Academic journal article Constitutional Commentary

Judicial Supremacy: Palladium of Liberty or Academic Paradox?

Academic journal article Constitutional Commentary

Judicial Supremacy: Palladium of Liberty or Academic Paradox?

Article excerpt

JUDICIAL INDEPENDENCE AND THE AMERICAN CONSTITUTION: A DEMOCRATIC PARADOX. By Martin H. Redish. (1) Stanford, CA: Stanford University Press. 2017. Pp. 260. $ 55.00 (hardcover).

In 1992, the people of Arkansas voted to require that their U.S. Representatives and Senators run as write-in candidates if they wished to serve more than three terms or two terms, respectively. This new provision of the Arkansas Constitution was challenged under the U.S. Constitution's Qualifications Clauses. The first of these clauses provides that no one may serve as a Representative "who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen." (3) The provision for Senators is identical except that the age requirement is thirty years, and the citizenship requirement is nine years. (4)

The U.S. Supreme Court invalidated the people's choice by a five-four vote. (5) The authors of the majority and dissenting opinions, Justices John Paul Stevens and Clarence Thomas respectively, engaged in an exceptionally elaborate debate. Both opinions seemed to recognize, at least implicitly, that a clear and definitive resolution of the case could not be derived directly from the language of the Qualifications Clauses, or from their legislative history, or from the Court's own precedents. For Justice Stevens, the deciding consideration was a political theory:

[T]he text and structure of the Constitution, the relevant historical
materials, and, most importantly, the "basic principles of our
democratic system" all demonstrate that the Qualifications Clauses were
intended to preclude the States from exercising any [control over
congressional qualifications] and to fix as exclusive the
qualifications in the Constitution. (6)

The "basic principles" to which Stevens refers here are taken from a quotation, to which he recurs over and over again, that has been attributed to Alexander Hamilton at the New York ratifying convention: "the people should choose whom they please to govern them." (7)

Justice Thomas raised two major objections to this use of democratic theory. First, the people of Arkansas in fact did choose whom they pleased to govern them, namely individuals elected from among those who met the qualifications set out in the Arkansas Constitution. (8) Second, there is no "basic principle" of our democratic system that requires the people to express their choices only in elections and never in their constitutions, and we have unchallengeable proof that no such principle exists. The provisions of the Constitution that Stevens thinks the people of Arkansas violated are themselves in violation of the very same rule that Stevens claims is a fundamental principle of our democratic system. (9) Those Clauses forbid the people to choose to be governed by a twenty-four-year-old, or by a recently naturalized citizen, or by someone who does not inhabit the state, even if that's who pleases them.

Rather than respond to Stevens with an alternative theory of democracy, Thomas relies on a legal principle that he thinks is implied by the Constitution's enumeration of powers. (10) This principle is that the federal government has only the powers granted by the Constitution and that the States have all the powers that the Constitution has not taken from them, expressly or by clear implication. (11) The Qualifications Clauses unambiguously establish minimum standards, and the Constitution gives Congress no power to supplement those qualifications with additional criteria. The States, however, are not forbidden to add new qualifications, and the Arkansas constitutional provision therefore does not violate the Clauses.

If you are attracted by Justice Stevens's opinion, you may like the approach taken in Martin Redish's book about judicial independence. Like Stevens, Redish resolves important questions on the basis of a political theory that he believes is implicit in the U. …

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