The Judicial Bookshelf

Some may be surprised to realize that nearly a half century has lapsed since publication of The American Supreme Court by Robert G. McCloskey. 1 One reviewer praised the book as “unique,” one that could be read “profitably by layman, student, lawyer, and constitutional lawyer.” 2 Readers familiar with that compact volume will recall the antinomy that the author put forward as the defining theme of American constitutional history: the tension between fundamental law and popular sovereignty. The latter suggests will and the former restraint. The antinomy is reflected in the founding documents of the Republic. The Declaration of Independence trumpets “inalienable rights” in the same paragraph that it emphasizes “government by the consent of the governed.” The Constitution, “ordain[ed] and establish[ed]” by “We the people,” insisted in Article VI that it “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” This conflict between equally valid principles lies at the heart of judicial review in the federal courts, where appointed and politically unaccountable judges sit in judgment on the actions of the politically accountable representatives of the people. In McCloskey's view, one principle “conjures up the vision of an active, positive state; the other emphasizes the negative, restrictive side of the political problem.” 3 Opposites though these principles are, Professor McCloskey emphasized that Americans have managed to cling simultaneously to both. “But like most successes in politics and elsewhere, this one had a price. The failure to resolve the conflict between popular sovereignty and fundamental law perhaps saved the latter principle, but by the same token it left the former intact. And this meant that fundamental law could be enforced only within delicately defined boundaries, that constitutional law, though not simply the creature of the popular will, nevertheless had always to reckon with it, that the mandates of the Supreme Court must be shaped with an eye not only to legal right and wrong, but with an eye to what popular opinion would tolerate.” 4