Another fundamental question of constitutional law is who should definitively interpret the meaning of the Constitution, including its basic values and the rights it protects. This key debate remains unresolved. One view, espoused by Thomas Jefferson, among others, is that each of the three branches of government may interpret the Constitution when it relates to the performance of the branch's own functions.1 And this view appears to have been popular in Congress during the early days of the United States, as shown by the amount of time that Members of Congress devoted to
debating the constitutional limitations on legislation during the first 100 years of the nation.2 Similarly, when he vetoed the reauthorization of the Bank of the United States, President Andrew Jackson argued that the President was the final interpreter of the Constitution for executive functions. Dismissing the Supreme Court's 1819 decision in McCulloch v. Maryland, which upheld the constitutionality of the Bank,3 Jackson contended that
the opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.4 With regard to the judiciary, in Marbury v. Madison, the Supreme Court, early in the history of the United States, famously asserted its authority to interpret the Constitution when reviewing the constitutionality of governmental action in a case or controversy properly before the Court.5
The view that each branch of government has the power to interpret the Constitution when performing its own functions also has force when the Court avoids ruling on political questions or deciding cases in which litigants seek to vindicate the rights of the public at large, thereby preserving a role for the political branches in answering many important constitutional questions.6 For example, in Nixon v. United States, the Court held that the Constitution gave the Senate alone the power to determine whether it had properly
tried an impeachment.7 And the Court may not have the last word on other issues, such as the existence of a national bank, because other constitutional actors (e.g., the President) may play a decisive role by exercising their own constitutional powers.8 As a result, Congress and the President each interpret the Constitution independent of the judiciary in some circumstances.9 This is reflected in the practices of the political branches, such as the President's use of the veto power; Congress's exercise of the power to impeach and remove government officials; or the President's use of military force.10 Accordingly, somewhere between the judicial supremacy view and popular constitutionalism view (discussed below) is a view that recognizes that the authoritative interpreter of the Constitution may depend on the particular provision of the Constitution at issue.
In the mid-20th century, however, the Supreme Court began articulating a theory of judicial supremacy, wherein the Court no longer shared its role in interpreting the Constitution with the other branches of the federal government, but rather characterized its role as being the preeminent arbiter of the Constitution's meaning. For example, in Cooper v. Aaron, the Court read Marbury v. Madison as
declar[ing] the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and [this] principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.11 In other words, the Cooper Court concluded that the Supreme Court's interpretations of the Constitution was
the supreme law of the land,12 with constitutional interpretations by other actors, including Congress and the President, necessarily lacking the same force.13 Supporters of the judicial supremacy view assert that it promotes stability and uniformity in constitutional interpretation,14 as well as preserves constitutional norms from majoritarian pressures.15 Subsequent actions by the President and Congress support the notion that the political branches have, at times, acquiesced in this view,16 resulting in the popular notion that the judiciary is the
'ultimate expositor' of the constitutional meaning.17
The judicial supremacy view remains subject to debate, however. In recent decades, a number of legal scholars and government officials have criticized the judicial supremacy view,18 arguing that entrusting the judiciary with exclusive power over the Constitution's ultimate meaning preserves the most momentous decisions affecting the country for an unelected and unrepresentative judiciary, preventing the democratic branches from acting on behalf of their constituents.19 Instead, a growing number of scholars have argued that people and institutions outside of the judicial branch should play a larger role in interpreting the Constitution.20 Their view posits that Congress, the Executive, and even ordinary citizens maintain independent and coordinate authority to interpret the Constitution.21 Ultimately, some scholars who do not accept judicial supremacy argue that because the Constitution expresses the fundamental values of the American people as a nation, it is essential to a democracy that the political branches and the public have a central role in exploring constitutional meanings.22 While no member of the Court has ever embraced wholly abandoning the judiciary's central role in constitutional interpretation, the view that the Court should play a more restrained role because of the
countermajoritarian difficulty23 that arises when an unelected judiciary overrides the decisions of a popularly elected Executive or legislature has been repeatedly argued by Justices on the modern Court.24
Related to the questions discussed above is the question of how to interpret the Constitution. That issue is the subject of the Constitution Annotated essay on Modes of Constitutional Interpretation.