Magazine May 17, 2010, Issue

Supreme Arrogation

Supreme Court justices in 2010 (Tim Sloan/AFP/Getty)
The Constitution is too important to leave to judges

The Supreme Court has for decades claimed to be the final arbiter of the meaning of the Constitution — asserting a “judicial supremacist” understanding of the Constitution’s distribution of interpretive authority among the institutions of government. This claim does not represent the predominant view of the Framers, and it has been contested by leading statesmen since the founding era. James Madison, Thomas Jefferson, Andrew Jackson, and Abraham Lincoln are among the presidents who asserted the coequal authority of the political branches to interpret the Constitution, a position known as “departmentalism.”

The growing acceptance of judicial supremacy in the modern era has

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