Tag Archives: judicial review

There’s No Alternative To We The People

In response to Monday’s post– in which I decried our current American tribalism and wondered whether we can breathe new life into e pluribus unum– a regular commenter, Tom Lund, wrote the following:

While we will be definitely in uncharted territory in many ways this could end up being a wonderful thing for this country if we can stay true to our principles and shrug off the division that is been forced on us and that which is already existed and reknit ourselves.  Tons of questions still remain and the cohesion that will likely be necessary to knit together a game plan will work and restore the social and political equilibrium of this country is a big unknown right now.  Hopefully, we can find a way out of this downward spiral but we’re the ones that are going to have to do it and do it by ourselves.

He is exactly right: we are the ones who must do it.

For quite some time, it has been possible for Americans to depend upon the courts to correct miscarriages of justice. Lawsuits have been our default mechanism for reminding government officials and others wielding power that the Constitution and the rule of law applies to them. Given the judicial appointments being made by the Trump Administration, it isn’t hyperbole to observe that the courts are unlikely to serve that important function for the foreseeable future.

To the extent that our reliance on the courts allowed us to “get lazy”–to forego exercising our civic “muscles”–that permissiveness is over.

Keith Whittington is a constitutional scholar who has argued that the Constitution operates in two ways: first, as a binding set of rules that can be interpreted and enforced by the courts, and second, through the political process, as a guide to and constraint upon political actors, who formulate “authoritative constitutional requirements”–who “construct” the Constitution– as they make public policy.

Another eminent Constitutional scholar has extended Whittington’s observation. In “Taking the Constitution Away from the Courts,” Mark Tushnet challenged our American tradition of judicial review–and even judicial supremacy. As the book’s blurb puts it,  

Many people, particularly liberals, have “warm and fuzzy” feelings about judicial review. They are nervous about what might happen to unprotected constitutional provisions in the chaotic worlds of practical politics and everyday life. By examining a wide range of situations involving constitutional rights, Tushnet vigorously encourages us all to take responsibility for protecting our liberties. Guarding them is not the preserve of judges, he maintains, but a commitment of the citizenry to define itself as “We the People of the United States.” The Constitution belongs to us collectively, as we act in political dialogue with each other–whether in the street, in the voting booth, or in the legislature as representatives of others.

We may agree or not with Tushnet’s argument, but given the reality of today’s political environment, his analysis reinforces Tom Lund’s conclusion: we’re the ones that are going to have to do it, and given the transformation of the judiciary that is currently underway–a transformation of the courts from protectors of the people to protectors of the plutocracy– we are going to have to do it by ourselves.