Academic

Tyler on Judicial Supremacy

By Lawrence Solum

David W. Tyler (College of William and Mary) has posted Clarifying Departmentalism: How the Framers' Vision of Judicial and Presidential Review Makes the Case for Deductive Judicial Supremacy on SSRN. Here is the abstract:

Few constitutional scholars would dispute the proposition that the Supreme Court and the president each possess the legal authority to exercise meaningful constitutional review. This idea is uncontroversial, in part, because constitutional review makes pragmatic sense in a nation that stresses systematic, structural restraints on government power. It is also uncontroversial because the Framers clearly planted the seeds of departmental constitutional review throughout the Founding documents.

Despite their strong support for this sort of constitutional review, however, the Framers failed to articulate the manner in which each "department" (or "branch") should exercise its interpretive powers in relation to other branches. Rather than identify which branch's interpretations should receive the most constitutional deference, the Framers appeared to have permitted some degree of interpretive chaos, in which multiple branches could exercise the power of constitutional review, but no branch was formally or *informally* bound by the interpretations of others.

To decipher the way in which the Framers believed that each department's interpretive powers would interrelate, this Note reexamines the indicia of constitutional review present within many Founding documents. It then argues that even though the Framers intended to establish a departmental interpretive system, they *also* intended to create an interpretive system that approximates the modern paradigm of deductive judicial supremacy. Though scholars often view judicial supremacy and departmentalism on mutually exclusive grounds, this Note argues that departmentalism that is filtered through an admittedly *soft* deductive judicial supremacy model best characterizes the Framers' conception of constitutional interpretation. In other words, not only are departmentalism and judicial supremacy intellectually compatible, but the Framers specifically intended to create a system that built upon both.

In advocating an originalist defense of judicial supremacy, this Note aims to succeed where previous scholars have failed -- though, of course, it does so by advocating a softer form of judicial supremacy than many scholars ordinarily defend. To help explain its deductive model, in which Supreme Court decisions provide the most appropriate -- though not the only -- barometer of statutes' constitutionality, this Note also proposes a unique interpretive framework that approximates how the Framers believed a multi-layered system of heirarchical constitutional review should realistically apply.

A very good student note.

Full post as published by Legal Theory Blog on March 09, 2009 (boomark / email).