Popular government and the Supreme Court: securing the public good and private rights

Abstract

With quiet eloquence, Lane Sunderland argues that we must reclaim the fundamental principles of the Constitution if we are restore democratic government its proper role in American life. For far too long, he contends, the popular has been held in check by an overly powerful Supreme Court using non-constitutional principles make policy and promote its own political agendas. His work shows why this has diminished American democracy and what we can do revive it. Sunderland presents a strong, thoughtful challenge the constitutional theories promoted by Ronald Dworkin, Archibald Cox, Richard Epstein, Michael Perry, John Hart Ely, Robert Bork, Philip Kurland, Laurence Tribe, Mark Tushnet, and Catharine MacKinnon an enormously diverse group united by an apparent belief in judicial supremacy. Their theories, he demonstrates, undermine the democratic foundations of the Constitution and the power of the majority resolve for itself important questions of justice. Central this enterprise Sunderland's reconsideration of Federalist as the first, most reliable, and most profound commentary on the Constitution. The Federalist, he states, is crucial because it explains the underlying theory of the Constitution as a whole, a theory that gives meaning its particular provisions. In addition, Sunderland reexamines the Declaration of Independence and the work of Hobbes, Locke, and Montesquieu, in order better define the nature and limits of their influence on the Framers. His reading of these works in conjunction with Federalist shows just how far afield contemporary commentators have strayed. Sunderland deliberately echoes and amplifies Madison's wisdom in Federalist No. 10 that the object of the Constitution to secure the public good and private rights . . . and at the same time preserve the spirit and form of popular government. To attain that object, he persuasively argues, requires that the judiciary acknowledge and enforce the constitutional limitations upon its own powers. In an era loudly proclaiming the return of popular government, majority rule, and the will of the people, that argument especially relevant and appealing.