of the people and into a system of central banking that seems nowhere authorized in the
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constitution, and the admitting of bills of credit was specifically prohibited. >> to whom would that be directed? >> to both of you. have we been led away from the truths of the constitution by a fixating on the decisions of the supreme court? >> roger? >> well, i think that's true. i don't have much more to add to that except that as i said, there's all the difference in the world between the constitution and modern constitutional law and nowhere is that more the case than in the post new deal jurisprudence, which has led us down a path of massive government and has encouraged people to say such things as, a market established by the -- an exchange established by the federal government is an exchange established by the state. that was king v.burwell decision thanks to chief justice john
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roberts. >> i think you see in so many areas the court can offer an ill considered ruling on something and it's presencedent. i'm guessing that roger and i are in agreement that, you know, precedent ought to yield pretty quickly when it's demonstrated that a decision is wrong. again, there can be some considerations that weigh against that but i think the rhetorical bar is often set way too high on that. >> thank you. preston. was marbury v. madison properly decided? >> how much time do we have? well, look, i think on the -- marbury v. madison is of course one you could talk about for a long, long time but on the basic question of, you know, is there properly a power or some would say a duty of judicial review that federal courts have to
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determine whether the laws they're being asked to apply are constitutional or not, i would say that marbury is correct on that. >> i think marbury was correct too. i read it as saying that we don't have the authority to decide this case, but we do have the authority to say that we don't have the authority to decide this case. >> now, that said -- i'm sorry. there are disputes over whether marshall actually gave a plausible reading to the particular statute that he determined to be in conflict with the constitution. whole host of other issues one could raise but the basic question of power of judicial review. >> as an indication of how the judicial appointment process has changed, justice scalia was unanimously confirmed after refusing to say whether marbury v. madison was correctly decided. david? >> david. question for ed whelan. i'm very sympathetic to your
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argument. would you extend the analysis to the states and say that governors and members of the state legislatures who also swear an oath to uphold the institution should set aside incorrect supreme court rulings? >> well, when you say should set aside, i would modify your verb there to -- should not treat as absolutely binding. again, we then get into the zone of, how do you go about dealing with this decision that you, in good faith, on a well considered judgment, determine to be contrary to the constitution. that's a complicated matter. i don't think there's -- i have an easy answer to that. there are questions of prudence that come into play. law professor michael paulson wrote a series of hypotheticals on a blog that he and i both blogged on some years ago and ran through these different alternatives, even going down to, you know, my juries also
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disregard supreme court decisions they deem to be mistaken and his answer in every instance is, yes, they may disregard. but again, that doesn't get to the question, the vexing question, of how you go about doing so in a way that is responsible and effective. >> but also, let's remember, before we go down too far on this road of critiquing the idea of judicial supremacy, that the refusal to abide by a court ruling is far and away the exception rather than the rule. and it's good that it is, because, as i said in my opening remarks, we would have, if that were the rule, chaos and probably undermining of the rule of law. and so, it is good that this social norm that josh blackman and meese have spoken of as characterizing this -- this idea
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of judicial supremacy, at least in a limited form, is probably a good thing. >> well, i'm less confident that that's the case. i think what roger -- >> that what's the case? >> what roger refers to as chaos could be the healthy tension between the separated powers and i think rule of law may not be the right term to apply to acquiescence to a supreme court decision that is incompatible with the constitution. >> well, at that point, i become a hobbesian and want to avoid a world in which life is -- >> we've got time just for one or two more questions. young lady right there. >> thank you. jerika washington, and mr. roger pilon, if you would, thank you for discussing the mereness and the word oppression that the
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founders sought to protect against being merely oppressive, and for discussing, in depth, and venturing into that about how -- excuse me -- about how to actually talk about uncertainties in the doctrines and in our decisions in the judiciary branch. is there a doctrine in place -- are there now, in the modern interpretations of the constitution, are there now continuations of that concern that our founding fathers had when they discussed that at some time in the future, they would be a consensus that would make our supreme law of the land seem merely oppressive? >> make the supreme law of the land what? >> merely oppressive. >> oppressive. >> oh. i'm not sure i understand.
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>> i meant no unreasoning or unraveling by it. when i put the question together, i was listening to how you went into depth about the doctrines in place and whether plessy was the supreme law of the land or did we go and change it to brown later and that was the supreme law of the land and now the people feel that the supreme law of the land is just whatever keeps the common man in line. today that separate but equal is not yield the result that plus he gave us, whether we did at the time is an open question. the way i generally address this issue is to say that whatever the generation that wrote the civil war amendments thought and subsequent
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amendments thought, fortunately what they wrote was better than what they did. so if you read the language with reference to what they did, they said the equal protection , clause is to be sure, sometimes difficult to apply. but it meant anti-miscegenation laws notwithstanding, that those laws were unconstitutional as the court in virginia finally said. know whether interracial
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marriage was thought to be, whether the power of states to ban interracial marriage was thought to be perfectly constitutional at the time of the 14th amendment, i can't say, but fortunately the words they left us allowed us eventually to say that laws prohibiting interracial marriage are unconstitutional. >> is doing me in thanking roger the lawn and ed whelan. today is election day. cspan's election night coverage starts at 8 pm eastern. for the latest results , we will bring you victory and concessions to speeches from can -- elections across the country.
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election night, live tonight starting at eight eastern on cspan, your primary source for campaign 2018. 2018 election results will start to come in as the polls close across the country tonight. the first polls close at 7 pm eastern in states such as virginia, and georgia. ohio, west virginia and north carolina close a half hour later. much of florida poses at 7 pm as well, except for part of the panhandle where they close at 8 pm. polls in pennsylvania, the new england states, and several southern states including mississippi and most of texas also close at eight. arizona, wisconsin, and new york are among a number of states with polls closing at nine eastern. polls in montana, nevada, utah, and iowa close at 10 pm. california and hawaii close their polls at 11 pm eaer


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