Meese on Constitutional Interpretation: Not Far Off Base

Several weeks ago the newspapers reported that Atty. Gen. Edwin Meese III had said in a speech at Tulane Law School that U.S. Supreme Court interpretations of the Constitution are not binding on all parts of the government for all purposes.

My first reaction was that this was one instance in which the attorney general and I were in disagreement.

Then I read the speech. And then I thought about it for a while. I have concluded that like so many of life’s important issues, this one cannot be resolved with a single sentence. There are some instances in which the Supreme Court’s constitutional rulings are not binding for all purposes on all government entities and employees. But there is at least one sense, and a very important one, in which they are. It is helpful to consider three examples of the effects that Supreme Court constitutional decisions should have (and, I believe do in fact have) on other government officers.

About 2 1/2 years ago the Supreme Court held in Garcia vs. San Antonio Metropolitan Transit Authority that Congress may constitutionally prescribe minimum wages for state employees.

--Assume that some members of Congress disagree with that legal conclusion. I believe that it would be perfectly proper for those members to vote against a federal law expanding the minimum-wage coverage for state employees, and to do so not just because of their policy convictions but also because of their view that the law, if passed, would be unconstitutional.

--Assume next that Congress passes the state employee minimum-wage bill. I submit that it would be proper for the President to veto such a bill on the ground that he, unlike the Supreme Court, believes that it is unconstitutional.

--Now assume that this hypothetical statute, voted against by individual members of Congress and vetoed by the President because of their views concerning constitutionality, is nonetheless enacted by a two-thirds majority of both houses of Congress and therefore becomes law. Can the President then instruct the secretary of labor and other executive branch officers not to enforce it because the President, as head of a branch of government co-equal with Congress and the court, has concluded that the statute is unconstitutional?

There is an impressive array of Presidents who have answered that question with a “yes.” The group includes Thomas Jefferson, Andrew Jackson, Abraham Lincoln and Franklin D. Roosevelt. Though each stated his view in slightly different ways, there is a common theme. It is that each branch of government interprets the Constitution for its own governmental purposes--and the interpretation of any branch is no more authoritative outside the context in which it is exercised than the interpretations of the other two.

This would make the Supreme Court’s interpretations legally effective only for purposes of resolving the particular case before it. The court’s holding would be binding on the parties to that case, but no one else. Therefore, when the same issue arises in another context involving other parties, Congress and the President would be free to apply their own views of the Constitution for their purposes just as the court is free to decide its cases consistent with its views of the Constitution.

President Lincoln’s favorite example was the Dred Scott decision. He contended that it was binding on Scott and his master, but no one else. Applied to a more current example, it would mean that the court’s holding in Memphis Firefighters vs. Stotts--that race-conscious layoffs are unlawful--is binding only on Carl Stotts and his employer, the Memphis Fire Department.

Whatever logical appeal the view taken by four illustrious Presidents might have, it cannot withstand analysis. If applied, it would lead to nothing less than constitutional chaos. Orderly government under a constitutional system requires that the final authority to say what the Constitution means be vested somewhere. For several reasons--history, common sense and the independence of the judiciary, among them--I conclude that such responsibility rests with the courts. I believe that this is where the Founding Fathers intended it to be. Moreover, any other view would profoundly distort the separation of powers, which is the touchstone of our constitutional system. The power to declare constitutionality is the only judicial power that approaches the power of Congress to pass our laws and raise and spend our taxes, and the President’s powers to veto, enforce the laws and appoint government officials, including judges.

Why, then, is it proper for the President or a member of Congress to vote against (or veto) a bill because one thinks it unconstitutional? There is a temptation to generalize by saying that the difference is between exercising one’s policy-making authority based on constitutional convictions and exercising policy-enforcing responsibilities on that basis. In general, I think that this is a helpful distinction. It separates our first two examples--which are proper instances of constitutional views influencing official conduct--from the third, which, if ever implemented, would lead to disaster.

Even that distinction between policy-making and policy-enforcing, however, does not solve all of the cases. I can think of one instance (though only one) in which it is proper for the executive branch to refuse to enforce a judicial decision. When the executive branch seeks to persuade the court to overrule an existing precedent, it may be necessary to disregard or even disobey the holding of that case in order to create a test-case vehicle for taking the issue back before the Supreme Court. This kind of non-enforcement (sometimes called non-acquiescence) must of course be narrowly and selectively employed.

How consistent with these general principles was the attorney general’s Tulane Law School speech? Was he really resurrecting the call for drastic devaluation of the Supreme Court--a call that we have not heard for the past 50 years? Or was he advocating the far narrower view, as we were assured by his official spokesman, Terry Eastland? The overall thrust of the speech, and 90% of its content, is consistent with the narrower view, and I believe that this is what he meant.

The speech contains two unfortunate references that might point in the other direction. One is a reliance on President Lincoln. In most contexts, quoting Lincoln is about as controversial as quoting the Magna Carta or the Boy Scout oath. But this is not one of those contexts. The second aspect of the speech that looks toward a more radical view is its reference to Cooper vs. Aaron, the Little Rock desegregation decision. It was an unfortunate example for several reasons: It was a school-desegregation case, and school-desegregation cases present probably the most persuasive example of why Lincoln and Roosevelt were wrong in contending that the court is not binding in all cases. Moreover, it involved state law-enforcement officials who were refusing to enforce constitutional principles as determined by the Supreme Court.

It is manifestly not the law, and could not be, that just because Brown vs. Board of Education involved only the public schools in Topeka, Kan., any other school in the country is free to disregard it. And perhaps more than any case other than Marbury vs. Madison, Cooper has come to be recognized as the bulwark against the extremist view taken by our earlier four Presidents.

Yet while it would have been better for the attorney general to have quoted someone other than Lincoln, and used an example other than Cooper, neither of these can convert his speech into a general assault on constitutional structure. My guess is that both are attributable to an overzealous speech writer.

At worst, the attorney general’s speech used a couple of unfortunate examples. At best, it has turned our attention to some very important issues.