Judicial Supremacy: Explaining False Starts and Surprising Successes

2015, in Magna Carta and its Modern Legacy. James Melton and Robert Hazell, eds. Cambridge: Cambridge University Press

37 Pages Posted: 15 May 2014 Last revised: 22 Nov 2016

See all articles by Victor A. Menaldo

Victor A. Menaldo

University of Washington - Department of Political Science; UW Political Economy Forum

Nora Webb Williams

University of Illinois at Urbana-Champaign

Date Written: May 13, 2014

Abstract

Why has judicial supremacy emerged and endured in some places and not others? That the judiciary is the final arbitrator of constitutional matters is puzzling, as the judicial branch has neither the power of the purse nor direct access to military power. Indeed, although many of the world’s early constitutions betrayed the potential for judicial supremacy, it only took hold in a handful of polities. The United States, where judicial review became preeminent, is the example par excellence. We explain this variation by focusing on the process by which de jure power is originally negotiated and enforced. When judicial independence and judicial review are arrived upon as the solution to a coordination problem by multiple actors whose coercive power is diffuse, rather than imposed from above by a sovereign seeking to tie his hands, judicial supremacy obtains. We test this claim against the history of Magna Carta, U.S. Constitution, and several charters from Medieval Europe.

Keywords: Judicial Supremacy, Constitutions, Magna Carta, Credible Commitments, Insurance Model

Suggested Citation

Menaldo, Victor A. and Webb Williams, Nora, Judicial Supremacy: Explaining False Starts and Surprising Successes (May 13, 2014). 2015, in Magna Carta and its Modern Legacy. James Melton and Robert Hazell, eds. Cambridge: Cambridge University Press, Available at SSRN: https://ssrn.com/abstract=2436662 or http://dx.doi.org/10.2139/ssrn.2436662

Victor A. Menaldo

University of Washington - Department of Political Science ( email )

101 Gowen Hall
Box 353530
Seattle, WA 98195
United States

UW Political Economy Forum ( email )

Seattle, WA 98195
United States

Nora Webb Williams (Contact Author)

University of Illinois at Urbana-Champaign ( email )

702 S. Wright Street
Urbana, IL 61801
United States

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