The Madisonian Constitution

Notes

n o t e s Introduction 1. Gordon Wood, Creation of the American Republic (Chapel Hill: University of North Carolina Press, 1998 [1969]), 281, and Sylvia Snowiss, Judicial Review and the Law of the Constitution (New Haven: Yale University Press, 1990). 2. Edward S. Corwin,“Marbury v. Madison and the Doctrine of Judicial Review,” Michigan Law Review 12 (1914): 538–72. 3. Charles McIlwain, Constitutionalism: Ancient and Modern (Ithaca: Cornell University Press, 1947), 140. 4. Planned Parenthood v. Casey, 505 U.S. 833, 868 (1992). See also City of Boerne v. Flores, 521 U.S. 507, 529 (1997); United States v. Nixon, 418 U.S. 683 (1974); Powell v. McCormack, 395 U.S. 486 (1969); Baker v. Carr, 369 U.S. 186 (1962); Cooper v. Aaron, 358 U.S. 1, 18 (1958). 5. See especially Larry Alexander and Frederick Schauer, “On Extrajudicial Constitutional Interpretation,” Harvard Law Review 110, no. 7 (1997): 1359–87, and “Defending Judicial Supremacy: A Reply,” Constitutional Commentary 17 (2000): 455–82. In contrast, see especially the scholarship of the “Princeton School” taking its bearings from Walter F. Murphy . Essays by some of the leading scholars in this group are gathered in Robert P. George and Sotirios A. Barber, eds., Constitutional Politics: Essays on Constitution Making, Maintenance , and Change (Princeton: Princeton University Press, 2001). But this tendency is true beyond American constitutionalism. Comparative constitutional theorists even search for a moment where constitutionalism itself is solidiWed with the articulation, exercise, and en­­ trenchment of judicial review. See Gordon Silverstein, “Globalization and the Rule of Law: A Machine That Runs of Itself?” I-Con 1, no. 3 (2003): 427–45. In a similar vein, we have be­­ gun to hear about the emergence of global constitutionalism, the deWning feature of which is a transnational judiciary with universal jurisdiction capable of overcoming the inconvenient attachments of particular constitutions and enforcing “global constitutional norms.” For a constitutional critique of this view, see Jeremy A. Rabkin, Law without Nations? Why Constitutional Government Requires Sovereign States (Princeton: Princeton University Press, 2005). 6. This view also takes root in the work of prominent and empirically grounded political scientists. Leading political scientist Gregory Caldaria, for example, lists judicial supremacy      Notes to Pages 2–3 as the correct answer to “Who is the Wnal interpreter of the Constitution?” in a public opinion survey. Caldaria,“Courts and Public Opinion,”in John B. Gates and Charles A. Johnson, eds., The American Courts: A Critical Assessment (Washington, DC: Congressional Quarterly Press, 1990). H. W. Perry Jr. and L. A. Powe Jr., “The Political Battle for the Constitution,” Constitutional Commentary 21 (2004): 641–96; H. W. Perry, Deciding to Decide: Agenda Setting in the United States Supreme Court (Cambridge:Harvard University Press,1991);Michael Comiskey, Seeking Justices: The Judging of Supreme Court Nominees (Lawrence: University Press of Kansas, 2004) (all rest on the assumption, made explicit, that judicial conWrmation battles are so contested because the Court is the Wnal interpreter of the Constitution). 7. See Scott Gordon, Controlling the State: Constitutionalism from Ancient Athens to To­­ day (Cambridge: Harvard University Press, 1999), and Mark Blitz, Duty Bound: Responsibility and American Public Life (Lanham, MD: Rowman and LittleWeld, 2005), 32–36, on the diVusion of the separation of powers as characteristic of liberal democracy. See also David Brian Robertson, The Constitution and America’s Destiny (New York: Cambridge University Press, 2005), who persuasively argues that Roger Sherman has equal title to this claim. 8. Stanley C. Brubaker, “The Court as Astigmatic Schoolmarm: A Case for the ClearSighted Citizen,”in Bradford P. Wilson and Ken Masugi, eds., The Supreme Court and American Constitutionalism (Lanham, MD: Rowman and LittleWeld, 1999), oVers the wonderful metaphor of the view from the Court as astigmatic. 9. Walter Murphy, “Who Shall Interpret? The Quest for the Ultimate Constitutional Interpreter,” Review of Politics 48, no. 3 (1986): 401–23, and Constitutional Democracy: Creating and Maintaining a Just Political Order (Baltimore: Johns Hopkins University Press,2007), 463–71. I do not think that the diVusion of powers in the federal government captures the whole of constitutional maintenance; indeed, insofar as the Constitution rests upon the compound of liberal democracy, much of what is required to sustain the constitutional en­ terprise takes places wholly outside of oYcial constitutional channels. See especially Charles R. Kesler, “Federalist 10 and American Republicanism,” in Kesler, ed., Saving the Revolution: The Federalist Papers and the American Founding (New York: Free Press, 1986), 13–39, and Thomas L. Pangle, The Ennobling of Democracy: The Challenge of...