One of the core principles of the Acton Institute is the importance of the rule of law: “The government’s primary responsibility is to promote the common good, that is, to maintain the rule of law, and to preserve basic duties and rights.”
While most conservatives would agree with this sentiment, there has recently been a lot of confusion about what defending the rule of law requires and entails. The most troubling mistake is the confusion of the rule of law with judicial supremacy, the view that the Supreme Court gets to have the “final say” on the meaning of the Constitution and that the other branches of government may not contradict it.
As Carson Holloway says, conservatives should defend the Constitution and the rule of law, but they should not defend judicial supremacy. The Constitution—not the Supreme Court—is our country’s highest authority:
Conservatives seek to be defenders of the Constitution and the rule of law. This task requires that they understand the Constitution and the rule of law correctly—that is, as the founders understood them and as they have been understood in the American political tradition that conservatives seek to perpetuate. This understanding requires a special effort in our own day, when even educated people have been misled by myths about the Constitution and the rule of law it aims to establish.
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As recently as one generation ago, mainstream conservatives understood the need to resist the contemporary culture’s embrace of judicial supremacy. Speaking at Tulane University in 1986, Edwin Meese—Ronald Reagan’s attorney general—made an effort to challenge the prevailing belief in judicial supremacy and to revitalize an older understanding more rooted in the wisdom of the founders. Constitutional law, Meese pointed out, is not the same thing as the Constitution. The Constitution is our fundamental law, ratified by the people and deriving its authority from their sovereignty. Constitutional law, by contrast, is only what the courts have said in cases about the meaning of the Constitution.
This distinction is essential to treating the Constitution seriously as a rule of law, binding on all parts of the government, including the courts themselves. Without it, as Meese observed, the Supreme Court would be in no position to overrule its own earlier decisions when it has come to view them as mistaken, something it has done on numerous important occasions, such as when the Court jettisoned in Brown v. Board of Education (1896) the “separate but equal” doctrine that it had embraced in Plessy v. Ferguson (1896). Such reversals only make sense if the Court views the Constitution as of superior obligation to its own rulings, something it could not do if it equated constitutional supremacy with judicial supremacy.
