The Constitutional Imbalance

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

See all articles by Richard Albert

Richard Albert

University of Texas at Austin - School of Law; Yale University - Law School; University of Toronto - Faculty of Law; University of Ottawa - Faculty of Law; Universidad Externado de Colombia - Facultad de Derecho; Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law; Universidad de Especialidades Espíritu Santo; Airlangga University

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

Suggested Citation

Albert, Richard, The Constitutional Imbalance (2007). 37 New Mexico Law Review 1 (2007), Available at SSRN:

Richard Albert (Contact Author)

University of Texas at Austin - School of Law ( email )

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Yale University - Law School

127 Wall Street
New Haven, CT 06520-8215
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University of Toronto - Faculty of Law ( email )

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University of Ottawa - Faculty of Law ( email )

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Ottawa, Ontario K1N 6N5

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Universidad Externado de Colombia - Facultad de Derecho

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

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

P.O. Box 167
Herzliya, 46150

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Universidad de Especialidades Espíritu Santo ( email )

Facultad de Derecho
Av. Samborondón 5
Samborondón, 092301

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Airlangga University

Dharmawangsa Dalam Selatan
Surabaya, East Java 60286

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