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Should the Supreme Court have the last word when it comes to interpreting the Constitution? The justices on the Supreme Court certainly seem to think so--and their critics say that this position threatens democracy. But Keith Whittington argues that the Court's justices have not simply seized power and circumvented politics. The justices have had power thrust upon them--by politicians, for the benefit of politicians. In this sweeping political history of judicial supremacy in America, Whittington shows that presidents and political leaders of all stripes have worked to put the Court on a pedestal and have encouraged its justices to accept the role of ultimate interpreters of the Constitution. Whittington examines why presidents have often found judicial supremacy to be in their best interest, why they have rarely assumed responsibility for interpreting the Constitution, and why constitutional leadership has often been passed to the courts. The unprecedented assertiveness of the Rehnquist Court in striking down acts of Congress is only the most recent example of a development that began with the founding generation itself. Presidential bids for constitutional leadership have been rare, but reflect the temporary political advantage in doing so. Far more often, presidents have cooperated in increasing the Court's power and encouraging its activism. Challenging the conventional wisdom that judges have usurped democracy, Whittington shows that judicial supremacy is the product of democratic politics.
Who should decide what is constitutional? The Supreme Court, of course, both liberal and conservative voices say—but in a bracing critique of the “judicial engagement” that is ascendant on the legal right, Greg Weiner makes a cogent case to the contrary. His book, The Political Constitution, is an eloquent political argument for the restraint of judicial authority and the return of the proper portion of constitutional authority to the people and their elected representatives. What Weiner calls for, in short, is a reconstitution of the political commons upon which a republic stands. At the root of the word “republic” is what Romans called the res publica, or the public thing. And it is precisely this—the sense of a political community engaging in decisions about common things as a coherent whole—that Weiner fears is lost when all constitutional authority is ceded to the judiciary. His book calls instead for a form of republican constitutionalism that rests on an understanding that arguments about constitutional meaning are, ultimately, political arguments. What this requires is an enlargement of the res publica, the space allocated to political conversation and a shared pursuit of common things. Tracing the political and judicial history through which this critical political space has been impoverished, The Political Constitution seeks to recover the sense of political community on which the health of the republic, and the true working meaning of the Constitution, depends.
With quiet eloquence, Lane Sunderland argues that we must reclaim the fundamental principles of the Constitution if we are to restore democratic government to its proper role in American life. For far too long, he contends, the popular will has been held in check by an overly powerful Supreme Court using non-constitutional principles to make policy and promote its own political agendas. His work shows why this has diminished American democracy and what we can do to revive it. Sunderland presents a strong, thoughtful challenge to the constitutional theories promoted by Ronald Dworkin, Archibald Cox, Richard Epstein, Michael Perry, John Hart Ely, Robert Bork, Philip Kurland, Laurence Tribe, Mark Tushnet, and Catharine MacKinnon—an enormously diverse group united by an apparent belief in judicial supremacy. Their theories, he demonstrates, undermine the democratic foundations of the Constitution and the power of the majority to resolve for itself important questions of justice. Central to this enterprise is Sunderland's reconsideration of The Federalist as the first, most reliable, and most profound commentary on the Constitution. "The Federalist," he states, "is crucial because it explains the underlying theory of the Constitution as a whole, a theory that gives meaning to its particular provisions." In addition, Sunderland reexamines the Declaration of Independence and the work of Hobbes, Locke, and Montesquieu, in order to better define the nature and limits of their influence on the Framers. His reading of these works in conjunction with The Federalist shows just how far afield contemporary commentators have strayed. Sunderland deliberately echoes and amplifies Madison's wisdom in Federalist No. 10 that the object of the Constitution is "to secure the public good and private rights . . . and at the same time to preserve the spirit and form of popular government." To attain that object, he persuasively argues, requires that the judiciary acknowledge and enforce the constitutional limitations upon its own powers. In an era loudly proclaiming the return of popular government, majority rule, and the "will of the people," that argument is especially relevant and appealing.
The role of the United States Supreme Court has been deeply controversial throughout American history. Should the Court undertake the task of guarding a wide variety of controversial and often unenumerated rights? Or should it confine itself to enforcing specific constitutional provisions, leaving other issues (even those of rights) to the democratic process? That Eminent Tribunal brings together a distinguished group of legal scholars and political scientists who argue that the Court's power has exceeded its appropriate bounds, and that sound republican principles require greater limits on that power. They reach this conclusion by an interesting variety of paths, and despite varied political convictions. Some of the essays debate the explicit claims to constitutional authority laid out by the Supreme Court itself in Planned Parenthood v. Casey and similar cases, and others focus on the defenses of judicial authority found commonly in legal scholarship (e.g., the allegedly superior moral reasoning of judges, or judges' supposed track record of superior political decision making). The authors find these arguments wanting and contend that the principles of republicanism and the contemporary form of judicial review exercised by the Supreme Court are fundamentally incompatible. The contributors include Hadley Arkes, Gerard V. Bradley, George Liebmann, Michael McConnell, Robert F. Nagel, Jack Wade Nowlin, Steven D. Smith, Jeremy Waldron, Keith E. Whittington, Christopher Wolfe, and Michael P. Zuckert.
This book explores critical questions pertaining to the character and content of the “American People” as posited in the US Supreme Court’s interpretation of the fundamental law. What exactly is an American? Who or what comprise the People? What are the constitutive sociocultural, political, and economic ordering principles of the American People and society? How does the Court impact the nationalist character and content of law and policy? From a sociocultural, economic, political, and ideological perspective, the Court’s singular proclamations as to what the US Constitution means, what is its purpose, and how it is to be perceived and implemented have profound consequences for representational politics and notions of what exactly constitutes the American polity. This book employs a critical, conceptual, and structural approach, critically examining the notion of the People in constitutional discourse, and its impact on government, politics, law, and society in the present.