So why, then, do conservatives still expect to get return-on-investment by insisting the only way to challenge a Supreme Court decision is to amend the Constitution? This comes up in the debate over birthright citizenship. Frankly, I don't care much about the policy and would rather have this conversation over the Court's befuddling and tragic abortion precedent, but one must take civics lessons where one finds them. The precedent on the birthright citizenship question, based in the Fourteenth Amendment, is weak either way. (James Ho and John Eastman, both former Justice Thomas clerks, each vigorously represent the two opposing views.) Seems like a clear case where Congress could step in with its own independent take on the language in question: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
Yet most conservatives -- even many who desperately oppose illegal immigration and do not want the Fourteenth Amendment to support birthright citizenship -- assume this constitutional question must be settled by Court monologue. They take it as read that you have to send up a test case to the Supreme Court, and when it upholds birthright citizenship -- as it certainly will -- you're stuck with amending the Constitution. And on cue, they will cite hoary old Marbury to you, that "It is emphatically the province and duty of the Judicial Department to say what the law is." Then they will give you that self-satisfied look, as if to say, "I think I've made my point." For these "legends of our own time," as Hadley Arkes describes them, "Marbury v. Madison has come to mark the power of the Court to strike down an act of Congress as unconstitutional. More than that, it has been taken to establish this cardinal point: that the Supreme Court must stand as the sole authoritative interpreter of the Constitution."
"But," Arkes demurs, "that extravagant proposition is nowhere to be found in the text of Marshall's opinion in Marbury v. Madison." Arkes is right, as I will let him explain in a moment. But as a common-sense proposition, consider what it would mean if the Marbury hawks were right. The Constitution, they explain, makes the Court the sole expositor of the constitution, and we know that because the Court told us so, and it is the sole expositor of the Constitution. It is textbook circular reasoning.
Justice Marshall, to the contrary, argued it straight. "Marshall was able to show then why the law of the Constitution must take precedence, in any case, over a statute or an act of ordinary law. If judges confronted, in any case, a tension between the law of the Constitution and the law of a statute, Marshall showed that the Judges would be obliged to accord a logical primacy to the commands of the Constitution....Marshall had claimed nothing for the judges that could not have been claimed for any other officers of the government."
Over a century later in 1927, writing for the majority in Adkins v. Children's Hospital, Justice Sutherland confirmed the point:
"From the authority to ascertain and determine the law in a given case, there necessarily results, in case of conflict, the duty to declare and enforce the rule of the supreme law and reject that of an inferior act of legislation, which, transcending the Constitution, is of no effect and binding on no one. This is not the exercise of a substantive power to review and nullify acts of Congress, for no such substantive power exists. It is simply a necessary concomitant of the power to hear and dispose of a case or controversy properly before the court, to the determination of which must be brought the text and measure of the law."
Thus, the "duty...to say what the law is" is not the same as the authority to dictate what the Constitution says. It simply makes the point that one branch cannot dictate hermeneutics to another. The example Arkes likes to use is that the Court may -- must -- independently access natural reasoning to discern that a new law that overcomes an earlier statute yet must also accede to an earlier constitution. To take an even simpler example, consider that the word "unconstitutional" never appears in the Constitution, yet the Court routinely and (sometimes) rightly strikes down acts of the people's legislatures on the basis of this invisible concept. These are concepts that transcend the Constitution. Yet they are something quite different from deciphering what "subject to the jurisdiction thereof" means.
O'Connor's dissent in City of Boerne v. Flores completes the circle, inviting Congress to join the Court in dialogue over the Constitution's meaning:
"This recognition does not, of course, in any way diminish Congress’ obligation to draw its own conclusions regarding the Constitution’s meaning. Congress, no less than this Court, is called upon to consider the requirements of the Constitution and to act in accordance with its dictates."
Of course, this invitation to collaborate in interpretation is not an invitation for Congress to exceed its powers, whether under Art. I sec. 8 or Am. V sec. 5, as O'Connor goes on to explain: "But when it enacts legislation in furtherance of its delegated powers, Congress must make its judgments consistent with this Court’s exposition of the Constitution and with the limits placed on its legislative authority by provisions such as the Fourteenth Amendment."
The point is, we're on dangerous ground if we've set up the Court as the divine last word on all matters of interpreting the Constitution. It puts too many issues too far away from regular lawmaking, and puts our policies out of step with other civilized countries (for example, on birthright citizenship and abortion). And it is particularly dangerous when lawyers and jurists have demonstrated a willingness to find a fully formed positive law in the Constitution, just waiting for the right plaintiff to midwife it into existence. That seems not very conservative to me, and even less sensible.