Against Interpretive Supremacy

Many constitutional scholars are obsessed with judicial review and the many questions surrounding it. One perennial favorite is whether the Constitution even authorizes judicial review. Another is whether the other branches of the federal government must obey the Supreme Court’s interpretation of the Constitution and what, if anything, the other branches must do to execute the judiciary’s judgments. Marbury v. Madison has been a full-employment program for many constitutional law scholars, including ourselves. Larry Kramer, the new Dean of Stanford Law School, shares this passion. He has devoted roughly the last decade of his career, with two lengthy law review articles and a half a dozen shorter pieces, to these questions. In these works, he has consistently advanced a two-pronged argument against judicial review and judicial supremacy. First, Kramer has claimed that while the Founders explicitly sanctioned judicial review of state constitutions and laws, they never intended courts to judge the constitutionality of federal legislation. Given the novelty and relative obscurity of judicial review in 1789, the Founders would never have authorized judicial review of federal statutes. Second, Kramer has insisted that rather than crowning the judiciary supreme in constitutional interpretation, the Constitution actually took for granted that the people were the final arbiters of the Constitution’s meaning and that they would influence and discipline the federal branches through voting, petitioning, and mobbing. Kramer has pulled these arguments together, and in some places has extended them, in The People Themselves. His criticisms of the foundations of judicial review remain, but in more muted form. Whereas Kramer has, in the past, adamantly insisted that the Constitution’s original understanding does not authorize judicial review, here he makes such comments much less frequently and only in passing, so much so that some readers may erroneously conclude that he has abandoned his earlier position. In toning down his claim, Kramer seems to have learned two lessons: first, that the argument against judicial review is a losing one (as we have argued, the Constitution’s text contains numerous indications of judicial review’s constitutionality and dozens of founders understood the Constitution to permit courts to review the constitutionality of federal statutes); and second, that the argument against judicial supremacy need not (and should not) rest on a futile assault on judicial review.