In American legal culture today, it is widely acknowledged that the Supreme Court of the United States has the final authority “to say what the law is.” Whether they agree or disagree with a decision of the Supreme Court, the coordinate branches of the federal government, state governments, and citizens everywhere respect and adhere to those decisions. On the whole, it seems that little stands in the way of the Supreme Court exercising its fundamental duty to issue authoritative interpretations of the Constitution using its own independent judgment. Yet this assumption may be flawed. This note draws attention to a subtle and underappreciated way in which proposed legislation in Congress, if enacted, would undermine the power and independence of the Supreme Court in interpreting the Constitution. For example, the Constitution Restoration Act of 2005 purported to outlaw the consideration of foreign legal or political materials in the interpretation of the Constitution. This note argues that this kind of proposed statutory rule of constitutional interpretation is unconstitutional for two reasons. First, the federal courts, and in particular the Supreme Court, retain a limited set of inherent powers by their very nature as a court of law that can be traced back to English common law. Among these inherent powers is the power to choose and apply an interpretive methodology in carrying out the judicial function of deciding a case. The Framers would have understood that courts exercised some inherent powers, and the Constitution did nothing to displace those inherent powers. Second, under the original meaning of “judicial Power” in Article III, the federal courts have the authority to choose a particular interpretive methodology and arrive at a definitive interpretation of the Constitution without interference from Congress. This authority is not only consistent with the text of Article III, it is also supported by the structural independence of the federal courts under the Constitution as the framing and ratification debates make clear.

Keep Reading Statutory Rules of Constitutional Interpretation and the Original Understanding of Judicial Power and Independence