In The Public Discourse
October 3, 2011
The Palmetto Freedom Forum, at which I had the privilege of joining South Carolina Senator Jim DeMint and Iowa Congressman Steve King as a questioner of the leading Republican presidential contenders, was designed to enable the American people to assess (a) how deeply the candidates understand the animating principles of our civilization and of our democratic republic, and (b) how firmly they are committed to governing by those principles if elected. Each candidate made an opening statement about our founding principles and their applicability to contemporary challenges, after which Senator DeMint, Congressman King, and I each had exactly 6 minutes and 25 seconds to engage with him or her.
Although that is not a great deal of time, it did allow us to dig deeper into the candidates’ understandings and convictions than is typical in presidential debates. We eschewed questions designed to make the interrogator look smart and the candidate look stupid. Our goal was not to embarrass anyone. By the same token, the candidates were informed that we would not accept stump speeches or talking points.
To their credit, the candidates took that warning to heart. And so we learned, and I believe those viewing the forum on CNN or at TownHall.com learned, quite a bit about how the candidates understand the principles at the foundation of our civilization and Constitution, and how each would honor those principles in addressing the daunting—in some cases unprecedented—challenges we as a people face today.
Senator DeMint, focusing on the national deficit, the debt crisis, and the poor performance of the economy under President Obama, pressed the candidates on their beliefs about the Constitution’s limitations on the scope, size, and intrusiveness of the federal government. Here we expected and found a large measure of agreement. All the candidates stressed the need to shrink the national government to bring it within its constitutional bounds and to eliminate burdensome levels of taxation and regulation that impede economic growth and large-scale job creation. We had hoped for some specifics—since it is easy to praise limited government as an abstract ideal, but difficult actually to name which agencies or programs would be abolished or trimmed—and we did manage to get a few.
Congressman King’s questions focused on what George H. W. Bush famously called “the vision thing.” The congressman asked, for example, “Is America still Ronald Reagan’s (and John Winthrop’s) ‘Shining City on a Hill’?” and “What is your view of the next stage in America’s destiny, and what is your plan for getting us there?” Again, there was wide agreement that America, as a beacon of freedom in the world, is a truly exceptional nation with a special destiny. There was also agreement that the fulfillment of that destiny depended on fidelity to the principles of limited government, the rule of law, individual liberty, civic virtue, the market economy, respect for the integrity of institutions of civil society, equality of opportunity, and personal responsibility.
When my turn came, I asked each candidate a question designed to elicit their reflections on three issues of critical concern to me and many of our fellow citizens: (1) our obligations to human life in the era of Roe v. Wade; (2) the relationship of federal to state power in our federalist system when it comes to protecting basic rights; and (3) the options available in the face of judicial edicts that violate constitutional principles, as the Roe decision infamously did, by usurping the authority of the people acting through their elected representatives.
Here is what one commentator referred to as my “electric question”:
Many believe that we need a constitutional amendment to overturn Roe v. Wade. However, Section Five of the Fourteenth Amendment expressly empowers the Congress, by appropriate legislation, to enforce the guarantees of due process and equal protection contained in the Amendment’s first section. As someone who believes in the inherent and equal dignity of all members of the human family, including the child in the womb, would you propose to Congress appropriate legislation, pursuant to the Fourteenth Amendment, to protect human life in all stages and conditions?
To the surprise of many, the first three candidates—Michele Bachmann, Herman Cain, and Newt Gingrich—all said “yes.” Ron Paul said “no.” And Mitt Romney said “no, but . . .”
Conservative blogger Jennifer Rubin was annoyed by my question and appalled by the affirmative answer given by Bachmann, Cain, and Gingrich. I had, she opined, sent the candidates off in pursuit of a “lark”—the idea that abortion could be restricted without the Supreme Court reversing itself on Roe v. Wade. Worse yet, I was inviting them to endorse “lawlessness”—and they foolishly accepted the invitation! She praised Romney—no mention of Paul—for being “adult” enough politely to decline to go along with so absurd and dangerous an idea.
Well, now, let’s look at what we have here.
Jennifer Rubin supposes that when the Supreme Court hands down a ruling, however lawless it may be, that ruling is now the law and, as such, binds the other branches of government. For the president and Congress to refuse to treat the Court’s Diktat as controlling their actions would be unconstitutional and thus lawless. This view, known as judicial supremacy, is nicely described by one of its most notable critics, constitutional law scholar Gerard V. Bradley:
If the Supreme Court says that the Constitution requires this, that, or the other thing (perhaps having discovered it lurking in “penumbras formed by emanations”), then, damn it, that’s what the Constitution requires, and short of a constitutional amendment or the Court reversing itself there is, in all instances, nothing anyone can do.
Jennifer Rubin is hardly alone in endorsing (or simply assuming the unquestionable validity of) judicial supremacy. It is a view widely held these days, especially among defenders of liberal judicial activism (Rubin herself is not one of those, by the way), but it was not the view of the American founders or of Lincoln. And, as Professor Bradley has observed, that should count pretty heavily in favor both of my question and an affirmative answer to it in a presidential forum devoted to exploring America’s founding principles.
Nothing in the Constitution itself confers upon the Supreme Court supremacy in constitutional interpretation. Even those founders, such as Hamilton, who interpreted the document as implying a power of judicial review (the Constitution does not expressly confer such a power) did not interpret that power as establishing the supremacy of the judicial branch over the others. Nor is judicial supremacy consistent with the structure or logic of the system of government established by the Constitution. It is true that under Article III of the Constitution the Supreme Court is supreme over the “inferior” federal courts, but that does not mean that its usurpations of the powers assigned by the Constitution to the other branches of government, when they occur, must be treated by the president and Congress as beyond challenge.
As I pointed out at the Palmetto Forum, Abraham Lincoln could not have been clearer in his rejection of judicial supremacy or more forceful in his denunciation of it as a mortal threat to republican government—government by and for the people, the type of government for which Lincoln was willing to fight a bloody civil war. The issue presented itself in his era in the context of a decision remarkably like Roe v. Wade. That was the Supreme Court’s ruling in the case of Dred Scott v. Sandford, denying the authority of Congress to restrict slavery in the federal territories and depriving blacks, even free blacks, of the rights of citizenship. Like Roe, Dred Scott was a case of extravagant judicial overreaching. It lacked any basis in the text, logic, or original understanding of the Constitution. It was a gross usurpation of the power of the people acting through their elected representatives in Congress.
In his First Inaugural Address, with the threat of Southern secession and civil war looming, Lincoln went out of his way to confront the Supreme Court on the issue:
[I]f 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, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their Government, into the hands of that eminent tribunal.
True to his words, Lincoln as president refused to treat the Court’s holding in Dred Scott as binding on him or the Congress, and he supported legislation (which was enacted) and took executive actions that directly contravened the holding. (Bizarrely, Jennifer Rubin seems to suggest that Lincoln’s statements regarding Dred Scott were somehow meant to placate the South and make secession less likely. This is the reverse of the truth. They were words that Lincoln, in fidelity to constitutional principles, felt he needed to speak, despite the fact that they would further enflame the South.)
Did Lincoln believe he was acting lawlessly? Did the American people believe he was acting lawlessly? Well, Lincoln certainly had his critics, and they accused him of all sorts of things, including tyranny, but few regarded his rejection of judicial supremacy as constituting lawlessness. That is scarcely surprising, for the Great Emancipator was merely echoing the author of the Declaration of Independence, Thomas Jefferson, who warned that the acceptance of judicial supremacy would place the nation “under the despotism of an oligarchy.” The ascendancy of judicial supremacy had to await the twentieth century; indeed, the Supreme Court itself did not get round to endorsing the idea until 1958 in the case of Cooper v. Aaron (a point noted by Newt Gingrich, who holds a Ph.D. in history, at the Palmetto Forum). Even now there are Supreme Court justices who reject it, precisely because it is inconsistent with the original understanding of the Constitution and the system of government it established.
Ron Paul responded to my question not by embracing judicial supremacy, but by denying that the 14th Amendment authorizes Congress to legislate to protect the unborn. Interestingly, Paul himself has a perfect pro-life voting record—in Congress. In his view, however, the abortion question is one that the Constitution leaves ultimately to the individual states, not the national government.
In his exchange with me, Congressman Paul argued that reading the 14th Amendment broadly enough to empower Congress to protect the unborn would be inconsistent with the 10th Amendment—the constitutional provision reminding us that powers not delegated by the Constitution to the federal government are reserved to the states and the people. But the Constitution, in its 14th Amendment, plainly does delegate to Congress power to enforce its guarantees of due process and equal protection. Congressman Paul, like the other Republican candidates, believes that the unborn, no less than those human beings at later developmental stages, are members of the human family—in other words, persons—entitled to the same protections as others. And he is right to believe it.
Governor Romney offered a nuanced answer to my question. He declined to commit to proposing legislation that would directly challenge Roe v. Wade, saying that to do so would provoke a constitutional crisis. At the same time, he carefully avoided endorsing judicial supremacy. He addressed the question as a matter of prudence, not of constitutional principle. He did not say, as Rubin later would, that legislation defying Roe would be “lawless.” Indeed, he said that he could not rule out the idea that a time would come when direct defiance of a lawless Supreme Court decision would be justified and necessary. He argued, however, that Roe could be handled by appointing constitutionalist judges who recognize it as a constitutional error and would reverse it. He pledged to appoint such justices.
In my own view, Romney is correct to say that Congress and the president should exercise prudence in deciding whether and, if so, when and how to challenge a lawless and usurpative Supreme Court ruling. In the case of Roe, this is a difficult issue—which is part of why I asked the question. For what it is worth, my own view of the prudence of the matter differs from the governor’s. So, for example, I thought it was right for Congress to enact a prohibition on partial-birth abortion, despite the fact that the Supreme Court had previously struck down such a prohibition as inconsistent with Roe v. Wade. (On the second try, as it happens, the Court—wiser in virtue of the addition of Associate Justice Sam Alito—upheld the prohibition.) In any event, I thought it important for the American people to have an opportunity to assess the ways in which those aspiring to govern think prudentially about how to vindicate core principles when they have been neglected or dishonored.
Like Congressman Paul, Governor Romney took the position that the protection of the unborn is ultimately a state responsibility. So, after the Court reverses Roe v. Wade, as he hopes it will, he would leave the issue in the hands of the states. Of course, that leaves the question of whether Congress should step in, pursuant to the Fourteenth Amendment, to protect the unborn in the event that some states decline to fulfill their responsibility to do so. Unfortunately, there was not time to explore this question with the Governor.
Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University. He is founder of the American Principles Project, which sponsored the Palmetto Freedom Forum. This essay is the conclusion to the 2012 Election Symposium. Read all of the entries here:
- Ryan T. Anderson, “Liberty, Justice, and the Common Good:
Political Principles for 2012 and Beyond”
- O. Carter Snead, “Protect the Weak and Vulnerable:
The Primacy of the Life Issue ”
- Maggie Gallagher, “Defend Marriage: Moms and Dads Matter”
- Samuel Gregg, “Fix America’s Economy:
Two Principles for Reform ”
- Ed Whelan, “Defend Our Laws: Justice Matters”
- Helen Alvaré, “Uphold Conscience Protection:
Religious Freedom’s Contribution to the American
Experience and Threats to its Survival ”
- Jennifer Bryson, “Promote Democracy:
Start at Home but Don’t Stay at Home ”
- Yuval Levin, “Heal the Sick and Reduce the Debt:
The Moral Economy of the Healthcare Debate”
- Jane Robbins, “Empower Parents:
Return Educational Policy to the States”
- Patrick Trueman, “End Child Pornography:
Enforce Adult Pornography Laws ”
- Laura Lederer, “End Human Trafficking:
A Contemporary Slavery ”
- Robert P. George, “Reflections of a Questioner:
The Palmetto Freedom Forum Revisited ”