At NRO Bench Memos, Ed Whelan responds to my post on originalism and judicial supremacy. In his first of three critical points, he argues:
Ramsey observes that in 18th-century England, “if an English judge ordered a person released on a writ of habeas corpus, the king would not be entitled to refuse because (in the king’s view) the judge got the law wrong.” How could it be, he asks, that “the President would have more power than the king in this regard”?
The short answer, I think, is that the Constitution’s separation of powers does not follow the British model of mixed government. The federal separation of powers instead means that no branch is supreme over any other. As Madison puts in in Federalist No. 49:
The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.
And what is the claim of judicial supremacy but a claim that the judiciary has a “superior right” to settle the boundaries governing the executive and legislative branches?
Two quick points in response: (1) This post makes clear that he favors the very strong form of judicial non-supremacy — that the executive can refuse to obey even a direct order from a court. (A moderate version is that the executive can refuse to apply the court's conclusions to people who are not actually parties to the proceeding). As the post apparently concedes, that was not the situation in England, so (it follows) the Constitution apparently adopted a version of executive power subject to fewer judicial checks than in England.
The argument is that the American version of separation of powers was different, but (apart from the Madison quote that I'll discuss in a moment) that's just an assertion, and it seems a weak assertion. The framers generally thought executive power in England was too strong, not too weak, and in particular they regarded habeas corpus as a central check on the executive. For example, Hamilton in Federalist 84 referred to habeas corpus (quoting Blackstone) as "the bulwark of the British Constitution" and which, Hamilton said, was designed to counter arbitrary imprisonments, one of the "favorite and most formidable instruments of tyranny." Hamilton's point was that the Constitution, by carrying over this provision of English law, contained a powerful protection for liberty.
Whelan's strong version of judicial non-supremacy, however, would render habeas corpus orders in effect advisory. A President could readily conclude that an inconvenient order was based on faulty judicial reasoning and pursue his own view of constitutional detention. It seems most unlikely that the framers would have adopted this system, as concerned as they were about executive tyranny. And Hamilton would not have been able to make his appeal to the English version of habeas corpus if it had been generally understood that it would work differently under the new Constitution.
(2) The Madison quote proves less that the post supposes. In Federalist 49 (a fairly obscure number) Madison was responding to an earlier suggestion by Jefferson (with respect to the Virginia constitution) for frequent conventions in the the event of constitutional disagreement among the branches. The point about co-ordinate branches is actually Madison's summary of Jefferson's view, although Madison says "there is certainly great force in this reasoning" (he went on to reject the idea of frequent conventions, however). Crucially for the present debate, Madison was not talking directly about the executive's duty (or non-duty) to follow court orders. The broader question was how to deal with a situation in which the branches disagreed on a constitutional matter, and in that context Madison said no single branch could "settle" such disputes.
Now perhaps Madison meant the executive did not have to obey court orders, but it's not clear that's what he meant since that was not the question he was discussing. Judicial supremacy, as I understand it, does not mean the judiciary can "settle" constitutional questions in the sense that judicial decisions cannot be questioned or challenged. The President can always say (as Lincoln said about Dred Scott) that the court was wrong — and the question (to which Jefferson's appeal to the people through a convention might be an answer) is how to settle that dispute. This does not say anything about how the President must act in the interim.
Posted at 6:16 AM