Meese v. Supreme Court

Meese v. Supreme Court

ATTORNEY GENERAL Edwin Meese III is, according to Ira Glasser of the American Civil Liberties union, "the most dangerous public official since Richard Nixon" and "the most radical and dangerous Attorney General in this century."

Glasser was responding to Meese's recent speech at Tulane University in which Meese argued that Supreme Court rulings are not necessarily "the supreme law of the land." This was a clear challenge to judicial supremacy, and Meese backed it up, as he has been doing throughout his campaign on this issue, with citations from Madison, Marshall, Lincoln, and Frankfurter, among others. [See also "An Age of Innocence," by Robert F. Nagel, p. 55.]

Meese was not counseling defiance of Supreme Court decisions; he was merely arguing that Congress and the President share in the work of interpreting the Constitution, and that none of the three branches has a "last word" on its meaning. He said that a Court decision "binds the parties in the case and also the executive branch for whatever enforcement is necessary." But "such a decision does not establish a 'supreme law of the land' that is binding on all persons and parts of government, henceforth and forevermore." Though a Court ruling has value as a commentary on the Constitution, he added, it can't be given the same status as the constitution itself.

His point is both explosive and obvious. The Court has become accustomed to having its rulings treated as virtual additions to the Constitution, even though, as Felix Frankfurter conceded, "The ultimate touchstone of constitutionality is the Constitution itself and not what we [the Supreme Court Justices] have said about it."

A Court ruling can't be overriden by Congress, vetoed by the President, or countermanded by the states. If it is treated as universally binding, it has all the character of a law, imposed on the entire nation by as few as five unelected and virtually irremovable officials. However shoddy the Court's reasoning, it can, as things now stand, strike down virtually any law it dislikes in the name of anything it chooses to call a constituional "right."

All that prevents the Court from doing even more than it has already done is its tenuous self-restraint. And Meese understands, as his critics don't seem to, that the constitutional system isn't based on faith in the self-restraint of any of the three branches of the Federal Government. That's what checks and balances is all about, but the Court has been operating without any effective check for many years now. Unfortunately, those who attack Meese's approach to a solution seem not to want to admit there's even a problem.

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