Conservatives Without Conscience

If this scenario were just one of Pat Robertson’s more outrageous demands, it could be safely ignored. In fact, though, such thinking is widespread among Christian and social conservatives. For example, in 1997, Chuck Colson wrote in Christianity Today about his displeasure with the Supreme Court’s ruling in Boerne v. Flores, which held that the Religious Freedom Restoration Act, passed by Congress to address the standard under which religious practices could be curtailed by government, was unconstitutional. Colson raised the question of who determines what the Constitution means: the Supreme Court, the Congress, or the president? Colson claimed that “contrary to what most Americans think, the Constitution does not give the Supreme Court final say on constitutional questions.” He further asserted that in 1803, in Marbury v. Madison, “the Court assumed the power of judicial review,” yet “three presidents have resisted Court orders: Thomas Jefferson refused to execute the Alien Imposition Act; [Andrew] Jackson spurned a Court order in a banking case; [and] Lincoln rejected the Dred Scott decision.”[81] Colson, like Robertson and others on the religious right, is seeking, in effect, to nullify Supreme Court decisions of which he does not approve. Because such arguments are being made increasingly in lengthy law journal articles, which are later cited by conservative judges, it is worth taking a look at conservative scholarship in this area, and Colson is considered a scholar by his contemporaries.[82]

First, contrary to Colson’s suggestion, the practice that is now called “judicial review” (the ability of federal courts to overturn acts of Congress) did not start with Marbury, but was already well established by 1803 and the Marbury ruling. In fact, the Court noted in Marbury that “[t]he question, whether an act, repugnant to the constitution, can become the law of the land” was to be resolved by relying on “long and well established” principles.[83] Even before the Constitutional Convention, high state courts had held legislative acts unconstitutional in several states, and references in the constitutional debates suggest that the delegates to the convention assumed federal courts would have such review authority. Members of the First Congress certainly understood that Supreme Court justices would decide constitutional questions. For example, Abraham Baldwin of Georgia stated during a debate of the First Congress, when speaking of the judiciary, that “it is their province to decide upon our laws; and if they find them unconstitutional, they will not hesitate to declare it so.” During the same debate, Peter Sylvester of New York added, “It is certain that the Judiciary will be better able to decide the question of constitutionality in this way than any other. If we are wrong, that can correct our error.”[84] Also long before Marbury, the newly created federal circuit courts, with Supreme Court justices presiding, reviewed the constitutionality of acts of federal officials and scrutinized federal statutes on no less than twenty occasions. Justice James Wilson, appointed by President George Washington and one of the more scholarly of the first justices, prepared a series of now famous lectures in 1790 and 1791 in which he explained that the courts must decide constitutional questions as a check on the legislature. In 1794 the Supreme Court declared a law passed by Congress in 1792, the Pension Act, was unconstitutional.[85] In short, the Court has had this power from the outset, and contrary to Colson’s claim, it did not suddenly “assume” it in 1803.

Colson’s historical examples, suggesting that presidents and Congress need not be bound by Supreme Court rulings, are red herrings. His claim that Thomas Jefferson did not execute “the Alien Imposition Act” is incorrect, for there is no such law. If Colson is referring to the infamous Alien and Sedition Act of 1798, it had nothing to do with a court order, and the example is therefore very misleading. When Jefferson was vice president, President John Adams asked him for his legal opinion of the sedition act (which made seditious libel a crime); Jefferson replied that he believed it to be unconstitutional. Nonetheless, Federalist judges upheld the law, and John Adams prosecuted under it—to his everlasting historical shame. When Jefferson became president he pardoned those who had been convicted. Because the act expired on March 3, 1801, and Jefferson was not inaugurated until March 4, 1801, he could not execute it anyway, since the law no longer existed.