Re: Teaching Contemporary Cases Before Marbury

[Robert Justin Lipkin]

       My own take on the supremacy/exclusivism debate is that one needs to keep two important features of American constitutionalism in mind: First,  constitutional meaning (even constitutional law) is created continually by non-judicial governmental actors and even by non-governmental citizens. Thus, judicial exclusivism is, in this view, impossible at least insofar as American constitutionalism is presently constituted. Second, judicial supremacy, by contrast, says nothing about the origination of constitutional law; but rather simply asserts that whenever conflict over constitutional meaning (land law) breaks out, if the conflict is capable of being settled, it will be settled by the Supreme Court.  Even doctrines that presently exclude the Court from making the final constitutional decision, exist but for the grace of the Court.  Nothing is permanently beyond the Court's reach.

       Now there is a big distinction between the above conception of judicial supremacy as accurately describing American constitutionalism and the normative view that judicial supremacy is a good, desirable, important feature of American constitutional practice. Descriptively, I believe it is difficult to argue against judicial supremacy, without breaching the normative divide. Normatively, in my own view, judicial review may or may not be a good thing, but judicial supremacy clearly isn't. Again in my view, any sufficiently rich conception of democracy (or republicanism) might favor judicial review, but would nevertheless reject judicial supremacy.

Bobby Lipkin
Widener University School of Law
Delaware