What if... ?

M: Mr. President, the entire legal community is in shock. No president has ever refused to obey a direct order from the Supreme Court.

P: Not quite. Back in the early 1800s, the Supreme Court ordered President Andrew Jackson not to kick the Seminole Indians out of Florida, but he did it anyway.

M: So you're the modern Jackson -- just arrogantly doing things your own way?

P: No, not at all. The Supreme Court used to be judicial, but it's become just another political branch of government. The appointments process and confirmation hearings have shown this. And you can safely predict the outcome of an important case just by knowing which president appointed a majority of the justices. The United States is a democracy, where the voters decide who should make governmental policy. I was elected by the voters to make the political choices. The Supreme Court justices weren't.

M: But doesn't the Constitution put limits on the president's powers?

P: Of course it does. And I respect those limits.

M: Isn't the Supreme Court the institution that's supposed to decide what limits are imposed by the Constitution?

P: That's what most everyone thought, up till now. But I don't.

M: Why not?

P: Several reasons. First, as I said, the Supreme Court is no longer acting as a judicial body. It's political -- unelected political. Second, I take the same oath to support the Constitution that the justices take. I will honor my oath, and I don't need them to tell me what the Constitution means. And thirdly, nowhere does the Constitution does say that the Supreme Court has the final word on the meaning of the Constitution.

M: True, but back in 1803, the Supreme Court read that power into the Constitution, in Marbury v. Madison.

P: They did, but only in a very limited sense. In Marbury, Chief Justice John Marshall relied on our new country's "greatest improvement on political institutions -- a written constitution."

He seems to be comparing us to the Brits, whose "unwritten constitution" consists of the Magna Carta, some other ancient tomes, and general beliefs of most English people. Extracting a rule from that conglomeration is pretty subjective, and it's not hard to see why an English court would be reluctant to impose its interpretation of that "Constitution" over Parliament's interpretation. A written constitution does not pose this problem.

But I read more into Marshall's emphasis on "written." In his opinion, Marshall mentions the fact that our Constitution is "written" eight times. He seems to be saying, "Interpreting writings is a judge's bread and butter. We do it every day, and over time we've developed rules and guidelines for how to do it."

But this justification is premised on a key assumption: When a judge interprets a document, he seeks the intent of someone else, and he puts aside his own preferences. When he interprets a will, he tries to discern the intent of the testator. If the testator was a Nazi who wanted to leave all his property to the Nazi party, the judge should hold her nose and carry out that intent. If she can't, she should resign. Likewise, when interpreting a contract, she tries to figure out what the contracting parties intended, and when interpreting a statute, she tries to discern what the legislators intended.

So a judge should do the same with the Constitution: find out what the guys who wrote it intended. If I'm right about what Marshall meant, an originalist/textualist approach to constitutional interpretation would seem to be the correct one. A judge does not insert his personal preferences into wills, contracts, and statutes, so he should not do so with the Constitution. Before the Civil War, for example, our Constitution required the return of fugitive slaves, and it gave our citizens no protection against state government restrictions on religion and speech. A judge who couldn't live with those provisions should not have accepted an appointment to the Supreme Court.

M: So you endorse Justice Thomas's "originalist" view?

P: To some extent, yes. But I don't endorse the way the conservative Justices have been applying originalism. They pay lip service to "originalism", but then they come out with decisions like Heller v. District of Columbia, where Justice Scalia wrote a majority opinion misapplying originalism. He carefully parsed each word in the Second Amendment -- and "found" that the Framers intended to bar government from outlawing possession of guns in the home. He just brushed off the "well-regulated militia" language. Those words strongly imply that the Framers meant only to prevent the feds from disarming the state militias -- which were then used by Southern states to suppress potential slave rebellions and to catch escaped slaves. So maybe his high-minded originalist approach was just a gimmick to further his love of guns. Scalia was an avid hunter, you know.

M: Do you see the Supreme Court's political role as a recent phenomenon?

P: No, it's been building for a while. In the 1930s, conservative justices tried to squelch Roosevelt's New Deal reforms by reading the "due process" clauses of the 5th and 14th Amendments to include "economic" due process, which they had started in Lochner v. New York. Recently, of course, it's gotten much worse -- with cases like Bush v. Gore and Citizens United -- opinions by conservative Justices that had no basis in what the Framers intended.

M: So it's the conservative justices that concern you?

P: Not just them. The liberals have done the same thing. During the 1970s, liberal justices somehow discovered a right to abortion in the same "due process" clauses. Come on. I like the outcome, but can you tell me with a straight face that in 1868, the Framers of the 14th Amendment intended "due process of law" to protect abortion? And some of the liberal justices have pushed the notion of a "living Constitution" -- one that reflects evolving values. Fine, but who's more in touch with our people's values: a judge who sits in his chambers all day reading briefs, or a politician like me who goes out and talks to the voters?

M: So you'll just ignore the Supreme Court?

P: Not totally. I'll read the majority opinions, but also the dissents and concurrences. If I see something that persuades me, I'll go along with it.

M: But if you treat them as advisory, there's no "case or controversy," so the Supreme Court might not decide the case in the first place.

P: That's their call, I suppose.

M: How far does this go? Are you saying that every elected official -- state or federal -- should be free to ignore any court ruling?

P: No. At the moment, I'm limiting my stance to provisions of the original Constitution -- those that relate to the federal government. In 1789, when the Framers wrote those parts, they didn't know Marbury was coming, so you can't say the Framers approved of the Supreme Court arrogating that power to itself. But in 1868, the Framers of the 14th Amendment (which restricts what states can do) knew about Marbury. When those Framers adopted the "due process" and "equal protection" clauses of the 14th, they probably intended to give the Supreme Court wide latitude to flesh out those vague terms. So state officials don't have as strong an argument as mine. But who knows what arguments the governors might come up with?

M: What about Supreme Court rulings on the meaning of statutes and regulations?

P: I'll follow those. They come closer to what Marshall envisioned in Marbury -- judges doing their traditional job of interpreting what someone else intended.

M: Even if they insert their personal or political preferences into their statutory analysis?

P: That could be a problem. But so far it's not so serious that I'm willing to upset that apple cart. And if we don't like what the Supreme Court does, we might get it changed by new legislation. Much harder to do that with the Constitution.

M: Mr. President, you are not only refusing to follow the Supreme Court's interpretation, you are also disobeying a direct order from the court. You could be arrested and convicted of contempt of court.

P: I'm not worried about that. Who's going to arrest me? The Supreme Court has no army, and the only money they have is what we choose to give them. Their authority rests on the respect of the people, and they've lost a lot of that. Anyway, all they have to enforce their orders is a bunch of federal marshals. Guess who controls the marshals' budget? We do, not the court. The marshals won't bite the hand that feeds them. The Secret Service agrees with me, and they won't let any marshal get near me.

M: Couldn't you be impeached?

P: No way. Most voters back me on this, according to our polls. They like my order, and they see the Supreme Court's order as just one more Republican effort to block it.

M: If you can do this, so can every member of Congress and senator -- and maybe every federal official. If these people interpret the Constitution differently from each other, couldn't this result in chaos?

P: The Brits seem to manage this way, though their parliamentary system usually allows one party to put the lid on chaos by controlling both the legislative and executive branches. Our system allows a split government, so this could be more of a problem. We'll find out.

M: But you're not disinterested. You have a stake in interpreting the Constitution in a way that upholds your actions.

P: Right, but the same is true of the justices. They interpret the Constitution to support their predilections. Anyway, if the voters think our party passed a law that infringes on freedom of speech or religion, we'll hear about it at the next election. Our basic constitutional rights are embedded in the norms of our people. The Supreme Court has no monopoly on them. So politicians like me need to be careful. Not true of the justices. Unless they take bribes from litigants or rob some banks, we're stuck with them for life.

M: Thank you, Mr. President. I'll write this up and see what our readers think. Once my head stops spinning.