Judicial Monarchs: Court Power and the Case for Restoring Popular Sovereignty in the United States, by William J. Watkins, Jr., Jefferson, N.C., and London: McFarland & Co., Inc., 2012, 217 pages.
Have you ever considered the harm being done to the constitutional balance of power by an activist federal bench and blamed it on James I of England?
No? Well, that, will change after you read William J. Watkins' illuminating and timely new book, Judicial Monarchs.
For Watkins the answer to the question of how the court has been able to usurp so much power and the question of how to disgorge it of that power lies in the restoration of sovereignty to its rightful place: with the people.
In a brief though expertly crafted review of English history, Watkins presents a compelling argument that the Supreme Court, specifically, and all federal courts, generally, have ascended to the pinnacle of sovereignty by wresting that right away from the people. The court's oldest and most useful tool in climbing to this lofty position is judicial review and the wide-spread notion that the Constitution grants to the court the role of final arbiter of all that is or is not constitutional.
From the introduction, Watkins, a research fellow at the Independent Institute and author of Reclaiming the American Revolution, encloses the entire landscape of the history of an overreaching judicial branch within the framework of sovereignty.
For example, in his comparison of early American history (including the history of the transformation of the English constitution), Watkins illustrates how sovereignty shifted in England from the Kings who asserted a divine right to rule, to Parliament, which, as a result of the Glorious Revolution, rejected the idea that the King was God's chosen representative and established the legislature as the ultimate authority and locus of power.
This evolution, Watkins argues, eventually culminated in the restoration of the people as the natural and rightful rulers of a nation, as expressed in the Declaration of Independence, and with the assumption of the full powers of the English Parliament by the American state legislatures.
"The rejection of parliamentary sovereignty and connection with the king left ultimate sovereignty in each legislature," Watkins writes. The American Revolution, then, was less a revolution (from one form of government to another) than a restoration of the right of self-government that was the inheritance of every freeborn Englishman and thus of every American.
This relocation of the right to rule was not the completion of the sovereignty cycle, however. Americans (and many Englishmen before them, such as the Levelers of the 17th century) were not content to permit any artificial body such as a legislature (regardless of whether it met in Williamsburg or Westminster) to exercise unfettered lawmaking power over them, they who were the organic source of all sovereignty.
As the author writes: "Such power resided in the people themselves. Putting this principle into practice, the states--starting with Massachusetts--used popular conventions to adopt written constitutions. The act of a legislature was viewed as insufficient to create fundamental law."
The people's self-identification as the final authority on all questions of constitutionality was reflected in the framing of the U.S. Constitution in Philadelphia in 1787 and in the requirement that in order for the document to be of legal force, the people, acting in their collective role as states, would have to give their assent to it in ratifying conventions. "Popular sovereignty," explains Watkins, "became the cardinal principle of the American constitutions."
While such cogent declarations of power were consistent with the observable are of authority from monarch to parliament to people, it wasn't long after the Constitution of 1787 took effect that the locus of sovereignty sustained such a severe blow that the trajectory of constitutional authority was thrown far off its historic course. …