Today, Marbury is cited for the proposition that the Supreme Court is the final arbiter of the Constitution. This interpretation divorces Marbury from its historical roots and grossly overstates the holding of that case. Whereas popular sovereignty provides clear support for the doctrine of judicial review, it provides no support for judicial supremacy. Popular sovereignty explicitly rejected the proposition that a mere branch of government had the final word on fundamental law. Unlike judicial review, judicial supremacy is not an outgrowth of popular sovereignty. Instead, it is a regression to an older theory of sovereignty that existed prior to the American Revolution.
Friday, March 30, 2007
POPULAR SOVEREIGNTY, JUDICIAL SUPREMACY, AND THE AMERICAN REVOLUTION: WHY THE JUDICIARY CANNOT BE THE FINAL ARBITER OF CONSTITUTIONS
My article with the above title, which soon will be appearing in the Duke Journal of Constitutional Law and Public Policy, is available on line at this link. Here is a taste from the article's conclusion:
Posted by william at 7:57 AM