The Supreme Court vs. the Constitution

The U.S. Constitution mentions the judicial branch of government far fewer times than the other branches. But in the past 50 years, the Supreme Court’s power has grown so much that some say it is seizing power the Constitution doesn’t grant. With decisions about same-sex marriage and health insurance, many people say the high court stepped out-of-bounds. I talked to Paul Moreno, a professor of constitutional history at Hillsdale College, about what’s happening to the Supreme Court.

Founding Father James Madison wrote that the legislature should dominate the three branches of government because representatives elected by the people are closer to the will of the people. What happened? The thing that would impress the Founders most if you were able to bring them back to life today would be how much power the Supreme Court has. They really expected the court not to be as politically influential as it is today. And through most of its history, until well into the 20th century, this idea that the court had this ultimate, almost sovereign power where its rulings are equivalent to the Constitution itself? Now, that’s a relatively recent development. The court never even really made that claim until the 1950s.

So the court is not following the clear guidance of the Constitution? Judging is supposed to be about the rights of individuals that have been violated in the past. It’s retrospective, and it’s individual. What legislatures do is they lay down a general rule for the future. And that’s what the court is doing recently; it’s taking on a legislative rather than judicial role.

Can you give some specific examples of that happening? You really saw that in the homosexual marriage case where the court struck down the explicit, democratic decision about something that had been traditionally understood as a state and local matter. And at the same time in the Obamacare decision, it upheld a monumental congressional economic regulation. In fact, it even rewrote the law to accomplish what Congress had failed to do.

When did this trend start? It was after Brown v. Board of Education when the court struck down segregation in public schools and then in all kinds of institutions that the court began to acquire this peculiar power it has, this special authority. Mostly because in retrospect, Americans have come to believe that segregation was a uniquely bad thing, and the Supreme Court in 1954 took on the very politically controversial task of dealing with that problem. And now that’s regarded as the most important and correct decision the Supreme Court ever made. In the course of defending desegregation, since the 1950s, the court has come to get people to believe that its interpretation of the Constitution is the Constitution.

How do you see the Court treating religious liberty, especially in light of current attacks on freedom of conscience in participating in homosexual wedding ceremonies? That’s one [in which] the court really has been a leader in transforming what that First Amendment has meant. … The First Amendment was initially meant to protect states that had religious establishments. That’s why it says “Congress shall make no law regarding religious establishment.” Then it’s turned it into just the opposite. It’s a way of sweeping away what it considers to be religious establishment. … Any time there’s any expression of religious principle in public life, you can do so only at the Supreme Court’s sufferance. So I think that one—First Amendment religious freedom jurisprudence—is one where the court has really transformed the original meaning of the Constitution most completely.

Listen to Mary Reichard’s complete conversation with Paul Moreno on The World and Everything in It.