By Thomas, Christopher M. | Harvard Journal of Law & Public Policy, Winter 2009 | Go to article overview


Thomas, Christopher M., Harvard Journal of Law & Public Policy

One of the foundational questions of American constitutional inquiry since the Revolution has been the proper relationship between the People and their government. The Framers arrived in Philadelphia early in the summer of 1787 with various conceptions of the ideal governmental framework. Our modern political discourse tends to describe the outcomes of the Convention with abstract nouns devoid of meaning and context: equality, liberty, and so on. But the great national debates that began that fateful summer were filled with nuance and uncertainty. Can we best hold the President accountable through popular election, legislative appointment, or some intermediary system of electors chosen by the People? What is the proper balance of accountability to the People and insulation from the passions and whims of majority factions? One of the few areas where the Framers were in general agreement was in the necessity of the independence of the federal courts. Although they disagreed on who should appoint federal judges, the Framers agreed that judges should serve in "good Behaviour."

The People's agreement with this principle has ebbed and flowed over time, based largely upon their satisfaction with the policy outcomes of Supreme Court decisions. Widely unpopular decisions, such as those protecting flag burning and banning school prayer, have caused calls for restricting the Court's jurisdiction. The resulting political debates have raised questions regarding the role of judges in creating law and attempting to transform cultural norms. And perhaps more importantly, the relationship between the People and the state courts has taken myriad forms, again changing with the public's view of judges and courts. Although law students tend to focus on the federal system, it is state courts and judges who most often affect the law applicable to our daily lives.

These issues and questions were the topic of debate at last year's National Federalist Society Student Symposium, held at the University of Michigan Law School. Continuing our tradition of twenty-seven years, the JOURNAL is proud to publish essays developed from the speeches given at the Symposium. These thirteen essays discuss various aspects of the theme The People and the Courts: judicial interference with community values, the merits of selecting our judges, popular responses to unpopular decisions, whether law and economics is anti-democratic, originalism and the media, and the role of tradition and the Constitution. This conversation is ongoing, and I am confident that the essays in this Issue will contribute significantly to our conception of the proper role of judges in our Republic.

We are also honored to publish Secretary of Homeland Security Michael Chertoff's perspective on the most timely issues of national security. Much of our recent national security debate has centered on the question of whether the War on Terror is best treated as a military action or as a law enforcement action. Secretary Chertoff argues that this is a false dichotomy; we need not choose only one. Both frameworks provide essential tools, which the Bush Administration, through the Department of Homeland Security, has used to keep the nation safe since 9/11. And safer we are. But just as we could not give in to hysteria in the time after the terrible attacks, today we must not become complacent. Although we have been safe for seven years, we must continue to adapt our tools to the enemy.

Judge Edith Brown Clement presents a new perspective on religious-monument law, bringing principle back to a doctrinal line which has seemed increasingly capricious since the Supreme Court's counterintuitive split decision in Van Orden and McCreary. When a display of the Ten Commandments can be unconstitutional when in a county courthouse but not when on the grounds of a state capitol, one is left wondering whether law or whim is deciding the cases. According to Judge Clement, Van Orden and McCreary morphed the religious monument purpose test into a subjective, actor-focused inquiry, which led to the problematic outcome that the same monument could be constitutional at some rimes but not others. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)


1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Cited article



Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Citations are available only to our active members.
    Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

    Already a member? Log in now.