Political Scientists Louis Fisher and David Gray Adler have penned a short article for this week's issue of Legal Times (sub. req.) challenging the commonly held belief that the Courts are given the final word on the meaning of the Constitution. This follows an article that appeared in the journal PS: Political Science & Politics, the more readable journal published by the American Political Science Association. The article, by Winfield Rose, looks at how Marbury deliberately misquoted the Constitution in order to establish an independent power of the courts to interpret the power of the Constitution. As Rose concluded, Marshall established the Court as a co-equal branch in the interpretation of the Constitution and not the final arbiter.
In the current piece by Fisher & Adler, the two begin by arguing that at the time Marbury was written, Marshall didn't dare think that the Court should have final say regarding constitutional interpretation: "This was not a comfortable time for judges. U.S. District Court 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." Marshall, they argue, "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." They also quote a number of Supreme Court Justices who held the view that the Court was never meant to be primus inter pares.
Both provide numerous examples of instances where the Court was overruled by the other constitutional powers in our political system--Congress, the states, and the American citizen. For instance, despite the fact that the Supreme Court, in 1983, declared that the legislative veto was unconstitutional, the Congress and the president continue, via informal agreements known as comity to enforce the legislative veto, and presidents continue to object via signing statements.
Those of us who believe that the Court is one among many need to continue to push this case to our colleagues and to the American public. We should start by revising the way our students are taught about the way the Constitution works. The reason that most American believe judicial review gives the Courts the final say is because that is what our textbooks say. It is our obligation to change that.
