Vol. 30 No. 4 (May 2020) pp. 58-61THE POLITICAL CONSTITUTION: THE CASE AGAINST JUDICIAL SUPREMACY, by Greg Weiner. Lawrence: University Press of Kansas, 2019, 224pp. Cloth: $29.95 ISBN: 9780700628377.
Reviewed by Gary E. Bugh, Department of Political Science, Texas A&M University-Texarkana. Email: gbugh@tamut.edu.
In THE POLITICAL CONSTITUTION: THE CASE AGAINST JUDICIAL SUPREMACY, Greg Weiner challenges the view that only the courts may interpret the Constitution. He argues that the people, their elected representatives, and each branch of government should also exercise judicial review. With a focus on James Madison, Weiner shows that the founders expected several actors to participate in constitutional interpretation. He also appeals to the founders to build a republican theory.
In Weiner’s theory of “republican constitutionalism,” the people are a community whose representatives deliberate and decide constitutional meaning. In a community, there is no separate, autonomous actor monopolizing judicial review. Weiner asserts that “the natural right for the founders … is self-government by a political community” (p. 142). He also emphasizes Madison’s appeal to “the whole community” during his 1789 defense of a bill of rights (p. 70). In the United States, there should be “room for the community to act on values as a community rather than as a collection of individuals” (p. 124).
In this republican system, the community works though elected representatives. This is why, Weiner explains, Madison’s defense of federal representatives deciding for the people is republican. Madison’s assertion in Federalist No. 10 that representation would serve “to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens” describes how the majority undertakes deliberative representation (p. 7).
Weiner explains that “what I shall call ‘the politics of obligation’ … anchors republican constitutionalism” (p. 33). This “normative basis” means that “[w]e owe a political debt to our forebears and descendants, and political activity fulfills our natures” (p. 58). Reviewing thinkers ranging from Aristotle to Burke, Weiner lands on Madison as the inheritor of this idea. In a 1790 letter, Madison stated that “[t]he improvements made by the dead form a charge against the living who take the benefit of them” (p. 32). A judiciary [*59] possessing sole exercise of constitutional review supplants citizen participation, breaking the community’s links with its traditions. The politics of obligation therefore embraces the questioning of government authorities, including judges.
Constitutional support of federalism makes the politics of obligation possible, according to Weiner. For him, “[t]he Constitution … preserves a space for a politics of interdependence and obligation” (p. 2). He would like to “revive a robust federalism that makes local political activity meaningful” (p. 17). Appealing to the “natural right” of communal self-rule, Weiner claims that “the community’s paramount right is to govern itself according to its best judgment and local customs” (p. 146). Therefore, “elected representatives from across the country … are better positioned than nine unelected judges to assess local conditions” (p. 172). Communities should use political means to resolve issues, not relegate them to the courts.
The text of the national Constitution and Bill of Rights, Weiner contends, binds different local communities together. He elaborates that “Madison’s notion of the Bill of Rights as a common basis for appealing to the community reminds us both of the political nature of rights and of the importance of the common language that the fundamental but also positive law of the Constitution provides” (p. 146). Interpretations of the constitutional text take place and even build upon existing “shared traditions,” and “[t]his shared quality of the text delineates a particular political community in which truths are to be acted upon” (p. 138).
Weiner offers a variety of ideas to bring about republican constitutionalism supporting a restrained judiciary in a system that prizes individualism and judicial engagement. His suggestions include that Americans regard the judiciary as subject to separation-of-powers, Congress address constitutional issues, and citizens “recognize the politics of obligation” (p. 151). His envisioned America “leaves space in which politics can operate,” primarily at the local level, where “informal mechanisms”—such as simply going to a baker who will decorate your cake, as he discusses—are civil ways of addressing majority-minority disputes (pp. 173–74).
Returning to the founders’ view of judicial engagement, Weiner’s close reading of Madison’s various writings provides valuable insights. Madison was for majority rule. He of course cautioned that the popular majority could abuse the minority, and that the new constitutional order would mitigate this possibility. Yet, temporary government abuse was likely to happen from time to time. For Madison, “aggrieved minorities” should try to win the next election [*60] rather than turn to the courts for resolution (p. 67). The judiciary would be a “coordinate” branch of government—independent in its respective area, yet part of a process in which the people govern through their representatives with all three branches engaging in constitutional interpretation. Constitutional law would develop initially from the elected branches of government and then through practice. The system of elections and internal checks would permit multiple actors to deliberate and make decisions.
While Weiner provides support for the thesis that the courts should not dominate constitutional interpretation, his republican theory may not offer the strongest defense for judicial minimalism. Constructing a classical republican theory from the founders is challenging. The Federalists favored a society marked by a plethora of unrestrained factional and sectarian interests and, other than members of the House, indirectly-selected federal officials. They also asserted that these ambitious officials would keep an eye on each other. Institutions and self-interest—not morality, obligation, rights, or education—would prevent the abuse of governmental power. Weiner sets aside some of the founders’ important claims.
Take, for instance, the Federalists’ assertions of who would serve as federal representatives. Madison’s complete description of representation involved more than it would “refine and enlarge the public views, by passing them through the medium of a chosen body of citizens.” In the same sentence, he described these representatives as those “whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations” (Rossiter, p. 82). Madison was not alone in asserting that the wise and virtuous would govern the proposed federal government. John Jay in Federalist No. 64 stated that electoral college meetings “will in general be composed of the most enlightened and respectable citizens” who would select presidents “most distinguished by their abilities and virtue … [and] who best understand our national interests” (Rossiter, p. 391). Hamilton agreed, writing in Federalist No. 68 that presidential electors would “possess the information and discernment requisite to so complicated an investigation,” thereby selecting as president someone with “pre-eminent … ability and virtue” (Rossiter, p. 412, 414).
How would the proposed system ensure that such high-quality people served in the federal government? For Madison in Federalist No. 10, local and state elections would attract “[m]en of factious tempers, of local prejudices, or of sinister designs,” leaving the better sort for federal offices (Rossiter, p. 82). This is not the vision [*61] of a classical republican system. Moreover, missing from the Federalists’ arguments is an explanation of how some Americans would become wise and virtuous. If the Federalists were for a republic, it did not include a cooperative view of humans, open education, individual exercise of a myriad of rights, and facilitation of civic virtue.
Greg Weiner’s THE POLITICAL CONSTITUTION serves as reminder that the judiciary is not supposed to dominate constitutional interpretation. Moreover, its detailed analysis of Madison’s theory and defense of republican constitutionalism is informative and provocative. The book provides a valuable perspective of the potential power of the people and all levels and branches of government.
REFERENCES:
Rossiter, Clinton, ed. 1961. THE FEDERALIST PAPERS: HAMILTON, MADISON, JAY. New York: Mentor.
© Copyright 2020 by the author, Gary E. Bugh.
