New York University Public Law and Legal Theory Working Papers

Document Type

Article

Abstract

This paper attempts to identify a particular constitutional evil -- namely, judicial supremacy -- and to distinguish the objection to judicial supremacy from the broader case that can be made against judicial review. Even if one supports judicial review, one ought to have misgivings about the prospect of judicial supremacy. The paper associates judicial supremacy with three distinct tendencies in constitutional politics: (1) the temptation of courts to develop and pursue a general program (of policy and principle of their own) rather than just to intervene on a piecemeal basis; (2) the tendency of the highest court to become not only supreme but sovereign, by taking on a position of something like broad sovereignty within the constitutional scheme (thus confirming Thomas Hobbes in his conviction that the rule of law cannot be applied at the highest level of political authority in a state because any attempt to apply it just replicates sovereignty at a higher level)); (3) the tendency of courts to portray themselves as entitled to "speak before all others" for those who made the constitution, to take on the mantle of pouvoir constituant and to amend or change the understanding of the constitution when that is deemed necessary.

Date of Authorship for this Version

12-2014

Keywords

constitutions, Hobbes, judicial review, judicial supremacy, judges, judiciary, popular constitutionalism, rule of law, Sieyes, sovereignty