US Vice President J.D. Vance recently declared that “judges aren’t allowed to control the executive’s legitimate power.” This shot, fired across the bow of the federal judiciary, threatens to disrupt a long-settled understanding that the courts should have the last word on what laws mean and require. Viewed against the backdrop of President Donald Trump’s constitutionally suspect executive decrees – such as ending birthright citizenship and dismantling Congressionally approved administrative agencies – Vance’s challenge throws into sharp relief America’s unfolding constitutional crisis.

At the heart of the matter lies a simple proposition: national elections are not constitutional conventions. Constitutional conventions are singular events that establish the fundamental norms and procedures that regulate the legitimate exercise of state power. In 1787, America’s Constitutional Convention worked out a political and legal blueprint that established a particular form of government (a democratic, federal republic) constrained by fundamental norms (individual rights and principles of due process and equal protection) that limit the exercise of state power, as well as a procedure by which the Constitution would enter into effect (ratification by the states).

Basic to the republic that the US Constitution established is the idea that in order to safeguard freedom against the threat of tyranny, the functions of government must be carried out by three co-equal branches, meaning that each branch is more or less autonomous in its singular function. Thus, Congress regulates policymaking and federal disbursements through its legislative function; the executive implements policy and defends national security; and the courts interpret what statutes and the Constitution require.

Through elections, the public determines who will represent their interests within this constitutional order. Elected officials cannot change that framework at will. For example, they cannot simply terminate elections or void the result of a free and fair election. Nor can they change the ground rules for the exercise of state power. For example, they cannot nullify individual rights or violate with impunity the principles of due process and equal protection.

Things get stickier, however, if an elected official, say, the president, decides that his (rather than the Supreme Court’s) opinion is dispositive regarding whether a particular executive order or action violates the Constitution. This controversy arose early in the new country’s history and was famously resolved in the landmark decision by the US Supreme Court in Marbury v. Madison (1803).

Writing for the Court, Chief Justice John Marshall ruled that “Questions, in their nature political or which are, by the Constitution and laws, submitted to the Executive, can never be made in this court.” On the other hand, legal questions – particularly matters involving the interpretation of the Constitution itself – fall within the province of the judiciary.

The iconic status of the Supreme Court’s decision in Marbury derives from the words that follow: “It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.”

In Marbury, for the first time, the Supreme Court asserted that it was the singular province of the judicial branch to have the last word regarding the Constitution’s meaning and whether particular legislative or executive actions conflict with its requirements. If the legislature thinks otherwise, which was the issue before the Court in Marbury, its authority must yield to the superior authority of the high court. The same goes for the president.

Unless it doesn’t. For example, in Worcester v. Georgia (1832), the Supreme Court held that the Indigenous Cherokee nation constituted an independent political community to which the laws of the state of Georgia did not apply. That meant that a missionary living among the Cherokee could not be prosecuted for refusing to take an oath to obey the laws of Georgia.

While the story (which Vance quotes) is likely apocryphal, President Andrew Jackson supposedly responded to the Court’s ruling by saying, “John Marshall has made his decision, now let him enforce it.” And, in fact, the Court’s decision did not prevent Jackson from sending in federal troops to evict the Cherokee from their land. The result was the Trail of Tears: a forced march to Indian Territory (now Oklahoma) that an estimated 10,000 Native Americans did not survive.

The resistance by Southern states to the Court’s authority to desegregate public schools, as mandated by Brown v. Board of Education (1954), tells a somewhat different story. Acting on the direct order of President Dwight D. Eisenhower, federal troops restrained a hostile mob and safely escorted young Black students (known as the “Little Rock Nine”) into a previously all white public high school.

But what if Eisenhower had chosen not to take action against the segregationists’ resistance to the Brown decision? The US surely would be a different country today.

The American republic currently stands at a similar crossroad. But the question is not simply what national policies the people’s elected representatives will implement. The larger issue is whether elected officials – either through direct action or strategic inaction – can change the constitutional order itself.

Vance’s opinion notwithstanding, it is well settled that within the US constitutional order “it is emphatically the province and duty of the courts [not the Executive] to say what the law is.” By insisting on its own supremacy, the executive branch under Trump is effectively seeking to alter America’s constitutional framework of checks and balances among co-equal branches of government.

Trump lacks constitutional authority to execute this change. Current circumstances suggest that the American people can restore the democratic republic their forebears founded only by asserting their original sovereign power, through elections, mass protest, or other forms of collective action.

Richard K. Sherwin, Professor Emeritus of Law at New York Law School, is a co-editor (with Danielle Celermajer) of A Cultural History of Law in the Modern Age (Bloomsbury, 2021).

(Source: Project Syndicate)