As the nation barrels into the 2016 presidential race, voters want to know where candidates stand on controversial United States Supreme Court cases past and present. Citizens United v. FEC. Bush v. Gore. Parents Involved. U.S. v. Windsor. Even 1942’s Wickard v. Filburn. Thanks to Republican presidential hopeful Dr. Ben Carson, another Court decision has been thrown into the political arena for fiery debate.
Marbury v. Madison.
Yes, that Marbury v. Madison, the landmark 1803 opinion establishing the basis for the concept of judicial review. Yes, the Marbury in which Chief Justice John Marshall penned words central to the American concept of the separation of powers and the role of the judicial branch of government:
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“It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.”
Those words are not only seared into the brains of generations of Con Law students, but also engraved in a wall of the Supreme Court building itself.
Conservative candidate Ben Carson, though, is not so sure. He expressed his skepticism to Chris Wallace on Fox News Sunday:
WALLACE: Do you believe that the president must observe a decision by the Supreme Court?
CARSON: Well, what I said is the president doesn’t have to agree with it.
WALLACE: No, of course not. But does he have to — but does he have to enforce it?
CARSON: Well, Dred Scott, a perfect example. You know, the Supreme Court came up with this and Abraham Lincoln did not agree with it. Now, admittedly, it caused a lot of conflict and eventually led to a civil war, but we’re in a better place because of it.
WALLACE: But does the president have to carry out a Supreme Court ruling?
CARSON: 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.
WALLACE: But, sir —
CARSON: The laws of the land are not provided by the judiciary branch. So–
WALLACE: But, sir, since Marbury v. Madison in 1803, we have lived under the principle of judicial review which says, if the Supreme Court says this is the law, this is constitutional, the rest — the executive has to observe that.
CARSON: And I have said, this is an area we need to discuss. We need to get into a discussion of this because it has changed from the original intent. And —
WALLACE: So, you’re saying this is an open question as far as you’re concerned?
CARSON: It is an open question. It needs to be discussed.
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I like Dr. Carson. I’m all for discussion. But saying that Marbury presents “an open question” is like calling Darwinian evolution “a theory.” Strictly speaking? Sure. But, in ordinary conversation, saying either will put a lot of listeners on guard, waiting for the other shoe to drop and the speaker to bring up the flatness of the earth or the 861 argument used by income tax protestors like Wesley Snipes. You’ll sound delusional at worst and amateurish at best. And, no, dropping in the phrase “original intent” does not help here.
Dr. Carson is a neurosurgeon and a very good one at that. Ben Carson’s no lawyer or historian. So, in a sense, he is an amateur at American political history or Constitutional law.
Carson is certainly not the only person vying for the Oval Office who has never taken a Con Law class, though. Seventy-nine people have filed paperwork with the Federal Elections Commission stating their intention to run as Republicans in the 2016 presidential race, most of whom are neither attorneys nor historians.
First, I thought, “Are some of these people inadvertently running for President? Has the GOP gone with an opt-out procedure where any party member who doesn’t affirmatively declare that he’s not running for President is automatically assumed to be in the race?”
Next, I became curious about what other non-lawyer presidential hopefuls thought about Dr. Carson’s remarks. So, I asked a sampling of non-lawyer GOP candidates whether they thought that the President must defer to SCOTUS when it rules that a law violates the Constitution, as well as their views on judicial review more generally. (Sadly, I wasn’t able to get ahold of Ole Savior, but I did try to be fair to little-known candidates.)
The Optometrist Ophthalmologist: The Rand Paul campaign pointed me to this video clip of the Kentucky senator (and eye doctor) describing his picture of the role of the judiciary in front of the Heritage Foundation.
The CPA: Mark Everson, former IRS Commissioner under George W. Bush, said, “I respect the separation of powers and the role of the courts in our system of government. The Supreme Court doesn’t always get it right, but plays an important role, particularly when it corrects congressional and executive overreach.”
The Construction Company Owner: Michael Petyo, who has never held elected office but who has run in numerous races since 1996, is proud that he was the first to declare his candidacy for the 2016 election. In his response to my queries, Petyo sent several revisions to his comments, the last of which simply read, “Yes, some branch of government must determine whether a law is constitutional and MVM says its the judicial branch. From an Attorney’s point of view.”
The Investment Manager: Brian Russell (self-professed Dealbreaker regular) said that “the Constitution is pretty clear on this issue. Article II, Section 3, Clause 5 of the Constitution, or the “Take Care Clause,” states that laws must be faithfully executed by the President. This is true whether the President agrees with them or not. While the law may not come from the judicial branch, its interpretations validate the law.” Russell also noted, “I think I understand the point Dr. Carson was trying to make, but don’t agree with what he actually said.” Russell may be on to something. Ben Carson may have been thinking of concerns about “judicial activism” when he infelicitously targeted “judicial review.”
Take the results of this candidate cross-section for what you will, but there are other Republican candidates who don’t share Ben Carson’s view of the role of the Court.
Was Marbury v. Madison rightly decided? If Ben Carson, now a frontrunner for the 2016 GOP nomination, wants to discuss that question, he can. In order to show that he does not misapprehend a fundamental gear in the machinery of American government, though, he ought to ask himself a few other questions as well. If Marbury was not rightly decided, who is the final arbiter of the meaning of the Constitution’s language?
Or maybe Dr. Carson, noted opponent of Obamacare, should ask himself, “How should President Obama respond if the Supreme Court rules against the government in King v. Burwell?
Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at [email protected].