"We the People" Are the Last Word on the Meaning of Our Constitution

Deion A. Kathawa^*

“[T]he ultimate authority, wherever the derivative may be found, resides in the people alone.”

—James Madison^†

“When one wants to speak of the political laws of the United States, it is always with the dogma of the sovereignty of the people that one must begin.”

­—Alexis de Tocqueville^‡

“In America, the people govern, the people rule, and the people are sovereign.”

—Donald J. Trump^§

Introduction

It is uncontroversial and unquestioned that Congress can override the Supreme Court’s interpretations of federal statutes simply by amending them, which Congress has done quite often, at least in the modern era.¹ With that in mind, this article argues that Congress, in concert with the President, possesses an analogous power, albeit one that is more limited and circumscribed, vis-à-vis the Court’s constitutional decisions: the power to “override” them, thereby returning the Nation to the legal status quo ante.² This Article contends that this “override” power is embedded in the Nation’s legal fabric and grounded in both the Founding’s political-philosophic axioms as expressed in the Declaration of Independence and the principle of the separation of powers inherent in the Constitution’s text, structure, and logic.

By design, Congress—the majority of whose members are directly answerable to the people through regular, biennial elections³—and the President—who stands quadrennially for (re‑)election by the Electoral College⁴—are each closer to the people than is the Court, whose composition is refracted by the vagaries of the appointments process,⁵ even as the institution as a whole is further insulated from public control because of the justices’ life tenure.⁶ The result is a Court that is less responsive and accountable to the public than are either of the branches created by Articles I and II. Moreover, the Court is bound to interpret and apply laws and executive actions that originate with the political branches, reviewing them post hoc, through the limited lens of law, in discrete cases.⁷ What the Court may not do is act sua sponte, in a policymaking manner, inquiring into the nature of justice and the common good in themselves and attempt to secure them directly.⁸

But in the world as it is—wherein the Article V amendment process is not, in practice, the only way the Constitution’s meaning “changes”—some institutional actor must have the authority to settle the Constitution’s day-to-day meaning during the ordinary operation of government, i.e., between historically infrequent invocations of Article V.⁹ Ours is a system predicated on a sober view of human nature, namely, that those who seek and wield political power are self-interestedly ambitious.¹⁰ The Founders’ acceptance of this anthropological premise is reflected in the Constitution’s separation-of-powers principle and its various checks-and-balances provisions, and it has been borne out insofar as interbranch conflict is a recurring, and anticipated, theme in our Nation’s political history.¹¹ Indeed, such conflict is perhaps inevitable given that “[t]he latent causes of faction are . . . sown in the nature of man.”¹²

Ultimately, however, some institutional, constitutional actor must finally prevail if we are to have settlement, which is a crucial function of law qua law and one of its desirable benefits.¹³ This author’s contention is that, if we understand America properly, then the branch of the federal government that should be, and is, able to authoritatively settle day-to-day questions of constitutional meaning is Congress, for reasons both principled and pragmatic. Put differently, the sovereignty of the American people is the ultimate justification for political supremacy over the Constitution’s meaning.¹⁴

Part I briefly summarizes the core of the argument—propounded by Professors Larry Alexander and Frederick Schauer¹⁵—for judicial supremacy. Part II sketches the relevant political-philosophic and constitutional principles that undergird my basic argument: that Congress can “override” the Supreme Court’s constitutional holdings. Part III contends that a useful analogue to this “override” power is the Canadian Constitution’s “notwithstanding clause”; in other words, my claim is that Congress has an inherent “notwithstanding power,” akin in certain respects to the override power entrusted to Canadian legislatures by the Canadian Constitution’s Charter of Rights and Freedoms. Part IV demonstrates that Congress is the institutional actor that can authoritatively settle questions of constitutional meaning, for reasons both principled and pragmatic. Congress is the in-principle final authority as a consequence of the operation of three complementary and interlocking principles: the sovereignty of the people, government by consent of the governed, and proximity to the people; these principles are rooted in the Declaration of Independence and actualized chiefly through the constitutional separation of powers. And Congress is in practice best suited to effectuate settlement both because of its peculiar institutional competencies as a legislative body and because of the general sociological-legitimacy benefits reaped from constitutional settlement effected by elected, rather than unelected, officials, the former of whom represent, and are politically accountable to, the entire Nation. Part V responds to various objections.

I. Judicial Supremacists Speak: Why the Buck Stops with the Court

Professors Larry Alexander and Frederick Schauer vigorously defend the conception of judicial supremacy announced by Cooper v. Aaron,¹⁶ that is, “its assertion of judicial primacy without qualification,” on the ground that the Court is best positioned, as a normative matter, to provide authoritative settlement of constitutional questions, issues, and disputes.¹⁷ In brief, the Cooper Court relied on the Constitution’s Supremacy Clause,¹⁸ as well as the law-declaration principle announced by Marbury v. Madison,¹⁹ to proclaim that “the federal judiciary is supreme in the exposition of the . . . Constitution.”²⁰ Accordingly, under Cooper, the Court’s interpretations of the Constitution are identical to the Constitution itself—“the supreme Law of the Land.”²¹ So, the Supreme Court is the final word, at least as far as Cooper is concerned.

Settlement is important to Alexander and Schauer; they observe that “an important—perhaps the important—function of law is its ability to settle authoritatively what is to be done.”²² This is indeed a venerable idea: “Law is a certain rule and measure of acts in accord with which one is either induced to act or restrained from acting; for ‘law’ (lex) is derived from ‘to bind’ (ligando), since law obligates (obligare) one to act.”²³ But even if that is not law’s primary function, it is certainly true that settlement—along with cooperation and coordination²⁴—is a function, as well as a benefit, of law.²⁵ Alexander and Schauer’s argument that the Court is best positioned, as a normative matter,²⁶ to effect the important good of settlement rests on the concept of a grundnorm: “the background principle or transcendent understanding that undergirds the ability to make sense of the idea of law in a given society.”²⁷ This is an key concept to which we shall return in due course.²⁸

For Alexander and Schauer, America’s grundnorm is that its ultimate political and legal authority is the Constitution.²⁹ And if we as a polity are to enjoy the benefits that it provides to us—which are the same benefits provided by laws in general—then a final authority as to its meaning is needed: “The reasons for having laws and a constitution that is treated as law are accordingly also reasons for establishing one interpreter’s interpretation as authoritative. Cooper v. Aaron thus reflects the very reason for having a constitution that is regarded as law.”³⁰ Consequently, “[i]f Cooper v. Aaron is wrong in requiring [non-judicial] officials to alienate their constitutional judgment to the constitutional judgment of the Supreme Court, then constitutionalism itself is flawed for the same reason.”³¹ That the final authority of the Constitution’s meaning is and ought to be the Court, rather than another branch, is to recognize the Constitution as a law that provides settlement and checks majoritarianism, and the Court’s primary, peculiar function—as a judicial body—is to interpret and apply law and serve as a “counter-majoritarian” check on the political branches.³² Therefore, the Court is the natural choice for the role of final authority over the Constitution.³³ We might sum up Alexander and Schauer’s argument as follows: It is right and just that “[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”³⁴

II. Political-philosophic and Constitutional Background

In the centuries-long annals of political philosophy, from Socrates to Strauss, “[i]f there is a single idea that made our Nation (and that our Nation commended to the world), it is this one: The people are sovereign.”³⁵ The Declaration of Independence—the Nation’s true founding charter,³⁶ not to mention its first Organic Law³⁷—matter-of-factly states two “self-evident” truths in its famous second sentence: (1) “all men are created equal,”³⁸ from which it follows that (2) governments “deriv[e] their just Powers from the Consent of the Governed.”³⁹ Crucially, that second sentence is neither rhetorical grandstanding, thrown in the face of an overweening monarch “across the pond” to boost morale in anticipation of years of guerilla warfare, nor a convenient rationalization for a self-interested rebellion. Rather, it is a timeless statement of principle—one that animated the Founding generation’s conception of justice and which remains central and relevant, even today, to a proper understanding of the form and operation of government embodied in our Constitution.⁴⁰ In other words, the Declaration of Independence is the very “Ground and Foundation” of the Constitution,⁴¹ legitimizing its provisions and rendering them, and the Constitution as a whole, fully intelligible.⁴² The Constitution, in turn, functions to secure the “Safety and Happiness” of the people.⁴³ It secures these great ends by enabling our experiment in representative self-government,⁴⁴ protecting our rights,⁴⁵ and securing our liberty by limiting government—be it federal, state, or local—to its proper spheres of action.⁴⁶

The best exposition of the meaning of the Constitution is The Federalist Papers—a collection of essays penned by James Madison, Alexander Hamilton, and John Jay in support of its ratification.⁴⁷ Thomas Jefferson would later describe it as “an authority to which appeal is habitually made by all, and rarely declined or denied by any as evidence of the general opinion of those who framed, and of those who accepted the Constitution of the United States on questions as to its genuine meaning.”⁴⁸The Federalist—that to which we turn to best understand the minds of those who drafted and later worked to ratify the Constitution—acknowledges the importance of the Declaration of Independence to the form and operation of the government instantiated by the Constitution. Accordingly, The Federalist functions as a conceptual bridge, connecting the Declaration of Independence’s theory of political justice, natural law, and natural rights to the Constitution’s praxis.⁴⁹The Federalist invokes the Declaration of Independence four times,⁵⁰ and the central reference to it occurs in the center of The Federalist.⁵¹ Notably, the Declaration of Independence is not irrelevant to the jurisprudence of at least one (living) Supreme Court Justice: Clarence Thomas.⁵² Suffice it to say, The Federalist demonstrates that, to understand what the Constitution truly means, and how our government is supposed to operate under it, we cannot responsibly ignore the role of the Declaration of Independence.⁵³ We are thus on solid ground in saying that the Nation’s true sovereign is “We the People.”⁵⁴ Our sovereignty is rooted in the truth of the moral equality of all human persons—that “all men are created equal”⁵⁵—a reality that The Federalist recognizes throughout its pages and that the Constitution was designed to actualize.⁵⁶

The form of government deemed by the Founding generation to be fit for the American people was a constitutional republic. Madison contended in The Federalist No. 39 that republicanism was the only form of government “reconcilable with the genius of the people of America” and that, were the proposed Constitution “to depart from the republican character, its advocates [would have to] abandon it as no longer defensible.”⁵⁷ Hamilton and Jay penned The Federalist’s first six essays, which are dedicated to defending the very idea and desirability of republican government on conceptual, normative, and pragmatic grounds.⁵⁸ This constitutional republic was to be especially marked by its tripartite separation of powers⁵⁹—legislative, executive, and judicial—into the federal government’s three “departments” (or, in more modern parlance, “branches”).⁶⁰ Thus, each branch has a peculiar function and purpose in the constitutional order: Congress makes laws;⁶¹ the Executive enforces laws;⁶² and the Judiciary interprets laws.⁶³

Importantly—and hearkening directly back to the Declaration of Independence—the authority of each branch to engage in its own specific function has been laid out explicitly in writing by the Constitution’s first three Articles, and those delegations of power to the three branches of the federal government were made according to the will of the sovereign, the American people.⁶⁴ Accordingly, those powers cannot be further subdelegated, aggrandized, or diminished without the sovereign people’s consent. It could not be clearer that the Founding generation believed this. Hamilton, writing in The Federalist No. 78, explained that the Constitution completely binds the government: “Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act.”⁶⁵ To deny that “would be to affirm, that the deputy is greater than his principal . . . that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”⁶⁶

The people’s consent to alter the existing constitutional order can be expressed via the invocation and execution of the process laid out in Article V.⁶⁷ Unless and until that happens, however, the power of each branch—indeed, the form and operation of the entire government, at all levels, as actualized by the Constitution, which itself is animated by the Declaration of Independence—is fixed.⁶⁸ Indeed, without the support of the American people, nothing truly enduring can be accomplished, in any event.⁶⁹

This elucidation of the connection between the Declaration of Independence and the Constitution reveals a correlative and crucial truth: In this Nation, there is a kind of “hierarchy” of institutional governmental power, and a necessary corollary to the foundational principle that the people—“that pure, original fountain of all legitimate authority”⁷⁰—are sovereign is that proximity to the people directly correlates with political authority.⁷¹ In other words, generally speaking, the “closer” a governmental institution is to the people, the more authority and power it has.⁷² This proximity-to-the-people principle is not merely academic supposition; in fact, it plainly animates and undergirds, e.g., the Tenth Amendment, which provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”⁷³ It is also why, moreover, state governments possess general police powers—“the authority to provide for the public health, safety, and morals”⁷⁴—but the federal government, which is “limited in its powers [but] supreme within its sphere of action,” does not.⁷⁵

III. Canada’s Constitutional Separation of Powers

A brief foray into how a foreign jurisdiction, Canada, handles its constitutional conflicts is instructive and illuminating because it helps to illuminate that this Article’s distinctly American proposal that the political branches can “override” erroneous Supreme Court decisions interpreting the Constitution is both defensible and workable. Importantly, this exploration of Canada’s notwithstanding clause will serve to demonstrate both that there is an existing system that contemplates muscular combat between political institutions and courts and, further, that there is no “law of nature” that invariably bestows upon courts the power of being the final word on questions of constitutional interpretation. The sky has not fallen in Canada, and there is little reason to think that it would come crashing down upon Washington, D.C. (or anywhere else in the Nation, for that matter) were this Article’s proposal to be adopted.

Canada’s constitutional-law system differs from America’s in one respect relevant for our purposes: The Canadian Constitution includes a provision that is commonly referred to as “the notwithstanding clause.”⁷⁶ “With respect to separation of powers, the Canadian Constitution expressly permits legislatures—and legislatures alone—to give life to laws that violate certain Charter rights and freedoms through invocation of the notwithstanding clause.”⁷⁷ In other words, a Canadian legislature can pass a law that expressly, brazenly, and obviously violates the Charter so long as it announces before the law’s passage—or after its review⁷⁸—that it will “pass [it] ‘notwithstanding’ whatever it says in the constitution.”⁷⁹ These exemptions “can last for up to five years at a time.”⁸⁰ And “[i]f an exemption is not renewed, it expires, and the legislation is consequently invalid if it in fact violates the Charter.”⁸¹ Between 1982 and 2008, the notwithstanding clause has been invoked 16 times.⁸² In sum, placing a law under the aegis of the notwithstanding clause means that it cannot be reviewed by the Canadian judiciary, full stop.⁸³

We can see now that the Canadian model is fundamentally akin to this Article’s proposal insofar as Canadian law recognizes the in-principle superiority of legislatures over courts as to constitutional interpretation, as well as their ability either to preempt courts from making constitutional decisions or to override them after the fact.⁸⁴ But it also differs from this Article’s proposal in at least three key respects. First, the Canadian notwithstanding clause is textually grounded in the Canadian Constitution, whereas the override power for which this Article advocates is not, but can reasonably be inferred from, a proper understanding of Founding-era political-philosophic and constitutional separation-of-powers principles.⁸⁵ Second, Canadian legislatures can act prior to a law’s passage to shield it from constitutional review by the courts (or keep it in effect after an adverse ruling), whereas Congress would only be to counter a constitutional decision of the Court after it has been issued.⁸⁶ Third and finally, Canadian legislatures have essentially plenary authority to pass laws contrary to the Charter (because Canadian courts are completely barred from ruling on even the most obvious and flagrant constitutional violations raised by a “notwithstanding law”), whereas Congress would be limited merely to rejecting an already-issued opinion of the Court, thereby returning the Nation to the status quo ante, but would be unable to generate new constitutional interpretations, or reject lawful judgments.⁸⁷

IV. In Our System of Government, Congress Is the Branch That Is Competent and Authorized to Settle Day-to-Day Constitutional Questions

Let us recap. In America, the people are sovereign—the “pure, original fountain of all legitimate authority”—and the government’s authority derives from “the consent of the people.”⁸⁸ A necessary corollary to that foundational principle is that proximity to the people is directly correlated with political authority. In other words, the closer a branch of government is to the people, the more power it wields in our system of government. In the Founders’ view, the closest (Federal) branch to the people was Congress—the “foundation stone upon which the rest of the governmental edifice would be constructed,”⁸⁹ hence why “it necessarily came first in the constitutional document.”⁹⁰

Alexander and Schauer are not wrong to say that there must be a final authority on the Constitution’s meaning.⁹¹ Rather, they err by misidentifying which branch is that final authority. Because they begin their argument for Cooper-style judicial supremacy with the Constitution and not the Declaration of Independence, they fail to correctly identify the Nation’s true grundnorm: the people’s sovereignty. Our sovereignty is that pre-constitutional norm, recognized in the Declaration of Independence, on which the Constitution itself is grounded, from which it garners legitimacy, and by which many of its provisions and overall structure and intended operation are made intelligible. The Constitution does not justify itself; rather, it is the Declaration of Independence that gives us “the ability to make sense of the idea of law” in our Nation.⁹² And so it is that the Declaration of Independence, not the Constitution, provides a framework to properly think through how to work through constitutional conflicts.⁹³

Having recognized that the people’s sovereignty is the Nation’s grundnorm, it becomes clear that any conflict that exists between the Constitution and the Court’s interpretation of its meaning is illegitimate and cannot stand. The Supreme Court—like the rest of American government—is subordinate to the Constitution; it cannot change the Constitution’s meaning.⁹⁴ But it is intolerable, not to mention nonsensical, that the sovereign people—without whose support nothing can succeed⁹⁵—would need to suffer under regular, run-of-the-mill usurpations by the Court until they take the extraordinary step to formally and solemnly amend the Constitution to correct them. Amendments are incorporated into the Constitution when the people, in their considered judgment, think the Constitution to be deficient in some way, somehow detrimental to their understanding of justice and the common good, without the change.⁹⁶ They, the principal, are not meant to respond to an agent—and the weakest one at that—which pretends to a power it never had.⁹⁷ Therefore, my contention is that the people’s ordinary response to such overreach by the Court is for their elected representatives in the political branches to check the Court through ordinary political action, that is, for a statute to be passed that declares that the Court had no power to rule as it did and that, at most, only those parties to the case are bound by its innovative interpretation of the Constitution, which is the law that stands above them all.⁹⁸ In so doing, Congress would only be recognizing the impossibility of what the Court has done—i.e., change the meaning of the Constitution—and would ratify that recognition with a law, thereby returning the Nation to the legal status quo that existed prior to the Court’s ruling.

The override power is normatively desirable because “[a] majority held in restraint by constitutional checks and limitations . . . is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism.”⁹⁹ In other words, were the Court really to be the final word on the Constitution, our political system, so elegantly designed to promote and secure republican self-government, would in reality be an oligarchic tyranny, a “juristocracy”¹⁰⁰—and one bitterly opposed to the Founders’ plan.¹⁰¹

And the override power is pragmatically desirable because it is best to hammer out solutions to important, morally fraught disputes that affect the entire Nation from within the political branches, which were consciously designed to channel various and varied public sentiments into a durable compromise broadly acceptable to the whole of the polity.¹⁰² The Court merely dabbles in the art of politics; for many reasons, it is ill-equipped to do that well.¹⁰³ Moreover, it is a “blunt instrument[ ]” whose decisions, particularly “when it comes to creating rights,” necessarily leave many feeling that their side did not lose as “the result of a fair and honest debate.”¹⁰⁴ But if, for all practical purposes, it is fair to observe that the Supreme Court “effectively rules the country,”¹⁰⁵ then the American populace should be honest about that reality and strive to place day-to-day moral, political, and policy decision-making authority with respect to the Constitution where it belongs: in the care of Congress, which is closest to the people.

V. Responses to Some Possible Objections

There are at least three objections to this Article’s position that there exists a power to override erroneous Supreme Court opinions interpreting the Constitution. First, state legislatures (or even state courts, whose judges are often elected), rather than Congress, should be vested with the power to override the Court because the states are even closer to the people than is Congress. Second, vesting Congress with this authority subjects the Constitution to the vicissitudes of partisan politics and undermines what is arguably the Constitution’s raison d’être: stable settlement of contested legal disputes. Third, the Constitution, even if it is somehow unique because it is the foundational law, is nonetheless a law and so is the kind of thing that is within the Court’s peculiar purview and competency to safeguard, given that it is the institution that is in the business, so to speak, of interpreting—i.e., trying to understand the meaning of—legal texts. Each objection fails.

A. State legislatures should have an override power, not Congress.

Because state legislatures are closer to the sovereign people than Congress is, do they not, according to this Article’s logic, have more authority than Congress? Therefore, does the override power not inhere in state legislatures, rather than Congress?

This objection fails because it misunderstands the precise nature of the closeness, and the corresponding authority granted by that closeness, that is relevant for overriding the Court. As a preliminary matter, each state has its own constitution, so this Article’s argument would likely apply (at least, this author sees nothing obvious that would stop it from applying) with equal force within each state.¹⁰⁶ Even so, it cannot be the case that a single state, comprised only of a portion of the total population of the Nation, is able to override the decisions of the Court, whose composition was the result of all the people’s input via their states’ respective senators and the president.

As a matter of constitutional federalism, the proper level of government at which to counteract the actions of the Court is Congress. The Court’s composition is the result of deliberation and compromise between Congress and the President,¹⁰⁷ and its decisions are interpretations of the federal Constitution.¹⁰⁸ The Court’s actions are national in scope; accordingly, they demand national responses.¹⁰⁹ For this reason, the national legislature and the national executive, which are accountable to the Nation as a whole, are best suited to counteract the constitutional decisions of the national Court.

B. Were the political branches to be in control of the meaning of the Constitution, it would become a site of volatility, contrary to one of its important purposes: stable settlement of contested legal disputes.

Alexander and Schauer state that courts’ unique institutional self-understanding entails a respect for precedent, which better serves the goal of settlement “over time [and] across institutions.”¹¹⁰ Said differently, because the political branches do not have an institutional commitment to stare decisis, the Constitution would be subject to greater and more deleterious (majoritarian) pressure to change outside of the process outlined in Article V if its meaning were ultimately in the hands of the political branches as opposed to the Court. That the political branches are more subject to popular pressure is, however, a point in favor of my basic argument. Stare decisis is not the pure font of stability it is made out to be by its proponents.¹¹¹ And it has never been understood to be an “inexorable command.”¹¹² Stare decisis is in its own way malleable, and its application changes depending on the Court’s ideological-interpretive composition at any given time.¹¹³

The chief point in favor of stare decisis is that it extends the time horizon for attempted changes to the meaning of the Constitution, which can promote stability, but that comes at the unacceptable cost of promoting a sense of existential helplessness amongst the people; in effect, stare decisis teaches the people to grumble like children in the face of erroneous Supreme Court decisions rather than act as the sovereign they are. The Court is vastly more insulated from the people’s control than are the political branches, so much so that it can make the thought of undoing what the Court has wrought seem like an impossible pipe dream. But with Congress in control of safeguarding the Constitution, regular elections can serve as “referendum moments” vis-à-vis the Court’s decisions. This situation is vastly preferable to one in which there is a potentially decades-long “lag” between the Court’s decisions and the people’s ability to register their disapproval of them.¹¹⁴ The political branches’ responsiveness to public opinion is a better safeguard of the Constitution’s integrity than the nine “Platonic Guardians” who work at 1 First Street.¹¹⁵

C. Leave law to lawyers, not politicians.

Alexander and Schauer also explain that they believe that the final authority on the Constitution is a court, rather than a legislature or an executive, because “constitutions are designed to guard against the excesses of the majoritarian forces that influence legislatures and executives more than they influence courts.”¹¹⁶ They also find “little reason to believe that a legislature or an executive is best situated to determine the contours of the constraints on its own power.”¹¹⁷ Each of these arguments is wrong.

Beginning with the latter, it is not enough merely to assert that the political branches are not well situated to determine the limits of their own authority and leave completely unargued why courts supposedly are. If history has demonstrated anything, it is that it is that this supposed ethic of introspective self-limitation does not necessarily manifest more strongly in courts than in political institutions. After all, was it Congress or the Court that gave us morally grotesque opinions in Dred Scott v. Sandford¹¹⁸ and Plessy v. Ferguson?¹¹⁹

And the first argument—that constitutions are meant to check majoritarianism, and political branches are majoritarian in composition and operation, therefore they cannot provide that check—is wrong because it misunderstands precisely why courts are valuable. Generally speaking, the value of courts is not found in their reflexive, institutional bias toward protecting minority rights.¹²⁰ Rather, courts’ value is seen most clearly when they hew to their “central duty . . . to exercise independent judgment in accord with the law of the land.”¹²¹ In other words, courts are valuable because they are the institution that applies the law coolly, impartially, and without fear or favor to the case sub judice, under and according to law—which will often redound to the protection of “individual and minority group rights”¹²² (assuming, of course, there exists a sound constitutional structure within which they can be exercised and enjoyed).¹²³

At bottom, both objections fail to grasp that all branches, whether they be majoritarian or minoritarian, political or not, are subordinate to the Constitution and operate subject to its limits. Not only this, but Alexander and Schauer’s position incentivizes non-judicial institutions to be lackadaisical with respect to carrying out their duties under the Constitution. After all, on Alexander and Schauer’s understanding, why should a majoritarian institution feel the need to think of the Constitution as binding on its ambitions when it might put the kibosh on many of their projects and, besides, the Supreme Court is ultimately responsible for “refereeing,” anyway? In simple terms, Alexander and Schauer’s view licenses and incentivizes bad behavior by the political branches while inappropriately inflating the Court’s institutional ego, thereby deleteriously skewing the operation of the delicate constitutional machinery given to us by the Founders.

Conclusion

“[W]ith great power there must also come—great responsibility.”¹²⁴ The Founders understood the Supreme Court to be the weakest—the “least dangerous”—branch.¹²⁵ Because the Court can only render justice obliquely, in the context of concrete cases, it has less responsibility, and consequently, less power, than do the other branches. But history, unfortunately, has proven the Antifederalist Brutus correct.¹²⁶ Since the Founding, and especially from the mid-twentieth century onward, the Court has steadily established itself as “the Ruler of [all] Americans coast-to-coast.”¹²⁷ It now wields immense power and deploys it every June to “design[ ] a Constitution for a country” that many do not recognize.¹²⁸

It need not be thus, for the political branches have the authority, and the duty, to counter the Court’s purported overreaches. But when they fail to do so, they ratify an anti-constitutional juristocracy. In such a system, “the policy of the Government upon vital questions affecting the whole people is . . . irrevocably fixed by the decisions of the Supreme Court,”¹²⁹ rather than worked out by and through the debates, compromises, and votes of our elected officials, which is the American way. In that Court-centric system, the sovereign people “have ceased to be their own rulers.”¹³⁰ And when “the opinion which gives to the judges the right to decide what laws are constitutional . . . not only for themselves in their own sphere of action, but for the legislature & executive also in their spheres,” becomes ascendant, it transforms the judiciary into “a despotic branch.”¹³¹ Such a state of affairs is utterly antithetical to the Founders’ constitutionalism; it flips the Nation’s axiomatic principles on their head—in particular our fundamental, Founding-era commitment to republican self-government.¹³²

Thankfully, this untenable state of affairs need not persist. All the tools necessary to right the ship of state are currently at our disposal. We need only pick them up. The first step? Withhold our consent from our elected representatives who are fully opposed to this argument—that is, vote them out of office and replace them with leaders who will use their power appropriately: to boldly embody and carry out the vision, judgments, plans, and goals of a free people.¹³³

^* Senior Associate, Varnum, Riddering, Schmidt & Howlett LLP; Law Clerk to the Honorable William C. Griesbach, United States District Court for the Eastern District of Wisconsin, Green Bay Division, 2022–2023; Law Clerk to the Honorable Brian K. Zahra, Michigan Supreme Court, 2020–2022; Juris Doctor, cum laude, University of Notre Dame Law School, 2020; Bachelor of Arts, cum laude, University of Michigan-Ann Arbor, College of Literature, Science, and the Arts, 2017.

I have many people to thank: my brother, Kevin, for a brief yet inspiring discussion that served to clarify some of my early thinking about this Article’s arguments and themes, Professor James Duane of Regent University School of Law for encouraging me to submit it for publication, Justice Zahra for taking time to read a previous draft and provide valuable feedback, and my lovely wife, Reshmi, for her steadfast love for me and support of all my endeavors, absent which I would not be where I am today. Finally, I would be remiss if I did not also express my sincere gratitude to the wonderful staff of Pro Tempore, whose excellent and truly tireless editorial work served to greatly improve the quality of this Article. As ever, all errors (if any) are, regrettably, my own.

^† The Federalist No. 46, at 291 (James Madison) (Clinton Rossiter ed., 1999).

^‡ 1 Alexis de Tocqueville, Democracy in America 53 (Harvey C. Mansfield & Debra Winthrop eds. & trans., Univ. of Chicago Press 2000) (1835).

^§ Donald Trump, President of the U.S., Remarks to the 72nd Session of the United Nations General Assembly (Sept. 19, 2017), https://trumpwhitehouse.archives.gov/briefings-statements/remarks-president-trump-72nd-session-united-nations-general-assembly [perma.cc/52BB-EKKP].

The purpose of the epigraphs is to drive home the point that belief in the people’s sovereignty is, as the saying goes, “as American as apple pie.” They further demonstrate that the reality of this sovereignty lies at the heart of the Nation’s self-understanding and has been present in the minds of its Founders, expositors, and presidents—sources that are helpful in comprehending the Nation’s ethos—throughout its history, even up to the modern era. See Abraham Lincoln, President of the U.S., Speech at Peoria, Illinois (Oct. 16, 1854), in 3 The Collected Works of Abraham Lincoln 265–66 (Roy P. Basler ed., 1953), https://bit.ly/4hvJRNs [perma.cc/N28A-FXAM] (“The doctrine of self government [sic] is right—absolutely and eternally right—but it has no just application [in the case of slavery]. Or perhaps I should rather say that whether it has such just application depends upon whether a negro is not or is a man. If he is not a man, why in that case, he who is a man may, as a matter of self-government, do just as he pleases with him. But if the negro is a man, is it not to that extent, a total destruction of self-government, to say that he too shall not govern himself? When the white man governs himself that is self-government; but when he governs himself, and also governs another man, that is more than self-government—that is despotism. If the negro is a man, why then my ancient faith teaches me that ‘all men are created equal;’ and that there can be no moral right in connection with one man’s making a slave of another.”); Calvin Coolidge, President of the U.S., The Inspiration of the Declaration (July 5, 1926), https://coolidgefoundation.org/resources/inspiration-of-the-declaration-of-independence [perma.cc/DR2E-UMSA] (“If there is any one thing among us that is established beyond question, it is self-government—the right of the people to rule.”); Richard M. Nixon, President of the U.S., State of the Union Address (Jan. 22, 1971), https://www.presidency.ucsb.edu/documents/annual-message-the-congress-the-state-the-union-1 [perma.cc/953B-KPPC] (“The idea that a bureaucratic elite in Washington knows best what is best for people everywhere . . . is really a contention that you cannot trust people to govern themselves.”); Ronald Reagan, President of the U.S., First Inaugural Address (Jan. 20, 1981), https://www.reaganlibrary.gov/archives/speech/inaugural-address-1981 [perma.cc/MZS4-CVQR] (“From time to time, we’ve been tempted to believe that society has become too complex to be managed by self-rule, that government by an elite group is superior to government for, by, and of the people. Well, if no one among us is capable of governing himself, then who among us has the capacity to govern someone else?”); Ronald Reagan, President of the U.S., Farewell Address (Jan. 11, 1989), https://www.reaganlibrary.gov/archives/speech/farewell-address-nation [perma.cc/LY9G-HVUG] (“ ‘We the People’ tell the government what to do; it doesn’t tell us. ‘We the People’ are the driver; the government is the car. And we decide where it should go, and by what route, and how fast. Almost all the world’s constitutions are documents in which governments tell the people what their privileges are. Our Constitution is a document in which ‘We the People’ tell the government what it is allowed to do. ‘We the People’ are free.”). Importantly, there is bipartisan recognition—at least at the level of rhetoric—that the principle of self-government by the sovereign American people is central to our constitutional order. See, e.g., Barack Obama, President of the U.S., Farewell Address (Jan. 10, 2017), https://obamawhitehouse.archives.gov/farewell [perma.cc/B97W-8YP9] (identifying “our bold experiment in self-government” as “the beating heart of our American idea”).

¹ Matthew R. Christiansen & William N. Eskridge, Jr., Congressional Overrides of Supreme Court Statutory Interpretation Decisions, 1967–2011, 92 Tex. L. Rev. 1317, 1329 (2014) (finding “286 [congressional] overrides of 275 Supreme Court decisions that had interpreted a federal statute” between 1967 and 2011—an average of more than six overrides per year).

² Throughout, I will use “Congress” or “the political branches” as a shorthand either for “Congress, in concert with the President” or “an at-least two-thirds majority of both Houses of Congress acting without the President.”

³ U.S. Const. art. I, §§ 2–3.

⁴ Id. art. II, § 1; id. amends. XII, XXIII.

⁵ See id. art. II, § 2, cl. 2 (providing that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court”). The path from nomination, through the “Advice and Consent” crucible, to confirmation, is an uncertain one, subject to unpredictable contingencies. For a modern example, recall that in 1987, President Ronald Reagan nominated then-Judge Robert H. Bork to be an associate justice of the Supreme Court of the United States, to fill the seat of the retiring Justice Lewis F. Powell, Jr. Senator Ted Kennedy gave an oppositional speech from the Senate floor that polarized Bork’s nomination. James Reston, WASHINGTON; Kennedy And Bork, N.Y. Times (Jul. 5, 1987) https://www.nytimes.com/1987/07/05/opinion/washington-kennedy-and-bork.html [perma.cc/FJN4-BSU6] (“Mr. Kennedy asserted that ‘Bork's rigid ideology will tip the scales of justice against the kind of country America is and ought to be.’”). After Bork’s nomination was defeated fifty-eight to forty-two in the Senate, President Reagan nominated Judge Douglas H. Ginsburg, who withdrew his nomination that same year over allegations of personal marijuana use. See Steven V. Roberts, Ginsburg Withdraws Name as Supreme Court Nominee, Citing Marijuana ‘Clamor’, N.Y. Times (Nov. 8, 1987), https://archive.is/xWbyq [perma.cc/98SP-L938]. Finally, confirming the old saying that the “third time’s a charm,” President Reagan nominated then-Judge Anthony M. Kennedy; he was confirmed ninety-seven to zero on February 3, 1988. Scott Bomboy, How Justice Kennedy Replaced Powell (and Bork) at the Court, Nat’l Const. Ctr. (June 27, 2018), https://constitutioncenter.org/blog/how-justice-kennedy-replaced-powell-and-bork-at-the-court [perma.cc/6FBR-M8MZ]; see also NCC Staff, On This Day: Senate Rejects Bork for the Supreme Court, Nat’l Const. Ctr. (Oct. 23, 2023), https://constitutioncenter.org/blog/on-this-day-senate-rejects-robert-bork-for-the-supreme-court [perma.cc/8V5K-FFCY] (recounting the saga of President Reagan’s three 1987 nominations to the Supreme Court).

All this to say, where appointments to the Supreme Court are concerned, anything can happen. As Yogi Berra once explained, “It ain’t over til it’s over.” See How People Started Saying ‘It Ain’t Over Til It’s Over’, BBC (Sept. 23, 2015), https://www.bbc.com/news/magazine-34324865 [pera.cc/8BDJ-HZYQ] (attributing the saying to “American baseball legend Yogi Berra”). But see Brandon Riddle, It Ain’t Over: One of Baseball’s Favorite Sayings was Never Said, PitcherList (Dec. 2, 2020), https://pitcherlist.com/it-aint-over-one-of-baseballs-favorite-sayings-was-never-said/ [perma.cc/HS89-GU2C] (contending that Yogi Berra never uttered those words: “Of all the Yogi-isms out there, it ain’t over till it’s over is his most famous proverb—and it’s widely recognized Yogi said those words sometime during the 1973 season. Only, there’s no actual evidence. No quote in the Times. Nothing in the Post or Sports Illustrated or the Pittsburgh Tribune-Review or Teen Vogue, those words are nowhere to be found!”).

⁶ U.S. Const. art. III, § 1 (providing that “[t]he Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour”).

⁷ The Federalist No. 83, at 496–97 (Alexander Hamilton) (Clinton Rossiter ed., 1999) (“In like manner the judicial authority of the federal judicatures is declared by the Constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits, beyond which the federal courts cannot extend their jurisdiction . . . .”).

⁸ See U.S.Const. art. III, § 2, cl. 3 (reciting the “cases” and “controversies” requirement for federal courts’ exercise of their “judicial Power”); The Federalist No. 78, supra note 7, at 464 (Alexander Hamilton) (observing the relative weakness of the judiciary as compared to the other two branches: “The executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments”). See also Vieth v. Jubelirer, 541 U.S. 267, 302 (2004) (plurality) (noting a 1793 correspondence between President George Washington and Chief Justice John Jay and the associate justices involved a “categorical” statement by the Court that the “giving of advisory opinions” was beyond the judiciary’s power); Flast v. Cohen, 392 U.S. 83, 96 n.14 (1968) (noting that “[t]he rule against advisory opinions was established as early as 1793 . . . and the rule has been adhered to without deviation”); Muskrat v. United States, 219 U.S. 346, 354, 363 (1911) (citing the 1793 correspondence as a justification to refuse to take jurisdiction over a case brought under a statute creating a lawsuit devised to test the constitutionality of a different statute).

⁹ See David A. Strauss, The Irrelevance of Constitutional Amendments, 114 Harv. L. Rev. 1457, 1459 (2001) (observing that “our system has other ways of changing besides formal amendments: court decisions, important legislation, or the gradual accretion of power, as in the Presidency during the twentieth century”); id. at 1469–78 (expounding on those non-amendment changes to the Constitution). The Constitution has been amended only 27 times since its enactment in 1789. U.S. Const. art. V; id. amends. I–XXVII. The most recent constitutional amendment was made in 1992, more than 200 years after it was proposed by Congress; one must go back to 1971—more than 50 years ago—to find an amendment that was both considered and ratified by “We the People” in contemporaneous fashion. See Amendments to the U.S. Constitution, Nat’l Archives Found., https://archivesfoundation.org/amendments-u-s-constitution [perma.cc/3GVY-862R] (showing that the 27th Amendment was proposed in 1789 but ratified in 1992 and that the 26th Amendment was proposed and ratified in a single year: 1971).

¹⁰ The Federalist No. 51, supra note 7, at 318–19 (James Madison) (“But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”).

¹¹ The Federalist No. 51, supra note 7, at 319 (James Madison) (“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”); see also Mariah Zeisberg, War Powers: The Politics of Constitutional Authority 25, 30 (2013) (arguing that the “design features” of “classical separation of powers theory” guarantee “interbranch conflict [that] is both endemic and consequential”).

¹² The Federalist No. 10, supra note 7, at 73 (James Madison).

¹³ Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 Harv. L. Rev. 1359, 1368–81 (1997).

¹⁴ Insofar as this author accepts the reality and inevitability of interbranch conflict over the meaning of the Constitution, my view is arguably a kind of “departmentalism,” or the view that “each branch or department of government should interpret the Constitution for itself, without any branch’s interpretation necessarily binding the others.” Richard H. Fallon, Jr., Judicial Supremacy, Departmentalism, and the Rule of Law in a Populist Age, 96 Tex. L. Rev. 487, 489 (2018). Said another way, “departmentalism, or coordinate construction . . . denies that any single interpreter is supreme.” Keith E. Whittington, Extrajudicial Constitutional Interpretation: Three Objections and Responses, 80 N.C. L. Rev. 773, 783 (2002). As Whittington explains, the term “departmentalism” was “probably coined” by legal scholar Edward S. Corwin, but “[t]he concept . . . was widely voiced at the founding and intermittently asserted throughout American history.” See id. at 783 n.42. Indeed, departmentalism was relevant to the presidential administration of Thomas Jefferson, seen in part of a letter that he sent to Abigail Adams, regarding the Sedition Act of 1798. See Letter from Thomas Jefferson to Abigail Adams (Sept. 11, 1804), https://bit.ly/4ih49eS [perma.cc/7MJC-NWE9] (“You seem to think it devolved on the judges to decide on the validity of the sedition law. but [sic] nothing in the constitution has given them a right to decide for the executive, more than to the Executive to decide for them. both [sic] magistracies are equally independent [sic] in the sphere of action assigned to them. the [sic] judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment; because that power was placed in their hands by the constitution. but [sic] the Executive, believing the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided to him by the constitution. that [sic] instrument meant that it’s [sic] co-ordinate branches should be checks on each other.”).

It seems to this author undeniable, however, that the standard definition of “departmentalism” leaves something to be desired insofar as it does not admit of an answer to the critical question of which actor in our system of government possesses ultimate settlement authority, as someone must—a point on which this author is very much in agreement with Professors Alexander and Schauer. See discussion infra Section IV (arguing that Congress possesses the authority to settle constitutional disputes and can do so by “overriding” the Supreme Court’s constitutional decisions).

¹⁵ Sadly, Professor Schauer passed away on September 1, 2024. See Mary Wood, In Memoriam: Professor Frederick Schauer, a ‘Giant’ in the Legal Academy, University of Virginia School of Law (Sept. 2, 2024), https://www.law.virginia.edu/news/202409/memoriam-professor-frederick-schauer-giant-legal-academy [perma.cc/93RQ-B87B]. This author would have loved for Schauer to know that his 1997 article, On Extrajudicial Constitutional Interpretation, inspired this author to labor for months crafting this one. God willing, he does. Eternal rest grant unto him, O Lord, and let perpetual light shine upon him. May he rest in peace. Amen.

¹⁶ 358 U.S. 1 (1958).

¹⁷ Alexander & Schauer, supra note 13, at 1362.

¹⁸ U.S. Const. art. VI, cl. 2 (providing that “[t]his Constitution . . . shall be the supreme Law of the Land”).

¹⁹ 5 U.S. (1 Cranch) 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”).

²⁰ Cooper, 358 U.S. at 18.

²¹ Id. (quoting U.S. Const. art VI, cl. 2).

²² Alexander & Schauer, supra note 13, at 1377.

²³ Thomas Aquinas, Summa Theologica, pt. I-II, q. 90, art. I , as reprinted in Treatise on Law: The Complete Text 76–78 (Alfred J. Freddoso, trans., St. Augustine’s Press 2009); see also James Madison, Vices of the Political System of the United States (Apr. 1787), in 2 The Writings of James Madison, 1783–1787, 363 (Gaillard Hunt, ed., The Knickerbocker Press 1901), https://archive.org/details/writingsofjamesm015855mbp/page/n379/mode/2up [perma.cc/C3AP-8S83] (observing in paragraph seven that “sanction is essential to the idea of law”).

²⁴ Alexander & Schauer, supra note 13, at 1371 (noting that cooperation and coordination are also benefits of law).

²⁵ Id. at 1371, 1377. We intuitively grasp this, for there is little sense in passing a law—which by definition has coercive, binding effect—unless, at a minimum, the goal is to settle something. Otherwise, we would simply issue non-binding, advisory press releases (or perhaps tweets X posts). And we only derive the benefits of settlement if issues are truly settled—i.e., we have a definitive answer to the question, “What is to be done?”—which can only happen when the buck finally stops somewhere for good. See Aquinas, supra note 23 (identifying the settlement principle as a key function of law).

²⁶ Alexander & Shauer, supra note 13, at 1369–81.

²⁷ Id. at 1369–70, 1370 n.45 (describing the idea of the grundnorm).

²⁸ See infra Section IV (discussing congress’s fitness for resolution of day-to-day constitutional questions compared to the judiciary).

²⁹ Alexander & Shauer, supra note 13, at 1369–70, 1370 n.45.

³⁰ Id. at 1377.

³¹ Id. at 1380.

³² Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 16–23 (1986).

³³ Alexander & Schauer, supra note 13, at 1377–78, 1378 n.80; see also Charles Grove Haines, The American Doctrine of Judicial Supremacy 5 (MacMillan 1914) (“The judiciary has the sole right to place an authoritative interpretation upon the fundamental written law.”); Clint Bolick, The Assault on the Independent Judiciary, RealClearPolitics (Mar. 4, 2025), https://www.realclearpolitics.com/articles/2025/03/04/assault_on_the_independent_judiciary_152448.html [perma.cc/4TPE-YNBR] (“Our independent judiciary, with the power and duty to protect individual rights and to hold the political branches to their constitutional boundaries, is a foundation of our republic and a hallmark of American exceptionalism. . . . The framers’ brilliant insight was that the political branches could not be trusted to police their own boundaries. Thus, they created an independent judiciary, appointed by the president and confirmed by the Senate, invested with lifetime tenure in order to, as Chief Justice John Roberts later aptly referred to it, call constitutional balls and strikes.”).

³⁴ 1 Alexis de Tocqueville, Democracy in America 357 (Francis Bowen, ed., Henry Reeve, trans., Cambridge, Sever and Francis 2d ed. 1862) (1835).

³⁵ Rucho v. Common Cause, 588 U.S. 684, 726–727 (2019) (Kagan, J., dissenting); see also Hillsdale College, Lesson Six | The People Rule, But They Do Not Govern, YouTube (Nov. 16, 2019), https://www.youtube.com/watch?v=XzCwSzZ-cEw (from 03:24–04:16) (stating that in no other government throughout history—even ancient Sparta, which had “division of powers in [its] constitution”—except America has all the sovereignty been located in the people themselves); Alexander Hamilton, Remarks at the New York Ratifying Convention (June 27, 1788), https://founders.archives.gov/documents/Hamilton/01-05-02-0012-0034 [perma.cc/B4WS-GG58] (“Here, sir, the people govern; here they act by their immediate representatives.”).

³⁶ Abraham Lincoln, Gettysburg Address (Nov. 19, 1863) reprinted in 7 The Collected Works of Abraham Lincoln 21 (Roy P. Basler ed., 1953), https://constitutioncenter.org/the-constitution/historic-document-library/detail/abraham-lincoln-the-gettysburg-address-1863 [perma.cc/VA2A-YDVM] (identifying the Nation’s founding with the signing of the Declaration of Independence in 1776, rather than the Constitution or Bill of Rights, by stating that “[f]our score and seven years ago our fathers brought forth, upon this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal”) (emphasis added); see also Calvin Coolidge, President of the U.S., The Inspiration of the Declaration (July 5, 1926), https://coolidgefoundation.org/resources/inspiration-of-the-declaration-of-independence [perma.cc/DR2E-UMSA] (identifying the Nation’s “birthday” with the signing of the Declaration of Independence); George Washington, President of the U.S., Neutrality Proclamation (Apr. 22, 1793) https://founders.archives.gov/documents/Washington/05-12-02-0371 [perma.cc/UKD9-E9PE] (declaring that the fledgling Nation would be officially committed to neutrality: “with sincerity and good faith,” it would “adopt and pursue a conduct friendly and impartial toward the belligerent powers”—vis-à-vis the “war” then-raging “between Austria, Prussia, Sardinia, Great-Britain, and the United Netherlands, of the one part, and France on the other,” and doing so “at the city of Philadelphia, the twenty-second day of April, one thousand seven hundred and ninety-three, and of the Independence of the United States of America the seventeenth”) (emphasis added). Seventeen years before 1793 was, of course, 1776, the year the Declaration of Independence was signed. The Constitution became operational on March 4, 1789. See NCC Staff, On This Day, Government Begins Under Our Constitution, Nat’l Const. Ctr., https://constitutioncenter.org/blog/march-4-a-forgotten-huge-day-in-american-politics-2 [perma.cc/9ML6-8SG3] (likewise recognizing 1776 as the year of our Nation’s founding). But that is a separate and distinct event from the Nation’s founding. The Washington Administration correctly held that the Nation preceded the formation of its government.

³⁷ At the very beginning of the United States Code are the Nation’s four Organic Laws: the Declaration of Independence, the Articles of Confederation, the Northwest Ordinance of 1787, and the Constitution itself. 1 United States Code XLV–LXXV (2012 ed. 2013). The Declaration of Independence, “[a]s the first organic law . . . is the authority for everything that follows.” Edward J. Erler, Textualists Cannot Ignore the Text: A Response to Mark Pulliam, RealClearPolicy (Apr. 22, 2019), https://www.realclearpolicy.com/articles/2019/04/22/textualists_cannot_ignore_the_text_a_response_to_mark_pulliam_111172.html [perma.cc/SE5Q-MSCB].

³⁸ The Declaration of Independence para. 2 (U.S. 1776).

³⁹ Id.

⁴⁰ See Dan Himmelfarb, Note, The Constitutional Relevance of the Second Sentence of the Declaration of Independence, 100 Yale L.J. 169, 170–71 (1990) (explaining that “the Declaration of Independence is more than a propaganda instrument or legal brief . . . in fact it is fundamental to a proper understanding of the Constitution”); see also Steven F. Hayward, Harry Jaffa & Leonard Levy Enter the Chat, Political Questions (Feb. 2, 2025) https://stevehayward.substack.com/p/harry-jaffa-and-leonard-levy-enter [perma.cc/K456-EL9V] (publishing a previously unpublished 1987 letter to constitutional historian Leonard W. Levy from political philosopher Harry V. Jaffa, in which Jaffa explained that “the principles of the Constitution are the principles of the Declaration of Independence, and the principles of the Declaration of Independence are the principles of natural justice,” such that “knowledge of natural justice in itself, and apart from its embodiment in the Constitution helps us understand what is otherwise ambiguous within the Constitution”). Jaffa was a first-rate scholar of Lincoln. As historian Allen C. Guelzo, himself a Lincoln scholar, has observed, before the 1959 publication of Jaffa’s groundbreaking work, Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates, the prevailing opinion amongst academics about the Lincoln-Douglas debates was that they were, in the words of historian Albert J. Beveridge, deserving of “little notice.” Allen C. Guelzo, Harry and Me, Claremont Rev. Books (Fall 2018), https://claremontreviewofbooks.com/harry-and-me [perma.cc/33SW-KHB9]. But “Jaffa changed this completely. . . . Unlike the Progressive historians, Jaffa had found in Lincoln’s challenge to Douglas an American voice that matched the classical power [Leo] Strauss had taught him to find in Aristotle and Plato. ‘After a while, I realized that the issue between Lincoln and Douglas was identical to the issue between Socrates and Thrasymachus.’ Harry later said in an interview. ‘Not similar to it. Identical. It is a question of whether the people make the moral order or the moral order makes the people.’ ” Id.

⁴¹ Harry V. Jaffa, Storm Over the Constitution 99 (1999) (quoting Letter from John Hancock, President, Cont’l Cong., to the States (July 6, 1776)).

⁴² Abraham Lincoln, President of the U.S., Fragment on the Constitution and Union (Jan. 1861), https://constitutingamerica.org/fragment-on-the-constitution-and-the-union-by-abraham-lincoln-1809-1865-reprinted-from-the-u-s-constitution-a-reader-published-by-hillsdale-college [perma.cc/YX75-Y5PD] (“The [Declaration’s] assertion of that principle [‘Liberty to all’], at that time, was the word, ‘fitly spoken’ which has proved an ‘apple of gold’ to us. The Union, and the Constitution, are the picture of silver, subsequently framed around it. The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple—not the apple for the picture.”); see also Edward J. Erler, Don’t Read the Constitution the Way Robert Bork Did, Am. Greatness (Mar. 17, 2019), https://amgreatness.com/2019/03/17/dont-read-the-constitution-the-way-robert-bork-did [perma.cc/E3QB-NCWP] (“But when the Constitution is read in the light of the principles of the Declaration, the provisions protecting slavery are clearly shown to be compromises and not principles . . . . [I]f we . . . insist[] that any reference to sources outside the text and structure of the Constitution is illegitimate, then we cannot distinguish the Constitution’s principles from its compromises. . . . It is the Declaration that supplies the purpose to the Constitution . . . .”).

⁴³ The Declaration of Independence para. 2 (U.S. 1776). See also The Federalist No. 40, supra note 7, at 249 (James Madison) (noting “the transcendent and precious right of the people to” change their government to achieve safety and happiness).

⁴⁴ Michael Anton, After the Flight 93 Election 13 (2019) (“Representative republicanism . . . recognizes that some decisions properly belong to the public as a whole and not to any part, and certainly not to any part that claims to speak from authority—religious, scientific, or otherwise. Republicanism is meaningful only if popular majorities have the power to decide political questions, while not infringing on the rights of those in the minority.”). Said more colloquially, “the Constitution doesn’t belong to a bunch of judges and lawyers, it’s yours.” Kristina Davis, Justice Kennedy: ‘Constitution is yours,’ San Diego Union-Trib. (Aug. 24, 2016 2:12 PM), https://www.sandiegouniontribune.com/2015/07/15/justice-kennedy-constitution-is-yours [perma.cc/8ZHP-ZHYJ].

⁴⁵ Harry V. Jaffa, Aristotle and Locke in the American Founding, Claremont Rev. Books (Winter 2001) https://claremontreviewofbooks.com/aristotle-and-locke-in-the-american-founding [perma.cc/Q27N-9GS8] (“After speaking of our unalienable rights, to secure which governments are instituted, the Declaration of Independence goes on to say that ‘whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute new government, laying its foundations on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.’ Notice that in the second institution, or reinstitution of government, ‘rights’ become ‘ends.’ And these ends are now said to be ‘Safety’ and ‘Happiness,’ the alpha and omega of political life in Aristotle’s Politics.”).

⁴⁶ United States v. Lopez, 514 U.S. 549, 552 (1995) (“We start with first principles. The Constitution creates a Federal Government of enumerated powers.”) (citing U.S. Const. art. I., §8). See also The Federalist No. 51, supra note 7, at 319 (James Madison) (“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”); No. 45, supra note 7, at 289 (James Madison) (“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”); No. 14, supra note 7, at 97 (James Madison) (explaining that the “jurisdiction” of “the general government” is “limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any,” whereas “[t]he subordinate governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity”).

⁴⁷ Ken Drexler & Robert Brammer, Federalist Papers: Primary Documents in American History, Library of Congress (May 3, 2019), https://guides.loc.gov/federalist-papers/introduction [perma.cc/X9M2-RF5K].

⁴⁸ Report from Thomas Jefferson to the President and Directors of the Literary Fund (Mar. 4, 1825) (emphasis added), https://bit.ly/42k108t [perma.cc/V9VL-EKHX].

⁴⁹ A particularly moving description of the natural law that the Declaration of Independence embodies comes from Alexander Hamilton’s January 1775 reply to Samuel Seabury’s View of the Controversy. See Alexander Hamilton, The Farmer Refuted, &c. (Feb. 23, 1775), reprinted in 1 The Papers of Alexander Hamilton 81–165 (Harold C. Syrett, ed., Columbia Univ. Press 1961), https://founders.archives.gov/documents/Hamilton/01-01-02-0057 [perma.cc/ZW2V-5VVE] (“The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power.”).

⁵⁰ See The Federalist No. 22, supra note 7, at 148 (Alexander Hamilton) (following the Declaration of Independence by noting that all legitimate power flows from the people to their government: “The fabric of American empire ought to rest on the solid basis of The Consent of the People. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.”); No. 39, supra note 7, at 236 (James Madison) (asserting that the new government would be indefensible were it to “depart” from the “fundamental principles of the Revolution,” and thus “[i]f the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible.”); No. 40, supra note 7, at 276 (James Madison) (recognizing “the transcendent and precious right of the people to ‘abolish or alter their governments as to them shall seem most likely to effect their safety and happiness’”); No. 43, supra note 7, at 275–76 (James Madison) (paraphrasing the Declaration of Independence: “[T]he transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed.”). Even the Anti-Federalists appealed to the Declaration of Independence, albeit to oppose the ratification of the Constitution. See Himmelfarb, supra note 40, at 182–85.

⁵¹ See The Federalist No. 43, supra note 7, at 275–76 (James Madison). This placement, while perhaps nothing more than a coincidence, this author thinks is better seen as Publius’s recognition that the Declaration of Independence’s principles are the Constitution’s beating heart, its very raison d’être.

⁵² See Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 262 (2023) (Thomas, J., concurring) (“The Constitution’s colorblind rule reflects one of the core principles upon which our Nation was founded: that ‘all men are created equal.’ Those words featured prominently in our Declaration of Independence and were inspired by a rich tradition of political thinkers, from Locke to Montesquieu, who considered equality to be the foundation of a just government.”); Evenwel v. Abbott, 578 U.S. 74, 82 (2016) (Thomas, J., concurring) (“Because, in the view of the Framers, ultimate political power derives from citizens who were created equal.”) (quoting The Declaration of Independence para. 2 (U.S. 1776)); Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 240 (1995) (Thomas, J., concurring) (“There can be no doubt that the paternalism that appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution.”); see also Ken Masugi, Natural Justice, Claremont Rev. Books (Winter 2020) https://claremontreviewofbooks.com/natural-justice [perma.cc/ZKL4-VA9X] (“Clarence Thomas . . . writes opinions that will establish the true history of constitutional law, which is grounded in natural law, with the Declaration as the Constitution’s foundation.”).

Of course, closer in time to the Founding is the now-famous exchange between Associate Justice Samuel Chase and Associate Justice James Iredell. See Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798) (Chase, J., concurring) (“An act of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded. A few instances will suffice to explain what I mean. A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys or impairs the lawful private contracts of citizens; a law that makes a man a judge in his own cause; or a law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that it has done it.”); id. at 399 (Iredell, J., concurring) (“If . . . the Legislature of the Union, or the legislature of any member of the Union, shall pass a law, within the general scope of its constitutional power, the Court cannot pronounce it to be void, merely because it is, in its judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.”).

⁵³ See Samuel L. Bray, The Mischief Rule, 109 Geo. L.J. 967, 1003 & n.200 (2021) (“[L]egal language needs context to be understood.”); Timothy J. Bradley, Getting into Mischief: Reflections on Statutory Interpretation and the Mischief Rule, 109 Geo. L.J. Online 199, 200 & n.4 (2021) (contending that, when endeavoring to understand “meaning in written communication,” “[c]ontext is vital”).

⁵⁴ U.S. Const. pmbl. (“We the People of the United States . . . do ordain and establish this Constitution for the United States of America.”). See also Hillsdale College, supra note 35 (from 01:32–02:51 and 04:02–04:16) (discussing The Federalist No. 63 and noting the body politic is “excluded from the operation of the government,” yet “all the sovereignty is ours . . . all government is illegitimate except with [our consent]”); Evenwel, 578 U.S. at 82 (Thomas, J., concurring) (stating the Declaration stands for the proposition that “ultimate political power derives from citizens who were ‘created equal’”); Rucho, 588 U.S. at 727 (Kagan, J., dissenting) (citing the Declaration of Independence for the proposition that “[t]he people are sovereign”).

⁵⁵ The Declaration of Independence para. 2 (U.S. 1776).

⁵⁶ Id. Jefferson also wrote of the fundamental moral equality of all persons: “[T]he mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of god.” Letter from Thomas Jefferson to Roger Weightman (June 24, 1826), https://www.loc.gov/exhibits/jefferson/214.html [perma.cc/LR8H-77JV]. This means that no person can rule another without his consent; that is, there are no natural rulers amongst human beings. Moreover, the use of natural law to interpret the Constitution is not a novel concept. See, e.g., William Baude, Speech:The 2023 Scalia Lecture: Beyond Textualism?, 46 Harv. J. L. & Pub. Pol’y 1331, 1346–47 (2023) (noting the “foundational debate between Justice Chase and Justice Iredell about how to understand [natural-law] principles . . . for interpreting constitutional text” and observing that, “to some, natural law is so foundational that textualism’s inability to deal with it might because for discarding textualism entirely”). Indeed, the practice only fell out of favor beginning in the late nineteenth century. See Albert Alschuler, From Blackstone to Holmes: The Revolt Against Natural Law, 36 Pepp. L. Rev. 491, 505 (2009) (“The jurisprudential revolution of the late nineteenth century”—epitomized by the jurisprudence and scholarship of Associate Justice Oliver Wendell Holmes, Jr.—“was not a revolt against formalism. It was a revolt against natural law.”) (emphasis added). This was likely the result of “the coalescing of two important strains of American political thought,” social Darwinism and pragmatism, that undermined “the old understanding of the nature and permanent limits of politics”—which had been exemplified by the rhetoric and governance of Abraham Lincoln. Bradley C. S. Watson, Progressivism: The Strange History of a Radical Idea 13 (2020). “In the America of the late nineteenth century,” Lincoln’s “understanding of the nature and permanent limits of politics”—“perhaps the high-water mark of the old constitutionalism”—“was dead or dying.” Id. Indeed, “American political thought subsequent to Lincoln has, for the most part, amounted effectively to an attack on Lincoln’s conception of American constitutionalism and the philosophical proposition on which it rests.” Id.

⁵⁷ See The Federalist No. 39, supra note 7, at 236 (James Madison). See also The Federalist No. 51, supra note 7, at 319 (James Madison) (identifying the federal government as “republican” in form); The Federalist No. 71, supra note 7, at 432 (Alexander Hamilton) (same); Charles R. Kesler, Introduction, at viii, in The Federalist Papers (Clinton Rossiter ed., 1999) (“The great accomplishment of The Federalist . . . was to show both that the Constitution was both coherent and republican. . . . The Federalist articulated the overall integrity of the Constitution, showing how it fit the requirements of republican government as a whole.”).

⁵⁸ See generally The Federalist Nos. 1, 6 (Alexander Hamilton), Nos. 2–5 (John Jay) (discussing the suitability of republican government vis-à-vis foreign policy concerns, mixed motivations in political life, and the possibility of internal civil unrest).

⁵⁹ John Marini, Unmasking the Administrative State: The Crisis of American Politics in the Twenty-First Century 70 (Ken Masugi ed., 2019) (noting the centrality of the principle of the separation of powers to the Founding: “[S]eparation of powers epitomized the political science of The Federalist. In fact, it was this institutional arrangement that was thought to be most vital to the science of politics that derived from those ‘inventions of prudence’ of which James Madison spoke.”).

⁶⁰ While determining the precise boundaries of the three powers is not an exact science, it is clear that there are three basic governmental powers. For the proposition that there are three basic powers, see The Federalist No. 47, supra note 7, at 298 (James Madison) (asserting that the concentration of all three powers “in the same hands” is “the very definition of tyranny”). On the difficulties of determining the precise boundaries of the powers, see Conversations with Bill Kristol, Harvey Mansfield on the Wisdom of the Federalist, YouTube (Sept. 8, 2018), https://youtu.be/mp4Q_3VMrow?t=2697 (at 44:57–45:34) (discussing the difficulties presented by The Federalist No. 37, specifically how the precise meaning and boundaries of the three federal branches’ powers are not completely clear: “[O]ne of them is the question of distinctions. And how it is that you make a definition of a power in such a way as to separate one power from another. What is power? And what are the three branches that power is going to be divided into? Say, executive, judicial, and legislative. What does each of them mean?”).

⁶¹ See U.S. Const. art. I, §1 (vesting in Congress “[a]ll legislative Powers herein granted”); U.S. Const. art. I, §7 (describing the legislative process).

⁶² See U.S. Const. art II, §1 (vesting “[t]he executive Power in a President of the United States”); U.S. Const. art. II, §3 (requiring that he faithfully execute the Nation’s laws).

⁶³ See U.S. Const. art III, §1 (vesting “[t]he judicial Power of the United States” in “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish”); U.S. Const., art III, §2 (limiting that power to the adjudication of concrete cases and controversies); see also Samuel L. Bray, Multiple Chancellors, 131 Harv. L. Rev. 418, 471 n.312 (stating that courts only have the power to decide discrete cases, not set policy). Importantly, judicial decisions cannot “alter” the Constitution; they can only “expound” it. See Letter from James Madison to Nicholas Trist (Dec. 1831) https://founders.archives.gov/documents/Madison/99-02-02-2483 [perma.cc/H9XN-2ECF] (“There has been a fallacy in this case as indeed in others, in confounding a question whether precedents could expound a Constitution, with a question whether they could alter a Constitution. This distinction is too obvious to need elucidation. None will deny that precedents of a certain description, fix the interpretation of a law, yet who will pretend that they can repeal or alter a law.”).

⁶⁴ The Federalist No. 46, supra note 7, at 291 (James Madison) (“The federal and State governments are . . . different agents and trustees of the people, constituted with different powers, and designed for different purposes. The adversaries of the Constitution seem . . . to have viewed [them] not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded . . . . that the ultimate authority, wherever the derivative may be found, resides in the people alone . . . .”) (emphasis added); see also Julie Ponzi, Making Politics Possible Again, L. & Liberty (Jan. 18, 2018), https://lawliberty.org/forum/making-politics-possible-again [perma.cc/D2BN-NWNK] (describing the American people as “the sovereign, self-governing rulers of their own lives and governments,” which means that “[t]hey get to decide who represents them, who their fellow citizens will be, what laws will govern them, and what policies seem to serve their interests at any given time”—even if that means “decid[ing] to do things that the smart guys think are wrong”).

⁶⁵ The Federalist No. 78, supra note 7, at 468 (Alexander Hamilton) (emphasis added).

⁶⁶ Id. at 466.

⁶⁷ See U.S. Const. art. V (describing how the Constitution, with some limited exceptions, can be changed). See also Abraham Lincoln, President of the U.S., First Inaugural Address (Mar. 4, 1861), http://avalon.law.yale.edu/19th_century/lincoln1.asp [perma.cc/33PR-PX5E] (noting that, for practical purposes, a constitutional majority, in this case, embodied by two-thirds of both Houses of Congress and three-fourths of the states, “is the only true sovereign of a free people”).

⁶⁸ See The Federalist No. 78, supra note 7, at 468 (Alexander Hamilton) (“Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding . . . and no presumption, or even knowledge of [the people’s] sentiments, can warrant their representatives in a departure from it prior to such an act.”); see also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803) (stating that the “principles” of the Constitution are “fundamental” and “permanent” and, except for formal amendment, “unchangeable”); Aaron Gordon, Nondelegation, 12 N.Y.U. J.L. & Liberty 718, 730–31 n.47 (2019) (arguing that constitutions are anti-evolutionary by design—and therefore the Constitution’s meaning and operations are fixed until the people act to change them); John Locke, The Second Treatise of Government § 199, https://www.gutenberg.org/files/7370/7370-h/7370-h.htm [perma.cc/C2Z2-BX5R] (rejecting unlawful delegations of power: “usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond right, which no body can have a right to”). But see Strauss, supra note 9, at 1459 (“Our system has other ways of changing besides formal amendments: court decisions, important legislation, or the gradual accretion of power, as in the Presidency during the twentieth century.”); id. at 1469–78 (expounding on supposed non-amendment changes to the Constitution). I concur with Strauss insofar as it is undeniable that, as a practical matter, various provisions of our Constitution mean something different than what the Founding generation would have said that they meant. But these interpretations are glosses we have erroneously placed on the Constitution; they cannot and do not trump its original meaning, which is “usually . . . is easy to discern and simple to apply.” Gamble v. United States, 587 U.S. 678, 722 (2019) (Thomas, J., concurring) (quoting Antonin Scalia, Common Law Courts in a Civil-Law System, in A Matter of Interpretation: Federal Courts and the Law 45 (Amy Gutmann ed., 1997)).

⁶⁹ Abraham Lincoln, First Debate with Stephen A. Douglas at Ottawa, Illinois (Aug. 21, 1858), reprinted in 3 The Collected Works of Abraham Lincoln 27 (Roy P. Basler ed., 1953) [hereinafter First Douglas Debate], https://www.nps.gov/ liho/learn/historyculture/debate1.htm [perma.cc/A58N-ZFVF] (“[P]ublic sentiment is everything. With public sentiment, nothing can fail; without it nothing can succeed.”).

⁷⁰ The Federalist No. 22, supra note 7, at 148 (Alexander Hamilton).

⁷¹ See, e.g., Jay Cost, Congress is Not a Coequal Branch of Government—It’s Supreme, Nat’l Rev. (Jan. 14, 2019), https://www.nationalreview.com/2019/01/congress-supreme-branch-of-government-not-coequal [perma.cc/W7FK-RM7H] (rooting Congress’s superiority in the American commitment to the people’s right to self-government: “We govern ourselves, primarily th[r]ough Congress. That is what the Founders envisioned, and it is why Congress is the supreme branch of the government.”); see also David Schoenbrod, Consent of the Governed: A Constitutional Norm that the Court Should Substantially Enforce, 43 Harv. J.L. Pub. Pol. 213, 214, 216 (2020) (arguing that because the Declaration of Independence “proclaims that governments derive ‘their just powers from the consent of the governed,’” and because “the Constitution vest[s] responsibility for exercising certain basic powers, including the power to make rules of private conduct, in the branch of government most directly accountable to the governed, Congress,” the Court has “a constitutional duty to follow a path that enables it to enforce th[at] norm to the extent permitted by the impediments to judicial enforcement”).

⁷² Two exceptions prove this general rule. First, the Supremacy Clause, which makes Federal law superior to state laws to the contrary, so long as the former does not itself violate the Constitution. See U.S. Const. art. VI, cl. 2 (providing that “[t]his Constitution . . . shall be the supreme Law of the Land”). The second exception is “Dillon’s Rule,” an arrangement between states and municipalities, under which the latter “are regarded legally as occupying a subordinate status within the state” and, therefore, “[municipalities] derive their existence and all their powers from the state constitution and state legislative enactments. In the absence of state constitutional provisions to the contrary, they are subject wholly to state legislative control.” See Kenneth E. Vanlandingham, Municipal Home Rule in the United States, 10 Wm. & Mary L. Rev. 269, 269 (1968) (citing Dillon, Commentaries on the Law of Municipal Corporations, § 237 (5th ed. 1911) (discussing the benefits and drawbacks of home rule, including the challenge of defining its proper scope)); City of Clinton v. Cedar Rapids & M.R.R. Co., 24 Iowa 455, 478 (1868) (establishing the rule that came to be known as “Dillon’s Rule” after Chief Justice Dillon of the Iowa Supreme Court, who authored the lead opinion).

⁷³ U.S. Const. amend. X.

⁷⁴ Barnes v. Glen Theatre, Inc., 501 U.S. 560, 560–61, 569 (1991) (plurality opinion). For a comprehensive article tracing the historical background of the police power, which is a key concept in American constitutional law, see generally Santiago Legarre, The Historical Background of the Police Power, 9 U. Pa. J. Const. L. 745 (2007) (reviewing the historical scholarly literature regarding the development of state general police powers, particularly through the lens of two early 20th century treatises on the subject). For a recent application of the doctrine of the “police power” to a state executive’s attempt to respond to the COVID-19 pandemic, see Midwest Inst. of Health v. Governor of Michigan (In re Certified Questions), 958 N.W.2d 1, 31 (2020) (holding, inter alia, that Michigan’s Emergency Powers of the Governor Act (“EPGA”) was “in violation of the Constitution of our state because it purports to delegate to the executive branch the legislative powers of state government—including its plenary police powers—and to allow the exercise of such powers indefinitely”).

⁷⁵ McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405 (1819). See also United States v. Lopez, 514 U.S. 549, 566–67 (“The Constitution . . . withhold[s] from Congress a plenary police power that would authorize enactment of every type of legislation. . . . [But] a general police power [is] retained by the States.”); id. at 584–85 (Thomas, J., concurring) (stating that “[t]he Federal Government has nothing approaching a police power” and “on this crucial point, the majority and Justice Breyer[’s dissent] agree in principle”).

⁷⁶ Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c 11 (U.K) (“Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.”); Tascha Shahriari-Parsa, Notwithstanding the Right to Strike: A Canadian Province Defies the Constitution – And Workers Strike Back, Harv. L. Rev. Blog (Nov. 28, 2022), https://harvardlawreview.org/blog/2022/11/notwithstanding-the-right-to-strike-a-canadian-province-defies-the-constitution-and-workers-strike-back [perma.cc/6PC6-KZ3T] (stating that “[t]he ‘notwithstanding clause’ is the common name for Section 33 of Canada’s Charter of Rights and Freedoms”). OLR Research Report (Jan. 28, 1998), https://www.cga.ct.gov/PS98/rpt%5Colr%5Chtm/98-R-0143.htm#:~:text=The%20Canadian%20Charter%20or%20Rights,by%20jury%20in%20certain%20cases [perma.cc/PG65-TFQD] (“The Canadian Charter of Rights and Freedoms is the equivalent to our Bill of Rights.”).

⁷⁷ Brian Bird, The Judicial Notwithstanding Clause: Suspended Declarations of Invalidity, 42 Manitoba L.J. 23, 26 (2019).

⁷⁸ Id. at 45 (discussing how the legislatures may also invoke the notwithstanding clause “after a court has found a law to be unconstitutional”).

⁷⁹ Tristin Hopper, Can you really just ignore the constitution if you feel like it? Everything you need to know about the notwithstanding clause, Nat’l Post (Sept. 13, 2018), https://nationalpost.com/news/canada/what-is-the-notwithstanding-clause [perma.cc/FX2F-UKMM].

⁸⁰ Bird, supra note 77, at 44.

⁸¹ Id.

⁸² See Tsvi Kahana, The Notwithstanding Mechanism and Public Discussion: Lessons from the Ignored Practice of Section 33 of the Charter, 45 Canadian Pub. Admin. 255, 255 (2008).

⁸³ Interestingly, the Canadian scheme mirrors a recent proposal to invoke the Constitution’s Exceptions Clause to achieve a similar effect. See generally Brian Kulp, Note, Counteracting Marbury: Using the Exceptions Clause to Overrule Supreme Court Precedent, 43 Harv. J.L. & Pub. Pol’y 279, 280–81 (2020) (contending that “the Constitution grants Congress the near-plenary power to curb the Court’s appellate jurisdiction” by “remov[ing] a statute from the Court’s appellate oversight” via “a simple majority [vote] of Congress (with the President’s approval)”). Where this author’s argument diverges from Kulp’s is that this author maintains that political counteraction of the Court need not be based on the Exceptions Clause (though it could be) because the power to counteract the Court is always already inherent in the Founding’s political-philosophic premises and, indeed, within the text, structure, and logic of the Constitution itself.

⁸⁴ Compare Canadian Charter of Rights and Freedoms, s 33, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c 11 (U.K.) (allowing Canadian legislatures to pass laws that contravene court interpretations of the Charter), with discussion supra Section II (arguing that proximity to the sovereign people is directly correlated with a branch’s degree of authority in our constitutional system).

⁸⁵ Compare Canadian Charter of Rights and Freedoms, s 11, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, c 11 (U.K), with discussion supra Section II.

⁸⁶ Compare Canadian Charter of Rights and Freedoms, §33, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, c 11 (U.K.), with discussion infra Section IV (explaining how Congress is best suited to resolve day-to-day constitutional interpretation disputes).

⁸⁷ Whether a valid judgment as to the parties to a case is inviolable is outside the scope of this Article, and, in any event, only one scholar (as far as this author knows) has defended the view that they are not. See Michael Stokes Paulsen, The Irrepressible Myth of Marbury, 101 Mich. L. Rev. 2706, 2726 (2003) (arguing that “[t]o require the President to swear an oath [to preserve, protect, and defend the Constitution], yet require him, when persuaded that another branch has acted inconsistently with the Constitution, nonetheless to enforce its statute or its judicial judgment, makes a solemn mockery of the oath”) (emphasis added).

⁸⁸ The Federalist No. 22, supra note 7, at 148 (Alexander Hamilton) (emphasis removed).

⁸⁹ Keith Whittington, The Place of Congress in the Constitutional Order, 40 Harv. J.L. & Pub. Pol’y 573, 573 (2017).

⁹⁰ Id.; see also Jay Cost, supra note 71 (rooting Congressional superiority in popular sovereignty); Pat Cunningham, The Myth of Three Co-equal Branches of Government Rises Again, The Providence J., https://bit.ly/4bMRQo8 [perma.cc/D87U-C5P3] (citing opposing Federalist and anti-ratificationist arguments about the proper scope of congressional power, corroborating the view that the Framers intended Congress to be the supreme branch in the American constitutional system).

⁹¹ Alexander and Schauer are by no means the first to explicate and defend the position that, descriptively, there is—and that, normatively, there must be—a supreme, final authority in any politico-legal system. See, e.g., Haines, supra note 33, at 1 (“One of the axioms of political theory and governmental practice is that there must be in every state a supreme authority whose determinations are final and not subject to any recognized higher power.”). Unfortunately, Cooper-style judicial supremacy is alive and well to this day; its fiercest exponents are often, perhaps predictably, judges themselves. See, e.g., Bolick, supra note 33 (state supreme court justice writing in support of judicial supremacy).

⁹² See Alexander & Schauer, supra note 13, at 1369–70, 1370 n.45.

⁹³ It stands to reason that this Article’s mode of analysis—i.e., repairing to the Nation’s Founding principles to arrive at a fuller, more complete understanding of the proper functioning of our legal regime—applies with similar force to other issues. Future scholarship may show just that. For now, it is an open question.

⁹⁴ See Cohens v. Virginia, 19 U.S. 264, 377 (1821) (“If such be the constitution, it is the duty of the Court to bow with respectful submission to its provisions.”); Sheetz v. Cnty. of El Dorado, 601 U.S. 267 (2024) (Gorsuch, J., concurring) (“However the government chooses to act, . . . it must follow the same constitutional rules.”).

⁹⁵ Lincoln, First Douglas Debate, supra note 69.

⁹⁶ See, e.g., The Amendment Process, Nat’l Archives, https://www.trumanlibrary.gov/education/three-branches/amendment-process [perma.cc/LW2B-U59U] (explaining that ideas worthy of being amendments must be of “major impact affecting all Americans or securing rights of citizens”); Kevin Frazier, It’s Time To Amend How We Amend The Constitution: Legal Scholars Call For Limited Constitutional Convention, Yale J. on Reg. (Apr. 22, 2024), https://www.yalejreg.com/nc/its-time-to-amend-how-we-amend-the-constitution [perma.cc/48TA-TPQN] (explaining that the Framers “intended [the Constitution] to undergo amendment as required to maintain the spirit of the Revolution”). To be clear, this authordoes not necessarily, and likely will not, endorse the author’s and other signatories’ diagnosis of our Nation’s ills.

⁹⁷ See The Federalist No. 78, supra note 7, at 467 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (elaborating on the principal-agent theory); see also William N. Eskridge Jr., Spinning Legislative Supremacy, 78 Geo. L.J. 319, 320 (1989) (describing judges as “‘honest agents’ carrying out the commands of the legislature”).

⁹⁸ See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176–77 (1803) (holding that the Constitution is the Nation’s “fundamental” law).

⁹⁹ Abraham Lincoln, President of the U.S., First Inaugural Address (Mar. 4, 1861), http://avalon.law.yale.edu/19th_century/lincoln1.asp [perma.cc/33PR-PX5E].

¹⁰⁰ Samuel Moyn, Resisting the Juristocracy, Bos. Rev. (Oct. 5, 2018), https://www.bostonreview.net/articles/samuel-moyn-resisting-juristocracy [perma.cc/S45X-W9TH] (cited not for substantive agreement with Moyn’s argument but, rather, as evidence of the use of the term “juristocracy,” i.e., “the imperial judiciary”); see also Ronald Kahn, Testing Standards and Evaluation of Methods of Inquiry in Hirschl’s Towards Juristocracy: England’s Human Rights Act of 1998, https://bit.ly/3DIxwI2 [perma.cc/2ZZ7-VDTU] (citing Hirschl, who defines “juristocracy” as “the transfer of an unprecedented amount of power from representative institutions to judiciaries, with a Constitution and Bill of Rights, and a national court with power of judicial review”).

¹⁰¹ James Madison contended that republican self-government was the only form of government “reconcilable with the genius of the people of America.” The Federalist No. 39, supra note 7, at 236 (James Madison).

¹⁰² See Whittington, supra note 89, at 583–84 (observing that “Congress [is] the place where [] representatives [can] find common ground, identify a common legislative agenda, and develop agreed-upon policy”); but see James Wallner, What’s Wrong With American Politics, L. & Liberty (July 2, 2018), https://www.lawliberty.org/2018/07/02/whats-wrong-with-american-politics-congress-inaction-gridlock [perma.cc/Q8GG-KV3P] (arguing that Congress is no longer the “pre-eminent venue in which to engage in politics on behalf of the people [its members] represent in order to resolve their differences and compromise” because “most members no longer see Congress” that way, and “[i]n lieu of the conflict such a process would inevitably generate between members with different policy views, there appears to be bipartisan agreement that executive branch agencies and the federal judiciary are more appropriate venues for making controversial decisions”).

¹⁰³ See Jeffrey A. Pojanowski, Statutes in Common Law Courts, 91 Tex. L. Rev. 479, 512–13 (2013) (describing various institutional features of courts that make them poorer policymakers than legislatures); Trop v. Dulles, 356 U.S. 86, 120 (1956) (Frankfurter, J., dissenting) (“[I]t is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court's giving effect to its own notions of what is wise or politic.”).

¹⁰⁴ Obergefell v. Hodges, 576 U.S. 644, 710–11 (2015) (Roberts, C.J., dissenting).

¹⁰⁵ See Matthew Continetti, After Kavanaugh, Wash. Free Beacon (Oct. 5, 2018), https://freebeacon.com/columns/after-kavanaugh [perma.cc/KL9P-Z4W2] (exploring causes of narrowing Senate vote margins for Supreme Court confirmations and claiming that some lawmakers believe in the aforementioned dominance of the Supreme Court).

¹⁰⁶ The fact that states elect their judges might undermine or otherwise blunt the applicability of the proximity-to-the-people analysis. For more information on state election of judges, see Significant Figures in Judicial Selection, Brennan Ctr. For Just. (Apr. 14, 2023), https://www.brennancenter.org/our-work/research-reports/significant-figures-judicial-selection [perma.cc/H4MA-3MSK] (reporting that “[m]ost states use elections as some part of their selection process—39 states use some form of election at some level of court,” and in “38 states . . . elections are used to select judges to the high court”). Moreover, the concern about judicial supremacy might be less salient at the state level given “[t]he differing institutional contexts of state constitutions and their far greater popular dimensions” as compared to the federal Constitution. See Douglas S. Reed, Popular Constitutionalism: Toward a Theory of State Constitutional Meanings, 30 Rutgers L.J. 871, 875 (1999). A consequence is that “state constitutional law is less circumscribed by legal norms and more defined by political coalition-building and mobilization.” Id. Accordingly, “[t]he interpreter of state constitutions . . . is less likely to be a judge and more likely to be a mobilized and politically active citizenry,” via, e.g., the “initiative mechanism.” Id.

¹⁰⁷ See U.S. Const. art. II, § 2, cl. 2 (providing that the President “shall have Power, by and with the Advice and Consent of the Senate, to . . . appoint . . . Judges of the supreme Court”).

¹⁰⁸ See Michigan v. Long, 463 U.S. 1032, 1033, 1039 (1983) (holding that the Supreme Court will “not undertake to review” a “state court decision” that “indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds”).

¹⁰⁹ See The Federalist No. 14, supra note 7, at 97 (James Madison) (the “jurisdiction” of “the general government” is “limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any.”).

¹¹⁰ Alexander & Schauer, supra note 13, at 1378 n.80.

¹¹¹ See, e.g., Randy J. Kozel, Precedent and Constitutional Structure, 112 Nw. U.L. Rev. 789, 789 (2018) (arguing that “deference to precedent [is] a sound inference from the Constitution’s structure, text, and historical context”).

¹¹² See, e.g., Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 585 U.S. 878, 917 (2018) (collecting cases); see also Gamble v. United States, 587 U.S. 678, 714–17 (2019) (Thomas, J., concurring) (explaining that even “the common law did not view precedent as unyielding when it was ‘most evidently contrary to reason’ or ‘divine law’”) (quoting 1 William Blackstone, Commentaries on the Laws of England 69–70 (1765)).

¹¹³ See Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 1–5 (2001) (examining the Court’s varied use of stare decisis).

¹¹⁴ See, e.g., Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022) (overruling Roe v. Wade, 410 U.S. 113 (1973)).

¹¹⁵ Learned Hand, The Bill of Rights 73 (1958) (“For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not.”).

¹¹⁶ Alexander & Schauer, supra note 13, at 1378 n.80.

¹¹⁷ Id.

¹¹⁸ 60 U.S. 393 (1857).

¹¹⁹ 163 U.S. 537 (1896); see also Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379, 380 (2011) (explaining the concept of “the American anticanon”—those infamous decisions that all sound constitutional rulings must repudiate, namely the petitioner-eponymous quartet of “Dred Scott, Plessy, Lochner, and Korematsu”).

¹²⁰ Nadine Strossen, Supreme Court’s Role: Guarantor of Individual and Minority Group Rights, The Essay, 26 U. Rich. L. Rev. 467, 468 (1991) (stating that, “[d]uring much of [the twentieth] century, the Supreme Court fulfilled its unique role as the ultimate guarantor of individual and minority group rights”).

¹²¹ Philip Hamburger, Chevron Bias, 84 Geo. Wash. L. Rev. 1187, 1206 (2016) (emphasis added).

¹²² Strossen, supra note 120, at 468; see also Thomas Jefferson, President of the U.S., First Inaugural Address (Mar. 4, 1801), https://bit.ly/3DGRBhN [perma.cc/N76Y-7RMK] (arguing that “[a]ll, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression”); Gundy v. United States, 588 U.S. 128, 173 (2019) (Gorsuch, J., dissenting) (“Respecting the separation of powers . . . requires us to respect along the way one of the most vital of the procedural protections of individual liberty found in our Constitution.”); Antonin Scalia, Foreword: The Importance of Structure in Constitutional Interpretation, 83 Notre Dame L. Rev. 1417 (2008) (writing in support of the symposium’s theme: the fundamental role that constitutional structure plays in securing individual liberty).

¹²³ Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J., dissenting) (explaining that “[t]he Framers of the Federal Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just government” and that, “[w]ithout a secure structure of separated powers, our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours”); see also Scalia, supra note 122, at 1418 (“The constitutional structure of the United States has two main features: (1) separation and equilibration of powers and (2) federalism. Each functions to safeguard individual liberty in isolation, but they provide even greater protection working together.”).

¹²⁴ Kimble v. Marvel Entertainment, LLC, 576 U.S. 446, 465 (2015).

¹²⁵ See The Federalist No. 78, supra note 7, at 464 (Alexander Hamilton).

¹²⁶ See Brutus No. XV (Mar. 20, 1788), in 2 The Complete Anti-Federalist 437, 437–42 (Herbert J. Storing ed., 1981) (predicting the Court’s supremacy).

¹²⁷ Obergefell v. Hodges, 576 U.S. 644, 713 (2015) (Scalia, J., dissenting).

¹²⁸ Bd. of Cnty. Comm’rs v. Umbehr, 518 U.S. 668, 711 (1996) (Scalia, J., dissenting).

¹²⁹ Abraham Lincoln, President of the U.S., First Inaugural Address (Mar. 4, 1861), http://avalon.law.yale.edu/19th_century/lincoln1.asp [perma.cc/33PR-PX5E].

¹³⁰ Id.

¹³¹ Letter from Thomas Jefferson to Abigail Adams, supra note 14. 

¹³² See U.S. Const. art. IV, § 4 (“The United States shall guarantee to every State in this Union a Republican Form of Government . . . .”).

¹³³ Schoenbrod, supra note 71, at 219 (“[T]hese directly or indirectly elected officials would be accountable for the hard legislative choices. Such accountability would enable the governed to withhold their consent in response to the decisions of elected officials.”).