“Judicial Supremacy is the gospel of modern American constitutional law.” It is the dishonest method whereby the nation’s highest court may create–or recreate–the supreme law of the land with each successive decision.
Two hundred twenty three years ago, the Constitution was ratified after the adoption of the Bill of Rights. It was from the beginning a document written not for the judiciary or the legal elite, but by and for the American people. Look at the Preamble: “We the People of the United States,” it begins. The preamble of a legal document in 1787 identified the parties involved and explained the purpose of the instrument. In the Constitution, the Framers decided to follow long held practice of Royal Charters by identifying the “grantor” in “large, majestic letters.” But the grantor was NOT “George R” (George Rex), that is, King George as it would have been in any royal charter. The Grantor is We the People, as significant now as it was then; for the People were granting a new government the authority and power to govern.
But now, more than 2 centuries later, the Constitution no longer seems a charter or contract between the people who made it and the governing authority it established. The language of the Constitution is today considered far too complex to be absorbed by the unprepared mind of the common folk. Larry Kramer, Dean of the Stanford Law School, sees the enemy as “judicial supremacy,” “…the notion that judges have the last word when it comes to constitutional interpretation and that their decisions determine the meaning of the Constitution for everyone.”
Legal scholars and court watchers comment upon each new decision of the high court before retiring to an interval of watch and wait until the next ruling–the next meaningful display of robed acuity. It seems a corrupt judicial class look forward to the text being forever remade, a forced transformation of meaning causing the Constitution itself to evolve piecemeal into that impossible “living document” so coveted by the left.
Thus, the substance and significance of the Constitution appear in a perpetual state of flux, a document of two centuries which we are told can no longer be properly understood except via the clever application of the next landmark decision. Between rulings, scholars disagree over a text believed clear enough for the most common of 18th century minds, now become ever more enigmatic with the passage of time.
Larry Kramer believes judicial supremacy has been “…embraced by both the left and the right because of the ‘profoundly antidemocratic attitudes’ that underlie each.” “Democratic politics are viewed as scary and threatening” to a class of modern day “aristocrats” who hold “deep-seated misgivings about ordinary citizens.”
Could it be these modern day aristocrats are most afraid that ordinary citizens will one day re-discover the elegant simplicity of their founding documents?