On Law And Democratic Development: Popular Constitutionalism And Judicial Supremacy

I was asked to comment on the topic of the conference as it relates to the United States. It is not simply my law background that persuaded me to focus on the issue of judicial supremacy. Examination of law and democracy in the United States at some point must tum its attention to the role of the courts, particularly the Supreme Court, in furthering democratic principles. A fundamental aspect of our democratic experience has been the institution of judicial review, the proposition that unelected, life-tenured judges have the power to declare that our elected representatives have acted unconstitutionally.

This is a remarkable power even if perhaps tempered by the fact that the judiciary lacks the power of the purse or the sword and, thus, cannot enforce its decisions. What role should the judiciary and the counter majoritarian institution of judicial review play in a democracy? Must we (the people) and our elected representatives comply with a judicial interpretation of the constitution that we believe is itself inconsistent with the fundamental law? Or, are we free to ignore judicial decisions that we believe are illegitimate?

These, of course, are not new questions but ones that have been debated over the course of our history. In this brief commentary, I can only introduce some of the issues surrounding the current debate over these questions.