Judicial Supremacy and the Modest Constitution

Abstract

Judicial supremacy is under attack. From various points on political spectrum, political actors as well as academics have challenged idea that courts in general, and Supreme Court in particular, have a special and preeminent responsibility in interpreting and enforcing Constitution. Reminding us that treating Supreme Court interpretations of Constitution as supreme and authoritative has no grounding in constitutional text and not much more in constitutional history, these critics seek to relocate prime source of interpretive guidance. The courts have an important role to play, these critics acknowledge, but it is a role neither greater than that played by other branches, nor greater than role to be played by the people themselves.' The critics' understanding of a more limited function for judiciary in constitutional interpretation appears to rest, however, primarily on a highly contestable conception of point of having a written constitution in first place. According to this conception, a constitution, and especially Constitution of United States, is vehicle by which a democratic polity develops its own fundamental values. A constitution, therefore, becomes both a statement of our most important values and vehicle through which these values are created and crystallized. Under this conception of role of a written constitution, it would indeed be a mistake to believe that courts should have preeminent responsibility for interpreting that constitution. For this task of value generation to devolve