Intro.2.3 Cross-Cutting Issues in the Constitution Annotated: Who Interprets the Constitution?

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.


  1.  Jump to essay-1Letter from Thomas Jefferson to Judge Spencer Roane Poplar Forest, Univ. of Groningen: Am. History From Revolution to Reconstruction & Beyond (Sept. 6, 1819), In a speech opposing the Supreme Court's decision in Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), Abraham Lincoln argued that officers of each branch of the federal government could disregard the Supreme Court's interpretations of the Constitution when performing their own constitutional functions. In particular, he cited President Andrew Jackson's veto of Congress' rechartering of the Second Bank of the United States following the Supreme Court's decision in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), which upheld the constitutionality of the bank. Abraham Lincoln, Speech on the Dred Scott Decision in Springfield, Illinois (June 26, 1857), in The Life and Writings of Abraham Lincoln 418 (Philip Van Doren Stern ed., 2000).

    For more on interpretations of the Constitution that occur outside of the courts, see What Is Included and Sourced in the Constitution Annotated: Non-Judicial Sources of Constitutional Meaning in Lower Court Opinions.

  2.  Jump to essay-2See Russ Feingold, The Obligation of Members of Congress to Consider Constitutionality While Deliberating and Voting: The Deficiencies of House Rule XII and A Proposed Rule for the Senate, 67 Vand. L. Rev. 837, 846–49 (2014); see generally David P. Currie, The Constitution in Congress 120 nn. 25–27 (1997) (cataloging various constitutional debates during early Congresses).
  3.  Jump to essay-317 U.S. (4 Wheat.) 316 (1819).
  4.  Jump to essay-4See Andrew Jackson, Veto Message (July 10, 1832),
  5.  Jump to essay-5Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.).
  6.  Jump to essay-6E.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634–35 (1952) (Jackson, J., concurring) (A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. . . . And court decisions are indecisive because of the judicial practice of dealing with the largest questions in the most narrow way.).
  7.  Jump to essay-7506 U.S. 224, 228–29 (1993).
  8.  Jump to essay-8See supra notes 3 4 and accompanying text (recounting President Andrew Jackson's veto of Congress' reauthorization of the Second Bank of the United States).
  9.  Jump to essay-9See generally Michael J. Gerhardt, The Constitution Outside the Courts, 51 Drake L. Rev. 775, 780 (2003).
  10.  Jump to essay-10See id.
  11.  Jump to essay-11Cooper v. Aaron, 358 U.S. 1, 18 (1958).
  12.  Jump to essay-12Id.
  13.  Jump to essay-13The Court has, at times, grounded this principle in the concern that if each branch were the final judge of its own power under the Constitution, such a system would run contrary to notions of a limited and checked government. Baltimore & O R. Co. v. United States, 298 U.S. 349, 364 (1936).
  14.  Jump to essay-14See Larry B. Alexander & Frederick F. Schauer, On Extrajudicial Constitutional Interpretation, 110 Harv. L. Rev. 1359, 1369–81 (1997) (defending judicial supremacy because finality in constitutional interpretation provides stability and coordination in a constitutional democracy).
  15.  Jump to essay-15See Erwin Chemerinsky, In Defense of Judicial Review: A Reply to Professor Kramer, 92 Calif. L. Rev. 1013, 1018–24 (2004) (arguing for judicial supremacy because of concerns that a majoritarian Congress might interpret the Constitution in such a way as to not adequately protect minority rights).
  16.  Jump to essay-16See generally Paul Brest, Congress as Constitutional Decisionmaker and Its Power to Counter Judicial Doctrine, 21 Ga. L. Rev. 57, 85 (1986) (By the second half of the twentieth century, both the House and the Senate had abandoned the tradition of deliberating over ordinary constitutional issues.); Feingold, supra note 2 , at 849–50 (noting the decline of constitutional interpretation by Members of Congress following Cooper v. Aaron and the rise of judicial supremacy); Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217, 224 (1994) ([T]he greater problem today is not the too-forceful exercise of presidential power to interpret law, but the too-feeble acquiescence of the executive branch in the courts' assertion of dominant interpretive power.).
  17.  Jump to essay-17See Alon Harel & Adam Shinar, Between Judicial and Legislative Supremacy: A Cautious Defense of Constrained Judicial Review, 10 Int'l J. Const. L. 950, 953 (2012) (For many years, there has been basically one idea undergirding the practice of judicial review—American style judicial review, (now) also known as strong judicial review. Under that view, the judiciary is the 'ultimate expositor' of constitutional meaning, having the final say over constitutional interpretation.).
  18.  Jump to essay-18See, e.g., Jeremy Waldron, The Core of the Case Against Judicial Review, 115 Yale L. J. 1346, 1349–50 (2006) (describing the claim that legislators are incapable of addressing the meaning of the Constitution as nonsense); Mark V. Tushnet, Taking the Constitution Away From the Courts 154–76 (1999) (arguing for the abolishment of judicial review in favor of popular constitutionalism); Robert H. Bork, Slouching Towards Gomorrah: Modern Liberalism and American Decline 321 (1996) (urging Americans to see the judiciary for what it is, an organ of power without legitimacy either in democratic theory or in the Constitution and advocating for passage of a constitutional amendment allowing the political branches to override judicial decisions).
  19.  Jump to essay-19See Waldron, supra note 18 , at 1353 (By privileging majority voting among a small number of unelected and unaccountable judges, [judicial review] disenfranchises ordinary citizens and brushes aside cherished principles of representation and political equality in the final resolution of issues about rights.).
  20.  Jump to essay-20See Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 8 (2004) (Both in its origins and for most of our history, American constitutionalism assigned ordinary citizens a central and pivotal role in implementing their Constitution. Final interpretive authority rested with 'the people themselves,' and courts no less than elected representatives were subordinate to their judgments.); see generally Doni Gewirtzman, Glory Days: Popular Constitutionalism, Nostalgia, and the True Nature of Constitutional Culture, 93 Geo. L.J. 897, 898–99 (2005) (describing a growing body of scholarship discussing the concept of popular constitutionalism, the idea that the People and their elected representatives should—and often do—play a substantial role in the creation, interpretation, evolution, and enforcement of constitutional norms).
  21.  Jump to essay-21See Edwin M. Meese III, The Law of the Constitution, 61 Tul. L. Rev. 979, 985–86 (1987) (The Supreme Court, then, is not the only interpreter of the Constitution. Each of the three coordinate branches of government created and empowered by the Constitution—the executive and legislative no less than the judicial—has a duty to interpret the Constitution in the performance of its official functions.); Kramer, supra note 20 , at 8.
  22.  Jump to essay-22See Mark V. Tushnet, Popular Constitutionalism as Political Law, 81 Chi.-Kent L. Rev. 991, 992–93 (2006).
  23.  Jump to essay-23Professor Alexander Bickel coined the phrase countermajoritarian difficulty to describe the conflict that results when a court declares unconstitutional a legislative act or the action of an elected executive and thwarts the enforcement of an act that presumably reflects the will of the voters. See Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 16–17 (1962).
  24.  Jump to essay-24See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584, 2612 (2015) (Roberts, C.J., dissenting) (The majority's decision is an act of will, not legal judgment . . . [T]he Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?); United States v. Windsor, 570 U.S. 744, 778 (2013) (Scalia, J., dissenting) (This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today's opinion aggrandizes the latter, with the predictable consequence of diminishing the former.); Citizens United v. FEC, 558 U.S. 310, 479 (2010) (Stevens, J., dissenting) (In a democratic society, the longstanding consensus on the need to limit corporate campaign spending should outweigh the wooden application of judge-made rules.); District of Columbia v. Heller, 554 U.S. 570, 680 n.39 (2008) (Stevens, J., dissenting) (What impact the Court's unjustified entry into this thicket will have on that ongoing debate—or indeed on the Court itself—is a matter that future historians will no doubt discuss at length. It is, however, clear to me that adherence to a policy of judicial restraint would be far wiser than the bold decision announced today.).