Perhaps the hardest part for lawyers in understanding Kramer's argument is our legal education. We are taught that the Framers intended the Supreme Court to be the final arbiter of the Constitution and that in Marbury John Marshall enshrined this principle forever. This is the "first principle" from which we begin. Kramer challenges this and distinguishes fundamental law from ordinary law. He argues that fundamental law (i.e., the Constitution) was never understood to be subject to the same judicial authority as ordinary law. To a modern lawyer this sounds like heresy, but Kramer assembles impressive evidence to support his position.It reads like a passage from the script for Mr. Smith Goes to Washington. It also reads like a recipe for anarchy. There's no doubt that the Supreme Court has badly twisted the Constitution. But think of where we might be if very many people were to take Kramer seriously. It makes me shudder.
So, what is the solution? Kramer makes this suggestion:To control the Supreme Court, we must first lay claim to the Constitution ourselves. That means publicly repudiating justices who say that they, not we, possess the ultimate authority to interpret the Constitution. It means publicly reprimanding politicians who insist that "as Americans" we should submissively yield to whatever the Supreme Court decides. It means refusing to be deflected by arguments that constitutional law is too complex or difficult for ordinary citizens. Constitutional law is indeed complex, because legitimating judicial authority has offered the legal system an excuse to emphasize technical requirements of precedent and formal argument that necessarily complicated matters. But this complexity was created by the Court for the Court and is itself a product of judicializing constitutional law. In reclaiming the Constitution we reclaim the Constitution's legacy as, in Franklin D. Roosevelt's words, "a layman's instrument of government" and not "a lawyer's contract." Above all, it means insisting that the Supreme Court is our servant and not our master: a servant whose seriousness and knowledge deserves much deference but who is ultimately supposed to yield to our judgments about what the Constitution means and not the reverse.
As I have written before, the logic of judicial supremacy is irrefutable -- like it or not:
1. Congress enacts laws for whatever reasons it will. Members of Congress may have stirring debates about the constitutionality of a particular law, but in the end Congress will do what it will do. It's true that Congress should enact only constitutional laws, but that's like saying children who live in a match factory shouldn't play with matches.
2. If the executive doesn't like a particular law for any reason (one of which may be his opinion that the law is unconstitutional) he may veto the law. If his veto is overridden, the law is the law.
3. In the absence of a specific judicial decision nullifying a specific law, the executive is bound to enforce that law. That is what the Constitution contemplates: The legislature legislates and the executive executes. There's nothing mysterious or arcane about that.
4. If a party with standing challenges a law, it's up to the courts to decide whether or not it's a constitutional law. As it says in Article III, Section 2, of the Constitution:The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States....Which means, as far as I'm concerned, that the executive must defer to judicial decisions about the application of a specific law.