Greg Weiner, the Political Constitution: The Case Against Judicial Supremacy
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BOOK REVIEW
Greg Weiner, the Political Constitution: The Case Against Judicial Supremacy Lawrence: University Press of Kansas, 2019. 212 Pp. $29.95. ISBN 978–0700628377 Will Morrisey 1
# Springer Science+Business Media, LLC, part of Springer Nature 2020
Professor Weiner makes two main arguments in this cogent and stimulating book. One is controversial but persuasive, the other less controversial but also more dubious. Fortunately, the first argument doesn’t really depend upon the second. Controversially but persuasively, Weiner maintains that “the Supreme Court does not wield exclusive authority over constitutional meaning.” In so arguing he joins the distinguished company of presidents Jefferson, Jackson, and Lincoln, all of whom insisted that the top officials in each branch of government not only swear an oath to uphold the Constitution but are entitled to interpret the Constitution as it applies to actions within the branch in which they serve. As that master of menace, constitutional and extra-constitutional, Andrew Jackson, is said to have said, “Justice Marshall has made his decision. Now let him enforce it.” Effectively, the decision in question would have needed military backing by the commander in chief; it would not be forthcoming. Weiner also maintains that Constitutional right stands on history—history understood as tradition, not on natural rights as enunciated most prominently in the Declaration of Independence. To derive moral and political right from history will provoke no protests from most commentators, ‘Right’ or ‘Left,’ although commentators on the Left will substitute ‘change’ or ‘progress’ for tradition. The problem is that neither Jefferson, nor Jackson, nor Lincoln considered history— however conceived by latter-day conservatives and progressives—as the principal moral foundation of the American republic. What this means for constitutional interpretation is the central question here. Turning first to the denial that judges have the final say on such interpretation, One might ask, If presidents, legislators, * Will Morrisey
1
Hillsdale, USA
and judges each parse the Constitution for themselves, within their own spheres of authority, how can government proceed when they disagree? Weiner points to “the Constitution’s architecture,” to the way it structures the federal government. The Constitution provides each branch with powers adequate to defend itself against encroachments by the others. This means that constitutional disputes will be solved by political contestation, not judicial fiat. Ambition having been made to counteract ambition within the government, the people—who are, after all, the sovereigns—will have the time and opportunity to deliberate amongst themselves and tip the balance as and when they choose. Aristotle defines the strictly political relationship as one of contestation and bargaining, of ruling and being ruled; that’s what Weiner means by “the political constitution.” He agrees with Aristotle “in assuming political life to be good and necessary for human beings.”
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