Say what you will about the direction of the Supreme Court since at least the 1930’s, but Ben Carson may be advocating an even more aggressive executive than President Obama.
In an interview on “Fox News Sunday” Chris Wallace and Ben Carson engaged in a constitutional debate of sorts. Mr. Carson, apparently, had some qualms about the President having to enforce laws which he termed “judicial law”. When Mr. Wallace brought up Marbury v. Madison, Carson had this to say:
“The way our Constitution is set up, the president or the executive branch is obligated to carry out the laws of the land. The laws of the land, according to our Constitution, are provided by the legislative branch. The laws of the land are not provided by the judiciary.”
Now, on its face, I can see the larger point Carson was trying to make. Congress is the legislature and it should pass the laws. However, instead of outright saying that, he took a dubious constitutional path. First off, the exact phrase “law of the land” is found in Article VI of the Constitution and makes no mention of Congress being the only source of that law. In fact, it specifically mentions treaties which are crafted by the executive branch and only then subject to approval by the Senate. Second, Carson expresses a fundamentally incorrect notion about the role of our courts or the Supreme Court in general.
Going back to our common law roots in England, all courts are empowered to say what the law is, that is, interpret statutes and expound upon the common law. The Supreme Court has the enhanced power of judicial review which the supreme court of England does not. Despite the many arguments against judicial review because of its lack of constitutional enumeration, the power of judicial review existed in the framers minds when creating the text. To quote Alexander Hamilton from Federalist No. 78:
“It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body.”
Mr. Carson’s suggestion that the President may not have to enforce laws, rightly interpreted by the Supreme Court, hearkens back to President Andrew Jackson. When he heard of an adverse ruling in Cherokee Nation v. The State of Georgia, Jackson said “The decision of the Supreme Court has fell still born, and they find that it cannot coerce Georgia to yield to its mandate.” History remembers a more dramatic version: “Marshall has made his decision, now let him enforce it.”
Later analysis proved Andrew Jackson to be technically correct. Although he is often quoted as if he were outright defying the Supreme Court he really was not. Basic analysis also proves Ben Carson wrong and the subject, Mr. Carson, need not be discussed further.