Rational Judicial Review: Constitutions as Power-sharing Agreements, Secession, and the Problem of Dred Scott

Scholars have engaged in a sharp argument over whether the judiciary should follow the original understanding in interpreting the Constitution. Recent criticism has argued that originalism fails because it does not advance a substantive moral or political good. This paper responds to this criticism by advancing an instrumental justification for originalism. It argues that a nation may fail to make a constitution because regions with differing policy preferences may not trust each other to obey the agreement after ratification.

Constitution-makers can overcome this obstacle by committing to future enforcement of the agreement by an independent judiciary. To maintain the founding bargain, the judiciary would interpret the constitution based on the original understanding of its makers. Using Dred Scott as a case study of a failure in constitution making because of a flawed application of originalism, this Article argues that judicial review and originalism serve as valuable commitment mechanisms to enforce future compliance with a political bargain.