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The Constitutional Imbalance

38 Pages Posted: 25 Jun 2009 Last revised: 14 Sep 2017

Richard Albert

Boston College - Law School; Yale University - Law School; Universidad Externado de Colombia - Facultad de Derecho; University of Toronto - Faculty of Law; Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law

Date Written: 2007

Abstract

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

Suggested Citation

Albert, Richard, The Constitutional Imbalance (2007). 37 New Mexico Law Review 1 (2007). Available at SSRN: https://ssrn.com/abstract=1424049

Richard Albert (Contact Author)

Boston College - Law School ( email )

885 Centre Street
Boston, MA 02459-1163
United States
617.552.3930 (Phone)

HOME PAGE: http://www.richardalbert.com

Yale University - Law School ( email )

127 Wall Street
New Haven, CT 06520-8215
United States

HOME PAGE: http://www.law.yale.edu

Universidad Externado de Colombia - Facultad de Derecho

Calle 12 # 1-17 este
Calle 12 0 83
Bogota D.C, Cundinamarca 3456
Colombia

HOME PAGE: http://190.7.110.123/irj/portal/anonymous/fac_derecho

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

HOME PAGE: http://www.law.utoronto.ca

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

HOME PAGE: http://https://www.idc.ac.il/en/schools/law/pages/home.aspx

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