The Political Constitution

The Case against Judicial Supremacy

Greg Weiner

Who should decide what is constitutional? The Supreme Court, of course, both liberal and conservative voices say—but in a bracing critique of the “judicial engagement” that is ascendant on the legal right, Greg Weiner makes a cogent case to the contrary. His book, The Political Constitution, is an eloquent political argument for the restraint of judicial authority and the return of the proper portion of constitutional authority to the people and their elected representatives. What Weiner calls for, in short, is a reconstitution of the political commons upon which a republic stands.

At the root of the word “republic” is what Romans called the res publica, or the public thing. And it is precisely this—the sense of a political community engaging in decisions about common things as a coherent whole—that Weiner fears is lost when all constitutional authority is ceded to the judiciary. His book calls instead for a form of republican constitutionalism that rests on an understanding that arguments about constitutional meaning are, ultimately, political arguments. What this requires is an enlargement of the res publica, the space allocated to political conversation and a shared pursuit of common things. Tracing the political and judicial history through which this critical political space has been impoverished, The Political Constitution seeks to recover the sense of political community on which the health of the republic, and the true working meaning of the Constitution, depends.

“In this insightful study, Greg Weiner explains why the Supreme Court on constitutional matters should not be treated as an entirely independent branch. Instead, it is part of the political process and fully subject to independent analysis, public debate, and the system of checks and balances. In the act of governing, the judiciary is a coequal partner, not a superior branch.”

—Louis Fisher, author of Reconsidering Judicial Finality: Why the Supreme Court Is Not the Last Word on the Constitution

The Political Constitution argues that legal theorists from across the ideological spectrum too often prefer the authority of unelected judges to the messiness of democracy. The Declaration of Independence promises not only ‘Inalienable Rights,’ but also ‘The Consent of the Governed.’ Greg Weiner calls upon judges to leave space for democratic deliberation on constitutional questions and urges elected officials and ordinary citizens to take responsibility for this difficult but essential work.”

—James H. Read, author of Majority Rule versus Consensus: The Political Thought of John C. Calhoun

See all reviews...

About the Author

Greg Weiner is provost and vice president for Academic Affairs and associate professor of political science at Assumption College in Worcester, Massachusetts. He was a senior aide to US senator J. Robert Kerrey, 1993–1999. His books include Madison’s Metronome: The Constitution, Majority Rule, and the Tempo of American Politics and American Burke: The Uncommon Liberalism of Daniel Patrick Moynihan, both from Kansas, and Old Whigs: Burke, Lincoln, and the Politics of Prudence.