Judicial Power and Popular Sovereignty
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When the Supreme Court in Marbury v. Madison (1803) set out its answer to the question “whether and act, repugnant to the constitution, can become the law of the land,” Chief Justice John Marshall began from the following premise, which I shall call the principle of popular sovereignty: “[T]he people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness . . .” What is the relationship between this principle and the power that the Court said was vested in the judiciary – the power to interpret the Constitution and to strike down legislation at odds with the Constitution as it interprets it? In this chapter, I would like to investigate various understandings of judicial review in light of the principle of popular sovereignty. I am interested particularly in what commentator refer to as “judicial supremacy”—the idea that the courts have a privileged position in the constitutional scheme and that other branches of government should always defer to the courts’ interpretations of the Constitution, even when their interpretations are controversial and even when they implicate important issues of national policy. I shall argue that judicial supremacy sits ill with the American commitment to popular sovereignty and sometimes comes dangerously close a mythic identification of the Supreme Court with the sovereign entity--the people—who are supposed to be the source of all constitutional authority. The argument I shall make is not intended as a repetition of the familiar democratic case against judicial review. What Alexander Bickel refereed to, delicately but misleadingly, as “the counter-majoritarian difficulty” remains one of the central points of debate in American constitutional theory, but is not my subject here. Democracy is not the same as popular sovereignty and judicial supremacy is independent of—though it nicely complements—the arguments we hear every day about the affront to democracy in allowing a measure passed by an elected legislature to be struck down by a handful of unelected and unaccountable judges. I have argued elsewhere that when a community is divided about whether a legislative measure infringes fundamental rights, the matter should be settled by deliberation and majority voting among the people or their representatives and not by deliberation and majority voting among nine unelected justices. In this chapter, I will suspend that attack. Accepting the legitimacy of judicial review (for the sake of argument), I want to ask whether a particular form of that practice—a form pervaded by assertions of and deference to judicial supremacy—can be reconciled with the popular-sovereignty foundations of American constitutionalism.
Source Publication
Marbury Versus Madison: Documents and Commentary
Source Editors/Authors
Mark A. Graber, Michael Perhac
Publication Date
2002
Recommended Citation
Waldron, Jeremy, "Judicial Power and Popular Sovereignty" (2002). Faculty Chapters. 1620.
https://gretchen.law.nyu.edu/fac-chapt/1620
