The Supreme Court’s constitutional jurisprudence is presumably both justified and guided by the idea of constitutionalism. There is, however, no single idea of constitutionalism but a bewildering variety of competing ideas of constitutionalism. Not only are there competing ideas of constitutionalism today, but the history of political philosophy reveals an even broader range and deeper opposition of ideas, most manifestly a division between ancient and modern ideas of constitutionalism. The intention of this chapter is to explore what we might learn from both that might help us to think more clearly and comprehensively about the dilemmas of constitutionalism. In particular,...

The Constitution of the United States is a distinctively modern (“liberal”) constitution. “We the People of the United States,” having somehow constituted ourselves as “one politic society” (Locke, Second Treatise, §211; cf. §§95–99), instituted new government by means of a written constitution: a government deriving its just powers from the consent of the governed, whose ultimate purpose would be to secure the blessings of liberty to ourselves and our posterity. That’s the familiar liberal story.

Political life is untidy. We should not take too seriously any parallel between the liberal political theory of Locke and early American political history....

It is now often remarked that we live in the age of the stealth nominee. The reason that not having a public record is increasingly among the most important qualifications for appointment to the Supreme Court is not difficult to state: the Court has become so controversial, the role of the Court so contested, the fate of certain issues and the future of important constitutional doctrines so dependent on the particular composition of the Court that all sectors of American political society are readily mobilized to foster or hinder the candidacies of those perceived to be favorable or not to...

The sharp recent rise in “the power of judges” the world over has attracted considerable notice. Titles such as The Global Expansion of Judicial Power¹ and terms such as “juristocracy”² and “courtocracy”³ proliferate because this power has spread around the globe, in a development that seriously began only after World War II and that took on real momentum in the past thirty-five years.

Before World War I, and again as of 1942, only the United States and Norway had a court with power to throw out laws adopted by the national legislature.⁴ Today more than eighty countries do.⁵ This rapidity...

“Who has authority over the Constitution of the United States?” Pose that to someone who has done no more than read the Constitution and it will seem to be a trick question, for the answer is altogether obvious: As the first words of the document make plain, the Constitution is made by the people—“ordained” and “established” are the actual terms. The ratification process specified in the final article of the original document answers the next question, “Who comprise the people?” The Constitution was to go into effect once ratified by representative conventions in nine of the existing states, among...

Discussions of the relation between judicial review and democratic self-government that take judicial review as exercised by the U.S. Supreme Court as their model quickly run up against the problem that judicial review in that form seems to place serious barriers to the ability of the people to govern themselves. It is not merely that judicial review prevents the people from implementing the policies they prefer. After all, the whole point of constitutionalism is to place some limits on the policies a nation can actually implement. The more substantial difficulty is that the U.S. Supreme Court blocks the adoption of...

How should we understand the connection between a constitution and the social order within which it is situated? Accustomed as we are to identifying constitutionalism with written limits on power, a reasonable response would be to see a predominantly preservative role in the relationship of the first to the second. Thus the institutions that provide order to a society—for example, church, property, family—should be protected from hostile acts threatening to their essential continuity. Moreover, the framing of governing charters is not likely to culminate in a document antagonistic to the very societal structures of stability that provide ballast...

The chapters in this book address the topics of constitutionalism and the role of the United States Supreme Court from a variety of perspectives. Some look at the subjects through the prism of political philosophy, both of classical and enlightenment vintage.¹ Others take a historical approach, and more particularly, an American history one.² Still others look at the Constitution and Court by comparing and contrasting them to their counterparts elsewhere in the world.³ And still others examine them using the techniques of modern political science.⁴

This chapter falls in that section of the book that takes up the relationship between...

The topic of this volume is the Supreme Court and the idea of constitutionalism, a very broad, daunting topic considering the vast output of the United States Supreme Court since our founding, let alone considering the impact of the Court’s decisions on our society. This chapter focuses more narrowly on the topic of “judicial philosophy,” which I will define momentarily. The Supreme Court is the premier court in the United States because it has the final say in interpreting our Constitution and, consequently, the Supreme Court sets the tone of the American judicial culture. Therefore, I will concentrate on that...

Throughout most of globe during the past six decades, two striking and arguably contradictory trends are visible. I argue here that Machiavelli’s analysis of the political dynamics of republics may help us to explain and evaluate these developments. The first trend is the spread of democracy. Depending on the definitions used, various datasets show that the percentage of the world’s nations that were democratic rose from less than 40 percent at the end of World War II to between 50 percent and 70 percent by the end of the twentieth century, representing between 76 and 117 countries and much of...

Constitutions do many things. They organize politics. They found and empower political institutions. They legitimate governments. They give voice to political aspirations. Perhaps most distinctively they bind politics.

It is this effort to bind and constrain politics that defines what we generally mean by constitutionalism. The rise of the modern notion of constitutionalism was intertwined with liberalism, the belief that there were limits to the legitimate power of government, and that those limitations should be made effective and real.¹ A constitutional government was a limited government, in which certain political ends and means were off limits. The adjective constitutional could...

In a recent editorial discussing the effects of the September 11, 2001, attacks on American constitutional law, a commentator writes: “Thus far, the Supreme Court has saved us from having, as a legacy of 9/11, a system in which the President is above the law in how he fights threats to domestic security.”¹ The quotation represents a more general position: those who worry about the overextension of presidential power in the wake of 9/11 typically look to the Supreme Court to save us from its excesses. In fact, this tendency has, perhaps unsurprisingly, found its way into the very deliberations...