Poor Dick Gephardt is getting all sorts of flak from Scott Ott, Chris Lawrence, Daniel W. Drezner, Eugene Volokh, Glenn Reynolds, and probably others about his recent statement that he’d nullify any Supreme Court decisions he disliked by executive fiat if elected president.
While I grant that Gephardt’s statements are idiotic on their face, and that he is perhaps not the sharpest knife in the drawer, I say we should step back and think about this. I mean, why not? At least presidents are sort of elected by the people. As any schoolboy knows, Supreme Court justices serve for life and are appointed by Patrick Leahy. And there’s nothing in the Constitution anywhere giving the Supreme Court the right to interpret the Constitution and nullify acts of the representatives of the people it doesn’t like. Not a thing. John Marshall made that one up in 1803. You can look it up if you like.
Since then, the Supreme Court has made up all sorts of stuff. Implied powers for Congress. A really, really flexible interstate commerce function. Emergency war powers for presidents. A right to privacy. A right to abortion. The separate but equal doctrine. A wall of separation between church and state. And lots of stuff I’m not thinking of off the top of my head. Some of this stuff I like; others not so much. But it ain’t in the Constitution nowhere–I checked.
And don’t get me started on Congress. There’s very little that they do on a daily basis that’s in the Constitution and, ironically, most of the stuff the Framers gave them to do they foisted off onto an executive bureaucracy to free up time to do other stuff.
So, in the unlikely even Dick Gephardt gets elected president, why shouldn’t he just decline to enforce Supreme Court decisions he doesn’t like? If the Constitution is a Living Document, then why can’t President Gephardt breathe some life into it? Surely, there’s a penumbra somewhere that implies he could do it, as long as he felt he had a compelling reason to do it and it didn’t unduly burden white people?
Update (1817) Brett Marston agrees with me, sort of.