Popular Government and the Supreme Court
Securing the Public Good and Private Rights
Lane V. Sunderland
With quiet eloquence, Lane Sunderland argues that we must reclaim the fundamental principles of the Constitution if we are to restore democratic government to its proper role in American life. For far too long, he contends, the popular will has been held in check by an overly powerful Supreme Court using non-constitutional principles to make policy and promote its own political agendas. His work shows why this has diminished American democracy and what we can do to revive it.
Sunderland presents a strong, thoughtful challenge to the constitutional theories promoted by Ronald Dworkin, Archibald Cox, Richard Epstein, Michael Perry, John Hart Ely, Robert Bork, Philip Kurland, Laurence Tribe, Mark Tushnet, and Catharine MacKinnon—an enormously diverse group united by an apparent belief in judicial supremacy. Their theories, he demonstrates, undermine the democratic foundations of the Constitution and the power of the majority to resolve for itself important questions of justice.
“A sophisticated, sensible, and much-needed reminder of the republican theory of our written Constitution.”
—Henry J. Abraham, author of The Judicial Process
“A closely reasoned and broadly illuminating work. Sunderland defends in a most persuasive manner the controversial thesis that the Constitution has a meaningful theoretical content and ascertainable principles, and that the political wisdom it embodies is exactly what is needed in contemporary American politics if we are to preserve free institutions.”
—Herman Belz, coeditor of To Form a More Perfect Union
“Well written in a clear and engaging style, Sunderland’s book makes a most welcome contribution to the ongoing debate on constitutional interpretation. His analysis of the Constitution’s theoretical foundations is truly magnificent and makes the best use of The Federalist and other early sources that I have seen.”
—Robert Lowry Clinton, author of Marbury v. Madison and Judicial Review
“Must reading for scholars and teachers of constitutional law, but should be of considerable interest to jurists and the informed public as well.”
—Ronald Kahn, author of The Supreme Court and Constitutional TheorySee fewer reviews...
Central to this enterprise is Sunderland's reconsideration of The Federalist as the first, most reliable, and most profound commentary on the Constitution. "The Federalist," he states, "is crucial because it explains the underlying theory of the Constitution as a whole, a theory that gives meaning to its particular provisions." In addition, Sunderland reexamines the Declaration of Independence and the work of Hobbes, Locke, and Montesquieu, in order to better define the nature and limits of their influence on the Framers. His reading of these works in conjunction with The Federalist shows just how far afield contemporary commentators have strayed.
Sunderland deliberately echoes and amplifies Madison's wisdom in Federalist No. 10 that the object of the Constitution is "to secure the public good and private rights . . . and at the same time to preserve the spirit and form of popular government." To attain that object, he persuasively argues, requires that the judiciary acknowledge and enforce the constitutional limitations upon its own powers. In an era loudly proclaiming the return of popular government, majority rule, and the "will of the people," that argument is especially relevant and appealing.