Guest Blog: Jordan Walsh, Misdiagnosing Judicial Review: Dr. Ben Carson & the Re-Birth of Nullification

Republican Presidential hopeful Dr. Ben Carson has, admittedly, made a few “gaffes” during the weeks leading up to his 2016 campaign announcement on Monday. Now, some in the media are dismissing his recent remarks regarding the possibility of the Executive Branch of the United States government not needing to recognize or abide by the upcoming Supreme Court ruling in Obergefell as merely yet another sign that Carson is still not-quite-ready-for-prime-time (a.k.a. GOP Primary debate season).

While Carson is incorrect, he may not be as oblivious as he seems—he is likely dog-whistling. And he is doing it early enough in his campaign that he can raise money off of it now, while pleading “learning curve” if needed. There is a small–but very zealous–sector of the United States population who earnestly reject the legitimacy of the Supreme Court as the final arbiter of U.S. Constitutional interpretation—at least when it serves their agenda. And the internet is their collective home base. The far-right contingency which shares this lack of belief in—and I would posit, understanding of—judicial review realizes it will not be given credence via mainstream media outlets; they opt for a self-selecting echo chamber which primarily functions to reassure their own worldview and confirm their biases. It should come as no surprise then, that Carson chose to make these remarks on camera, in a nicely packaged, readily sharable interview with the right-leaning outlet NewsmaxTV—which, of course, has its own viral video generator. The relevant portion of Carson’s comments include:

“[U]nderstand how the Constitution works, the president is required to carry out the laws of the land, the laws of the land come from the legislative branch…So if the legislative branch creates a law or changes a law, the executive branch has a responsibly to carry it out. It doesn’t say they have the responsibility to carry out a judicial law.”

Judicial law? That is no more than updated code language for the output of so-called “activist judges,” and a veiled call for nullification of judicial review. And nullification of Constitutional law and/or jurisprudence is as dangerous a proposition today as it was when anti-tariff John C. Calhoun or pro-segregation George Wallace advocated for it at the state level in their respective centuries.

Judicial review—or the ability of the Supreme Court to void unconstitutional laws—in the United States is often traced to the 1803 opinion in Marbury v. Madison, which held Section 13 of the Judiciary Act of 1789 unconstitutional for attempting to extend the Supreme Court’s original jurisdiction–a.k.a. its ability to hear a case as the court of first impression rather than only on appeal–beyond what was expressly stated in the Constitution. However, the concept of judicial review predates the Marbury decision by nearly two hundred years, and was arguably even used by the Supreme Court prior to Marbury. The law in question in that case was simply not struck down. Furthermore it was an understood concept, particularly as relates to the ratification of the Constitution.

As most school children know—but some adults apparently forget—the Constitution was not our nation’s first governing instrument—the Articles of Confederation had that dubious honor. While it is true that the concept of judicial review is not patently expressed in the Constitution’s text, one of the major corrections (along with diminished state sovereignty and stronger taxation powers) made between the doomed Articles and the so-far successful Constitution was the strengthening and increased independence of the now co-equal Judiciary Branch. A close study of the speeches from the Constitutional Convention shows that judicial review was discussed rather frequently, with the vast majority of those discussing it assuming it would be squarely within the power of the federal courts to review the constitutionality of statutes. The debates over ratification followed much the same pattern—while there was lively debate on many issues, judicial review was taken as a given by nearly every delegate who discussed it. And this was well over two-centuries ago. In a common law nation such as ours, even if the jury was somehow out on judicial review in 1803, on the weight of precedent, it is not today.

For the rights enshrined in our Bill of Rights and subsequent amendments to mean anything, there must be a definition and scope, creating a floor and/or a ceiling above or below which the government cannot tread. The very facts of Marbury vs. Madison included not only court-packing, and obvious quid pro quo patronage, but the repeal & re-enactment of three different versions of the Judiciary Act in only a few years—a new Act, subject to new governing principles, for each Presidential election held to that point. To think absent the back-stop of judicial review, our current hyper-partisan Congress would behave any better than the first Congresses would be the height of naiveté. Our Founders were rightfully distrustful, even fearful, of too much power in the hands of any one faction. Each Branch was carefully balanced, and designed to check the excesses of the others. Allowing the Legislative and Executive branches to narrow or widen the scope of our civil rights as citizens as if rights were themselves patronage is anathema to the concept of fundamental liberty. Congress and the Executive are not without their role in the conversation and are constitutionally equipped to respond to the Court’s interpretations, but the Constitution’s delegates and ratifiers intended the Judiciary to be an equal check on the whims of the elected branches, and, for better and sometimes for worse, the appropriate body to balance the scope of the rights ensconced therein.

One of the triumphs which has distinguished the United States from less successful nations these past few centuries is our consistent and peaceful transitions of power. An independent, unelected federal judiciary helps to facilitate this stability. Dr. Carson and those who share his extreme views are missing the point. The United States has the oldest written democratic Constitution of a nation currently in use in the world—and it remains an apt instrument precisely because of its flexibility to be interpreted in accordance with a modern understanding of human rights.