The Constitutional Imbalance
38 Pages Posted: 25 Jun 2009 Last revised: 14 Sep 2017
Date Written: 2007
The Federalist Founding Fathers would not recognize the modern American judiciary. Far from being the "least dangerous" branch and even farther from being "beyond comparison the weakest of the three departments of power" — as the Federalist Papers famously predicted — the judiciary today wields much greater influence than the Federalists originally envisioned. The Federalists were wrong in their forecasts of the reach of the American judiciary. But the Anti-Federalists were right. They correctly predicted the role of the modern American judiciary.
The Anti-Federalists cautioned that judicial encroachments into the public square would undermine the American project of democracy and its promise of popular participation in public discourse. This Article explores the use of several constitutional devices in the service of American popular democracy. These devices have two purposes: first, to restore balance to the American constitutional order, and second, to bring the modern American judiciary into conformity with the more modest vision the Founding Fathers had when they created it.
Keywords: judicial review, judiciary, Founding Fathers, Federalists, Anti-Federalists, Federalist Papers, popular sovereignty, Alexander Bickel
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