Judicial Independence and the American Constitution ─ A Democratic Paradox

The Framers of the American Constitution, learning from the failed republican governments of the past, took special pains to temper their newly formed republic with enduring fundamental governing principles insulated from the reach of simple majorities. Only by super-majoritarian amendment could these fundamental constitutional dictates be modified. The Framers' approach was in sharp contrast to the British system under which they had functioned prior to the nation's independence. To protect and enforce these counter-majoritarian constitutional limitations, the Framers established a judicial branch insulated from direct majoritarian political accountability. Paradoxically, it was only by use of such a counter-majoritarian judicial branch that they could ensure the continued vitality of the representational form of government established in our Constitution.

During our nation's history, this important lesson of the paradox of American democracy has been challenged and all too often ignored by office holders and legal scholars alike. In Judicial Independence and the American Constitution, Martin Redish provocatively defends the centrality of these special protections of judicial independence to the proper functioning of the American system of constitutional democracy. Redish explains how the nation's system of counter-majoritarian constitutionalism cannot survive absent the vesting of final powers of constitutional interpretation and enforcement in the one branch of government expressly insulated by the Constitution from direct political accountability: the judicial branch. He then explores the many ways in which the current framework of American constitutional law has been unwisely allowed to threaten or undermine these core precepts of judicial independence.