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Proponents of  judicial supremacy  argue that the interpretation of the Constitution by the Supreme Court is authoritative for the two other branches of government, while advocates of  judicial review  (or  departmentalism ) argue that authority to interpret the Constitution resides in each branch. Both sides offer historical examples in which their understanding prevailed. How to resolve this impasse? I argue that Hobbes and Spinoza can inform the debate. To do so, I first unpack the terms: what is the difference between judicial review or departmentalism and judicial supremacy? I then show that a renowned legal scholar, Larry Alexander, specifically invokes Hobbes in defense of judicial supremacy. For Alexander, the Supreme Court functions as a Hobbesian sovereign. Spinoza presents a  clear alternative  to the Hobbesian solution of avoiding a state of nature by concentrating power in a unitary sovereign, namely, via a strategy of diffusing power throughout society. But Spinoza’s solution is  not yet a formal separation of powers.  This conception of power can therefore clarify the assumptions made by advocates of both judicial review or departmentalism and judicial supremacy. I close by considering instances in American history when the application of departmentalist logic did not lead to a Hobbesian state of nature. And what are the lessons for today? I suggest that it is perhaps time to consider an analog to the Canadian/Israeli  notwithstanding clause.  But rather than adopting verbatim their legislative override, which effectively designates the legislative branch to be  supreme , we could require two of the three independent and  equal  branches to decide contended constitutional questions. Such an  American notwithstanding clause  would respect the design of our federal government.

Judicial Review (Departmentalism) vs Supremacy: The Connection to a 17th Century Debate and a Dilemma for Today