Mike Huckabee v. The Constitution

Republican Presidential candidate Mike Huckabee is continuing his absurd and dangerous war on the Supreme Court.


Republican Presidential candidate Mike Huckabee doubled down on his attacks on Constitutional norms that have been part of the American legal and political system for more than two centuries during an appearance this past weekend on Fox News Sunday with host Chris Wallace:

The two had several spirited exchanges over such issues as entitlement reform and taxes. One of the most animated was on the role of the courts.

Wallace told Huckabee that in his announcement speech, “You also seemed to indicate that as president, you wouldn’t necessarily obey court rulings, even the Supreme Court.”

Said Huckabee: “Many of our politicians have surrendered to the false god of judicial supremacy, which would allow black-robed and unelected judges the power to make law as well as enforce it.” Like many conservatives, he has expressed alarm at the court’s role in striking down state laws banning same-sex marriage. The country is awaiting a ruling from the Supreme Court on whether such unions are protected by the Constitution.

“The notion that the Supreme Court comes up with the ruling and that automatically subjects the two other branches to following it defies everything there is about the three equal branches of government,” Huckabee said. “Chris, the Supreme Court is not the supreme branch. And for God’s sake, it isn’t the Supreme Being. It is the Supreme Court.”

Wallace pressed on, asking what if former president Richard Nixon “had said, for instance, in Watergate, ‘I don’t want to turn over the tapes and the court can’t make me’ “?

Huckabee said that the president has to follow the law, but then he retorted with a question of his own: “Then, what if the Supreme Court ruled they were going to make the decision as to who was going to be the next president and save the taxpayers and voter from all the expense and trouble of voting, and they’ll Objust pick a president? Well, we would say, ‘Well, they can’t do that.’ Why can’t they do it? They can’t do it because it’s not in the law.”

This isn’t the first time that Huckabee has gone off this rant about the Supreme Court not being the final authority on the law, of course. He said much the same thing around the time he began his Presidential campaign at the beginning of the month in interviews with conservative talk show hosts Hugh Hewitt and Steve Deace and his fellow candidate Ben Carson has said much the same thing. Obviously, this rhetoric is all aimed at one thing, the impending Supreme Court decision in Obergfell v. Hodges and its companion cases dealing with the constitutionality of state law bans on same-sex marriage. In that respect then, rhetoric like this is intended mostly to pander to the socially conservative and evangelical voters that candidates like Huckabee are obviously trying to appeal to in states like Iowa. Those voters can read the writing on the wall just as much as the rest of us, and they see both the legal developments in the two years since the Court’s ruling in U.S. v. Windsor and the fact that polls are showing more and more public acceptance for same-sex marriage. They know that, in all likelihood, they will be on the losing end of the Court’s decision in June, and they look to people Huckabee to essentially lie to them and tell them that there’s a way to stop the train they seem coming through the tunnel. And that’s what Huckabee is providing them.

The fact that Huckabee is pandering, though, doesn’t mean that what he’s saying doesn’t carry a danger that needs to be rebutted. To a significant degree, his comments and his assertion that the Supreme Court is not the final arbiter of the law, a position that is remarkably similar to that taken by the opponents of desegregation during the Civil Rights Era, mirrors rhetoric that has been prevalent on the right over the past several years. As the tide has turned in the battle over gay marriage, several conservatives have made the argument that there is something illegitimate about the idea of same-sex marriage being mandated by the courts rather than it being adopted through the democratic process. Of course, in addition to the myriad court victories on this issue, we’ve also seen same-sex marriage adopted via the legislative process in states such as New York and Illinois and via referendum in states like Maryland, Maine, Minnesota and Washington. Indeed, the last time a law banning same-sex marriage succeeded “democratically” was more than three years ago in North Carolina.

Even leaving those facts aside, though, the idea that there is something illegitimate about the fact that much of the progress on same-sex marriage has come through the courts only makes sense if you deny the very legitimacy of the courts themselves. While it’s true, for example, that the idea of judicial review that was established some 214 years ago in Marbury v. Madison was not explicitly set forth in the Constitution, the idea that the Supreme Court has the authority to declare a law unconstitutional is an inherent part of the authority granted to the Supreme Court in Article III of the Constitution, not to mention the inherent powers granted to courts in general under English Common Law. This authority extends naturally not just to laws passed by Congress, but also laws passed by the states to the extent that they conflict with the Constitution. Huckabee’s assertion, then, that the Supreme Court doesn’t have the authority that which it has been doing for the past two centuries is not only nonsensical pandering, it is also a rejection of the Constitution itself. Considering that he’s supposed to be running as a Republicans, and that Republicans like to at least pretend that they respect the Constitution, that’s rather ironic.

FILED UNDER: 2016 Election, Law and the Courts, Supreme Court, US Politics, , , , , , , , , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. gVOR08 says:

    Like most conservatives, when Huck talks about the Constitution he’s not talking about the scrap of paper at the National Archives, he’s talking about the shining, perfect Constitution in his head. The one that established a Christian Nation and would have ended slavery manana.

  2. JohnMcC says:

    Should we presume that President Huckabee’s first Supreme Court appointment would be Roy Moore? Or maybe that gentleman would be busy as Attorney General?

  3. pajarosucio says:

    Admittedly, I do not agree with Huckabee on much of anything, so take my response here with that in mind. But, if one were truly an “originalist” or “strict constructionist” about the constitution, one should likely have very little support for the norm (as you call it) of judicial review.

    On the one hand, Huckabee’s “originalism” speaks to his reactionary politics. On the other, his consistency on the matter makes many other self-professed “originalists” appear hypocritical by contrast. It’s an interesting dynamic in modern conservatism/Republican politics.

  4. C. Clavin says:

    Then, what if the Supreme Court ruled they were going to make the decision as to who was going to be the next president…

    They already did that…but then sought refuge from the ridiculousness of it by claiming that…

    Our consideration is limited to the present circumstances

  5. al-Ameda says:

    It is certainly not surprising that Huckabee holds this view. I’m guessing that Huckabee’s thinking on this matter is in line with 25%-50% of the Republican Party base, perhaps not a majority, but a sizable group.

    I find it interesting that many Constitutional “Originalists” appear to be a lot like Fundamentalist Christians in that they can always point to some language (whether in the Constitution, a founder’s document, or a Federalist Paper) that may used to support any interpretation that leads to the end result or outcome desired. Many so-called “Originalists” have all but excised from the Second Amendment the phrase “A well regulated …” This goes on and on.

    I wish Ben Carson and Mike Huckabee well – I hope they are in the race to the end.

  6. DrDaveT says:

    Does this mean we can ignore Citizens United and Hobby Lobby…?

  7. stonetools says:

    Yeah, as much as we liberals hate, hate decisions like Citizens United and Shelby County vs Holder, we don’t want to undermine the authority of the Supreme Court. We prefer to overturn those decisions the old fashioned way-by appointing 5 or more liberal judges…:-).

    Cultural warriors like Huckabee sure are sore losers!Frankly, I doubt they can still win legislative victories on SSM outside of the South, anyway-and maybe not everywhere there.

  8. Another Mike says:

    My guess is that the court will drop this hot potato back into the laps of the states. The court is on dangerous ground here. It skated on the abortion decision, but people will not accept this sitting down.

    Huckabee is correct that Marbury can fall. The supreme court is not supreme over the constitution. In this case the court would be setting policy. That is not the court’s business, but it tries to make it its business. It has gotten away with it up until now. It might not much longer.

    “The justices begin with their desired conclusion, marshal the right arguments, and if time permits read the Constitution. Any number of Supreme Court cases read this way; they’re just dressed up outcome-driven policy decisions, clothed in legal language. All the Court’s abortion cases fit this description. So do all the gay rights cases. Watch for it to reappear in the Court’s pending same-sex marriage decisions.”

    Read some of HarwardLaw’s posts on this issue to see how the court has been deciding cases so as to get to the desired outcome.

  9. C. Clavin says:

    @Another Mike:

    In this case the court would be setting policy.

    How are equal rights policy? Aren’t equal rights…you know…rights?

  10. Deserttrek says:

    @C. Clavin: really ? take a deep breath and read the truth .. gore lost .. get over it

  11. Another Mike says:

    @C. Clavin:

    How are equal rights policy?

    An unmarried man is free to marry any unmarried woman of age who will have him. An unmarried woman is free to marry any unmarried man of age who will have her. All men are treated as equal and all women are treated as equal.

    Some men say that they are not like other men and cannot be treated like every other man. Same goes for some women. They insist that marriage be changded to accommodate them. Marriage should be changed so that a man can marry a man and a woman marry a woman. They insist upon special treatment.

    Marriage policy is the business of the states.

    Some argue that homosexuality is like race, but that does not stand up to reason. The law sees us all as human beings and it does not recognize race as a distinguishing characteristic of a human being. Sex, however, does distinguish people from each other. Some would like to overturn sex as a distinguishing characteristic of human beings. I do not think that can be pulled off, but if it could, it would be a change of policy.

    The court has heard the case and will render their decision soon, so I am not interested in regurgitating the old discussions any more until we see what the court rules.

    I do not expect the decision to be the last word on the issue.

  12. Grewgills says:

    @Another Mike:

    Some argue that homosexuality is like race, but that does not stand up to reason.

    How so?

    The law sees us all as human beings and it does not recognize race as a distinguishing characteristic of a human being. Sex, however, does distinguish people from each other.

    You switched standards mid stream there. The law sees us all as persons regardless of sex, religion, or ethnicity. Ethnicity and sex do have distinguishing characteristics. Those characteristics are not so important as you seem to believe, but they do exist for both.

    Some would like to overturn sex as a distinguishing characteristic of human beings.


  13. grumpy realist says:

    @Another Mike: Funny, that was the exact same argument that was used against interracial marriage.

    When your argument has already been tried in the courts and lost, it’s pretty stupid to drag it out again and say “yeah, but this time it really applies!” To which we all say: indeed? Why can’t the same dissection negating it the first time work this time around?

  14. grumpy realist says:

    @Another Mike: And HOW do you think that Marbury will fall, pray tell? Do you think that SCOTUS is going to give up its power to decide things? Ha!

  15. C. Clavin says:

    @Another Mike:
    Wow Another…you are doing a lot of contortions to make your point…maybe it’s not much of a point. If it was you wouldn’t have to work so hard to make shit up.

  16. C. Clavin says:

    If that’s true why is the decision limited to “present circumstances”?

  17. C. Clavin says:

    Fact: The SCOTUS prevented anyone but Bush from winning.
    Fact: Bush v. Gore has been used as a precedent for other cases exactly zero times.
    Fact: Republican Justices were so embarrassed by the decision that not one of them would sign on as the writer of the decision…as is the tradition.

  18. Tony W says:

    It’s not like he’s without precedent. Huckabee essentially follows Andrew Jackson’s lead with the Trail of Tears. The Supreme Court made a ruling? Let ’em enforce it.

  19. anjin-san says:

    @Another Mike:

    They insist upon special treatment.

    Special treatment how? Gays and lesbians want the exact same thing that I got when I got married – the right to marry the person I wanted to marry (assuming that person would have me).

    Equal protection does not mean that gays/lesbians get to live their lives as YOU see fit.

  20. Tony W says:

    @Another Mike:

    They insist upon special treatment.

    Imagine if heterosexual you lived in a world where the norm was gay relationships (Conservative quote in this fictional land: “people stick with their own kind in our country”) and your heterosexuality was, perhaps, 10% of the populations. You would be seen as a pervert who pushes the boundaries of what is acceptable by associating with icky women.

    In the information age you learn that there are many people born like you, people who like the opposite sex. All you want is the chance to have your relationship viewed on an equal footing to the majority.

    At its foundation the constitution exists to protect the rights of the minority against mob rule.

  21. OzarkHillbilly says:

    @Another Mike:

    They insist upon special treatment.

    SO very very happy to hear you admit the fact that straight people are already receiving special treatment.

  22. OzarkHillbilly says:

    “Chris, the Supreme Court is not the supreme branch. And for God’s sake, it isn’t the Supreme Being. It is the Supreme Court.”

    What I want to know is, what does Sheldon Adelson or the Koch brothers have to do with all this?

  23. KM says:

    @Tony W:

    Amazingly enough, Hugh Hefner made this point in 1955:

    Hefner accepted the piece and published it in a 1955 edition of Playboy, then still a relatively new publication.

    After letters of outrage at Beaumont’s “The Crooked Man” poured in, Hefner addressed readers. “If it was wrong to persecute heterosexuals in a homosexual society,” he wrote in response, “then the reverse was wrong, too.”

    People only complain about “special treatment” when they lack the ability to perceive what life is like on the other side of the fence and the empathy to forsee for but the grace of God go thee.

  24. gVOR08 says:

    @grumpy realist:

    And HOW do you think that Marbury will fall

    I think @Another Mike: is hinting at a “Second Amendment remedy”.