Document Type

Article

Publication Date

2021

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.

Publication Citation

125 Dickinson L. Rev. 283 (2021).

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