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The Supreme Court as Final Interpreter - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government [1989]

Edition used:

Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


The Supreme Court as Final Interpreter

In the United States, the opinions of the Supreme Court are routinely reported in the news by hundreds of journalists. Countless lawyers and judges, and regiments of local, State, and Federal officials examine the Court’s rulings on a daily basis. Colleges, universities, and law schools devote many courses of study to constitutional law and constitution-related subjects. In no other country of the world is there such widespread interest in a nation’s fundamental law. Probably more books and articles on the Constitution or the Supreme Court’s interpretation of it are written in one year than all of the other countries of the world, writing about their constitutions, produce in a decade. We are indeed a constitution-minded people who take their constitution seriously.

This “constitutional colloquy” has persisted throughout our history and may be traced back to the founding period. It can almost be said that the debate in the Federal and State ratifying conventions of 1787–88 is a continuing debate. Much of this debate relates not only to disagreements over Supreme Court decisions, but more fundamentally over basic principles of the Constitution and its proper meaning and interpretation. But the word “interpretation,” as we noted earlier, does not appear in the Constitution. The Constitution does not instruct the judges how they are to interpret the Constitution, and the separation of powers forbids Congress and the President from telling them how to interpret it. To complicate matters, the Constitution is also silent on the question of who is the final interpreter, or whether Congress, the President, or the States may also offer their interpretations. Although these questions have not been fully resolved, constitutional practice and experience over the years has apparently settled a number of issues.

It may be taken as a general rule that the Supreme Court of the United States is the final interpreter of the Constitution in a particular case that is brought before it and decided. But the finality of the Court’s judgment is conditional because Congress, the several States, and the people thereof can take action to reverse the decision or render it inapplicable in future cases. Congress, for example, has the authority to withdraw the Court’s appellate jurisdiction, and if it wished it could pass a law making it impossible for the Court to rule in the type of case previously determined. Congress might even go further and remove the original jurisdiction of the lower Federal courts, thereby making the State supreme courts the final interpreters of the Constitution in those particular kinds of cases.

In examining this issue, it is important, however, to distinguish theory from practice. As a matter of constitutional theory, the Supreme Court is the final interpreter of the Constitution in a given situation because Congress permits it, not because it is required by the Constitution. As a matter of actual practice, Congress rarely exercises its power to restrict the Court’s jurisdiction, and the Supreme Court is almost always the final interpreter of the Constitution.

A Supreme Court decision can also be reversed by a constitutional amendment, and this is precisely what has happened in a few instances. In this sense, it is the States and the people thereof who act as the final interpreter of the Constitution. Again, however, we must distinguish theory from practice and recognize the fact that only a handful of Supreme Court decisions have been overturned by the amendment process. In other words, the Supreme Court is also the final interpreter because the States and the people thereof usually let the Court’s decisions stand.

Being the final interpreter does not mean that the Supreme Court is the exclusive interpreter. Members of Congress and the President, who also take an oath of office to support the Constitution, must necessarily interpret its provisions in order to carry out their responsibilities. Congress does not debate in a constitutional vacuum. When a proposed bill is under consideration, the members must look beyond its desirability as a matter of public policy to the larger question of whether it conforms to the Constitution. Sometimes, in fact, they never reach the merits of legislation because of constitutional objections raised by its opponents. The constitutionality of laws is first tested in Congress, which means that members of the House of Representatives and the Senate ought to have an informed understanding of the Constitution in order to interpret and apply its provisions to proposed laws.

Likewise, the President is frequently called upon to interpret the Constitution in carrying out his executive duties. In the first place, he must decide whether to sign proposed legislation into law or whether to veto it and send it back to Congress. Here the laws of the land undergo a second constitutional test. If, in the judgment of the President, the law conflicts with the Constitution, he will often veto it strictly on constitutional grounds, without addressing its political, social, military, or economic policy objectives. In the second place, the President must execute and enforce the existing laws he has inherited from his predecessors. This involves more than a routine administration of the laws, for he must interpret the law for his subordinates and, as is often the case nowadays, direct them in drafting regulations for its enforcement. Congress does not always find it necessary or practical to include administrative details in its laws, and not infrequently allows executive agencies as well as independent regulatory commissions to “fill in the details” with administrative regulations. In performing this task, the President has the ultimate responsibility of making certain that these regulations do not violate the Constitution.

These are only a few examples to illustrate the interpretive roles played by Congress and the President. In the early Republic, when Congress was establishing a new government and sailing on uncharted seas, there was a great deal of constitutional debate in both houses. As time wore on and more and more issues were settled, the frequency and quality of constitutional debate declined somewhat. Still, the practice continues, as it must, and the discussion of constitutional issues as reported in the Congressional Record or in the committee reports of Congress can be highly instructive.

Presidential involvement in constitutional interpretation and debate is less extensive and frequent than congressional involvement, but not necessarily any less heated. Some Presidents, notably Thomas Jefferson, Andrew Jackson, Abraham Lincoln, and Franklin Roosevelt, and more recently Presidents Ronald Reagan and George Bush, have publicly and vigorously challenged Supreme Court interpretations of the Constitution, but no President has refused to enforce one of its decisions. Objecting to a decision of the Marshall Court involving the Cherokee Indians in Georgia, President Jackson was rumored to have said: “John Marshall has made his decision. Let him enforce it.” There is no evidence that Jackson ever made that statement, however, or intended not to carry out the Court’s ruling. Roger B. Taney, Jackson’s Attorney General who later was appointed Chief Justice of the Supreme Court, explained Jackson’s position in a letter that reflects a proper understanding of the President’s interpretive powers:

He [Jackson] has been charged with asserting that he, as an Executive Officer, had a right to judge for himself whether an act of Congress was constitutional or not, and was not bound to carry it into execution if he believed it to be unconstitutional, even if the Supreme Court decided otherwise; and this misrepresentation has been kept alive for particular purposes of personal ill-will, and has, I learn, been repeated in the Senate during its late session. Yet no intelligent man who reads the message can misunderstand the meaning of the President. He was speaking of his rights and duty, when acting as a part of the Legislative power, and not of his right or duty as an Executive officer. For when a bill is presented to him and he is to decide whether, by his approval, it shall become a law or not, his power or duty is as purely Legislative as that of a member of Congress, when he is called on to vote for or against a bill. If he has firmly made up his mind that the proposed law is not within the powers of the general government, he may and he ought to vote against it, notwithstanding [that] an opinion to the contrary has been pronounced by the Supreme Court. It is true that he may very probably yield up his preconceived opinions in deference to that of the Court, because it is the tribunal especially constituted to decide the questions in all cases wherein it may arise, and from its organization and character is peculiarly fitted for such inquiries. But if a member of Congress, or the President, when acting in his Legislative capacity, has, upon mature consideration, made up his mind that the proposed law is a violation of the Constitution he has sworn to support, and that the Supreme Court had in that respect fallen into error, it is not only his right but his duty to refuse to aid in the passage of the proposed law. And this is all the President has said, and there was nothing new in this. For that principle was asserted and acted upon [by Jefferson] in relation to the memorable Sedition Law. That Law had been held to be constitutional by every Justice of the Supreme Court before whom it had come at circuit, and several persons had been punished by fine and imprisonment for offending against it. Yet a majority in Congress refused to continue the law, avowedly upon the ground that they believed it unconstitutional, notwithstanding the opinion previously pronounced by the judicial tribunals. But General Jackson never expressed a doubt as to the duty and the obligation upon him in his Executive character to carry into execution any Act of Congress regularly passed, whatever his own opinion might be of the constitutional question.