Judiciary’s Role and Constitutional Meaning

The judiciary plays a crucial role, as noted by Chief Justice John Marshall, in defining the law. This task often involves interpreting the Constitution and establishing its meaning. However, differentiating between specifying the law and defining Constitutional meaning is essential. While the law pertains to cases and controversies, it involves applying past precedents and principles to current circumstances. Constitutional meaning, in contrast, is more abstract and relates to the structure of our political community.

Courts contribute to building our collective constitutional understanding, but the public also plays a significant part in defining constitutional meaning. In recent decades, there has been a tendency to equate legal decision-making with defining constitutional meaning, which has led to judicial supremacy. Legal historians Nikolas Bowie and Daphna Renan highlight this issue, where a small group of judges dictate constitutional meaning, affecting the political community.

Historically, American politics have seen the public, through Congress, influence and settle constitutional meanings, especially when courts have exceeded their legitimate role. One notable instance is the response to the Supreme Court’s decision in Dred Scott v. Sandford in 1857. The Republican Party united to oppose this decision, working to nullify and overturn it legislatively and through constitutional reform. As Bowie and Renan point out, the Republicans criticized a court ‘inflated with supremacy’ and emphasized Congress’s ‘solemn duty’ to override decisions it deemed detrimental to people’s rights and liberties.

Constitutional meaning is shaped not only by legislatures and electoral politics. The Constitution was ratified not by Congress or states but by conventions comprising a broad public representation, as envisioned in 1787, intending to embody the people as sovereign.