12/03/2019

The Case against Judicial Supremacy

"Weiner’s focus on constitutional authority rather than constitutional meaning invites the reader to grapple with the issue of who is responsible for the Constitution. The quick leap to say that judges bear this responsibility, Weiner suggests, allows elected representatives, and those who elect them, to evade their constitutional vocation. This evasion is illegitimate, for it betrays the original vision for America as established by the Constitution—a vision which, Weiner forcefully argues, Americans are obliged to honor and uphold. By examining the Founders’ vision for America as a political community, particularly the vision of James Madison, Weiner advances a sophisticated case against judicial supremacy over the Constitution.

The Political Constitution is a refreshing, thoughtful, and even-handed take on the hotly contested topic of who has the final word on what the Constitution means and requires. For republican constitutionalism to take hold, however, relevant actors must respond. Republican constitutionalism will not emerge if only judges accept Weiner’s case against judicial supremacy and act accordingly. The people and their representatives must do the same. Given the ready willingness of most politicians to let the courts decide hard issues of constitutional significance, a tendency at least partly fueled by the prevalence of judicial supremacy, this change will not happen overnight."