Tuesday, January 18, 2022

Can the Supreme Court Violate the Constitution?

 We have a written constitution and it binds all branches of government. Consider this excerpt from Paulsen & Paulsen (p. 26):

No branch of the federal government--not the Congress, not the President, not even the Supreme Court--can legitimately act in ways contrary to the words of the Constitution...Thus, the idea of a written constitution is closely tied to the idea of constitutional supremacy. In America, no branch of government is supreme...The Constitution is supreme....Departures from these limitations are unconstitutional.


In Marbury v Madison, Chief Justice Marshall said "that the framers of the constitution contemplated that instrument as a rule for the government of the courts, as well as of the legislature." The idea here is that of the supremacy of the Written Constitution, not of the Supreme Court. In other words, even (particularly) SCOTUS is bound by the text of the Constitution.

It is the text of the Written Constitution that has been ratified by we the people in the states. Supreme Court decisions are only legitimate if they are faithful applications of the constitutional text.

Something to think about as we take our first look at the Written Constitution.