Premodern constitutionalism.

• Author: Redish, Martin H.
• Position: II. The Modernist Departures from the Traditionalist Position B. "Against the Ultimate Countermajoritarian Check of Judicial Supremacy" - Departmentalism and Popular Constitutionalism through Conclusion, with footnotes, p. 1870-1912

2. "Against the Ultimate Countermajoritarian Check of Judicial

   Supremacy"--Departmentalism and Popular Constitutionalism

   Constitutional realists take a modernist position that the use of a singular written document to set forth the totality of our supreme constitutive law need not be viewed as a core characteristic of American constitutionalism. (191) But these scholars do not purport to challenge the root principle or political apparatus embedded in the Constitution. We think it unlikely that many of these scholars would deny that the document we call our Constitution contains a system of countermajoritarian checks to majority power, although, as noted earlier, if one took literally the realist's identification of constitutionalism with accepted practice, this would not be true.

   Instead, they primarily focus their energy on arguing that the written Constitution is an incomplete capsule of our supreme law, both because some elements contained within it are unimportant or defunct and because various laws and movements outside the document are politically entrenched and thus serve to define the relationship between the government and the governed. (192)

   In contrast, another group of modernist scholars claims to understand and accept the countermajoritarian design of our Constitution as well as the value such an apparatus advances, but proposes that another of the key methods of activating this countermajoritarian apparatus should not be considered central to our constitutionalism and therefore should be abandoned. (193) Rather than challenging whether the written Constitution is the sole source of our nation's supreme law, these scholars challenge the validity and worth of both judicial review and judicial supremacy. (194) These scholars may generally be sorted into two subcategories: "departmentalists" and "popular constitutionalists." Departmentalists are those scholars who suggest that the Constitution neither commands nor permits judicial supremacy. (195) They argue for equal measures of interpretive authority across all three branches of the government and particularly emphasize the role of the executive in constitutional interpretation. (196) Popular constitutionalists, on the other hand, do not argue that judicial supremacy is unconstitutional, but instead maintain that it is normatively undesirable and that, because judicial review is not explicitly provided for in the Constitution's textual directives, constitutional interpretive authority can and should be transferred from the unrepresentative judiciary back to the people. (197)

   Both theories should be viewed with skepticism and concern. The prophylactically insulated judiciary is both an essential complement to and a logical outgrowth of the explicit textual commitment to the precept of countermajoritarianism. This nation was born of a revolution fought for political accountability, yet we quite consciously chose to make one of the three branches of our fledgling national government completely insulated from public accountability. (198) This decision was the result of recognizing that only by inclusion of an entirely insulated judicial branch could this democratic republic be protected from itself. (199)

   Democracy embodies a belief in human flourishing--that the people can control their own destiny by participating and believing in their representative government. (200) But by establishing a federal government featuring a politically unaccountable coequal judicial branch, the Framers effectively acknowledged that unchecked majoritarian government would allow temporary majorities to stifle unpopular opinions and oppress minorities. The Framers, concerned primarily with thwarting the threat of tyranny in any form, built a Constitution that enshrined as supreme law our uniquely American skeptical optimism. Including a judiciary both entirely insulated from political influence and equipped with interpretive authority was the keystone to the achievement of the Constitution's devised ends. Without a countermajoritarian judiciary armed with the power of judicial review, the entire design of our national government would be meaningless. Unfortunately, neither the departmentalists nor the popular constitutionalists recognize this foundational insight.

   1. Departmentalism: A Historical and Doctrinal Argument Against Judicial Supremacy

      Departmentalism, in its various forms, denies that the judiciary is supreme in saying "what the law is," (201) and instead asserts that each department--legislative, executive, and judicial--has equal authority to engage in constitutional interpretation in fulfilling its respective constitutional role and performing its assigned duties. (202) This theory is based on the idea of "coordinacy": our system, they argue, is primarily designed to achieve the independent, coordinate status of coequal branches. (203) Accordingly, the three coordinate branches were intended to serve as checks on one another, and no single one was meant to reign over the other two. (204) At its core, departmentalism is focused on undermining the role of the judiciary as the ultimate arbiter of constitutional meaning and on locating that final interpretive authority in the executive branch. (205)

      Departmentalism's most vocal and extreme proponent, Michael Stokes Paulsen, begins by arguing that the President has a large degree of interpretive power. (206) He says the rationales for executive review are the same as the rationales for judicial review set forth in Marbury v. Madison and The Federalist No. 78. (207) Those rationales, he argues, explain why executive review is equally as valid in the context of vetoes and pardons as it is in faithful execution of the law and the enforcement of judicial final judgments. (208) Paulsen then asserts that because the rationale for executive review is the same as the rationale for judicial review, any counterarguments against executive review are equally applicable to judicial review. (209) One cannot believe in one without believing in the other, he reasons, and the ultimate power of judicial review cannot be "supreme" to the power of executive review without undermining the argument for judicial review in the first place. (210) Thus, because the judiciary lacks the authority to execute its own final judgments, it is the executive that holds the ultimate power of interpretation. According to Professor Paulsen, this should mean that the President can defy judicial rulings without upsetting the constitutional balance of powers. (211)

      This view problematically understands coordinacy to require that the executive branch possess the same type of power as the judiciary, when in fact coordinacy requires only that the branches possess the same quantum of constitutional authority. (212) By this we mean that the mere fact that the branches are designed to possess equal levels of power in no way necessarily implies that they possess identical power. Indeed, no one suggests that the judiciary has power to assert executive power vested by Article II in the President. There is, then, no reason to assume that the executive logically must possess the equivalent of the judiciary's authority. Framers wrote about the concept of "coordinacy" in The Federalist, but it was a means to the structural end that became our Constitution. (213) It is folly to suggest that the separation of powers and the system of checks and balances that the Framers built to advance the goal of coordinacy allow the executive to control the entirety of our legal process, empowering it to (1) choose whether to execute the law as promulgated by Congress; (2) execute that law; and (3) ignore an Article III court's judgment as to that law's constitutionality. (214) This seems to be the very definition of "a tyrannical concentration of all the powers of government in the same hands" (215)--what James Madison viewed as the primary evil our Constitution would need to guard against. (216)

      Interestingly, it is Madison's own written expressions of commitment to the notion of coequal authority that, Paulsen argues, demonstrate the validity of departmentalism. (217) Paulsen acknowledges that Madison eventually conceded that judicial interpretation would typically constitute the "final resolution" of constitutional issues because "the judiciary generally would be the last branch to act on a particular question by virtue of the order in which the branches' respective powers would be exercised." (218) Yet Paulsen insists that Madison adopted this position reluctantly while remaining committed to the concept of coordinacy, and that just because the judiciary would often interpret last did not necessarily require that its interpretation should bind. (219) Empowering the judiciary with the authority to bind other branches by its interpretation, Paulsen contends, would contravene The Federalist No. 49's instruction that no branch was to have "an exclusive or superior right of settling the boundaries between their respective powers." (220) Ultimately, "[t]o hold that one branch's interpretation controls another is to bestow a practical and real omnipotence on the controlling branch.... [T]o grant the courts interpretive supremacy would be to give them a practical and real omnipotence." (221)

      Departmentalists such as Paulsen fail to understand that the whole point of coordinacy, especially as it is implemented through our Constitution, is countermajoritarianism. (222) The structural allocation of power set forth in the Constitution, the series of checks and balances it provides, and the salary and tenure protections it grants the judiciary all exist to ensure that both the document and the courts serve countermajoritarian roles. (223) It makes eminent sense for the sole branch that is insulated from majoritarian pressures to render the final and binding interpretive judgments of the foundational countermajoritarian document. If the very majoritarian bodies that the...