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Ben Carson's Dangerous View of the Law

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Ben Carson will never be president. (There, I’ve said it.) But his candidacy and the views associated with it aren't a joke; they’re an important reflection on the current state of American populist conservatism. That's why it's worth analyzing Carson’s recent comments suggesting that the president may not have to obey the U.S. Supreme Court's interpretation of the law.

The conversation on "Fox News Sunday" began with Chris Wallace asking the Republican presidential candidate, in light of a comment he had made earlier: “Do you believe that the president must observe a decision by the Supreme Court?” Carson’s first answer was straightforward enough. “Well,” he replied, “what I said is the president doesn't have to agree with it.” Wallace could’ve taken the answer, but he persisted, asking, “But does he have to enforce it?”

Again Carson answered reasonably, citing as “a perfect example” the court's infamous Dred Scott v. Sandford decision, which, among other things, ruled that African-Americans were not citizens of the United States. “You know,” Carson observed, “the Supreme Court came up with this and Abraham Lincoln did not agree with it. Now, admittedly, it caused a lot of conflict and eventually led to a civil war, but we’re in a better place because of it.”

In case you need a refresher on Abraham Lincoln's 1857 speech about the Dred Scott case, I went back and reread it. At the time, Lincoln was already taking criticism from Stephen Douglas, with whom he would have a series of extraordinary debates the following year in their Senate race. Among other things, Douglas attacked Lincoln for challenging the Dred Scott decision. Douglas framed his critique in terms of accepting the authority of the Supreme Court. "Whoever resists the final decision of the highest judicial tribunal, aims a deadly blow to our whole republican system of government,” as Douglas put it.

Lincoln defended himself brilliantly -- and carefully. First he made it clear that he wasn't challenging the fundamental authority of the Supreme Court. “We believe, as much as Judge Douglas, (perhaps more) in obedience to, and respect for the judicial department of government,” Lincoln said. “We think its decisions on Constitutional questions, when fully settled, should control not only the particular cases decided, but the general policy of the country. … More than this would be revolution. But we think the Dred Scott decision is erroneous.”

Lincoln went on to say that the Dred Scott decision shouldn't be considered “settled” as a matter of precedent, mostly because it was recent and wrong. Then he got to his most salient point. Lincoln reminded his Illinois listeners that Andrew Jackson, while president, vetoed legislation rechartering the Second Bank of the United States partly because he believed it to be unconstitutional. Jackson had himself said that the constitutionality of the bank was not well-settled precedent. In his punchline, Jackson declared that as president, in deciding to veto a law, he didn't need to be bound by the Supreme Court’s view of constitutionality: “The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution,” Jackson concluded.

To be clear: Ben Carson was completely justified in citing Lincoln’s opinion of Dred Scott. Lincoln had avoided saying that the president didn't need to enforce a Supreme Court opinion. Jackson, on whom Lincoln explicitly relied, didn't say so, either, at least not when it came to the national bank. So far, all Carson had done was express the view that the president could perfectly well disagree with the Supreme Court with respect to the meaning of the Constitution -- for example, when choosing to veto a law.

If things had ended there, there probably would have been no headlines -- certainly no justifiable ones. But Wallace sensed that Carson had more to say. “But does the president have to carry out a Supreme Court ruling?” he asked.

Then things went sideways. “The way our Constitution is set up, the president or the executive branch is obligated to carry out the laws of the land," Carson replied. "The laws of the land, according to our Constitution, are provided by the legislative branch. … The laws of the land are not provided by the judiciary branch.”

At this point, Carson had overstepped. The Constitution does indeed tell the president to “take care” that the laws be faithfully executed. The supremacy clause says that the Constitution and the laws made in pursuance thereof (plus treaties) are the supreme law of the land. But nowhere does the Constitution say that the judicial interpretation of law doesn't count as the law of the land.

What's more, when it comes to the meaning of the Constitution, Congress has no particular authority under the Constitution. And the Constitution -- not just laws passed by Congress -- is part of the law of the land.

Wallace then declared that “since Marbury v. Madison in 1803, we have lived under the principle of judicial review which says, if the Supreme Court says this is the law … the executive has to observe that.” Carson replied: “And I have said, this is an area we need to discuss. We need to get into a discussion of this because it has changed from the original intent.” He then clarified: “It is an open question. It needs to be discussed.”

Apparently Wallace had been on to something from the beginning. When pressed, Carson seemed inclined make the radical argument that the president need not obey the Supreme Court's interpretation of federal law -- and maybe of the Constitution, either.

These views are wrong and dangerous. A literal reading of the Constitution would in fact allow for the denial of judicial review. But as Lincoln noted, when a precedent is settled, it takes on constitutional weight -- and today it is settled precedent that the Supreme Court has the final say on the meaning of the Constitution and federal law. That's not an open question. The fact that some members of the public might want it to be is genuine reason for concern -- and for registering disagreement.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Brooke Sample at bsample1@bloomberg.net