Political Jurisprudence and the Role of the Supreme Court: Framing the Judicial Power in the Federal Convention of 1787

Abstract

The modern shift toward abstract review and discretionary jurisdiction has heightened perennial controversy over the role of the Supreme Court in constitutional politics. Through close analysis of the framers’ deliberations in the Federal Convention, this article seeks to shed light on that controversy. The institutional logic at work in the debate tasked the Court with settling conflict arising from the federal system and enforcing constitutional limits on the state and federal governments alike. Given that “all interference between the general and local Governments should be obviated as much as possible,” the framers opted to confine that interference to the judicial process. In this legalization of federal conflict, settling constitutional questions was not merely incidental to the process of deciding particular cases, but became an essential function of the Court. In this way, the framers laid the groundwork of modern controversy over the political dimensions of judicial review in the institutional architecture of the Constitution.