"Supreme Court opinions based on the Constitution cannot be reversed or altered except by a constitutional amendment."

This is a statement that virtually everyone has heard, read, and believed; but is this touted claim an actual rule embodied in the Constitution? The answer is no! There is no clause in the Constitution that gives courts supremacy with respect to constitutional interpretation. The custom of allowing the Supreme Court to be the definitive arbiter of constitutional meaning is actually based on a body of extra-constitutional tradition commencing in the 1780s.

In Federalist 78 (May 28, 1788), Alexander Hamilton wrote the following in his justification of judicial review: "There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm, that the deputy is greater than the principal."

The underlying premise of Hamilton's argument appears to be that the American public and their elected representatives to Congress lack sufficient integrity to enact laws that are consistent with a broad reading of the constitution, and therefore should be subject to the oversight of an independent, unelected, and unaccountable elite panel of lawyers (i.e. Supreme Court justices) who would have veto power to strike down Congress' laws. Hamilton may also have wished to assure locally powerful political leaders such as George Clinton, Governor of Hamilton's home state of New York, that the Supreme Court would be a safeguard to prevent Congress from appropriating to the federal government powers that were not specified in the Constitution.

One might suppose by merit of the fact that Hamilton's commentary on judicial review had appeared as part of the Federalist Papers series, that he was speaking on behalf of the majority of those who had attended the convention that framed the Constitution in 1787. There is ample evidence, however, to suggest that many if not most of the delegates to that convention were not in favor of a judiciary having the power to make definitive interpretations of the Constitutional meaning.

Robert H. Bork in his The Tempting of America: The Political Seduction of the Law comments as follows:

"There were . . . repeated attempts at the Constitutional Convention in Philadelphia to give judges a policy making role. The plan of the Virginia delegation . . . included a proposal that the new national legislature be controlled by placing veto power in a Council of Revision consisting of the executive and 'a convenient number of the National Judiciary.' That proposal was raised four times and defeated each time. Among the reasons as reported in James Madison's notes was the objection raised by Elbridge Gerry of Massachusetts that 'it was quite foreign from the nature of ye. office to make them judges of policy of public measures.' "

Other evidence that a large portion or majority of the delegates to the Constitutional Convention in Philadelphia were opposed to judicial supremacy regarding constitutional interpretation is provided by the text of the Constitution itself:

Article 3 of the constitution, which pertains to the judicial branch of government, vests virtually no specific powers in the Supreme Court and other courts, providing only that judges were to have lifetime appointments so long as they continued in good behavior and that their compensation could not be reduced. The Constitution does not even vest the Supreme Court with powers to issue writs, thus leaving the delegation of that authority to the discretion of Congress (pursuant to Article 1, Section 8, Clause 18).

The topic of judicial review of acts on Congress by federal courts was raised again in 1803 by Chief Justice John Marshall in his famous opinion on the case of Marbury V. Madison, where he made the following statement, which is regarded by many as embodying the Supreme Court doctrine of judicial review:

"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. So if a law be in opposition to the constitution: if both the law and the Constitution apply to a particular case, so that the court must either decide the case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty."

Thus the position of John Marshall echoes what was earlier written by Alexander Hamilton. It seemingly denies the possibility that Congress could honestly entertain a different interpretation of a broadly-written constitutional clause than that preferred by the court, and thus hints that actions by Congress in such cases are due to either malice or ignorance.

It is a moot issue as to why a judge should be able to make an intrinsically better interpretation of the Constitution than a legislator; by 1803, arguments that judges would be less susceptible to partisan influences than legislators would have largely been discredited due to the perception among many Jeffersonian Republicans in Congress that the court (then consisting predominantly of Federalists) had used its power in a partisan way against their interests.

In any case, a Supreme Court doctrine is not part of the Constitution, nor is there any clause in the Constitution making such opinions legally binding on our national government. "Supreme Court doctrines" and "constitutional law" developed by the Supreme Court and other federal courts simply constitute a commentary on the Constitution. The doctrines are not binding in and of themselves; the power that makes such opinions binding is the issuance writs by courts.