Who Owns the Constitution? Apparently, Nine People in Robes.

The Supreme Court was never supposed to be the only place Americans could look to understand their own Constitution.

Let me start with a strange little piece of American history.

The Supreme Court used to work beneath Congress.

Literally.

For much of its early history, the justices did not have their own grand marble building. They worked in borrowed spaces inside the U.S. Capitol, including a room in the basement.

Then, in 1935, the Supreme Court moved into its own building at One First Street.

It is a beautiful building.

It is imposing.

It has enormous columns, enormous steps, enormous symbolism.

And perhaps most interestingly, it makes a pretty good metaphor for the institution itself.

The Court went from being, quite literally, underneath Congress to becoming one of the most powerful institutions in American government.

That evolution is the subject of a fascinating new book, Supremacy, by Harvard law professors Daphna Renan and Nikolas Bowie, discussed by New York Times writer Jesse Wegman in his Major Questions newsletter. Wegman describes the book as an examination of how the Supreme Court's relationship with Congress changed—and how the once-controversial idea of judicial supremacy became something Americans increasingly accept as simply the way government works.

And that should make us stop.

Because here is the question:

Who owns the Constitution?

Is it the Supreme Court?

Congress?

The president?

The states?

Or is it us?

Let's define our terms.

Judicial supremacy sounds like one of those phrases designed specifically to make normal people stop reading.

Don't.

The basic idea is actually pretty straightforward.

According to Renan and Bowie, judicial supremacy is the power asserted by the Supreme Court to declare an act of Congress unconstitutional.

And once the Court makes that determination, its interpretation effectively becomes the interpretation.

The Court says:

This is what the Constitution means.

And the rest of the government is expected to operate accordingly.

Now, before somebody starts screaming that I am advocating anarchy:

No.

This is not an argument that Supreme Court decisions should simply be ignored whenever somebody doesn't like them.

It isn't an argument that courts are useless.

It isn't an argument that judges should have no authority.

In fact, Renan and Bowie explicitly distinguish their argument from that position. Democratic constitutionalism, they say, is still about the rule of law. The disagreement is over whether the Supreme Court's interpretation of the Constitution should automatically become the final and supreme interpretation binding everyone else—particularly Congress.

That distinction matters.

A lot.

Because Americans have somehow gotten very comfortable with the idea that the Constitution belongs to nine lawyers in Washington, D.C.

And perhaps it doesn't.

The Constitution wasn't written for the Supreme Court.

It was written to establish a government.

A government made up of competing institutions.

Congress makes laws.

The president executes them.

Courts interpret and apply law.

States have powers.

Citizens have rights.

And, ideally, nobody gets to become King.

That last part is rather important.

The entire American constitutional system was designed around distributed power.

Checks.

Balances.

Conflict.

Competing branches.

Messy democracy.

Which is why I find this particular historical evolution so fascinating.

Because the argument presented by Renan and Bowie is that Americans have gradually come to understand constitutional meaning through one institution above all others:

the Supreme Court.

They describe this as a transformation from constitutional interpretation being something that could happen democratically—through legislation and political participation—to constitutional interpretation increasingly being treated as something the Court gets to settle for everyone.

Their formulation is particularly unsettling:

Americans have, in their words, lost the ability to perceive constitutional rules apart from what the Supreme Court says.

Read that again.

Because if the Constitution belongs to the American people, why have we become so accustomed to outsourcing our understanding of it?

And this isn't exactly a new problem.

One of the most important things about this argument is that it isn't simply about today's Supreme Court.

The authors trace the struggle over constitutional power through abolitionists, suffragists, labor activists, and civil-rights movements—groups that repeatedly encountered a Court that could stand in the way of democratic expansion.

Consider Dred Scott.

In 1857, the Supreme Court used its authority to strike down the Missouri Compromise and deny citizenship to Black people.

The decision didn't merely settle a legal dispute.

It pulled an enormous political question out of democratic debate and placed it in the hands of the Court.

And, as Bowie explains, there is an uncomfortable irony in the traditional argument that judicial supremacy protects minorities from the tyranny of majorities.

Sometimes it does.

But which minority?

In the example of Dred Scott, the "minority" being protected was effectively the slaveholding interest.

That should complicate our understanding of the phrase minority rights.

Because power doesn't disappear simply because it moves into a courtroom.

There are two different kinds of judicial power.

And this distinction may be one of the most important ideas in the entire conversation.

Renan and Bowie distinguish between vertical and horizontal judicial review.

Vertical review is the familiar idea that courts enforce federal law against states.

Horizontal review is something different:

the Court rejecting an act of Congress.

Those are not the same thing.

And yet, according to the authors, Americans have increasingly treated them as though they are.

Why does that matter?

Because there is a profound difference between saying:

"The government has a law. You have to follow it."

and saying:

"Congress passed a law, but we have decided that law is unconstitutional."

The first is the judiciary enforcing the law.

The second is the judiciary overruling the legislature.

Those are fundamentally different exercises of power.

And if we don't understand the difference, we don't really understand what the Supreme Court is doing.

What happens when Congress becomes powerless?

This is where the argument gets particularly interesting.

Because it isn't only about the Supreme Court.

It is about what happens to Congress when the Court becomes the ultimate interpreter of constitutional meaning.

Bowie argues that Congress has historically anticipated major problems and passed laws designed to address them—including problems involving campaign finance, voting, presidential power and war-making.

But when those laws are repeatedly struck down, Congress loses some of its ability to function as a meaningful counterweight.

The result, according to the authors, is a strange political arrangement:

a weaker Congress, a stronger president, and a Supreme Court powerful enough to supervise both.

And suddenly this isn't some obscure argument for constitutional scholars.

It becomes a question about democracy itself.

Because if your elected representatives pass a law you hate, you know what you can theoretically do.

Organize.

Campaign.

Vote.

Replace them.

Change the law.

That's democracy.

But if the ultimate decision is made by a Supreme Court justice appointed for life?

Your options look very different.

Renan and Bowie argue that under a more democratic constitutional model, if Congress gets something wrong, citizens can organize and vote different people into office to change it. If the Supreme Court gets something wrong, however, Americans can become trapped waiting for the composition of the Court to change before the interpretation changes.

That is a very different relationship between citizens and government.

And here's where I think Americans need to get uncomfortable.

We talk about the Constitution constantly.

People wave it at protests.

Politicians invoke it in speeches.

Activists cite it.

Judges interpret it.

Lawyers argue over it.

People scream about it on Facebook.

And yet how many of us have actually been taught to think about who gets to decide what it means?

Not what the Constitution says.

That's a different question.

Who gets to say what it says?

Those are not the same thing.

And that distinction is precisely why this conversation matters.

Because the Constitution isn't magic.

It is not a crystal ball.

It doesn't descend from heaven every morning with a footnote explaining what nine justices have decided today.

It is a human document created within a particular historical context, amended repeatedly, interpreted by generations of Americans, fought over by abolitionists and suffragists and labor activists and civil-rights leaders, and constantly tested against the messy reality of American life.

The Constitution has never existed outside politics.

We have simply gotten very good at pretending it does.

The uncomfortable part: I don't actually want a government without judges.

I want Americans who understand what judges do.

I want Americans who understand what Congress does.

I want Americans who understand what the president can—and cannot—do.

I want Americans who understand federalism.

I want Americans who understand judicial review.

I want Americans who understand the difference between a court enforcing a law and a court invalidating a law.

And, perhaps most importantly, I want Americans who understand that constitutional interpretation is not the same thing as constitutional ownership.

The Court has an enormously important role.

But it is still one branch.

One institution.

Nine people.

Not nine monarchs.

Not nine priests.

Not nine owners of the American experiment.

Nine judges.

And if we have reached a point where Americans believe the Constitution means whatever five of those nine people say it means, then perhaps the problem isn't simply what the Court is doing.

Perhaps the problem is that we have forgotten that the Constitution belongs to us.

Democracy is supposed to be inconvenient.

That's the part nobody likes.

Democracy is slow.

It is argumentative.

It is contradictory.

It produces bad laws.

Then it produces better laws.

Sometimes it produces terrible people in office.

Then, sometimes, people vote them out.

It is messy because people are messy.

The alternative is incredibly seductive:

Find the experts.

Find the judges.

Find the smartest people in the room.

Let them decide.

And then we don't have to fight about it anymore.

Except we do.

Because when you remove constitutional questions from democratic debate, you haven't removed politics.

You've simply moved the battlefield.

Renan and Bowie argue for a constitutional system that leaves more room for democratic interpretation through legislation while retaining an important role for courts. They point to historical mechanisms—including congressional authority over jurisdiction and proposals for greater consensus before the Court can exercise its most consequential powers—as examples of ways the balance could be reconsidered.

That doesn't mean Congress gets everything right.

It means something more uncomfortable:

Maybe Americans are capable of deciding some constitutional questions for ourselves.

So, who owns the Constitution?

That is the question I want you to sit with.

Not:

"Do I like the Supreme Court?"

Not:

"Do I agree with this particular ruling?"

Not even:

"Are these justices conservative or liberal?"

Those questions are almost beside the point.

The deeper question is:

How much constitutional power should belong to nine unelected people—and how much should remain with the democratic institutions, and ultimately the citizens, of the United States?

Because if your answer is:

"Whatever the Supreme Court says,"

then you have already answered the question.

You have decided who owns the Constitution.

And it isn't you.

This is exactly why we study history.

Not because dead people are interesting.

Not because memorizing dates makes you smarter.

And certainly not because the past is safely finished.

We study history because the arguments we are having today have almost always been had before.

The language changes.

The technology changes.

The faces change.

The institutions evolve.

But the fundamental questions remain:

Who gets power?

Who gets protected?

Who gets heard?

Who gets excluded?

Who gets to decide?

And what happens when the people who are supposed to serve democracy begin defining its limits?

Those aren't merely Supreme Court questions.

They are American questions.

And they belong to all of us.

Knowledge is power. Context is everything. Perception is reality.

So let's keep asking uncomfortable questions.

Even when the answers make us squirm.

Especially then.