Constitutionalism Is A Myth: Judicial Supremacy In America

In Fritz Pendleton’s exceptional Social Matter piece, “The Inglorious Revolution And The End Of Absolutism In England,” we see how the 1688 Revolution fundamentally oriented English government towards parliamentary supremacy. The ultimate manifestation of this trend comes in Blackstone’s famous Commentaries on the Laws and Constitution of England, wherein the author states “If [Parliament] will positively enact a thing to be done, the judges are not at liberty to reject it, for that were to set the judicial power above that of the legislature, which would be subversive of all government.”

While the British system of parliamentary supremacy is a rebellion against royal absolutism, the American system of judicial supremacy both partakes of the British tradition and fundamentally rebels against it. The American version of Sir William Blackstone is the legal scholar Edward Corwin, whose book, The Higher Law Foundations of American Constitutional Law, fulfills much of the same role in providing a post facto justification of the de facto power grab of the American judiciary.

Corwin traces the origin of judicial supremacy to the works of Chief Justice and MP Sir Edward Coke, whose work on the court and subsequent Institutes lay the foundation for the judiciary as the sovereign body with ultimate authority over law. Corwin argues that Coke inherits the natural law teachings of St. Thomas Aquinas and merges them with common law to claim that precedent, long established, serves as the expression of the unwritten law of God. Like St. Thomas, he asserts that natural law itself is unwritten and inaccessible in its entirety to fallen Man, but argues that it can be approximated through the right reason of generations of judges made anonymous and faceless over time by stare decisis.[i]

Interestingly, Corwin traces the divergence in American and British constitutionalism to 1688, as that year signaled the end of elite migration to the Colonies and the shift toward another body of immigrants, Fischer’s “Borderlands to Backcountry” Anglo-Celts. Corwin claims that the end of elite migration meant the end of intellectual discourse between England and its colonies, leaving Americans with the old lawbooks of Coke while England shifted to the understanding of Blackstone.[ii]

The seminal case which establishes the doctrine of judicial supremacy is, of course, Bonham’s Case. In summary, Parliament granted to the College of Physicians the right to try both malpractice and practicing without a medical license. Bonham was tried for practicing without a license and convicted. At the Court of Common Pleas, Coke wrote for the majority that allowing a party to be both prosecutor and judge violated the principles of the common law, and that “when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void.”[iii]. Coke would not be long to the bench, as his antagonism of both King James I and Parliament would see his tenure end shortly. Nevertheless, his Institutes were the dominant lawbook used to teach the common law until Blackstone, which doesn’t arrive in the Colonies until the eve of the Revolution.

Notwithstanding the disdain which judicial review received in England, when the American colonies found themselves in conflict with both Parliament and the King, it was a doctrine which was both useful to the cause and a deeply familiar from the legal education of the American founders. Relying on the parliamentary supremacy of English writers like Blackstone and Locke would fundamentally undermine the case of men like John Adams that the laws of Parliament were void in the Americas. Coke’s doctrine served the practical needs of the burgeoning independence movement to find an alternative basis of law for their new nation. Little did they know that this doctrine would be used against them by a court which would usurp the powers of the new Congress, just as the founders usurped the power of Parliament.

Every college student in America should have a general familiarity with Marbury v. Madison. This case is the fundamental statement of sovereignty in the American political system, the proclamation that the Supreme Court has final authority over lawmaking in the American system. The common claim of the Old Right, be it the paleoconservatives, the Buckleyite Fusionist Conservatives, or the neoconservatives, is that the United States is a constitutional republic where the Rule of Law makes only the Constitution itself sovereign.

This is the founding myth, about as accurate as Romulus and Remus suckling from a she-wolf.

It serves to maintain the loyalty of the bulk of Red State America to the ruling system and serves to sharply out-group those who see the need for fundamental changes to the American system. Randy Barnett is bold enough to admit this, systematically demolishing all arguments for government by consent, then concluding by stating that popular consent is necessary, from his perspective, as a useful fiction to undermine the claims of absolute monarchy.[iv]

The existence of judicial review is not the only reason the American system can be described as judicial supremacy. Barnett declares the determinative factor which makes the American system a form of rule by judges is that under the common law, judges may not enact law, while under the Americans system, the Supreme Court commonly issues writs commanding action on the part of the other two branches of government.[v]

Robert Nagel contrasts the American system of judicial supremacy with constitutional government by demonstrating the role of the Court in creating the very Constitution they claim to follow and interpret. Nagel’s book, Constitutional Cultures, focuses on the way that Brown v. Board of Education illustrates the role of the Court as the sovereign authority over American government. According to Nagel, the decision in Brown is a naked exercise of political judgment with no basis whatsoever in law.[vi] The problem he finds with that is not merely how the Court undermines its own legitimacy by destroying the formal source of their authority, but that this makes the Court a de facto political branch which functions as an oligarchical super-legislature.

As such, the Supreme Court hides behind its status as mere “judges” while exercising the function of lawgivers. This function includes determining the winners and losers of society, much in the way that ordinary legislation does. Nagle says that the Court’s takes a non-instrumental approach to rights, meaning that the Court makes its decisions based on the message the case sends to society rather than the particular merits of the litigants. In this way, the Court signals its solidarity with certain groups in society and necessarily its reciprocal hostility to others.[vii] Those groups with which the Court shows solidarity are termed in the legal language of the Court, “suspect classifications,” and laws targeting them are subject to strict scrutiny. Nevertheless, the practical aspect of this legalese is that the Court makes judgments based essentially on the Who-Whom question, an essentially political, not legal, method of decision-making, which masks judicial realism with a veneer of judicial formalism.[viii]

In the book The Political Foundations of Judicial Supremacy, Keith Whittington posits that the power of the judiciary and its ability to assert supremacy is a function of weakness, disunity, and conflict within the elected branches of government. He cites three Presidents who during their tenure managed to resist the power of the Court against their policies: Jefferson, Jackson and FDR.[ix] What these administrations had in common was a vigorous executive with a transformative agenda supported by powerful congressional majorities. In the absence of such an opposition, the only options of the political branches is the kind of impotent opposition of Congress which is epitomized in the Religious Freedom Restoration Act or the appeal to the public made by Presidents Nixon and Reagan which enhanced presidential prestige and power without hindering the Court.

Ultimately, all three of these authors fail in their analysis because they refuse to take the final step in the argument. They agree that the Court does not practice constitutionalism but refuse to admit that constitutionalism itself is a myth, much as government by consent is a myth. Each author puts forwards strategies to return to a “true” constitutionalism that never existed. The United States Constitution is not a governing document, but a symbolic totem, the purpose of which is to protect the legitimacy of the regime from challengers who are ill-served by the current Kritarchy. As long as people accept the myth of Rule of Law, the Court can spin its overt constituent service of favored groups as impartial application of the law without the inevitable backlash from the injured parties.

American government operates according to the same fundamental principles as British government after the 1688 Revolution. Both have transferred the sovereignty of an absolute monarch into other bodies of rulers. In Britain, it is Parliament and in the United States it is the Supreme Court. The result of the 1688 Revolution in both countries is that the newly sovereign body felt the need to disguise their power behind the myth of Rule of Law. Whereas a monarch may openly exercise power, the moral and legal degeneracy of constitutional governments is demonstrated by the lengths to which they must go to disguise the operation of power and sovereignty behind veils of lies and the pretense of legal formalism. 1688 changed English government dramatically, but it also transformed the American system into what it is today: the Rule of the Judge.


Citations:
[i] Corwin, Edward. The Higher Law Background of American Constitutional Law. Liberty Fund: Indianapolis. P. 25.

[ii] Ibid. P. 70.

[iii] Thomas Bonham v College of Physicians, 8 Co. Rep. 107 (77 Eng. Rep. 638).

[iv] Barnett, Randy. Restoring the Lost Constitution. Princeton University Press: Princeton. P. 32.

[v] Ibid. P. 143.

[vi] Nagel, Robert. Constitutional Cultures. University of California Press: Berkeley. P. 5.

[vii] Ibid. P. 71.

[viii] Ibid. P. 85, 131.

[ix] Whittington, Keith. The Political Foundations of Judicial Supremacy. Princeton University Press: Princeton. P. 27.

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8 Comments

  1. In Pendleton’s piece, we see how a legislature can take power from an executive. In this piece, we see how a judiciary can take power from a legislature. The goal of neoreaction in America, as I understand it, is to help the executive take power from the judiciary. I detect a cycle that takes place on the time scale of centuries. Can this cycle be broken? And if so, how?

    Reply

    1. I don’t think this is a cycle, but a conflict between two rival systems both of which sought to replace Monarchy. Chief Justice Coke served under James I and his doctrine was prominent at the same time that Parliamentary Supremacy was becoming fashionable during the Interregnum. In England, the Parliament and the Courts clashed and Parliament won. In America, Parliament had few supporters (due to lack of representation) and therefore the support for Judicial Supremacy was much greater. Both Blackstone and Coke, however, describe their systems as being in opposition to royal power. Coke wrote the Petition of Right as an MP, for example, which claimed the King was subject to constitutional judgments of the Common Law, and also which earned him the apocryphal backhand from James I, which stirs the LARPy heart of the modern cuckservative against the bad old monarchy.

      Reply

    2. Joshua Chamberlain April 10, 2017 at 3:50 pm

      Good insight. It is just Polybius’ cycle of regimes.

      Reply

  2. Part of it is structural. A.V. Dicey or somebody pointed out that judicial supremacy is indelibly inscribed in the structure of a Federal system inasmuch as the Supremes, by necessity, end up getting the last word in disputes over jurisdiction between the Fed and the several States/Provinces.

    Reply

  3. Joshua Chamberlain April 10, 2017 at 3:53 pm

    It was observed during the Constitutional debates, notably by Brutus in the Antifederalist Papers, that the Supreme Court would have this feature. Never was Hamilton more wrong than when he called it the “least dangerous branch.”

    Reply

    1. One must wonder how things would be different today if Congress and/or the state legislatures had balked at the Marbury v. Madison decision and passed a constitutional amendment to counter it.

      Reply

  4. this assumes a rather naive understanding of what “constitutionalism” means. the document is merely an embodiment of a much large fragmentation. the original meaning of “constitution” wasn’t the document, but such fragmentation, which arises naturally in human interaction. every kingdom, even an absolutist monarchy, has a constitution. what the US constitution attempted was to formalize such constitution in a way that preserved its form (and thus the republic). the following of the constitution is much less important than the actual flows of power.

    Land has written a little about it:
    http://www.xenosystems.net/casino-royale/
    http://www.xenosystems.net/protocols/
    https://oldnicksite.wordpress.com/2013/02/01/a-republic-if-you-can-keep-it/
    https://oldnicksite.wordpress.com/2013/01/24/quibbles-with-moldbug/

    Reply

    1. The problem with your understanding is that the old Ciceronian “constitutio” which is defined by the medieval lawyers as “consuetudines et uses” or the customs and mores of the country, is explicitly rejected by the American Founders. Constitutionalism in the American context is the creation of a written document of positive law which controls government action. In the Constitutional Convention debates as well as the Federalist-Antifederalist editorials, emphasis is placed on the written character of the USC for the very purposes of preventing the Legislature from exercising powers not enumerated or implied.

      Enlightenment Constitutionalism is well established in this context, from Montesquieu to John Stuart Mill. It is a rejection of the Ciceronian definition in favor of a positivist understand of law. Substantive Due Process is the closest the American system gets to an “unwritten constitution,” and that doctrine has always rested on shaky footing. Corwin is grasping at straws when he claims that there is an unwritten “higher law” behind the U.S. Constitution. The only law higher than the Constitution in the U.S. is the will of the Nine Judges.

      Reply

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