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Carter: The Rule of Law

As the U.S Supreme Court wraps up issuing decisions from its most recent term, I find myself reflecting on the broad impact this small group of un-elected lawyers has on the lives of so many Americans and just how fragile that constitutional system really is.

In his first inaugural address President Lincoln opined that “the candid citizen must confess that if the policy of the government... is to be irrevocably fixed by decisions of the Supreme Court... the people will have ceased to be their own rulers, having... resigned their government into the hands of that eminent tribunal.”

An interesting quote from the President we credit with saving our constitutional system of government. But alas, perhaps his point is well made. A Supreme Court made up of un-elected lawyers educated at the most elite schools in the country, with the power to set law for the nation, does seem to run counter to our democratic ideals.

This tension leads me to question the power of the Supreme Court in a constitutional system that’s based largely on pronouncements of that Court. And yet, the reality is that the Supreme Court actually has no real power over any of us. It’s entirely based on our consent to abide by its rulings.

As Lincoln observes, the candid citizen must confess that the Supreme Court has no real power to require individuals, or states or Congress to do anything. It has no military or police force under its direction. And if the President or Congress (or a state for that matter) suddenly decides not to follow the Court’s dictates, the Court itself can do nothing to resolve such a constitutional crisis. In short, it’s only our national commitment to constitutional democracy and the rule of law that maintain our entire system of government.

We like to think that constitutional crises or authoritarian regimes can’t happen here. Indeed, we’re taught that the founding fathers created a system of government that’s designed to endure. However, in contemplating the fragility of our constitutional system through the lens of the Supreme Court and its wide ranging decisions, I’m drawn to conclude that our constitution isn’t enduring because of any one clause or amendment in the document. Rather, it endures because we believe it endures.

If we, or perhaps more importantly the political leaders we elect, reject our constitutional norms or the rule of law, no court decision or presidential decree can resolve the constitutional crisis that would surely threaten to ensue.

Jared Carter teaches legal activism, legal writing and appellate advocacy at Vermont Law School. He also directs the Vermont Community Law Center, a non-profit legal services organization focused on social justice, constitutional rights and consumer protection.
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