On Judicial Supremacy

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Larry Alexander and Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 Harv. L. Rev. 1359, 1360 (1997).
Platon, Obras Completas 360-361 (Presidencia de la Republica ed., Juan David Garcia Bacca trans. 1980).
F.A. Hayek, The Constitution of Liberty 144 (Routlege Classics, 2nd ed. 2009). Citing Aristotle, Rhetoric.
Platon, Dialogos 63 (Gredos ed. Julio Calonge, Emilio Lledo, Carlos Garcia Gual trans. 2008)
Hayek, supra note 3 at 144-145.
Hayek, supra note 3 at 145. Citing Aristotle, Politics.
Edward S. Corwin, The "Higher Law" Background of American Constitutional Law 6 (Liberty Fund, Inc., 2008).
Id.
Id. at 6-7.
Id. at 8.
Hayek, supra note 3 at 146.
We will concentrate on the intrinsic connection between rule of law and common law, and will not examine the substantive part of the concept that includes the generality of the law, equality before the law, non-retroactivity of the law, enforced through the courts, etc.
We will examine the French concept of regne de la loi later.
On the difficulty of translating rule of law to Continental Europe's languages, see R. C. van Caenegm, Judges, Legilators and Professors. Chapters in European Legal History, Cambridge, 1993.
Eduardo García de Enterría, La Lengua de los Derechos 148 (Alianza Editorial, S.A., 4th ed. 200), citing the Petition of Grievances.
Corwin, supra note 1, at 24.
Id. at 36.
Petition of Grievances, cited in supra note 15.
Case of Prohibitions and Fuller's Case. Cited in supra note 15 at 148.
Id. at 33.
García de Enterría, supra note 15, at 146, citing Roscoe Pound, The Development of constitutional guarantees of liberty 310 (Yale, New Haven, 1957).
Corwin, supra note 1, at 41.
García de Enterría, supra note 15 at 147.
Hayek, supra note 3 at 180
William Blackstone, Commentaries on the Laws of England Vol. 1 268 (Garland Publishing, Inc., 1978).
Edward Corwin, Court over Constitution: A Study of Judicial Review as an Instrument of Popular Government 2,69 (Princeton University Press, 1938)
García de Enterría, supra note 15 at 151.
Corwin, supra note 7 at 39.Citing Sir Thomas Smith.
Blackstone, supra note 25, at 48-49.
Id. at 90-91.
Id. at 160-161
James Madison, Notes of the Debates in the Federal Convention of 1787 39 (W. W. Norton & Company, 1987).
James Madison, República y Libertad 22 (Jaime Nicolás Muñiz, 2005).
Corwin, supra note 7, at 73.
Garcia de Enterria, supra note 15 at 149.
The Federalist No. 78, at 467 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
Baron de la Brede et Montesquieu, Spirit of the Laws, http://www.thefederalistpapers.org/wp-content/uploads/2013/01/The-Spirit-of-The-Laws.pdf
The Federalist No. 81, at 482 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
Corwin, supra note 7, at 79.
Id. at 84.
Brutus No. 11, at 232 (Robert Yates) (Princeton University Press, 1938).
Eduardo García de Enterría, La Constitucion como Norma 56 (Civitas ed., 4th ed., 2001).
This was not a rhetorical concept. It meant that every public officer would exercise only the power that the law had previously delegated, through the procedural requirements established by law, and only in cases where the facts that activate the juridical consequences established in the law would materialize in a specific context. García de Enterría, supra note 15 at 127-128
García de Enterría, supra note 15 at 117.
Id. citing Diderot in Droit naturel.
Id. at 118.
Latin phrase attributed to Roman jurist Ulpian.
Alexis de Tocqueville, The Ancien Regime and the French Revolution 160 (Gerald Bevan ed., 2008).
André Tunc, Government Under the Law: a Civilian View 35 in Government Under the Law 38 (Arthur E. Sutherland ed., 1956).
Allan Brewer-Carias, Reflexiones sobre la Revolucion Americana y la Revolucion Francesa y sus aportes al Constitucionalismo Moderno 20 (Editorial Juridica Venezolana ed., 1992).
De Tocqueville, supra note 48 at 163.
García de Enterría, supra note 15 at 130.
Id.
García de Enterría, supra note 56 at 164.
"The reason, however . . . is a political one. The control the Parlements exercised by the highest courts of the Ancien Regime over royal ordinances introducing needed reforms had been so reactionary that resulted in a great popular dissatisfaction with the courts". Tunc, supra note 49 at 37.
Emmanuel-Joseph Sieyes, What is the Third State? In The old Regime and the French Revolution Vol 7. 154 (John W. Boyer & Keith M. Baker eds., 1987) available at http://direitonapuc.files.wordpress.com/2009/03/sieyes-what-is-the-third-estate.pdf
García de Enterría, supra note 26 at 165.
John Rawls, Lectures on the History of Political Philosophy 223 (Belknap Press of Harvard University Press, 2008).
Montesquieu, supra note 36.
Brewer-Carias, supra note 50 at 181.
For an examination of Judicial Review in France's XIX and XX centuries, see Andre Tunc, supra note 49 at 35.
Brewer-Carias, supra note 50 at 182.
García de Enterría, supra note 42 at 161, citing Carl Schmitt in Das Reichsgericht als Hüter der Verfassung.
Id. at 160.
Id. at 159.
Id. at 160.
Id. at 162.
Carl Schmitt, Constitutional Theory 164 (Jeffrey Seitzer ed., 2008).
García de Enterría, supra note 42 at 162.
Schmitt, supra note 68 at 410.
Id. at 413.
Id. at 228.
Id.I at 417.
Carl Schmitt, The Crisis of Parliamentary Democracy xxix (Ellen Kennedy trans., Massachusetts Institute of Technology, 1988).
Id. at xxx.
Schmitt, supra note 68 at 426.
Schmitt, supra note 68 at xxx (introduction).
García de Enterría, supra note 42 at 163.
Schmitt, supra note 68 at xxv (Introduction).
García de Enterría supra note 242at 129.
Id. at 132, 133.
Hamilton, supra note 36 at 465.
García de Enterría, supra note 42 at 194.
Id. at 208.
Id. at 203.
Alexander & Schauer, supra note 1.
Id. at 1370.
Karl Popper, The Open Society and its Enemies 471 (Princeton University Press, 2nd ed. 2013).
Neal Devins and Louis Fisher, Judicial Exclusivity and Political Instability, 73 Va. L.Rev 83, 86 (1998).
This is affirmed, by Hamilton, after disserting over the dangers of legislative power and executive power in general, that is, not specifying whether they are the states' or the Federal Government's.
Hamilton, supra note 21 at 465, 466, 467.
André Tunc, The Royal Will and the Rule of Law 401 in Government Under the Law 420 (Arthur E. Sutherland ed., 1956).
Even with the broadest scope imaginable of Judicial Supremacy the obvious avenue is the amending power. Theoretically possible, impracticable for its difficulty, but it has worked before in overriding a Supreme Court's decision: Amendment XI, 1798, that limited the jurisdiction of Federal Courts, overriding the interpretation put forth by Chisholm v. Georgia in 1793; Amendment XIV Section I, 1868, overriding the Dredd Scott decision; Amendment XVI, of 1913, overriding Pollock v. Farmer's Loan and Trust Co.; and Amendment XXVI, overriding Oregon v. Mitchell.
Alexander & Schauer, supra note 1 at 1366.
Edward Corwin, Court over Constitution: A Study of Judicial Review as an Instrument of Popular Government 2,3 (Princeton University Press, 1938)
Dredd Scoott v. Stanford, 60 U.S. (19 How.) 393 (1857).
Alexander & Schauer, supra note 1 at 1360.
Corwin, supra note 25 at 7.
Devins & Fisher, supra note 89 at 87.
This particular subject is to be addressed later.
Corwin, supra note 25 at 5.
Id. at 3.
Alexander & Schauer, supra note 1.
Id. at 1361.
Affirming that "nobody is bound by an unconstitutional law" is, as Corwin puts it, to affirm that "everybody . . . has an equal right to determine what laws he is bound by." Corwin, supra note 73 at 5.
358 U.S. 1
Alexander & Schauer, supra note 1.
Larry Alexander and Frederick Schauer, Defending Judicial Supremacy: A Reply, 17 Const. Comment. 455, 464-467 (2000).
Devins & Fisher, supra not 89 at 101
Richard Funston: A Vital National Seminar. The Supreme Court in American political Life, Palo Alto, 1978.
Devins & Fisher, supra note 89 at 91
Richard Funston cited by exclusivity pag. 101.
Devins & Fisher, supra note 89 at 100. Amendments are not the only avenues. There are others thoroughly discussed in Devins & Fisher, supra note 89, and exclusivity and in Neal Devins and Louis Fisher, The Democratic Constitution, Oxford University Press (forthcoming ed. 2014). (on democratic institutions actions subsequent to the Court's decisions on abortion, affirmative action, nusing, child labor, the death penalty, state liquor, etc.), see also Louis Fisher, Separation of Powers: Interpretation Outside the Courts, 18 Pepp. L. Rev. 57 (1990) (on the settling of "underenforced constitutional norms")
Waldron Jeremy, "Judicial Review and Judicial Supremacy" (2014). New York University Public Law and Legal Theory Working Papers. Paper 495.
Alexander & Schauer, supra note 108 at 467.
491 U.S. 397.
Kathleen M. Sullivan & Noah Feldman, First Amendment Law 256 (Robert C. Clark et al. eds., 5th ed. 2013).
In United States v. Eichman, 496 U.S. 310 (1990).
135 U.S. 100 (1890).
Alexander & Schauer, supra note 108 at 457
Waldron Jeremy, "Judicial Review and Judicial Supremacy" (2014). New York University Public Law and Legal Theory Working Papers. Paper 495.
Id. at 17.
The executive is supreme when it comes to, for example, war powers, but this is certainly does not imply an unlimited power. It is still subject to restraints in other matters.
Thomas Hobbes, Leviathan 170-180 (Herbert W. Schneider ed., 1958)
For a more thorough examination of the arguments made here, see Rawls, supra note 43 at 86-88
Waldron, supra note 94 at 20-21.
Hamilton, supra note 22 at 468
Indeed, the people itself is the standard for the validity of the Constitution. No fundamental law could stand without the people's consent.
Rawls, supra note 43
García de Enterría, supra note 45
De Tocqueville, supra note 48
Id. supra note 28. Citing K. Stern.
Alexander & Schauer, supra note 1 at 1379.
Alexander & Schauer, supra note 88 at 466.
Id. at 1362.
Corwin, supra note 25 at 15.
Funston, supra note 90.
Garcia de Enterria, supra note 28 at 186.
Neal Devins and Louis Fisher, The Democratic Constitution, Oxford University Press (forthcoming ed. 2014).
I have stolen a part of a phrase from Judge Andrew Napolitano, which was stated in another context, but it is being applied in the context of the Court's power. The original line states "[t]he guarantees of personal freedom in the Constitution are only as valuable and reliable as is the fidelity to the Constitution of those to whom we have entrusted it for safekeeping" http://www.washingtontimes.com/news/2013/mar/21/when-the-government-demands-silence/
Garcia de Enterria, supra not 42 at 185.
Id.
Garcia de Enterria, supra note 42 at 180-183.
Devins & Fisher, supra note 89 at 96.
Ralph Ketcham, in his introduction to "The Anti-Federalist Papers and the Constitutional Convention Debates" notes that "American political thought and experience after 1776 in fact highlighted a tension built into the Declaration of Independence. (pag. 5)
Devins & Fisher, supra note 89 at 103.
Id. at 99.
Tunc, supra note 49.
García de Enterría, supra note 28 at 186.
Alexander & Schauer, supra note 108 at 468.
García de Enterría, supra note 28 at 176.
Alexander & Schauer, supra note 1 at 1371.
Supra note 66.
García de Enterría, supra note 42 at 187. Citing B. Schwartz: Le Droit aux Etats Unis.
See supra note 40.
García de Enterría, supra note 42 at 189.
Alexander & Schauer, supra note 108 at 468.
See page 24 of this paper.
García de Enterría, supra note 42 at 175.
Id. at 127.
Devins & Fisher, supra note 139.
Eric Voegelin, The New Science of Politics 27 (The University of Chicago Press, 1987)
Alexander & Schauer, supra note 108 at 460
Id. at 465.
See liquor control case at page 27.
Hayek, supra note 3 at 166.
For a more detailed explanation of the Court-Packing plan, see Devind & Fisher, supra note 139.
Hayek, supra note 3 at 417
Devins & Fisher, supra note 139.
Pronounced by Lincoln in his First Inaugural, regarding Dred Scott. Cited by Corwin, supra note 25 at 73.
Tunc, supra note at 92.
Tunc, supra note 49 at 37.
Introduction

Not long ago, in a course that I was attending, one of my classmates, in his intervention, stated that he was "okay" with not having "Judicial Supremacy" in the American Legal system. There is a tendency among students and scholars that claims there is no real Judicial Supremacy in this Law system, that "nonjudicial officials have no more obligation to follow [the Supreme Court's] interpretation than the courts have to follow the constitutional interpretations of Congress or the executive", and that it is healthy not to have it, rather, have a three-branch dialogue to determine and shape the constitutional values.
I will note that I was surprised when I first heard this, as Judicial Supremacy and judicial review are doctrines developed almost exclusively, or at least at greater extent, by the American legal system, and those countries that have adopted and modified it have taken substantial elements from it. This essay, through a historical and theoretical review, makes the case for judicial supremacy, and its realization in judicial review, as an established concept with empirical presence in the real world, and as the "final ingredient" for the consolidation of democracy in open societies of western civilization. And further, makes an argument, through a review of the framers intent and deference of other branches to the judicial power, that there is, in fact, judicial supremacy in the American legal system, and that it does not necessarily exclude a "three-branch dialogue". But in a conclusion, it will remark that ironically, today, what is trumping the Judicial Supremacy actually comes from the judicial power itself.
This essay will be divided into two parts, (i) the historical review, and (ii) the theoretical review:
Historical Review:
First, we will consider the development the concepts concerning "government under the law" of several concepts that took part in shaping the doctrines of judicial supremacy and judicial review. We will explore concepts as "iurisdictio" (which is itself from Roman origins), "isonomia", and "natural justice" and "higher law" through the writings of Plato, Aristotle, and conduct a review of historical facts. We will then move on to contrast two concepts, "Parliamentary Sovereignity", and try to explain why the framers intended to move away from it with their innovative design of the doctrines in question, and "Common Law". The case for "The Supreme Court as a curb to Legislative Power" will be addressed. We will explore, in this part, the writings of Alexander Hamilton, James Madison, John Marshall, Judge Coke, and several interventions of various delegates in the Debates of the Federal Convention.
After inquiring in this, we will explore the reaction of Europe toward this innovative creation. More specifically, we will take the examples of France and Germany's reaction to the doctrines of judicial review and judicial supremacy. At first, it was a total rejection, but decades after, they adopted it with several modifications in order for their systems to fully incorporate it it. We will make the case that these doctrines played an essential part in the transition from dictatorial countries to open societies and democratic governments. The point of this approach and examination is to observe the role of the Courts in each country. For it, we will examine both legal documents that determine the scope of the judiciary's power and academic documents, which addressed the theoretic basis for those roles. After examining each context, we will attribute the political instability and the non-stopping expansion of one branche's power—the strongest branch of that moment—to the lack of any authoritative character of Court's interpretations. Moreover, it will also be addressed the role of the Constitutional Tribunal in social and political stability and also the adaptability of the constitutional system in responding to popular desires and debates. This approach will permit us to observe that the authoritative character of judiciary's decision, with at least a basic degree of supremacy, serves a useful purpose.
Theoretical Examination
In this part, we will analyze several issues with a theoretical, rather than historical, approach. The case will be made that is in fact healthy to have Judicial Supremacy, but the very definition of it will be examined. And in order to address the definitional issue, we will use three previous investigations on this matter.
We will then move onto the logical relationship of the Court-Constitution as one of the sources of its legitimacy. Also, their dependency on social factors for the permanence of its legitimacy will be addressed. Then, following the points made in the historical approach, we will address the Court's role in society as a "consensus generator" and the legitimacy it renders to the government as a whole, which consolidates the constitution, promotes stability, but it also leaves open avenues for settling issues through guidelines set by the Court, and it assures an adaptability of the constitutional system in order to respond to social desires.
Lastly, we will discuss that Judicial Supremacy is not only expressed in the Courts' actions, but also, and maybe more importantly, in other officials and citizens actions as a tradition. We will again address its dependence on other branches and officials, and that its consolidation requires the "fidelity" of every public official. This "fidelity" is an expression of the doctrine in question in reality and consolidates it over time. Even FDR's efforts in his "Court-Packing" project would consolidate that doctrine, as they showed a struggle for gaining "legitimacy" in his projects that would only be obtained with the Court's approval. Another anecdote that will be used is that cited by C. L. Black Jr. in his work The People and the Court, when a French intellectual that, when visiting New York, exclaimed: "it is wonderful to breath the sweet air of legitimacy", that "legitimacy" was the role of the Supreme Court, and the public officials' and citizens' attitude towards it, hence expressing itself in the real world as a tradition, which is consolidated by its reiterated practice.
Historical Approach
I
Developmen of the Government under the law
"Jurisdiction" is a well-established concept, it has been since Roman times. It is well-known, that the term "jurisdiction" means the authority that a legal body has, or a court, to deal with a certain specific issue and settle it. That term comes from the latin phrase "iurisdictio"; iuris means law (in other cases, right), dictio comes from the latin verb dicere, which is "to say". The combination of these words meant that iurisdictio is the power of the courts to say what the law is in a specific issue before them. And by "law" it was meant what the legislators had previously regulated in its law-creating activity. Time out of mind this has been understood as the basic principle of judicial activity. This apparently simple phrase has had entirely different meanings in different countries and periods. In Greece, and then, in the continental Europe of the XVIII and XIX centuries, it was a concept that bound the judicial activity. It was not the judge's arbitrary will that was deciding the case outcome, but a previously enacted law. This principle did not include the interpretation of the law, but only the application of a general principle that the legislator has already decided upon. Plato, in his The Statesman, called the judge as the "guardian of the law", and his activity consisted in accepting everything that was previously disposed by the legislator. In this same manner, Aristotle, in his Rhetoric saw the necessity for laws to determine everything about an issue and leave the least possible discretion for judges.
But there was also a newly developing concept that was forming since before both philosophers wrote their dialogues and treaties. It was Isonomia, which meant "equality before the law", rather than demokratia, the greatest innovation of the Greek law system. This was developed following Solon's famous reform, where he struck down the oligarchic constitution reigning at the time, which was an instrument for the aristocratic class to arbitrarily impose their will upon the lower classes, and established a new one where he not only gave the lower-class citizen voice and electoral power, but also the possibility to call on account the elected officials, which only the oligarchic class could do in the previous constitution. With this reform, the law was not an expression of the tyrant's word of the time, but they would be a creation upon deliberation, and they would apply to all citizens, including the rulers. They were, in essence, a tool to restrict the legislator's will, hence the expression "isonomia" or also "equality of laws to all manners and persons". Law would not only bind its citizens, but, specially, its legislators. Thus, there was a bind on judicial activity, and the legislators, but not in the legislative activity in itself.
The concept that evolved from Ancient Greece to modern times that bound the legislative activity in itself concept is that of the "higher law". For Aristotle, "law ought to be supreme over all things." And as Edward Corwin stated, "the term law is, in other words, ambiguous. It may refer to a law of higher or a law of lower content." Moreover, for Aristotle, "an unjust law is no law at all", but there needed to be a recourse to determine whether a given law is unjust at all, and a standard that guides the legislator towards enacting "just" laws, and to determine whether they are just. In the times of Plato, this standard was thought to be tradition, hence the great debate that formed between the Sophists and Socrates formed over the Sophist mantra that "justice is merely the interest of the stronger", expressed by Thrasymachus in Plato's Republic. Certainly, the elite classes had an essential role in forming traditions, and custom and tradition were (and are) mutable concepts over time, hence it was reasonable to think that justice itself was variable dependent on what the dominant classes thought about at a given time.
Upon this debate, Aristotle developed the concept of "natural justice" which would be the standard and guideline for legislators. Natural Justice was considered eternal and not subject with the whims of temporary majorities or elite minorities. It would serve as the higher law that shaped laws enacted by legislators. This ethical concept would have a great deal of influence in the development of a political concept: the Constitution as that "higher law." But it was still not enforceable by courts against the legislators, it was only a guideline. Though Cicero, following this concept, wrote that certain superior maxims (leges legum) governed the legislative process itself and bound the legislative power. But all of this uses of standards and maxim only referred to a higher law in a religious or philosophical sense. The law had to be "rational" and in accordance to the will of the gods. This means, obviously, a certain degree of ambiguity in that standard, and even the concept of the rule of law in England, or at least one part of the concept, borrowed this concepts. Thus, it is not until the American Constitution that the issue of the ambiguity of the standard for laws and legislation was settled.
It is imperative to spend some time on the concept and history of the rule of law. It is curious, that rule of law and regne de la loi, the French conception, which both mean literally the same thing, had such a different meanings for each country. In both England and France, these were considered a "higher law", but only in the former, was it a higher law developed in courts and which bound legislative power. In a Petition of Grievances from the Parliament, a famous statement aroused, that "there is no[thing] which [the subjects of His Majesty] have accounted more dear and precious than this, to be guided and governed by the certain rule of law". And this rule of law would develop into a somewhat rule of Common Law. As Edward Corwin puts it, "[t]he right reason to which the maxims of higher law on [Continental Europe] were addressed was always the right reason . . . of all men. The right reason which lies at the basis of the common law, on the other hand, was from the beginning judicial right reason." In Continental Europe, "right reason of all men" would be the basis of Parliamentary Sovereignty, for the legislative power was the absolute repression and expression of the people. In England, Common Law was developed by customs, but not customs alone and in themselves, but developed through the traditional stare decisis and "judicial right reason", that is, through the "artificial reason and judgment of the law."A "reason" which was invoked several times against the King and by courts to oppose the King's attempts to "adjudge any case, either civil or criminal," and to declare that the King "could only act through judges" in these cases. And the authority of Common Law would have over "the right reason of all men", for some time, was the exact opposite of that of continental Europe:
The Common Law is the perfect ideal of law; for it is natural reason developed and expounded by a collective wisdom of many generations . . . Based on long usage and almost supernatural wisdom, its authority is above, rather than below that of Acts of Parliament or royal ordinances . . . which have a merely material sanction and may be repealed at any moment.
In England, as some scholars have considered it, the rule of law was the "fundamental dogma of our common Law". When Judge Sir Edward Coke disserted over the concept, he expressly used it to exclude the King from judgment of any case, "civil or criminal", from "dismissing any case from the hearing of a Court, [and from] taking part in the judge's deliberations". This thought would have its greatest expression in his words in the Bonham's Case of 1610:
And it appears in our books, that in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void; for when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void.

That was an important part of the common law, its construing as the "entailment of judges to the common law and the exclusion from then functions of King's orders or its delegates." This technicality of judicial control over acts of Parliament and the King would not fructify in England, but it was at the very least established for a period of time and it was the conception ofSir Edward Coke. Rule of Law, meant, essentially, judicial supremacy. It meant a limitation upon all legislation. Moreover, Blackstone, who is attributed the doctrine of "Parliamentary Sovereignty" that ruled in Europe until the mid-twentieth century, considered the "independency and uprightness of the Judges . . . as one of the best securities of the rights and liberties." Even in this context, in which Blackstone is conferring a great degree of power to the King, the uprightness means supremacy, and it refers to the interpretation of the law. It implies certain supremacy when the Judge is interpreting the law, which would be binding to all public officials of the land. Edward Corwin addresses one conception of judicial power whereby the Court's opinions of the Constitution are the "very body and blood of the Constitution" and that this "dogmatic assumption of the identity of the law with the judicial version of it is not, however, coeval with the (American) Constitution, but long antedates it. It is fundamental to the common law." "The concept of rule of law . . . expresses, then, essentialy, the autonomy of common law and its courts."
But, even when the rule of law in England was developed by those principles, by mid XVII century, Parliamentary Sovereignty was adopted. The oldest representative of this doctrine can be found in Sir Thomas Smith, stating that "[t]he most high and absolute power of the realme of Englande, consisteth in the Parliament."
But Parliamentary Sovereignty did not gain full force, as it was substantially opposed to the tradition of the rule of law developed by common law, and the "dictum" by Sir Edward Coke, until the writings by Sir William Blackstone in his Commentaries on the Laws of England. It is attributed to him the phrase Parliamentary Sovereignty, for unifying in one body the "sovereign" and the "Parliament". "However they began [the federal forms of government], there is and must be in all of them a supreme, irresistible, absolute, uncontrolled authority, in which . . . the rights of sovereignty reside," "because the legislature, being the sovereign power, is always of equal, always of absolute authority". And recognizing that the "acts of parliament that are impossible to be performed are of no validity," nevertheless, "if the parliament will positively enact a thing to be done which is unreasonable, I know of no power in the ordinary forms of the constitution, that is vested with authority to control it," therefore "there is no court that ha[s] the power to defeat the intent of the legislature."
Blackstone continues, citing Coke, "of the power and Jurisdiction of Parliament for the making of laws in proceeding by bill, it is so transcendent and absolute, as it cannot be confined either for causes or persons within any bounds." "[I]t can, in short, do anything that is not naturally impossible . . . True it is, that what the parliament doth no authority upon earth can undo." This was the basis of the doctrine of Parliamentary Sovereignty, and it would be adopted by France on its Revolution. And this is was the doctrine that the Framers went away from in the Constitution.
It is well known, and it will be assumed without examination, that the Framers had an important degree of distrust towards state legislatures when they debated the issue on the Federal Convention. It was a distrust against the states, but also, and specially, towards its legislative power. Delegate Elbridge Gerry from Massachusetts, stated, on the issue whether members of the first branch of the National Legislators ought to be elected by the people, that, "[t]he evils we experience flow from the excess of democracy." Moreover, when James Madison inquired on the Vices on the Political System of the Confederation, he considered, as one of the vices, the injustice of the Laws of the States, and one of the questions that he asks, in what appears to be frustration, was "what restrains [majorities] from the unjust violations of the rights and interests of the minority or of determined individuals?"
Moreover, the "child of independence" was born out or resentment towards the British Parliament, and the call for an invalidation of one of their Acts in The Writs of Assistance Case: "An Act of Parliament . . . against the Constitution is void . . . against natural Equity if void." And Adams would revisit this in his arguments against the Stamp Act. The formation and drafting of the Constitution followed this doctrine.
The Constitution is not a law, but a lex superior, and itself is a standard which determines validity of other laws. It could be said, then, that the Constitution, as the Framers wrote it, is the settling of the issue of the standard which determines whether a law is an unjust law, which sparked a debate among Sophist, Socrates, and continued with Aristotle. The problem at that time, as was explained above, is that tradition and custom as a standard was seen as too volatile, for it was (is) mutable and constantly changing, thus, the concept of Justice would be viewed as "the rule of the strongest", for it was the elites who established tradition. A response to that was the "Natural Justice" of Aristotle, which was eternal, and not subject to the whims of any group. Thus, a document, considered a lex inmutabile, would settle the issue of the volatility of tradition as a standard, and the vulnerability of the concept to the whims of particular groups and temporary majorities.
Judicial Review is the mere instrument, the recourse of this standard. It certainly was not all innovative, for it can be seen in the Boham's Case an approximation to it, as Judge Coke stated, "[C]ommon law will control acts of acts of Parliament and sometimes adjudge them to be utterly void" and "even an act of Parliament made against natural Equity is void in itself, for iura naturae sunt immutabilia." But it marked a separation of two doctrines, the Parliamentary Sovereignity –or popular sovereignty--the reigning one; and Judicial Review, the innovative and bold one.
Thus, not only was the American Revolution and Constitution a product of distrust of legislative power, whether it was England's or the States', but there was also an important degree of fidelity and deference to the courts and judicial power. There was certainly no mention, nor it can be determined, that there was any intent for supremacy or finality. But it can be suggested that many of the legal innovations developed after the Revolution, from the state's jurisprudence to the Federalist Papers, where in part recourses against legislative power.
"[T]he courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the law is the proper and peculiar province of the courts," a province which, in the doctrine of Parliamentary Sovereignty, is completely dismissed, for this doctrine considers the judges only as "instrument that pronounces the word of the law, inanimate beings that cannot moderate either the strength nor the rigor of laws."
It may appear odd that, while the case for the intent of the Framers for Judicial Supremacy and judicial review is being made in a historical sense, not one article of the Constitution is being cited. Indeed, these doctrines were not granted to the Judicial Power expressively, but they appeared as a matter of inference, and as Hamilton stated, "this doctrine is not deducible from any circumstance peculiar to the plan of convention, but from the general theory of a limited Constitution."
The American Revolution, then, as Lord Acton describes it, was a "contest between two ideas of legislative power." That described by Judge Coke in the Bonham's Case and the more ancient period of the development of the rule of law, and that described by Blackstone in his Commentaries. In the end, the former prevailed, and "the notion of the sovereignty of the ordinary legislative organ disappeared automatically, since that cannot be a sovereign law-making power which is subordinate to another law-making body."

II
The curious case of Continental Europe
[T]he courts of law… are not only to decide upon the constitution and the laws made in pursuance of it, but by officers subordinate to them to execute all their decisions. The real effect of this system of government, will therefore be brought home to the feelings of the people, through the medium of the judicial power.
Robert Yates

This was written by Robert Yates in his "Brutus Letters" (No. XI.), and he was mainly explaining how too much power to the judicial branch would end in the Supreme Court interpreting the constitution in a way that enlarged the central government and, in the long run, destroyed the states. One of the objectives of this paper, is to explain how, even with "too much power", the Judicial Power imposes much less risks on the rights of the citizens than "too much power" in the other two branches. Ironically, European's legislators had a similar concern, and the little to no power that Courts had in societies like France, arguably, yielded the result that Robert Yates feared would happen with too much power to judicial power, but in this case, with the legislative: to strengthen the power of central authorities.
The doctrines discussed in this essay, when adopted, were totally rejected in Europe, despite the great deal of influence that the American Revolution had in those lands, particularly in France. Its critics came mainly from Germany and France. A closer examinations of the cases of Germany, France and their relationships with and reactions to judicial review and judicial supremacy and a brief mention the Constitutional Tribunal's role in Spain a few years after it was adopted will give us light in the subject.
The reasons France and Germany have been chosen for examination, is because, though each one embraced "Parliamentary Sovereignty" and rejected Judicial Supremacy for a little more than a century, the former had a Legislative Supremacy regime—at least during the Republics—and the latter had Excecutive Supremacy regime.
France and the Legislative Power's Terror

In general, Europe came from a tradition of the "monarchical principle" as the sole source of constitutional law. The monarchical power would only delegate different powers to different authorities. In France, the Monarchs delegated the administration of justice to the Parlements. But the long history of struggles between Monarchs and Parlaments had the consequence of a capricious and jealous sensibility and attachment to the doctrine of "Parliamentary Sovereignty". This doctrine implied an "absolute superiority of the Laws and their correlative judicial immunity."
The critic from France concerned "Revolutionary Justice" expressed by the "general will" of the people, which was itself expressed by the National Assembly. Jacobinism, the revolutionary doctrine, believed in an absolute representative principle of the general will, and it gave birth to Parliamentary Sovereignty in France, which influenced all Continental Europe. The French Revolution had a particular view of the concept of "Law" that differed on no small degree to the American Revolution.
As we said above, the American Constitution served as a standard to evaluate the constitutional justice of the enacted laws. Every law would be evaluated with this standard in mind by a judge or Justice, which is why it was (is) lex superior. The ambiguous Natural Justice of Aristotle was modified, and Constitutional Justice, intended to be eternal and not subject to particular reasoning (or whim) of men, was put in place.
In France, the doctrine of regne de la Loi, although its literal translation is Rule of Law, took a much different view. In this doctrine, the enacted law had no limit, no examiner, no barrier or standard to measure its degree of justice. The Law served to bind every public officer in its official activities. Everything was to be done in the name of the Law, as Article 7 of the Declaration of Rights of Man and of the Citizen. Further, Article 5 stated "No hindrance should be put in the way of anything not prohibited by the law, nor may anyone be forced to do what the law does not require." But these were the implications of the Law, and they had great influence on the development on European Public Law. What is to be remarked of the French's regne de la Loi is this: Law was "infallible, incapable of error" Diderot, the famous encyclopedian, would write "the particular will is suspicious; it can be good or bad; but the general will is always good; it has never deceived, nor will it ever deceive."As Eduardo Garcia de Enterria, Spaniard scholar, puts it, "[this] means… [To] dismiss…the possibility of an oppressive Law. Every law will be…laws of freedom."
The American Constitution was that standard set for the judgment of laws. The constitutionality of a law would be the degree of justice that the law would have, measured by the lex superior; which is, something different and superior than the law in question and the institution that enacted it, and that binds them to its authority.
But in France, the laws themselves were the standard. If it was a law enacted by the National Assembly, which represents the "general will", it meant that it was just and could not be wrong, and therefore, must be passed. No authority, other than "the people" had the power to even examine a law, that is why, to settle political conflicts through juridical determinations, France opted, through more than a century, for constitutional change instead of judicial review. The French believed that their particular vision of the Law was a substitute of the quod principi placuit, legis habet vigorem (what pleases the prince has the force of law), the notorious principle established by the Roman jurist, Ulpian. But the result was a "what pleases the National Assembly has the force of law." Regne de la loi meant the unlimited government by the legislature.
The American Constitution, had established a system of checks and balances. In France, instead one of the implications of the regne de la loi was a radical and absolute separation of powers, in which the legislative power was left with the "absolute will", for it represented the "Revolutionary Justice", and as the general will was always good, no other power could limit it. "The system of checks and balances in government is a fatal idea."Every authority was, indeed, protected against any interference from the courts: "especially was erected a wall barring the judiciary from interference with any legislative or administrative action."
It was, after all, a legislative supremacy, as a "result of considering the law as an expression of the general will, and…the prohibition to the judges of interfering in any way on the exercise of the legislatives and administrative duties." Moreover, there was no possible "check" on the representative institutions, "to control this authority there was public reason without any powers; to halt it, revolutions not laws were needed. Legally this was a subordinate agent; in actual fact it was a despot". But a despot, because, even legally, no other authority could put a check to its power, for the "general will" was indeed absolute. It was, after all, a "democratic despotism."
In an examination of the French Constitution of 1793, it is easy to see the radical binds put on the judicial power. It will permit us to reach the, still premature conclusion that, unlike with judicial supremacy, the three-branch dialogue is not possible on legislative supremacy and much less, as Absolutism and Totalitarianism showed us, executive supremacy.
It has to be remarked at the outset an article included in the first draft for the Constitution in 1789: "It will not be permitted to any judge, in any manner whatsoever, to interpret the Law". This was not included in the Constitution in 1971, but a similar article was included in the Law of 16-24, cited below.
Article 3, Chapter V, Title III of the 1791 Constitution, stated that Courts "cannot interfere with the exercise of the Legislature, nor suspend the execution of the laws, nor act in relation to administrative officials, nor summon them to court on account of their duties." It can be seen the radical conception of separation of powers adopted by the French, which did not include a complete system of checks and balances. Courts had no voice among the other two branches, therefore, the settling of certain issues had to be done strictly by one power, normally the legislative, or, as it happened in France for a little more than a century, by violent Revolutions.
Moreover, the Judicial Organization Act of 1790, also called "Law of 16-24", in its Article 12 Title II, established that courts "may not make regulations and shall address the legislative body whenever they believe it necessary to either interpreting a law, or making a new one". This was known as the refere legislative, which consisted in the obligation of the judges to approach and consult the National Assembly every time were it had to recourse to the interpretation of a given law.
Article 10, Title II of the Judicial Organization Act, also establishes that "Courts cannot take, directly or indirectly, part in the exercise of legislative power, nor suspend or impede the execution of decrees of the Legislative Body…under penalty of encroachment."
The Judicial Power was much less than a clause, it was the "puppet" of the National Assembly. The latter, indeed, was the "supreme body of Revolutionary Justice." The French legal system was conceived in a visible distrust of the Judicial Power, and a reverence to the National Assembly. Judicial interpretation was totally prohibited in favor of the "perfect" laws enacted by the "general (or national) will", expressed in the National Assembly.
"The national will…never needs anything but its own existence to be legal. It is the source of all legality." "There is no law outside of it that any Court can hope to impose." Instead of setting a fixed standard for determining the degree of (constitutional) justice within enacted laws, the French Revolution considered the laws as a standard in themselves to determine them just, or rather, the fact that it came from the "general will" was the test of legality: "Fundamental laws are legitimate in virtue of their being bona fide expressions of the general will.". The law was sufficient in itself for the settling of legal issues, it was considered to foresee every possible issue, and judges, according to Montesquieu, were merely the "instrument that pronounces the word of the law, inanimate beings that cannot moderate either the strength nor the rigor of laws."
Robespierre, famous for its regime of Terror in 1792, gives us the justification of the absolute power of legislative government: "We must organize the despotism of liberty to crush the despotism of kings. The revolutionary government [the National Assembly] has relied on the most holy of all laws, the salvation of the people, the most irrefutable of all titles, the necessity."
It has to be said, only the National Assembly was the expression, not only of the will of the people, but the absolute expression of liberty and the new regime. The monarch and judges, through the Parlements, were institutions of the Ancien Regime, they were the representatives of the status-quo, the obstruction for the revolution. Hence the natural distrust towards them. Courts were seen as an "instrument for conservation, not transformation", which only the Chambers of the national assembly could achieve. In the end, this reverence to revolution and transformation proved tragic.
By 1792, the King, Louis XVI, after frustrated attempts to veto several legislations, was put in jail, and condemned to death, and the Constitution was enacted in 1793 (Constitution of Year I). Thereafter, the famous "Terror" took over in France, marking one of the darkest hours in the history of that country. In 1795, the Constitution of Year III was enacted, and in that same year, the Directory was established. Napoleon Bonaparte overthrew the Directory in a Coup in 1799, and in 1804 was declared Emperor of the French. After his abdication, the Monarchy was reinstalled in 1815.
Thus, French governmental history looks like this: from 1792 to 1804, a Republic; from 1804 to 1815, an Empire; from 1815 to 1848, a Monarchy; from 1848 to 1852, a II Republic; from 1852 to 1870, a II Empire; from 1840 to 1940, a III Republic; from 1940 to 1958, a IV Republic; and from 1958 to the present times, a V Republic.
It would be arrogant to claim that this long history of political instability was caused solely by an absent Judicial Supremacy, as well as judicial review. World War II, European Wars, as well as other reasons, took part in this political instability. But the only constant element, present since the French Revolution, was the extreme Supremacy of legislative and executive powers, and the minimal importance of Courts and the Judicial Power. And that is the purpose of this section, to provide an examination of French legal and intellectual documents, observe their attitudes towards the authority and legitimacy of the judiciary, and then assert that that distrust, and the little amount of authority that the Courts had, was an essential factor for centuries of instability.
The French Constitution of 1958 created a Constitutional Counsel with certain particularities that separate it from American Supreme Court. This Counsel is alien to Judicial Power per se, but it has jurisdiction for judging the constitutionality of the National Assembly's sanctioned laws.
Again, it would be arrogant to claim that this political stability that France has enjoyed for a little more than half a century is the product of Judicial Review, for economic stability, European Union, and other reasons have played their part. But, as we have seen, the role that Judicial Power plays in political stability and establishment of long-enduring democracies must not be overlooked.
Germany. Totalitarianism under a Constitution
The German critique, stated that Judicial Supremacy and its instrument (judicial review) implied a "judicial veto" or a "judicial power of censorship" over laws enacted by the Legislature. This meant that the Supreme Court was not even a judicial instance, but a legislative instance, more specifically, a "higher chamber" with superior power than the Senate and Representative Houses, even if its decision took a judicial procedure. This would turn the Supreme Court into a political institution, and its decisions into political decisions, under the disguise of judicial decisions. It was "legislation under a judicial form."
The leader of this critique was the brilliant philosopher of the law Carl Schmitt, in his works "Das Reichsgericht als Hüter der Verfassung" (The Supreme Court as Guardian of the Constitution, 1929) and Constitutional Theory. "An uninhibited expansion of Justice does not transform the state (in a government sense) into jurisdiction, but the courts into political bodies. It does not lead to a juridification of politics, but to the politicization of justice." Traditionally, Schmitt states, a judicial decision (and the jurisdictional activity), consists on applying a general decision to a particular case, but that decision has already been adopted by the legislator (as was explained on "to say what the law is" and its Aristotelian application as a restraint and bind on the judicial activity), "the judicial decision implies a general decision already adopted by the legislator." "The Law in conflict [the Constitution] cannot be the basis of the decision on its own content." "The dispute over the content of a normative-constitutional decision on the merits of itself is not subject to judicial decision, but the political decision of the legislator" and "the decision that resolves doubts about the contents of a constitutional provision cannot be inferred from the doubtful content itself. Therefore, this decision is not in its essence a judicial decision." Moreover, "the type of law court that decides all disputes of constitutional interpretation would, in fact, be a high political institution." That is why he considers the Supreme Court as a higher legislative House, and a political institution disguised under juridical forms.
Schmitt has an interesting line regarding judicial and legislative supremacy: "It is necessary to protect the Constitution against abuses of the legislative branch. But in no way with an instance of interpretation endowed with the force of law. Against the abuse of legislative form, the abuse of the judicial form would be organized." Schmitt was not alone in the distrust of judges in general. This was a marked tendency in Europe, since the French Revolution and before. Judges were part of the Ancien Regime and were known as conservative, pro-status-quo people.
In the end, German legal system rejected Judicial Review (and Supremacy), and adopted a different one, where the "guardian" of the Constitution, and the legal system, is not the Supreme Court, but the executive power itself, through the President. This was the design of the Weimar Constitution of 1919. It was (is) seen by several scholars as the coming of the classical liberal doctrine in Germany.
The Weimar Constitution was co-written by Max Weber, Hugo Preuss and Friedrich Ebert. It was drafted to achieve a social change and build a parliamentary democracy. Article 1 stated that "[t]he German Reich is a republic. State authority derives from the people." The framers of this Constitution believed in classical liberalism and thought it was the only way to make the people part of the public debate in Germany. But there is one peculiarity that this Constitution had: a presidential Constitutional dictatorship.
The Constitution gave the president power for the dissolution of the Reichstag and for the formation of a government, article 25 stated: "[t]he Reich President can dissolve the Reichstag, but only once for the same reason. The new election takes place on the seventeenth day after the dissolution."
Moreover, not only broad powers were given to the President, as we will examine, but traditional competences that belong to the courts where generally delegated to other powers, making the courts, in practice, a branch with too many binds, and too few competences. Section 12, II of the German Law of Judicial Organization established "special administration courts", which "consitut[ed] a rejection of ordinary court review of state administration." And Section 17 provided that state legislation could delegate to "special officials" the "task of resolving disputes between courts and administrative officials"
Now, going back again to the Weimar Constitution, its most important feature was the famous article 48. Written In the words of article 48 of the Weimar Constitution itself:
(Section 1) If a Land (state) does not fulfill its duties according to the Reich Constitution or the Reich statutes, the President can compel it to do with the aid of armed force.
(Section 2) If in the German Reich the public security and order are significantly disturbed or endangered, the President can utilize the necessary measures to restore public security and order, if necessary with the aid of the armed force.

The "defender of the constitution" in last resort, was the President, who, through this article, could concentrate all the powers. This is what scholars have called the "Constitutional Dictatorship" and it was used in several of the parliamentary crisis.
These powers were used by President Friedrich Ebert against Thuringia and Gotha in 1920; against Saxony in 1923; and delegated executive authority in the Reich to the military under General von Seeckt. They were also used under section 2 of article 48 to put down political unrest and coup attempts in 1920 and 1923. But not only they were used to address political instability in certain times, but presidential orders were also enacted for the resolution of financial and economic problems, and a succession of taxation decrees was issued on 1923-1924.
These actions started a debate on article 48 and its issue: Constitutional Dictatorship. Article 48 implied too much power on one branch and no other power could put a check on it. Judicial Power had no reach in any of the presidential authorities. The debate consisted largely on, precisely, the question of judicial review of the president's use of Article 48, but as it continued, it started to focus more on the legislative definition of the executive authority and a legislative check on it.
The Weimar Constitution had no equivalent to Article III Section 2 of the U.S Constitution "Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution." Weimar Constitution only stated, in its Section 7, Article 103: "Ordinary adjudication is exercised by the Reichsgericht and by the Land Courts," and in Article 107: "there must be administrative courts that operates according to the standards of the law for the protection of the individual against the order of legal instruments of administrative officials." But absent a proper judicial review, therefore, some degree of authoritative interpretation, and the fact that the President was the defender of the Constitution in last resort, this article was, in practice, void.
In the debate over Article 48, Schmitt took the "dictatorial approach." His interpretation of article 48 provided a "commissarial dictatorship", and the president was "empowered to act for 'the security and defense of the constitution as a whole,' which was 'unimpeachable'" as it had been on the times where it was used.
By 1929, Schmitt view, the view of the president as the sole guardian of the constitution was adopted by several legal scholars and politicians, among them, Adolf Hitler. This Constitutional Dictatorship was used smartly by Hitler to assume total power as a Chancellor, after the death of President Hindenburg, under article 48. The III Reich, in fact, governed under the Weimar Constitution. Failure to trust, or empower, a Supreme Court with the defense of the Constitution has a correlation in the death of the Weimar Republic, and the birth of the III Reichstag.
Indeed, the fact that there was no Judicial Supremacy was not alone in the failure of the Weimar Republic. Along with an economic crisis, there were three sectors which opposed to parliamentary democracy and pressured constantly for it to fail: authoritarian critics, who vowed for a monarchical system; nationalist, which later became National socialists, who preached for a dictatorial government; and the far-left, who favored the Russian model and Marx's dictatorship of the proletariat.
On a political environment as unstable and tense as this, is was unlikely that Judicial Supremacy would have been the "savior", for these sectors and the other branches would not have put the deference and fidelity necessary for Judicial Supremacy to flourish. Then again, Judicial Supremacy, and any significant scope of authority, within its definition, necessarily implies that deference and fidelity.
But this was achieved, originally, through the Austrian scholar Hans Kelsen in the Austrian Constitution of 1920. This system was adopted by Germany through its "Basic Law" of 1949, and Italy, in its Constitution of the Italian Republic, of 1947. This new system cannot be deemed as a Judicial Supremacy system, though it adopted judicial review but only through a specialized Court, no ordinary Courts could use judicial review against an enacted law. We are not going to extend in this topic, but the greatest different with the American system is that, in the "Austrian" system, the Supreme Court (Constitutional Tribunal or Court), is not a Court per se, but a body with one function only: to control the compatibility between two laws; the Constitution, and a law. It is called the "negative legislator". The legislative power, then, is divided in two: positive legislator, and negative legislator. The former has the power to enact laws, the latter strikes them down whenever there is incompatibility with the enacted law and the Constitution. But the negative legislator is, indeed, the superior body as to the interpretation of the Constitution, and its decision are binding upon all public officials on the land, therefore, a basic degree of interpretative authority is rendered to the Court, but only these specialized Court. Ironically, the Schmitt critique of the Court as a higher chamber is precisely what was adopted by his country, and most of Europe.
The significance of the Supreme Court/Constitutional Tribunal in the European circumstances
On this point forward, Europe achieved political stability and long-standing constitutions over time. Italy and Germany remain under the same Constitutional regime since 1947 and 1949 respectively, and Spain since 1978, after Francisco Franco's dictatorship. In the European context, in the continent of wars, this is a great achievement. An achievement, as it will be seen, that could have only been made through the Supreme Court/Constitutional Tribunal as presiding the political process. No stronger party or branch of a particular moment would claim the authority for an unlimited power again.
The argument could be made that, instead of asserting that Judicial Power plays an essential role in political stability, it is the latter that must be achieved first in order for the former to achieve the important role of Judicial Power. But it is the check that Judicial Power puts on representative authorities the factor needed to achieve political stability. If we have to choose between the supremacy of the Executive, Legislative, or Judiciary, we have to look at this criterion to determine it: only the first two can have absolute power over a whole nation, would they have any kind a supremacy. But, where Judicial Power has the supremacy (which we will try to define later), it will never be absolute, for its decisions and its power depend on the fidelity and deference that the other powers confer to it, for Judicial Power has "neither force nor will," and that "the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it has the least capacity to annoy or injure them."This is especially true in the scenarios explained above.
Rudolf Smend, a German jurist and scholar, did a review, in 1962, on the first decade Judicial Supremacy and its role on German society. According to him, the Constitutional Tribunal had played a role of Gründung und Festigung, of establishing and consolidating, the Constitution. This achievement, the "necessary, definitive, profound foundation, never came to realize" in the Weimar Constitution, precisely because the Constitution was subject in its fate to the will of the strongest branch of the time: the executive. Instead, "the practice of constitutional justice (judicial review) has produced a historically positive result, strengthening stone by stone the profound foundations of the Basic Law (Constitution). We will examine more thoroughly the role the Supreme Court has in society later.
Eduardo Garcia de Enterria, on his book La Constitution como Norma y el Tribunal Constitucional, written four years after the establishment of Spain Constitution of 1978, stated that "[t]he Constitutional Tribunal can, with its decisions, contribute in a decisive way so that [the] initial consensus can be updated permanently, preserving the constitutional text of partisan interpretations and instrumentalization that different Governments and political forces can attempt, assuring its role as an objective rule to preside the struggle and the articulation of such forces as supreme status of our society." In a way, this follows the intent of the Framers of that "intermediate body between the people and the legislature." Also following what Smend stated about the role of the Supreme Court in the establishment of the Constitution, Enterria later states "In a fundamental way, the fate of our Constitution and the possibility of the definitive establishment of democracy and the liberty of our land will be in its hands." And after a thourough study of the Supreme Court's role in Spain, Germany, France (Conseil d'État) and America, Eduardo Garcia Enterria concludes:
Constitutional Tribunals have demonstrated a notable capacity to extend the social integration and consensus; it has rendered them a sixth sense for their jurisprudential novations to be presented as just, as inferred from basic fundamental values and, therefore, as apt to be accepted . . . to be themselves subject of a basic consensus.
It would be a very innovative form of an ad hominem argument to rest the validity of this statements on the status of who the speaker was and the circumstances where the statements where said. But it has some degree of importance that both Smend's "review" and Enterria's assertions were said in two countries coming of two of the "trademarks" of Totalitarian Regimes of the XX century.
It can be said, then, that what better way to settle the issue that dismissing any kind of supremacy. But Judicial Supremacy is nothing more than the materialization and execution of Constitutional Supremacy, it is a logical consequence of the, logical as well, connection between Constitution-Court. It is essential for any effective check on legislative and executive power. But that check needs voluntary deference and fidelity on the word of the Court. And, it will be said, who checks the Judicial Power? That issue will be addressed later.
III
Issues with the historical approach.
It has to be made clear at the outset that, the purpose of the historical approach in this paper is that of presenting the alternatives to judicial supremacy, how they have worked in foreign jurisdictions, and the role of judicial supremacy once adopted. A previous study on the subject of Judicial Supremacy, of Larry Alexander and Frederick Schauer, states that their "analysis is neither empirical nor historical" and that the desirability of any approach regarding the authoritative interpreter of the Constitution "can only be answered by inquiring into the nature of law and into the function that it serves." But the fact that a law serves as an authoritative settlement does not prove, by itself, that a given institution should also have one. In our case, we tried to take a different approach, though a theoretical one is included, where an examination of the alternatives to judicial supremacy are put forth, and the results of those alternatives are attributed to the absence of judicial supremacy. An approach examining only the "nature of the law and the function that it serves" is insufficient to explain the—desirable or undesirable—role of a Supreme Court in society. Both have a settlement function, but the role each play in society has to be examined in a historical way, that is, what role has X institution played in Y society, and what are the consequences of that role. A law that states that all people should drive on the left side of the road has, arguably, the same role in virtually every society it is imposed in—unless a given society had a previous law that imposed to drive on the right side—but any given institution has had different roles in different societies. We saw earlier that the role of the legislative and judiciary differed according to the doctrines that prevailed in a certain country, we also saw that two similar doctrines—rule of law and regne de la loi—had opposite roles in each society where it was implemented. Therefore, historical facts help us examine which roles have different institutions played, and may allow us to merely approach a conclusion of which role is more desirable.
Granted, the historical facts that have been selected for the examination and description each country's issues have been selective. In a much broader examination, other elements come into play to explain the cause of the long-standing political instability in each country. Some scholars may be misled by this examination and state that this is an attempt to a universal law in history such as: political instability and the permanence of a Constitution will always depend on the degree of power conferred to Judicial Power. And to falsify this law it would be enough to look for a country where the Judicial Power has had an important role in the arbitrary annihilation of a constitution or other measures that have resulted in political instability (Venezuela). We are not attempting to go that far, but the "selective" character of the chosen historical facts merely fulfill the role of illustrating a point of view, "for in history, the facts…have been collected in accordance with a preconceived point of view."
The "point of view" in our case, is the essential role played by Judicial Power in political stability and permanence of a Constitution, in the stability of the legal system, but also in its adaptability. As was shown before, without judicial power over legislation, countries like France opted for constant—and several times, violent—constitutional change. Without judicial power over presidential discretion, countries like Germany opted for Constitutional Dictatorships. Both of these had a distrust towards Judicial Power for the role it played in—and against—social change. But, ironically, more desirable social changes have been achieved through the Constitutional Tribunals in Europe, and more importantly, these changes have been made peacefully, which is a very exotic creature in Europe. In order to fully prove this point it would be necessary to inquire more thoroughly in the role played by Constitutional Courts, when adopted, in the countries that have been examined, but that fact could be inquired in some other time.
We will now move on to the theoretical approach, and take a different "optic" to examine the "healthiness" of judicial supremacy and, for the first time in this paper, we will attempt to define it.
Judicial Review, Judicial Supremacy: A Theoretical Approach.
I
A "definitional" problem
It was not addressed either by the jurist who participated in the establishment of judicial review in Europe nor the Framers themselves, to what extent there is, if at all, judicial supremacy in each country. Judicial review could be seen as the "floor" in this issue, that is, the fact that there is judicial review implies a specific degree of judicial authoritative power, and an examination of the issue could be examined from that point. The question is, then, what is that degree? The whole purpose of that section (and this paper) is to demonstrate that some judicial supremacy has a purpose for political stability and establishment and consolidation of a constitution. The preferable degree of this supremacy, and whether the American Legal system has it, is to be analyzed in this section.
We have established, then, that some authoritative power by the judiciary was intended by the Framers, it has its roots in the earliest concept of the rule of law (before Parliamentary Supremacy), and that several European countries have adopted it, to some extent and lesser degree, to achieve permanent constitution and long-lasting political stability. What has not been determined, and it was not determined by neither the Framers nor the jurist that inspired them, is the scope and degree of this supremacy.
It has been stated, in previous studies, that "no specific language in the Constitution gives the Supreme Court the power to declare a certain governmental conduct unconstitutional, let alone the exclusive authority." But the document that served as a justification of the Constitution, the Federalist Papers, stated that (1) "[t]he interpretation of the law is the proper and peculiar province of the courts," and that the Court has a "superior obligation" towards the Constitution, creating a logical connection between Constitutional Supremacy-Supreme Court Supremacy; (2) that "[Courts of justice's] duty it must be to declare all acts contrary to the manifest tenor of the Constitution void;" and (3) that legislative power cannot be the "constitutional judges of their own powers." It has also been established that the idea, when the Framers developed the innovative form that Judicial Power would have, as opposed to the rest of the world, was to "curb" legislative power. The question is, what is the degree of its curbing? The specific scope and degree of judicial supremacy was never argued in the Federal Convention Debates, Ratification Debates, or Federalist Papers.
"[T]he courts were designed to be an intermediate body between the people and the legislature," but for the changes the "people" want over time, it almost exclusively looks at the legislative power for their achievement—although public opinion has influenced the Court in leading that change—and the "curb" to the legislatures should not be as rigid as to "prevent[] them from introducing desirable reforms and answering popular desires", for "the checks should never be used in a conservative spirit; avenues should be open for improvement, growth, response to popular feeling" What are these avenues? Moreover, does Judicial Supremacy leave any available avenues at all? The answer depends on the definition of judicial supremacy itself. And the question put forth, for now, will follow the inquiry of "what officials legitimally have the authority to do, rather than just about what they have the power to do."
The conflict here is between to theories of judicial review. These are modern theories, and are a result of judging the practice of the Supreme Court through time and trying to determine what is desirable for society, rather than a particular provision of the Constitution or a Federalist Paper. These theories are more specific than the Framers had imagined.
The first theory states, that when the Court declares the unconstitutionality of an Act of Congress, it "merely settles the law of the case in connection with the decision of which the pronouncement was made" This is the argument represented by Abraham Lincoln and his reaction to Dredd Scott, it is sometimes called departamental doctrine. This is a claim of "independent interpretive authority" by each of the three branches. Alexander & Schauer have also called this theory as "non-deference". Thus, a legal issue is settled only as a result of a "continued harmony of views among the three departments" This theory has several empirical facts used for its confirming.
One of those empirical approaches concerns the early days of the Supreme Court, where "[f]rom 1889 to 1803, several Justices wondered whether the power of judicial review would reach to congressional and presidential actions. They could not decide whether the power existed, whether it was vested in the Court, or under what conditions might it be invoked." The peculiarity of this, is that this particular case should be taken in context. The Supreme Court, and the role of judicial power, was a very innovative creation in western civilization at that time. For these kinds of creations, it is reasonable to think that they are supposed to evolve and develop in their definitions and particularities with a reiterated practice, for the scope of the Court's power is, in fact, a practice and a tradition. The Court, as it has been said by historians, was merely a clause at that time, and this clause was to by molded over practice and time, as happened with the common law. Therefore, this particular example should not be, by itself, satisfactory, for it examines a time where the role of the Court in society was uncertain, and, for its innovative character, it is logical to have been that way.
The other theory, the juristic doctrine asserts that a declaration of unconstitutionality by the Court also "fixes the meaning of the Constitution against the President and Congress, unless the Court reverses it on the ground of 'error' or the Constitution is amended on the point involved." Thus, the obligation for all officials to obey the constitution is "an obligation to obey the Constitution as interpreted by the Supreme Court." The "constitution has normative force even for an agent who believes its directives to be mistake," and even unconstitutional laws are binding. This theory is represented, to some extent, by Alexander Hamilton, but to a greater degree, by Cooper v. Aaron.
The development of both of these theories suggest a definitional problem with judicial supremacy. Alexander & Schauer, in their argument for judicial supremacy, take an ahistorical approach and, in a logical way attempt to justify it with the moral purpose of the law: to settle issues in an authoritative way. The law has authority and must be obeyed even (and especially) if one has a moral disagreement with it, thus, so ought people to obey the Constitution, therefore, so should the people and institutions obey the Court's interpretation of the Constitution. Where this argument is not completely satisfactory is in two factors. First, already addressed, the role that the law in itself and a Supreme Court, as institutions, play in society has to be examined in a historical way, for they do not have the same influence in each. Alexander and Schauer themselves recognize the fact that the validity of both is something determined by social factors and the people, and these change in each society. Second, it is also not satisfactory for the fact that the Court's decision do not always settle the issues, sometimes they merely provide the guidelines to settle the issues in the political process. Devins & Fisher, following this understanding of judicial supremacy, identify it with judicial exclusivity and assert that this would marginalize the Constitution because other branches would forego their constitutional interpretation in favor of policy choices . To be sure, if supremacy was identical to exclusivity, this would certainly be true. But one does not imply (or lead to) the other.
Judicial Supremacy can be seen as compatible with the three-branch dialogue if, and only if, we substitute dialogue with seminar. The Court would be the educators in that seminar, setting the guidelines for the dialogue, but with an essential, guideline-setting, but not exclusive, role in it. It is what has been called a vital national seminar, by Richard Funston.Therefore, Constitutional issues are settled, either by decisions of the Court, or by "guidelines" set by the Court. For an empirical illustration, we will examine several cases. Now, the settling of these issues are not necessarily resolved by a Court's decision only. Rather, by "momentarily resolv[ing] the dispute[s] immediately before the Court" it is putting those guidelines into the political process in order for the other branches to come into play in settling these issues and values, guidelines that come as "reasoned opinions that justify its claim to be the resident philosopher of the American constitutional system." That is, in essence why it is not a dialogue but a seminar. And as a seminar, it is reasonable to think that an issue could not be resolved by a single decision. Moreover, it is logical that there must be avenues open for improvement, growth, response to popular feeling subsequent with a Court's decision, "some outlet [has] to be found for expressing discontent with the consequences of disfavored Court rulings." (exclusivity pag. 100)
If "judicial supremacy is the tendency of any arrangement that allows . . . vital and divisive questions to be settled by the courts," then the scope or degree of supremacy depends on whether an issue is fully settled by a decision. It may be said that it cannot be found that supremacy has a range of degrees: either there is supremacy or there is not. But the fact that there is any kind of judicial review implies certain authority of the Courts to judge other powers' actions. Therefore, it follows that when the scope of that review is broader, the degree of that supremacy is higher. There is certainly and a different kind of supremacy, if at all, when the role of the Court is a seminar than where it is exclusive. Moreover, settled is a tricky word, because there is always an alternative channel of overriding or going around a Court's decision. Because there is always the (theoretical) possibility of amending to overrule the decision, or even civil disobedience, then it could be said that nothing is ever fully settled, for a discussion could be made ad nauseam. Therefore, for purposes of argument, we will assume that an issue is settled, though it might be "neither final nor conclusive," when the Court has made a decision and it has been either overruled by a legislative act, or a legislative act has been enacted subsequently under its guidelines, but then a Court's decision overrules or affirms then that legislation, that is, when there. We will not get into a thorough examination of empirical arguments ad facts, but it is useful to examine an empirical sample for the Court guideline-setting in the three-branch seminar: the flag desecration and state regulation of liquor.
In Texas v. Johnson, the statutory provision at issue defined desecration as "deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action" (Emphasis added). Finding the provision content-based, the Court applied strict scrutiny and held that the conviction on these grounds violated the First Amendment. This decision raised public criticism, and the Congress was divided in officials who wanted to overrule it through an amendment and those who preferred new legislation. The latter view prevailed and Congress enacted the Flag Protection Act of 1989. This statue was similar to the one at Texas, but was wider and did not mention whether the actor knew that it will offend. Thus, it followed the Court's guidelines put forth in Johnson. Nevertheless, the Court again found it content-based and struck it down. It can be seen, that Congress followed the Court's guideline: the offensive consequences on the speech. And Congress followed them in order to put forth their own view of how this issue could be settled (on constitutional grounds), but did not prevail.
Where it has prevailed, however, is in liquor control by the states. In Leisy v. Hardin the Court held that a state's prohibition of intoxicating liquors from outside its boundaries could not be applied to "original packages," and could not exclude incoming articles "without congressional help." The Congress overturned the decision enacting a legislation that made these liquors subject to the police powers of the state "to the same extent and . . . manner as though such . . . liquors had been produced in such State." Indeed, the Congress had the final word in settling the issue, but it was settled under a guideline, (original packages) put forth by the Court, which the Congress followed, and prevailed. The Court's decision canalized the grounds on which an issue would be settled.
Thus, judicial supremacy cannot only be understood by an analogy with the moral function of law, as in "to settle what ought to be done," but maybe more significantly as to canalize the channels available in order to settle what ought to be done, and preside the political process in determining what ought to be done. Therefore, nor does it is exclusive.
Another definition of judicial supremacy goes further than Devins & Fisher's exclusivity. In this case, it identifies it with the unlimited power of the personal sovereignty of Hobbes. It is that of Jeremy Waldron in his Judicial Review and Judicial Supremacy. In it, he goes back to Hobbes' famous regress argument regarding the Sovereign's power: its unlimited power must exist, for if it is limited, the power that limits it sets itself above the Sovereign and then that power is itself unlimited. Waldron, then, concludes that a "supreme judiciary is in danger of becoming a Hobbesian sovereign or super-sovereign." But there is—shockingly—one basic thing not addressed in the argument: Hobbes Sovereign is incompatible—and cannot be analogized—with any institution in a Constitutional democratic regime. Hobbes Sovereign's power is an unlimited power, and the most that can be found in Constitutional democratic regimes is a supreme power in a specific issue, which is not unlimited, but subject to restrains as vetoes, judicial review, amendment, overruling, constitutional limitations, etc. This limitation is not setting the other powers above the power being limited, is merely applying an authority previously assigned by the supreme law of the land to the power that is trying to put itself above it. Hobbes himself does not recognize this distinction.
Hobbes' concept of Sovereign can be defined to that agency whom all obey and in turn obeys no one, thus, it is incompatible with that regime where a scheme of rules which define what rules are valid and determines which authorities are conferred to what power. Hobbes' Sovereign authority does not come from rules defining it, but from a convenant between A and B to authorize the Sovereign to be the sole political representative, who is not bound by any limits previously defined by a charter—its limits are only the unalienable rights and liberties of the subjects described by Hobbes. It is similar to a Constitutional regime, but in Hobbes' personal sovereignty regime there are not basic rules which bind the power itself. Moreover, a constitutional system, by definition, is defined by an institutional cooperation, which is accepted by each institution without the need to recognize a broad superiority by a particular power. Thus, the institutional cooperation of the Constitutional regimes is not compatible, logically, with the personal Sovereignty of Hobbes, and therefore, analogies with the extent of power of an institution with the unlimited power of the Sovereign are inappropriate.
Another analogy with judicial supremacy that Waldron makes is that with the constituent power in Sieyes, in the sense that judicial supremacy implies an usurpation of the constituent power (the people): "the idea is that no constituted power may be identified—or identify itself—directly or indirectly with the people or claim the credentials of the popular sovereign" But the concept of a constitution is contrary to the concept of "popular sovereign" and "general will" as understood by the French Revolution intellectuals, especially Diderot and Sieyes. This view is very different from that of the Framers and American Constitutional system in two ways. First, he Framers did believe that the Constitution was an act of popular legislation, and that the people where in fact the supreme legislators and its power is "superior to both" the legislative and the judiciary. But the people, though the supreme legislator, was not the standard for the validity of laws, but the Constitution.
In the Revolutionary France, the general will could do no unjust or bad law, for "laws are legitimate in virtue of their being bona fide expressions of the general will" and the "general will is always good; it has never deceived, nor will it ever deceive." American theorist believed in popular participation in government, but the French context believed that popular participation was an end in itself. So, logically, American constitutionalism would be reasonably viewed by French constitutionalism, with its radical view of separation of powers with no checks—"the system of checks and balances in government is a fatal idea."—as a usurpation of the unlimited power of popular will. Second, "the determinant element of [Supreme Court's] jurisdiction is not a pouvoir constitue, but the very constituent power of the people" and the Court is its direct commissioner. The outcome of French constitutionalism has already been examined in previous sections. It could be argued that this paper presents a change in the language established by previous papers. But judicial supremacy—or some degree of it—does not, and should not, imply neither judicial exclusivity nor unlimited power or usurpation.
II
Court-Constitution relationship
The Constitution does not speak for itself, nor can it enforce itself. And if the independent interpretative authority argument is taken further, then the Constitution has three voices—the three departments—and, as each of the branches construes the constitution by its own understanding and enforces it accordingly, then there are three constitutions. And if we take the argument even further, almost reaching a reduction ad absurdum argument, then there are not only three constitutions, but many more, as they depend on who is in the oval office at any given time, and what is the majority in the houses of Congress. The result is that this interpretation "produces no settled meaning of the Constitution and thus no settlement of what is to be done with respect to our most important affairs." But as a matter of fact, the argument is not reductionist because of the empirical examples in those countries that have followed this: the settlement is done by the imposition of the strongest branch's will. Thus, the "continued harmony of views among the three departments," if they are viewed as perfectly equal in construing the Constitution, is no harmony at all, but "interpretative anarchy." Granted, even with the authoritative interpretation of the Court, the argument could be made that, applying the same logic, then there still are several Constitution: the Warren Constitution, the Burger, Rehnquist Constitution, and Roberts Constitution. But in many issues, future Courts have followed past Courts' decisions, thus, giving greater uniformity in settlement of issues that its alternative. Moreover, it may also be true that there difference between these Courts is not so much on the Constitution itself, but rather on the role the Supreme Court has in the society and political process in enforcing the Constitution. The other problem with non-deference is that, is taken into its furthest consequence, it actually endorses a radical and rigid separation of powers, as that of France in most of its XVIII and XIX century, and curbs significantly, at least de facto, the system of checks and balances.
As a matter of fact, the theory asserted by Cooper does not, in any way or by any interpretation, "compel the other branches to abdicate their own constitutional responsibilities." Supremacy in the judiciary does not "marginalize" the Constitution in the sense that, in theory, it does not provides incentives for elected officials to forego their constitutional interpretations in favor of policy preference. This is because, first, constitutional interpretation by each branch is simply an application of the principles of "government by laws and not by men." "[E]very time either Congress or the President do anything they imply a certain view of their powers under the Constitution, and hence exercise interpretative powers"In this particular sense, whether one branch has more "power" in this interpretation matters not. Second, each interpretation has a different role in the political process. The legislative branch makes an a-priori interpretation of the constitution when enacting laws, merely, as it was said, mandated by the maxim of "government by laws and not by men"; the same happens with the executive power when, for example, it exercises the veto power—nevertheless, both can exercise ex post facto actions after a Court's decision—but the Court makes an a-posteriori interpretation of the Constitution, that is, after observation of the specific material in question when it has already been enacted. This interpretation, would resolve, besides general constitutional conflicts, conflicts between aroused by the a-priori interpretations. This kind of interpretation has a broader scope than the former one, and a larger bind on public officials, it certainly is, at least in a question of degree, more authoritative than the others. It is, following the doctrine of the vital national seminar an exercise "reasoned opinions that justify its claim to be the resident philosopher of the American constitutional system."
One of the challenges made to the Court in virtually every jurisdiction that has established it (Germany, Spain, America, etc.), is, what is the source of the legitimacy of the nine black-robed judges sitting in that courtroom? What makes it legitimate enough to impose its will against the legislative power, which is the expression of the will of the people? The supremacy of the Court is only a consequence of the supremacy of the constitution. That is, the connection between Court-Constitution is the source of its legitimacy (superior obligation). That connection is not rhetorical, in the same way as the ordinary judge assures the jurisdictional efficacy of the law, so does "the efficacy of the Constitution must be secured by jurisdictional action" through constitutional judges. And this is why judicial review was adopted by the Framers: it is the superior enforcer and "voice" of the constitution. If this connection is broken or ceases to exist, then two things would happen: either the Court would become obsolete, or it would become just another chamber of the legislature. In both of these scenarios, the factor that supports the legitimacy of the Court would disappear, and the Court itself would not be supported by the public. On another study by Devins & Fisher, they start one section by stating at the outset that "judicial exclusivity is likely to marginalize the Court, and with it, the Constitution." Whether this is true or not, there is certainly a recognition of a logical relationship Court-Constitution.
III
Court's dependency in political and social factors
"Without the powers of purse and sword, '[t]he Court must take care to speak and act in ways that allow people to accept its decisions.'" Judicial supremacy does not mean that the Court advances its agenda at the expense of the other branches. Rather, it is an attitude toward Court's decisions by the other branches and the people. It is startling to see, in the country that designed an innovative role—and tools—for the judicial power that influenced an overwhelming majority of countries in the western hemisphere, people and academics question the legitimacy of the Court because its Justices are unelected and therefore not accountable. Those questions are missing the point. Having "nor will nor power," the Court's authority depends on factors external to it. That is the point of judicial supremacy. It cannot be established by Justices' declarations or a dicta in a decision. On the European countries we investigated above, the judicial power was there, it existed, and it was an institution. The factor that changed the role of the Supreme Court/Constitutional Tribunal was not only that they were created and given a degree of power to fulfil its purpose, it was the willingness by other branches and by the people to accede to it and be faithful to that power. The Court is only "as valuable and reliable as is the fidelity" towards it. The "supremacy" of the Court is not defined by its Justices. Claims by the Court's Justices that they are final, supreme or "the last word" have no effect on the supremacy: it neither establishes nor it proves that it is just a rhetorical creation. Supremacy, for it to be so, can only be accepted by the political body. Citizens could stop trusting the Court and put in question its legitimacy. The political order can simply ignore its command. That is why "no other . . . political body, puts literally its life every day on the hands of the confidence on its function." Confidence, or fidelity, is in fact the title of its legitimacy. In other words, a belief in Courts legitimacy renders legitimacy to the Court.
It is then an issue of to what point and extent does the Court take into account public acceptance or "backlash" to its decisions. That will not be addressed. We will assume without much more consideration that Court yields to public opinion and the political setting. But even with this assumption, this does not provide an argument neither for judicial supremacy nor against it. It is just part of the Court "putting its life on the hands of the confidence of its function". It is typical to hear some dislike of the judicial supremacy on the grounds that nine non-elected officials are practically setting all domestic policy of any importance. But even if they are not elected, they certainly play with their legitimacy on a day-to-day, decision-to-decision (not election-to-election) basis. Therefore, the Court sometimes has to make compromises in its decisionmaking in situations where a particular decision would be consistent with its "general values" but inconsistent with the needs of the general welfare. Otto Bachof, in his work Der Verfassungsrichter zwischen Recht und Politic (the constitutional judge between the Law and politics) calls this decisions, invoking the latin principle of summim ius summa iniuria (supreme justice, supreme injustice or harm), "political inexact" or "politically false" decisions, as in decisions that imperil the legitimate interests of the Government. Thus, "taking social and political forces into account" is not only "an act of necessity," but also an act of duty. It is also consistent with the Framers' intent of an "intermediate body between the people and the legislature," as one of the ends of this Institution. Moreover, it is consistent with the Court as a mediator of the "tension" between "unalienable rights" and "powers from the consent of the governed," each addressed in the Declaration of Independence. Presiding the political process (and supremacy) does not mean to arbitrarily dictate the flow the game, it merely means setting the guidelines in order to canalize the political current into settling issues.
But not only does the Court's function depend on confidence and faithfulness, but also in cooperation from other branches and the public in order to put to practice the "guidelines" set by the Court, or to enforce its decisions. Indeed, Brown would have been irrelevant without the 1964 Civil Rights Act, the President, and the public committed to undo Jim Crow Laws.
IV
Alternatives to the Court's "Constitutional justice," Court as a "consensus generator" and its role in political stability
Ironically, the alternatives to at least some degree of judicial supremacy is constant constitutional changes led by the stronger branch (or party) of the moment—sometimes by violent methods—in order to settle issues, as it happened in France through its XVIII, XIX and XX centuries and Germany. Yet, judicial exclusivity, leaving no avenues open for social changes or popular feelings, leads to the same result. Dred Scott "propell[ed] the nation into a bloody civil war." In France "the control the Parlements exercised by the highest courts of the Ancien Regime over royal ordinances introducing needed reforms had been so reactionary that resulted in a great popular dissatisfaction with the courts" and those reforms were introduced, rather, by one of the most violent social and political revolutions in modern times.
It is easy to support Lincoln's reaction towards Dredd Scott on moral grounds. After all, one of the first lines of the Declaration of Independence affirms that "all men are created equal and alike." But let us change the plot of that story. Assume that Lincoln's reaction is what it was, but that the Congress, on Constitutional grounds not necessarily related to the decision, takes a total opposite stance towards the issue. Then, each branch would have one particular stance toward one issue that differ from one another. Now let us assume, also, that the fact that Courts decisions is not binding on the President or Congress is a widely accepted doctrine. Without one authoritative interpretation that serves as the basic rules to the game, what are the alternatives for settling this issue? Moreover, how to settle the "encroachment" of one branch to another if there is no one authoritative interpretation that can resolve this conflict? Eduardo Garcia de Enterria gives us an approximate answer:
A Constitution without a Court to that imposes its interpretation and effectiveness [of the Constitution] in conflicts is a mortally wounded Constitution, linking its fate with the party in power, which imposes in such cases, by simple factual prevalence, the interpretation [that, by convenience] better suits it. The Constitution becomes politically instrumentalized by certain groups or parties over others. The constitutional conflict then becomes a 'unstanchable' fracture of the basic consensus that the Constitution is called to secure, and resolving that conflict is left, then, to successive constitutional adjustments, constant constituent changes.
Therefore, a Constitution by itself is insufficient, "it appears to us far from certain that a constitution is . . . [not] a sufficient condition, or even a significant causal contributor, to fruitful public debate about matters of great political and moral moment." By itself not, but it is because "the efficacy of the Constitution must be secured by jurisdictional action." And the Court has to be able to impose its interpretation, not only for political stability, but also for juridical security for the citizens, and, more importantly, to have an arbiter, which imposes its rules of the game, when the people, through its political process, wants to put forth a substantial political change. The alternative is, in other words, France of XVIII and XIX centuries. The contrast between the dozens of Constitutions in France, and the permanent but adaptable constitutional system in America, speaks for itself, for there was no acceded authoritative interpretation for the Courts. Alexander & Shcauer's "nature of law" approach was deemed insufficient specifically for our point, but here—a historical fact, ironically—it can be illustrated why "although a better set [of rules] is preferable to a worse one, even a worse one is, within bounds, preferable to none at all." "None at all" is precisely the result of not having the single authoritative interpreter, and when "none at all" takes place, then the will of the strongest institution will be imposed, most of the times violently. It was the legislative power in France, and the executive in Germany. Therefore, judicial supremacy, some degree of it at least, serves a useful purpose. Serves to, in Rudolf Smend's terms, Gründung und Festigung. Two hundred years of an established and consolidated constitution does not come by chance, but only by harmony and consensus, all channeled through the Court's canals. Only through the Court's labor has the law been, in a general sense, stable but not static:
[O]ur constitutional system has remained the same since its origin, and the structure of our institutions have been proof of an exceptional continuity in a world of constant evolution. Nevertheless, this system has remained viable because it has been able to adapt itself continually to the evolution of necessities for two centuries.
Courts have been, in other periods of history, a curb for desired social changes. This has lead, especially in Europe, to a long period of distrusts towards them. But legislative supremacy did not lead to an open and adaptable Constitutional system, rather, to several, unstable ones, which were the expression of the temporary majority or the strongest branch of that particular time. But in America, the case is entirely different, for the Supreme Court has been very apt to "generate consensus", and the adaptability and "openness of the system is precisely more possible when it is secured by a Supreme Court as the interpreter of a democratic constitution, than when it is left to the good will of the ruling party at any given time" This "consensus" made in an environment where, the Constitution, through the Supreme Court, presides the political process. It does not act as a sovereign, as Waldron sees it, but it merely guarantees the permanent revision of constitutional values by other branches through its channels. Thus, Supreme Court not only generates a consensus out of an issue, but it generates it because it sets the stage, for that "fruitful public debate about matters of great political and moral moment," though it sits at the center stage, presiding it.
This is the role that the Constitutional Tribunals played for Europe when it adopted judicial review: generator of consensus and establishment and consolidation of the constitution. It bound the other branches, but it did not act as a curb to social change, rather, it was an essential factor for the openness of the system, and, for the first time in centuries, an institution was able to pave the way for peaceful social changes. Previous social changes had been the result of violent constitutional changes or civil wars. The true alternative to the constitutional justice system, which implies a certain degree of supremacy, is the Jacobin constitutional model, of absolute sovereignty of the legislative Chambers. In those alternatives, the Constitution, without a Supreme Court:
Will be conceived as an occasional political compromise among political groups, replaceable at any time the balance of these yields a different result; which translates into a positive incitement to constitutional change, by which each group will try to improve their positions and, if possible, eliminate their competitors.
There is an interest anecdote by Alexander Bickel and C. L. Black Jr., regarding a French intellectual, who, as he disembarked in New York, he mentioned that he was breathing "the sweet air of legitimacy." This intellectual, in his works, contrasted the succession of republics, monarchies and empires in France with the perdurability of the American legal system through successive generations. Thus, the authors interpreted his phrase as "the sweet odour of the Supreme Court of the United States."
Judicial Supremacy as a tradition
As it has been said before in this paper, Judicial Supremacy is not expressed in neither the Court's decisions nor spontaneous declarations by its Justices. It is expressed in other officials' and citizens actions as a practice and a tradition. To say that there is a "fallacy of the popular belief in judicial supremacy" is to recognize that this tradition is actually real, for an expression of belief implies existence of that which is believed, in this particular case.. In order to understand, both the Constitution's authority and the Court's legitimacy, both strongly intertwined, one has to examine the people's actions, reactions and opinions to the Court's actions. Just as society is visible through symbolism that suggest its existence—like rite, myth, theory—an institution legitimacy and authority is verified by actions concerning it and directed to it: officials and citizens. And its legitimacy and authority rests on the hands of different generations. Past generations do not render legitimacy to present institutions, only present generations can do that "The Constitution's authority—its status as fundamental law—ultimately rests not on facts about the past, but on the Constitution's acceptance as authoritative in the present" Here, we will examine that reiterated practice by several generations in rendering a certain degree of supremacy to the Court. "A constitution's status as the constitution is dependent upon its (empirical) acceptance by a polity as their constitution. Without this empirical acceptance—acceptance as a social fact—no amount of formal internal validity will make a document a constitution."
We will not get into an examination of each generation's reactions towards the Constitution. Nor will we examine this present generation. What will be examined is how officials' actions towards the Court in a particular time rendered this degree of supremacy to the Court. This time is that of the controversial "Court-Packing Plan" by President Franklin Delano Roosevelt.
At the outset, it is clear that this attempt by FDR of a radical change in the Court's organization, was with the sole objective to pass his political agenda with the Court's approval. New justices (the plan would have reached to fifteen) would have meant more likeliness that his New Deal plan would pass. Therefore, he was looking for that "sweet odour of legitimacy" which apparently he could only get from the Court, even though avenues were theoretically open.
Moreover, for a period of time, "voters opposed a radical transformation among the three branches of government." But then, "the reelection of the President by an unprecedented majority . . . seemed to have persuaded the Court that the President's program had wide approval.", and the Court acceding to popular desires, did not act as a curb for social changes.
Nevertheless, FDR's actions against the Court caused him to "suffer a serious blow at the moment when he had reached the pinnacle of his popularity." There is an anecdote by F.A Hayek where he tells a conversation with a taxi driver in Philadelphia: "I believe he spoke for the great majority of the people when he concluded a deeply felt eulogy of the President with the words: 'But he ought not to have tampered with the Supreme Court, he should never have done that!'"
Moreover, a more enthusiastic defense of the Court by another branch may never again be seen since the Reorganization of the Federal Judiciary: Adverse Report from the [Senate] Committee on the Judiciary Submitted to Accompany S.: "[w]e are not judges to the judges. We are not above the Constitution." But it also stated:
Inconvenience and even delay in the enactment of legislation is not a heave price to pay for our system. Constitutional democracy moves forward with certainty rather than with speed. The safety and permanence of the progressive march of our civilization are far more important to us and to those who are to come after us than the enactment now of any particular law. The Constitution of the United States provides ample opportunity for the expression of the popular will to bring about such reforms and changes the people may deem essential to their present and future welfare. It is the people's charter of the powers granted to those who govern them.
The Senate might be stating the degree of judicial supremacy that we are asserting in this work: a "'very high respect' from the other departments of the Government," but with available channels or avenues so as not to "prevent . . . them from introducing desirable reforms and answering popular desires."
Conclusion
A certain, and significant, degree of authoritative interpretation for Courts, even against Congress and Presidents, serves a useful purpose. It has been seen in this work that the Courts have been more effective in establishing and consolidating the Constitution in several countries, putting them on path to a long-period of peace and stability never achieved in their centuries of existence, than any other power with "supreme power". Moreover, this supremacy in other branches have lead to a non-stopping expansion of its powers, reaching an almost unlimited scope. The only branch that has not done this is the judiciary. It seems as if stability was a necessary and inescapable consequence of rendering some supremacy to the Courts.. Thus, in this context, it has acted not as an enthusiast for head-to-head clashes with other branches, but as the "consensus generator."
Judicial Supremacy, then, may not mean judicial exclusivity or judicial absolutism, as Neal Devins & Louis Fisher and Jeremy Waldron, respectively, have interpreted. It may be a result of different, influent factions caring about the Court having that power like, as we saw, the Senate Judiciary Committee, and other interests acceding so long as they can pursue their agenda through other means, through other avenues. Nevertheless, this avenues are canalized by the Court in this vital national seminar. The political process may be seen as an Orchestra playing a piece, the Court as the conductor, and judicial review as the baton. And judicial review may be a "method for interpreting the Constitution [as] an intermediate, not a final process" yet essential for the settling of the issue in question. In essence, "[g]overnent under law, judicial review, or judicial supremacy all could be regarded as phrasings of the same idea."