AuthorLund, Nelson

JUDICIAL INDEPENDENCE AND THE AMERICAN CONSTITUTION: A DEMOCRATIC PARADOX. By Martin H. Redish. (1) Stanford, CA: Stanford University Press. 2017. Pp. 260. $ 55.00 (hardcover).

In 1992, the people of Arkansas voted to require that their U.S. Representatives and Senators run as write-in candidates if they wished to serve more than three terms or two terms, respectively. This new provision of the Arkansas Constitution was challenged under the U.S. Constitution's Qualifications Clauses. The first of these clauses provides that no one may serve as a Representative "who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen." (3) The provision for Senators is identical except that the age requirement is thirty years, and the citizenship requirement is nine years. (4)

The U.S. Supreme Court invalidated the people's choice by a five-four vote. (5) The authors of the majority and dissenting opinions, Justices John Paul Stevens and Clarence Thomas respectively, engaged in an exceptionally elaborate debate. Both opinions seemed to recognize, at least implicitly, that a clear and definitive resolution of the case could not be derived directly from the language of the Qualifications Clauses, or from their legislative history, or from the Court's own precedents. For Justice Stevens, the deciding consideration was a political theory:

[T]he text and structure of the Constitution, the relevant historical materials, and, most importantly, the "basic principles of our democratic system" all demonstrate that the Qualifications Clauses were intended to preclude the States from exercising any [control over congressional qualifications] and to fix as exclusive the qualifications in the Constitution. (6) The "basic principles" to which Stevens refers here are taken from a quotation, to which he recurs over and over again, that has been attributed to Alexander Hamilton at the New York ratifying convention: "the people should choose whom they please to govern them." (7)

Justice Thomas raised two major objections to this use of democratic theory. First, the people of Arkansas in fact did choose whom they pleased to govern them, namely individuals elected from among those who met the qualifications set out in the Arkansas Constitution. (8) Second, there is no "basic principle" of our democratic system that requires the people to express their choices only in elections and never in their constitutions, and we have unchallengeable proof that no such principle exists. The provisions of the Constitution that Stevens thinks the people of Arkansas violated are themselves in violation of the very same rule that Stevens claims is a fundamental principle of our democratic system. (9) Those Clauses forbid the people to choose to be governed by a twenty-four-year-old, or by a recently naturalized citizen, or by someone who does not inhabit the state, even if that's who pleases them.

Rather than respond to Stevens with an alternative theory of democracy, Thomas relies on a legal principle that he thinks is implied by the Constitution's enumeration of powers. (10) This principle is that the federal government has only the powers granted by the Constitution and that the States have all the powers that the Constitution has not taken from them, expressly or by clear implication. (11) The Qualifications Clauses unambiguously establish minimum standards, and the Constitution gives Congress no power to supplement those qualifications with additional criteria. The States, however, are not forbidden to add new qualifications, and the Arkansas constitutional provision therefore does not violate the Clauses.

If you are attracted by Justice Stevens's opinion, you may like the approach taken in Martin Redish's book about judicial independence. Like Stevens, Redish resolves important questions on the basis of a political theory that he believes is implicit in the U.S. Constitution. If you are more impressed with Justice Thomas's arguments, as I am, you will be skeptical about many of the claims Redish makes. In this review, I will briefly summarize the principal arguments in the book, and explain why I think its major conclusions are mistaken.


    It is neither novel nor controversial to say, as this book does, that an important feature of our political system is the independence that the Constitution gives to the federal judiciary. The exact nature and extent of that independence, however, is in some respects debatable, and Redish makes some innovative arguments about the judiciary's proper role.

    Notwithstanding his novel suggestions, Redish regards himself as a kind of constitutional conservative. Until recently, he believes, it was widely and properly assumed that the Constitution is a written document that was adopted in order "to enshrine a constitutional democracy that would effectively balance our competing interests in celebrating majority interests with the need to protect minority rights" (p. 15). The underlying assumption that the Constitution is that document and nothing else has, unfortunately, been disturbed by academic commentators whom he calls "modernists": constitutional realists, popular constitutionalists, and departmentalists. (12) Redish sets out to refute these theorists in a way that will reestablish what he calls "traditionalism" or the "formalist traditional model" on a new basis that he calls "premodern theory." He then uses his new/old theory to discover implications in the Constitution that have gone unrecognized until now.

    It is true that the contemporary legal academy has produced a cacophony of competing theories unlike anything that existed in the past. What does not seem true is Redish's picture of a settled traditionalism that was largely unchallenged until the arrival of academic wildlings like Bruce Ackerman, Larry Kramer, and Michael Stokes Paulsen. (13) The real break with the past, it seems to me, came with the doctrinal adventurism of the Warren and Burger Courts, which is captured in the notion of the "living Constitution." That development prompted attempts at reviving and refining the traditional theory of originalism, which in turn provoked a storm of "noninterpretivist" counter-theorizing in defense of the living Constitution. (14)

    By "constitutional realists," Redish means academics who "challenge the premise that the complete American constitutional regime is set forth in the singular written document we identify as the Constitution" (p. 16). These writers argue that our supreme law is only what is actually treated as such, which is both more and less than what we find in the written document. Karl Llewellyn and other legal realists of the early twentieth century fall into this group, but Redish reserves most of his fire for some of our contemporaries: Ackerman, Todd Pettys, and Ernest Young. In his view, their scholarship "amounts to self and public deception" because they "challenge the fundamental import of the Constitution's writtenness" (p. 31).

    I agree with Redish that the Constitution is the written document, and I do not believe any vague and changeable set of principles has taken its place as a legal matter. Such principles, however, undoubtedly do have effects that are sometimes almost equivalent to constitutional amendments, and I would stress something that Redish never acknowledges: these virtual amendments are almost always caused or ratified by the Supreme Court's misinterpretations of the Constitution.

    Whereas the realists generally purport to be descriptive, Redish says that "popular constitutionalists" such as Kramer advance a normative case for taking final authority to interpret the Constitution away from the courts and reposing it in the people themselves. Redish rejects this proposal on the grounds that its real effect would be to give dangerously unchecked power to "majority impulses," and that it is inconsistent with the manifestly countermajoritarian nature of the Constitution (pp. 47-48). (15)

    "Departmentalists," exemplified for Redish by Paulsen, argue that each branch of the federal government has independent authority to interpret the Constitution. (16) Unless such thinkers as James Madison, Andrew Jackson, and Abraham Lincoln can be considered "modernists," perhaps it is advocates of departmentalism who should be considered traditionalists. (17) In any event, Redish's attack on this view culminates in the claim that "judicial review requires judicial supremacy" (p. 41). His main argument is that if the Supreme Court's interpretation of the Constitution were not treated as the supreme law, the legislature and executive would be able to undermine, or even completely destroy, the countermajoritarianism that is a fundamental feature of our political system (p. 41).

    The simplest rebuttal is that judicial supremacy would enable the courts to undermine, or even completely destroy, the popular nature of our government. Redish does not think much of this rebuttal. He believes that supreme authority over the interpretation of the Constitution has to be lodged somewhere, and that courts are rightly regarded as the least dangerous branch (pp. 43-44). But even granting the obvious truth that courts are in some respects less dangerous than elected officials, Redish is wrong to think that judicial review requires judicial supremacy.

    Let's begin with Marbury v. Madison, (18) which endorsed and defended judicial review. The most logically powerful argument in the Court's opinion is this: faced with a conflict between the Constitution and a statute, courts have no choice except to give effect to the more authoritative of the two laws, namely the Constitution. (19) That logic applies to the President every bit as much as it does to the Supreme Court, even if the President's interpretation of the...

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