Is Wood overstating the case when he says the following? “Protecting
private property and minority rights from the interests of the enhanced public
power of the new republican governments eventually became, as Madison had
foreseen, the great problem of American democratic politics. As early as the
1780s many were already contending that only the judiciary in America was
impartial and free enough.”
I think Larry Kramer would disagree (though, from what I can
tell, he’s somewhat an iconoclast). He
wrote The People Themselves, about
the tradition that had the people (not the courts) being the guardians of the
Constitution. According to him, it was the
Federalists in particular who came up with the idea of judicial supremacy as
the feared the growing lack of deference of the majority and how that might endanger
their agenda.
There is an absence of how the founding documents and principals of the Revolution were created and the impact that they had in general and I think your questions speaks to some of these questions. My problem is that, without a deep knowledge of the historiography of this period, I am unable to delve into or even really understand these issues.
ReplyDeleteNot sure who Larry Kramer is, but I'm presenting on the book "Original Meanings" tomorrow by Rakove. He focuses on Madison and asserts that paying close attention to Madison is justified because of Madison's involvement at every stage of the development of the adoption of the Constitution. As Madison neared the Federal Convention in 1987, says Rakove, his primary and grave concern was the faulty legislation that had and would come from majoritarian rule. He was convicted that majoritarian rule and a lack of the interests of property would be very harmful to the perseverance of the Republic. So, based on Rakove, Madison had studied long and hard on these two issues and was prepared at the Convention in Philly to correct these debilitating lacks at the federal and state levels.
ReplyDeleteI studied these issues from a political science perspective when I was an undergraduate and there was no real consensus on judicial supremacy during the Revolutionary era and even into the Early Republic.
ReplyDeleteDifferent schemes for reviewing laws were proposed at different times. I was surprised Wood never went into more depth with some of the State Constitutions being written during the War, as some of them (particularly the one written by the "Philadelphia radicals") show quite a different path American democracy could have taken.
At worst, Wood could maybe be accused of reading backwards into history with the quotation that Kevin provides. Madison thought that is what the judiciary should become (although I think there is some evidence that he had altered his view by the time he became President) and it looks prophetic because, for much of American history, the Court has stood as a bulwark for property.