Dan Popp
Who may interpret the Constitution?
By Dan Popp
June 29, 2012

That which is not just is not law. — William Lloyd Garrison, abolitionist

In most of our recent discussions of constitutionality, the unchallenged assumption is that the Supreme Court — and only the Supreme Court — has the authority to interpret the Constitution. I think the Founders would have been bewildered and dismayed by that assumption. Surely anyone sworn to uphold the Constitution must be ready to uphold it against others in the government — which implies that each officeholder must understand and apply the founding document to his or her sphere of control.

But let's ask the Founders: Who may interpret the Constitution?

The Legislative and the Executive, as well as the Judicial, branches

[The Judicial Branch] may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. — Alexander Hamilton, Federalist No. 78

My construction of the constitution is very different from that you quote. It is 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 in the cases submitted to its action; and especially, where it is to act ultimately and without appeal. — Thomas Jefferson

The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch. — Thomas Jefferson

As the courts are generally the last in making the decision, it results to them, by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary department paramount in fact to the Legislature, which was never intended, and can never be proper. — James Madison

I acknowledge, in the ordinary course of government, that the exposition of the laws and Constitution devolves upon the judicial. But I beg to know upon what principle it can be contended that any one department draws from the Constitution greater powers than another in marking out the limits of the powers of the several departments. — James Madison

Nothing has yet been offered to invalidate the doctrine that the meaning of the Constitution may as well be ascertained by the Legislative as by the Judicial authority. — James Madison

The States

In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. — Alexander Hamilton, Federalist No. 81

But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States. — Alexander Hamilton, Federalist No. 32

This balance between the National and State governments ought to be dwelt on with peculiar attention, as it is of the utmost importance. It forms a double security to the people. If one encroaches on their rights they will find a powerful protection in the other. Indeed, they will both be prevented from overpassing their constitutional limits by a certain rivalship, which will ever subsist between them. — Alexander Hamilton

RESOLVED: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers:

That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy.
— Thomas Jefferson

This Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid than they are authorized by the grants enumerated in that compact; and that in case of deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them. — James Madison

The People

[The purpose of a written constitution is] to bind up the several branches of government by certain laws, which, when they transgress, their acts shall become nullities; to render unnecessary an appeal to the people, or in other words a rebellion, on every infraction of their rights, on the peril that their acquiescence shall be construed into an intention to surrender those rights. — Thomas Jefferson

The constitutions of most of our States assert that all power is inherent in the people...that it is their right and duty to be at all times armed. — Thomas Jefferson

The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government. — Thomas Jefferson

Before a standing army can rule, the people must be disarmed. ... The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive. — Noah Webster

If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. — Alexander Hamilton, Federalist No. 33

These answers raise another question

I know what you're thinking: This would never work! The evidence before you as to what our government really, legally is, is blocked by the terrifying image of Congress perpetually wrestling the Supreme Court; the Court eternally frustrating the President; the President simply ignoring the Legislature; the States complying or refusing to comply willy-nilly; and the People turning every State capitol into Tiananmen Square.

And that's what would happen — if the federated government of the Founders were to act as our government is acting today. You would have the Last Days of the Obama/Holder Administration every day, everywhere, forever. But don't stop there, think it through: If you were an elected official, how would you avoid that outcome? You would have to garner overwhelming popular consensus for any new law, or else it wouldn't matter whether it passed or not.

Well, surprise, surprise.

This is exactly what F.A. Hayek addressed in The Road to Serfdom. Because it's hard to get a majority of people to agree on anything, a truly representative government must be a limited government. If we need a national consensus on the cutoff age for one-legged half-Latino grandmothers to get benefit X in subparagraph (ii), it ain't gonna happen. Laws with nearly unanimous popular consent would have to be very few and very simple. So if we do have a government legislating the minutiae of our existence in 3,000-page bills, we know that we do not have a government of the people and by the people.

Since you have read with me this far, here's one more quote.

It is the price of democracy that the possibilities of conscious control are restricted to the fields where true agreement exists and that in some fields things must be left to chance. But in a society which for its functioning depends on central planning this control cannot be made dependent on a majority's being able to agree; it will often be necessary that the will of a small minority be imposed upon the people, because this minority will be the largest group able to agree among themselves on the question at issue. Democratic government has worked successfully where, and so long as, the functions of government were, by a widely accepted creed, restricted to fields where agreement among a majority could be achieved by free discussion.... — F.A. Hayek

The problem isn't with the government the Founders set up. The problem is that this is not the government the Founders set up.

© Dan Popp


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