When you have judicial supremacy you don't have the rule of law, when the court has the final say on everything.
And my feeling is, and I think it's clearly from our founding documents, that the Congress has a right to say what's constitutional. The president has a right to say what's constitutional. And that's part of the dynamic called checks and balances.
-- Republican presidential candidate Rick Santorum
Appearing on Hardball hosted by Chris Matthews immediately after the Republican debate, former Senator Rick Santorum revealed some strange contortions regarding his understanding of the constitution. He began by disagreeing with the Supreme Court's recent decision to legalize gay marriage as the law of the land. Now individuals disagree with Supreme Court decisions all the time, but still see the court as the final arbiter of constitutional matters and consider their decisions to be the law of the land.
Not, however, Rick Santorum! He does not stop at confessing he believes that the gay marriage issue should be left to the states, as do the other Republican presidential hopefuls. Rather he suggests, if elected president, he would simply defy the Supreme Court's decision entirely.
Does he even vaguely realize his views would pave the way for Executive branch tyranny? I mean, it is universally recognized we are a nation of laws. Not to Santorum apparently! How would a president "contest" Supreme Court decisions exactly? Would he take the case to the Supreme Court? This maneuver seems odd because the Court has already decided. Would he just say the court is wrong and by some monarch-like definition of executive authority overrule their decision? Then he would leave himself open to impeachment. How can a former senator have such little knowledge about our constitution and of democracy itself?
Santorum is right that the constitution does not explicitly state that the Supreme Court has final say over what is or is not constitutional. However, ever since the Marbury v. Madison decision, it has been universally recognized that the Court has the power of judicial review, the ability to limit Congressional power by declaring legislation unconstitutional and for that reason we are a nation of laws. But until now, no candidate, except maybe Mike Huckabee, has voiced a desire to simply nullify the authority of the Supreme Court.
Now oddly, Santorum has Thomas Jefferson on his side who passionately disagreed with Chief Justice Marshal's opinion in the Marbury decision:
You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.
But Jefferson wrote before Marbury had been considered established precedent for a couple hundred years. A nominee to the Supreme Court would be wildly controversial if he professed some desire to overrule Marbury and probably considered half-crazed. Not even Justice Clarence Thomas is that far to the right!
Presidents have decided in the past not to enforce Supreme Court decisions, as when "Chief Justice John Marshall infuriated President Andrew Jackson by insisting that Georgia laws that purported to seize Cherokee lands on which gold had been found violated federal treaties." Jackson, who notoriously hated American Indians, is popularly quoted as saying: "John Marshall has made his decision; now let him enforce it."
However, back to Santorum! Given conservatives' fealty to the Tenth Amendment, which speaks of state's right's, Santorum showed himself to be completely hypocritical when it comes to drug laws, (as were most of the Republicans candidates in the debate, except of course for hardcore libertarian Rand Paul.)
Santorum has stated in the past:
I would make the argument that states have the rights, but they don't have the right to do anything they want to do... states under the Constitution probably have the right to do it, just like they have the right to do medical marijuana laws, but legally, but I don't think they really have the right to do things that are harmful to the people in their community and therefore I think the federal government should step in.
Interestingly, he believes abortion should be outlawed by the federal government as well and not left to the states as it was before the Roe v. Wade decision. But given his predilection for overturning Supreme Court rulings by fiat if elected president, (an impossibility by the way), Santorum may not wait for the Court to decide such matters in the future, but just post his dictums in the town square as the law of the land.
Again, Santorum recently declared: "Is it the law of the land that the Supreme Court has the final say on anything. They do not have the final say on anything. The American people have the final say on everything. Is that the country you live in?"
Scary thought! He seems to want to govern by opinion polls and undoubtedly would hire a conservative pollster to do the polling. Clearly, Santorum has a hodgepodge of beliefs regarding the constitution. If elected, again an extremely remote possibility, Santorum should be required to enroll in a high school civics class. Fortunately, we have a system of checks and balances despite what Rick Santorum thinks!