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Judicial Independence and the American Constitution: A Democratic Paradox

Online ISBN:
9781503601840
Print ISBN:
9780804792905
Publisher:
Stanford University Press
Book

Judicial Independence and the American Constitution: A Democratic Paradox

Martin H. Redish
Martin H. Redish
Northwestern University
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Published online:
18 May 2023
Published in print:
21 March 2017
Online ISBN:
9781503601840
Print ISBN:
9780804792905
Publisher:
Stanford University Press

Abstract

This book argues that American constitutionalism is properly deemed to dictate adherence to the rule of law achieved through a process of checking of government’s unlimited power over the individual, the majority’s unlimited power over the minority and government’s unlimited power over the populace. Thus, paradoxically, it is only by vigilant enforcement of prophylactically assured judicial independence, insulating the judiciary from majoritrarian control, that our nation’s form of constitutional democracy is able to function effectively. Our Constitution—unlike its British predecessor—takes written form, is framed in the form of mandatory directives, and is explicitly made subject to alteration only through a complex counter-majoritarian process. Absent vigorous, prophylactic protections of judicial independence, our counter-majoritarian constitutional system would be vulnerable to manipulation and circumvention by the majoritarian elements of government. This is simply because if those vested with the final say as to the meaning of the Constitution are subject to control of the very majoritarian branches sought to be limited by that Constitution, as a practical matter the document will be deprived of its force and effectiveness as a limitation on those possessing political power. The book is designed to stand as a response and alternative to the recent development of scholarly theories, such as departmentalism and popular constitutionalism, which dangerously ignore the centrality of judicial independence to the American constitutional system.

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