Jeff Jacoby – Conservative Boston Globe Columnist Asserts Law of the Land is Not the Law of the Land

Position:  If Congress or the President Don’t Like a Supreme Court Decision, They Don’t Have to Obey It

One of the many dangerous “big” ideas of Newt Gingrich that he espoused in his justifiably to-be-doomed Presidential campaign is the idea that as President if he alone felt a Supreme Court decision was wrong, he could ignore it.  As difficult as it is believe, this concept has been taken up by other Conservatives, the latest of which is a reasonably intelligent columnist for the Boston Globe, Jeff Jacoby.

Mr. Jacoby writes that the Supreme Court is not supreme, that it is a co-equal branch of government and does not have the final say on the interpretation of the law.

If the Supreme Court wrongly decides a constitutional case, nothing obliges Congress or the president - or the states or the people, for that matter - to simply bow and accept it.

This is dangerous stuff.  It is one thing for a buffoon like Mr. Gingrich to present these ideas, no one really takes the Speaker or his radical positions all that seriously.  But it is another thing is respected and serious Conservative commentators take up the theme that a President can simply ignore the Supreme Court when he or she thinks they are wrong.

Mr. Jacoby quotes historical figures who railed against the tyranny of the courts.

But the heart and soul of American democracy is that power derives from the consent of the governed, and that no branch of government - executive, legislative, or judicial - rules by unchallenged fiat. Gingrich is far from the first to say so.

“To consider the judges as the ultimate arbiters of all constitutional questions,’’ wrote Thomas Jefferson in 1820, is “a very dangerous doctrine indeed , and one which would place us under the despotism of an oligarchy.’’ Abraham Lincoln - revolted by the Supreme Court’s ruling in the Dred Scott case - rejected the claim that the justices’ word was final. “If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court the instant they are made,’’ he warned in his first inaugural address , “the people will have ceased to be their own rulers.’’

But fails to note that there are remedies for judicial decisions for which the people disagree.  But these remedies are sometimes difficult, and people like Mr. Jacoby would sweep the rule of law away because they find it inconvenient to use those remedies.

Mr. Jacoby is correct in that the Supreme Court is not the final word.  Most of what the Court does is to interpret the laws of Congress; if Congress and the President think that interpretation is wrong, or is not something they intended, the problem is fixed through the legislative process, something that has happened many times in American history. 

If the Court rules that a law is Unconstitutional, again the remedy is legislative action.  New or amended legislation can remedy the Constitutional flaw, or in the extreme,  legislation and state approval can amend the Constitution.  This is what the Founders intended when they wrote the Constitution, that no branch of government was supreme in that it could not override the actions of a different branch.  It is a system of government, that when used correctly, is a success.

Take for example the extremely unpopular Supreme Court decision that said that state and local government had the right to use eminent domain to take private property for use by a private company.  Those states and communities that disagreed with the ruling simply passed laws forbidding the state or local government from doing so.  This was their lawful right and they used lawful means.  In the world that some Conservatives would have us live in, the ruling would be simply ignored, which is an unlawful right using unlawful means.

The problem is that when people start to propose “nullification” of laws, bad things happen.  In the 19^th century that bad thing was a Civil War, which was largely about slavery but had an undercurrent of the right of states to “nullify” any federal legislation they did not like. In the 20th century it was defiance of Court decisions to end segregation.  (Go back and read the rhetoric of Conservatives during the 1950's and 1960's about how they didn't have to obey Court decisions on integration.  Then try to convince yourself that Conservatives are, well conservative).

 Mr. Jacoby never says how a President or a Congress or the states or the people get to decide that a case is wrongly decided by the Supreme Court and thus they don't have to adhere to it, for the obvious reason that there is no Constitutional or lawful way to do so.

The United States can be and should be well served by rational, intelligent Conservative thought.  They serve to check the too often expansion of government power when that expansion is neither wise nor warranted.  Good Conservatives force all of us to continually examine the trade-off between individual freedom and community action which in some cases have to limit individual freedom in return for community benefit.

One would think the rule of law would be paramount in Conservative values, but now it seems that at least some Conservatives so strongly believe in their cause that they are willing to sweep away the rule of law in order to impose their own philosophy on the nation.  This is sad for Conservatives, and even sadder for the nation.