Philosopher King Courts: Is the Exercise of Higher Law Authority Without a Higher Law Foundation Legitimate?

Abstract

When our nation's Founders designed our constitutional system of government as the means to secure the inalienable rights described in the Declaration of Independence, they placed great stock in the structural provisions of the Constitution, even greater than in a judicially-enforceable bill of rights. Although they certainly envisioned judicial review, it is hard to fathom that they would have sanctioned a judiciary that decides every major (and a good number of the minor) political issue of the day.

Even less clear is the ground of authority on which the modern-day court rests. This article considers several possible claims of legitimacy for the modern judicial enterprise, and finds them all severely wanting. Indeed, to borrow from Thomas Jefferson, the notion that judges should be the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.

Keywords: Judicial review, judicial supremacy, Supreme Court, Oliver Wendell Holmes, natural law

JEL Classification: H10, H11