Which Constitution? Who Decides?

78 Pages Posted: 22 Jan 2007  

Robert Justin Lipkin

Widener University School of Law

Abstract

It is an "indispensable feature of our constitutional system," according to conventional wisdom, that "the federal judiciary is supreme in the exposition of the law of the Constitution." The doctrine of judicial supremacy, though nowhere stated in the Constitution, is considered the foundation of American constitutionalism. This Article rejects judicial supremacy because it cannot satisfy requirements of accountability. Accountability, through the consent of the governed, is the sine quo non of legitimacy in a republican democracy. Hence, the electorate's incapacity to give their consent to justices and judicial decisions through "input-accountability," "process-accountability," and "output accountability" renders judicial supremacy anathema to self-government. This Article then recommends instituting a congressional override to reverse Supreme Court decisions when the electorate, through their representatives in Congress, regards those decisions to be unconstitutional. Although the idea of a congressional override is unorthodox, it is far from radical. Congressional overrides already occur in Dormant Commerce Clause cases, and, of course, in statutory interpretation. More important, this Article shows that Congress has tried to override some important cases, for example, Texas v. Johnson and Employment Division v. Smith. After a national conversation in each case, Congress enacted the FLAG PROTECTION ACT to override Johnson and the RELIGIOUS FREEDOM AND RESTORATION ACT to override Smith. These statutes, unquestionably supported by the American people, would have been congressional overrides had the Court permitted them to stand. But a majority of justices on the Court, thoroughly intoxicated with the power judicial supremacy grants them, denied the people any say in ascertaining constitutional meaning in these cases.

Keywords: judicial supremacy, democracy, accountability

Suggested Citation

Lipkin, Robert Justin, Which Constitution? Who Decides?. Cardozo Law Review, Vol. 28, No. 3, p. 1055, 2006. Available at SSRN: https://ssrn.com/abstract=958370

Robert Justin Lipkin (Contact Author)

Widener University School of Law ( email )

PO Box 7474
4601 Concord Pike
Wilmington, DE 19803
United States
302-477-2193 (Phone)
302-477-2255 (Fax)

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