The People's Court: On the Intellectual Origins of American Judicial Power

125 Dickinson Law Review ____ (Forthcoming)

73 Pages Posted: 3 Mar 2020

See all articles by Ian C. Bartrum

Ian C. Bartrum

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: February 24, 2020

Abstract

This article enters into the modern debate between “constitutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, we must expand the traditional conception of the “separation of powers” to include not just distinct institutional functions, but also the structured division of the sovereign prerogative itself, both within and without the institutions of government. It then becomes possible to read Article III as part of a larger effort to unbundle the metaphorical sticks of traditional sovereign power, and to vest what I call the revolutionary prerogative in an independent judicial branch.

This prerogative establishes an institutional form through which the Court might invoke John Locke’s famous “revolution principle” on behalf of the sovereign People. It thus allows for what James Wilson celebrated—and what Sir William Blackstone could not conceive—the possibility of legalized revolution. In other words, the revolutionary prerogative allows for formal, independent appeal of the terms of the constitutional contract, by which the People delegated limited and contingent authority to their legislative and executive agents. Indeed, it is the final legal step before constitutional amendment or dissolution. Of course, the People retain the ultimate sovereign prerogative to declare the state of exception, but once constituted, the meaning of our fundamental law remains firmly, and solely, a matter of judicial discretion.

Keywords: Constitutional Theory, Constitutional History, Judicial Review, Legal Theory, Popular Sovereignty, Separation of Powers, Judicial Supremacy

Suggested Citation

Bartrum, Ian C., The People's Court: On the Intellectual Origins of American Judicial Power (February 24, 2020). 125 Dickinson Law Review ____ (Forthcoming). Available at SSRN: https://ssrn.com/abstract=3543223 or http://dx.doi.org/10.2139/ssrn.3543223

Ian C. Bartrum (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

HOME PAGE: http://https://law.unlv.edu/faculty/ian-bartrum

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