Dick Gephardt apparently did an oral-podiatral maneuver today, when he said (and according to C-SPAN, it's not out of context), "When I'm president, we'll do executive orders to overcome any wrong thing the Supreme Court does tomorrow or any other day."

Instapundit says:

That's absolutely pathetic. Either (1) Gephardt, despite all his years in Congress, has still failed to learn that you can't overturn a Constitutional decision by the Supreme Court with an executive order; or (2) Gephardt was in Full Pander Mode and hoped his audience wouldn't know better. Neither speaks very well for him.

There's actually a third possibility, perhaps unthinkable for law professors. Perhaps he simply doesn't accept Marbury vs. Madison (i.e., Glenn's option 1 is incorrect, because in fact a president can do so. The issue is whether or not he or she may...)

What does he mean!? ask the blog readers.

Simply put, the precedent set by MvM has been accepted, but only by common consent. It's never really been seriously challenged. There is no doubt that such a challenge would constitute a constitutional crisis of the highest order, and would have the potential to result in the fall of the republic as we know it. But that doesn't mean that a president couldn't issue it.

I ask: what would happen if it were? I suspect that it would strongly depend on the popularity of the president in question, and the particular issue on which such a challenge was made. If he had the support of the military, and popular support as well, such a challenge might well be successful, which would then raise the question, if not the Supreme Court, who is the guardian of the Constitution?

RE: Who is guardian of the Constitution.

All personnel who enlist in military service
swear an oath to defend the Constitution
against both foreign and domestic attack.

That's true and irrelevant. Who is it that decides the Constitution is under attack...?

Right now the Appeals Courts act as gatekeepers to the Supreme Court. Just think of all of the Federal Govt. that would fall if a more expeditious route were available for citizens to directly file objections to the constitutionality of a law to a court of competant jurisdiction.

Most of the Federal Beauracracy is patently, absurdly un-Constitutional. Where the hell did they pull the Dept. of Education out of their ass, for instance? Enumerated Powers, hello? FDR shredded the 9th and 10th Amendments, and as the spending floodgates had preiviously been unleashed by the 16th, that just gave the money somewhere to go.

Full picking of each others pockets at the ballot box could now commence, and goodbye Republic.

I don't like the New Deal, I want the old one back. But too late, Ave Imperator and all that, without so much as a Romanus Civus Sum.

Ok, maybe we've got a bit of Romanus Civus Sum, as the US Govt. reserves the right to try anyone in the world under the death penalty for killing an American citizen, anywhere, but damnit, get the TSA off my back.

The Legions will of course ultimately decide when and how the Constitution is being attacked.
'Scuse me, the Joint Chiefs in consensus with everyone at and above the rank of Colonel, if history is to be any judge.

If President Gephardt literally did what he said he would do, there might be any number of people who will decide that the Constitution is under attack. Guys who command infantry battalions in the DC area will be very, um, influential. This is Banana Republic stuff, but that's the path he described. I don't think people will stand on ceremony once the President starts dictating.

Um, people? Gephardt merely stated overtly what has been going on since, I'm thinking, about 1934...

Funny you should ask, Rand.

There is only one agency which could conceivably enforce the strictures of the Constitution on a government unwilling to obey them: the people in arms. Which makes the desires of so many power-seekers to disarm the populace rather easier to comprehend, doesn't it?

Time was, ordinary folks were presumed competent to read the Constitution and understand it, just as they were presumed competent to own firearms and know when it was acceptable to wield them. That was before 600 volumes of Supreme Court opinions displaced the nine pages of the document, of course.

I could go off on a nice little rant here about who really "owns" the law of the land -- lawyers or the people -- but I'm trying to avoid being more than a minor annoyance. For a change.

Actually, Little Dick Gephart's comments are kinda refreshing. It's the first time in quite a while that I've seen a Leftists take issue with the idea that nine appointed and unaccountable geezers get to make and decide the law. The problem is that Little Dick has no problem with the Supreme Court making law ias long as it's the kind of law he doesn't have the guts and votes to get passed after an open discussion in a Democrat controlled congress. So if the nine geezers won't do it for him, then all he's saying is that it's just time to cut out the middleman.

Hmmm... who was the last candidate whose rhetoric scared a certain group of voters he was going to run rough shot over the constitution. Oh yeah Lincoln.

Re: Dr. Clausewitz

I trust Dr. C is not looking forward eagerly to settling more Constitutional questions the way we settled them in 1861-1865. Because whatever Dick Gephardt is pandering to Jesse Jackson's crowd is not worth that kind of price to most of us.

Dick's just pandering. He's been pandering ever since he got elected to the Third District here in Missouri. That's how we knew it was election time, when Dick would come by with the pork. The rest of the time, he'd be jetting around the country or holed up in his North Carolina property.

At various times in his career, Dick's held just about every opinion on just about every issue. As Mark Twain once observed, "If you don't like Dick Gephardt's opinion, wait a minute."

Francis Porretto is correct. The Constitution sets no final arbiter of the Constitutionality of any law or government act, nor any method (other than arguably the States' power to call a Convention) to correct an unconstitutional law or act. It was at the time presumed that each and every citizen had within his power the ability to judge such matters, or he would not be a citizen. It was further presumed that citizens would both own arms as far as possible, and organize themselves into a local militia so as to resist the intrusion of the government into areas not within the government's Constitutionally-granted authority.

It is this which makes (for example) jury nullification reasonable, private ownership of firearms necessary and Liberty possible. If the government (whichever branch) is the final arbiter, then the government has no accountability, since it can simply act as it wants and declare it Constitutional. If one would make the argument that the division of powers among branches of government precludes this, then I would advise studying why it is that so many innocent people get convicted.

Jeff, Jury Nullification goes back into English Common Law, where it was found that without it, the Govt. was free to tyrannize the populace at will, by writing the law as they wished and requiring jurys to convict based only on whether the law had been violated, not whether it was just.

This 'rule only on the facts of law' instruction to jurys has now become ensconced in American jurisprudence.