For just about the last half-century, since Earl Warren became chief justice of the U.S. Supreme Court, the American legal academy has pondered something usually referred to as the “legitimacy problem.”  Law-school professors have believed that there is a difficulty inherent in the fact that an unelected, isolated body of nine jurists working in a marble palace in Washington has the power to dictate what rules will govern our country.  There have been occasions throughout our constitutional history when the Supreme Court has seemed to depart from what had formerly been understood to be the meaning of the U.S. Constitution—for example, the Dred Scott case (1856), in which the Court decided that a freed black could not be regarded as a “citizen of the United States”; or in Lochner v. New York (1905), in which the Court decided that no state could dictate minimum-wage and maximum-hours laws for its laborers—but never before had there been anything to match the activities of the Warren Court.

Prompted by the new chief justice and his fellow Eisenhower appointee William Brennan (Ike said that he had made only two mistakes as President, and they were both sitting on the Supreme Court), the Court overturned many decades of practices in the states regarding matters of educational policy, criminal procedure, legislative apportionment, and school prayer and Bible reading, to name just a few areas in which the justices, finding new ways of interpreting the 14th Amendment’s guarantee of equal protection and the provisions of the Bill of Rights, threw out state legislation and municipal ordinances.  Led by a politician who cared little for legal niceties but who felt passionately that constitutional law should turn on what he believed to be “fair,” the Warren Court embraced a jurisprudence of idealism that had little to do with law as it had been formerly understood.  Suddenly, we had what Raoul Berger called “Government by Judiciary.”

The first and probably still the greatest work on the meaning of the Constitution, Alexander Hamilton’s, James Madison’s, and John Jay’s Federalist, had made clear, in number 78, that the justices possessed the power of judicial review—the power to examine whether the federal legislature had gone beyond the bounds permitted by the Constitution, and to nullify legislation that had exceeded those bounds—but that power was justified pursuant to the only acceptable premise of government for the late-18th-century Framers of the Constitution: the sovereignty of the people.  The theory was that the people had expressed their will in the Constitution itself and that, when the justices declared a statute or an ordinance unconstitutional, they were simply following the will of the people.  The justices were to be the agents of the people, not their masters.  They were to serve popular sovereignty, not to interfere with it.  The critics of the new Constitution—who felt that it wrongly circumscribed the power of the states and created a federal government that could become overweening—feared especially the power of a judiciary that might exercise will rather than judgment, but Hamilton’s Federalist 78 turned this argument on its head by arguing that the justices would be bound by what the people themselves had decided.

Hamilton’s claim, of course, only made sense if the Constitution had a fixed and clear meaning and left no discretion for judges.  More interesting, and perhaps more problematic, was Hamilton’s, Madison’s, and Jay’s idea that the Constitution itself was structured so that, once the people had expressed their will in their Constitution, no branch was supposed to be able to perform in a manner that contradicted that expressed will of the people, and that, in particular, the Constitution was designed to rebuff or withstand temporary disturbances among the people.  There was, then, some tension between the Constitution’s justification as a manifestation of popular sovereignty and its tendency to restrain the excesses of democratic legislatures.  To put it bluntly, the Constitution, insofar as it restrained the acts of the people’s legislature, ostensibly in service to the ultimate sovereignty of the whole people, was an antidemocratic document, and so, for that matter, was the power of judicial review when it was exercised to overturn acts of the “agents of the people.”

One way of explaining this apparent paradox is to understand that the government the people had ordained in 1789 was, of course, not a democracy at all but a republic.  Just what a republic is was a subject of passionate debate among the founding generation, as it had been for hundreds, if not thousands, of years.  The Latin derivation res publica meant, literally, “public thing,” and the essence of republican government was that it served the interests of all, not just those of a faction; a good republican citizen was one who understood that it was his job to put the common interest above his own, which is not always an easy task.  Good republicans possessed “virtue,” an ability to serve the interests of the commonwealth altruistically.  The challenge for republican governments was to come up with an enduring government that promoted such disinterested public service.  Classical republics had a tendency to succumb to corruption when they were captured by a selfish monarch, a venal aristocracy, or a self-indulgent popular party.  It was widely understood, however, that an essential element in avoiding such capture was adherence to the rule of law, and the law was, at the time of the Framers, conceived of not just as the pronouncements of legislatures or executives or even judges but a body of God-given principles that transcended the temporal order.  Included among those were the following principles: Nothing could be made a crime that was not so when the act in question was committed; A’s property should not be taken from A and given to B; and no person should be judge and party in his own case.  These basic principles were derived from English common law.

The idea of the rule of law, and of these transcendent principles of republican government—notions thought to be accepted by the people acting as sovereign when they ratified the Constitution—justified the courts in rejecting legislative acts when they went beyond what the Constitution permitted.  Thus, while we embraced popular sovereignty, we understood that acts of Congress might have to be rejected if they threatened the republicanism enshrined in the Constitution.  Some disagreement lingered about what “republicanism” entailed.  For Rousseau, for example, a republic was simply another name for a government where the rule of law prevailed.  Thomas Jefferson eventually embraced the notion that the best republics are actually the closest to democracy; as in many other areas, however, Jefferson was something of an oddity at the time of the founding.  Finally, American ideas of republicanism borrowed from Montesquieu the notion that no republic, or any other government, could be truly free or could truly be understood as following the rule of law if the powers of judging were not separate from those of legislating.

Considering that the U.S. Supreme Court has carried on an orgy of legislating since the time of the Warren Court, it is not difficult to understand why many have wondered if the whole idea of judicial review is inherently undemocratic and ought to be scrapped.  The Warren Court and the Burger Court that followed it—which believed that they could decide, contrary to the original understanding of the Constitution, that the states ought not to be the primary authorities for determining domestic policies regarding education, morality, criminal law, religion, contraception, abortion, and legislative apportionment and the exercise of the franchise—could not be trusted to implement the rule of law or republicanism as the Framers understood them.

Occasionally, the Supreme Court realizes what it is supposed to be doing and reasserts its role as a republican check on democratic excesses.  This occurs, in particular, when the Court implements what we now call “federalism,” the idea that the states are the primary legislators in our system, and, as the Tenth Amendment provides, that the federal government ought to be one of limited and enumerated powers.  This does not happen nearly as frequently as it should, and, worse, in many cases based on the 14th Amendment’s Incorporation Doctrine, what the Court has done flies in the face of federalism.  Beginning in the 20th century, many decades after the passage of the 14th Amendment, the Court began to declare, for example, that the First Amendment’s provision that “Congress” shall make no laws infringing the freedoms of speech, press, or assembly, regarding an establishment of religion, or interfering with the free exercise of religion ought to be read as if the word Congress also meant “state or local governments.”  Despite there being little if any historical evidence to support this reading, the Supreme Court has used the Incorporation Doctrine to expand the reach of the federal courts into areas originally believed to be the sacrosanct preserve of the states and localities.  Indeed, it is ironic that the Bill of Rights, passed to satisfy those who were deeply worried about an overweening federal government, should now be used as a club to beat the very state governments it was designed to protect.

Happily, in the last few years of the 20th century, the Court, for the first time since the New Deal, began to restrict the legislative power of Congress in a manner that came closer to the original meaning of the Commerce Clause, which authorizes the U.S. Congress to regulate commerce among the states and with foreign governments.  In United States v. Lopez (1995), the Court declared that this did not justify the passage of the Gun-Free School Zones Act, which made it a federal crime to carry an unauthorized firearm within 1,000 feet of any school in the country.  The Commerce Clause argument had been that the threat posed by firearms might inhibit the educational task of the schools, which might reduce learning among the pupils, which might result in less commercial production.  Four members of the Court embraced that argument, but five justices understood that, if it were valid, nothing would be immune to federal regulation.  A similar determination was made a few years later, in United States v. Morrison (2000), when the Court threw out portions of the Violence Against Women Act, which had made it a federal crime to commit violent acts against women, an area traditionally reserved to the state criminal-justice systems.  Since these two federal statutes were politically popular measures, these decisions might be regarded as the Court checking democracy, but they are probably better understood as the Court preserving the original constitutional scheme of a divided sovereignty and only a limited delegation to the federal government.

A third recent case, Bush v. Gore (2000), in which the Supreme Court, in effect, made George W. Bush the President, illustrates how the Court occasionally does implement the rule of law even in a politically perilous context.  Here, the problem was not a legislature exceeding the bounds of the Constitution but, rather, a state supreme court bent on ignoring the rule of law itself.  George W. Bush had been declared the winner of Florida’s Electoral College votes by the Florida election officials, but Vice President Gore challenged that determination in the Florida courts.  The lower Florida courts rejected that challenge as groundless, but the Florida Supreme Court overruled them, ordered a recount, and, in the process, ignored the Florida statutes that not only gave the Florida election officials discretion to make the relevant determinations but set strict time limits (which had been exceeded) for challenges.

Seven justices of the U.S. Supreme Court voted to overturn the Florida Supreme Court on the grounds that, by permitting the recount Gore had sought—which would have only included areas of the state traditionally favorable to Democrats—the Florida Supreme Court violated the Equal Protection Clause.  This dubious argument could be invoked to invalidate many, if not most, elections in the country, but the Court sought to limit its holding to the case at hand.  This does not sound much like the rule of law; there was, however, a concurring opinion in the case, joined in by Justices Rehnquist, Thomas, and Scalia, which essentially suggested that the Florida Supreme Court had deprived the Florida voters of due process by changing the election laws after the fact, thus nullifying their votes.  Such a change in the law after the fact is, of course, the essence of a denial of republican government and an affront to the rule of law.  Remarkably, a majority of the Supreme Court was not willing publicly to embrace that view, but that concurring opinion in Bush v. Gore was one of the clearest expressions of the idea that judges are supposed to follow the law and not legislate to promulgate policies (or, in this case, promote a candidate) that they favor.

Unfortunately, such ringing endorsements of republicanism, the rule of law, and the ultimate affirmation of popular sovereignty remain the exception rather than the rule among Supreme Court justices.  It was characteristic of retiring Justice Sandra Day O’Connor, for example, that she conceived of the judicial task as one of choosing among a list of possible social policies instead of understanding that those choices had actually been dictated by the people in the Constitution.  Now that O’Connor has retired and been replaced by Samuel Alito, a man apparently committed to federalism, originalism, the rule of law, and, one hopes, republicanism as understood by the Framers, there is, at last, a chance that the Court will finally move in a direction different from that of the Warren Court, and the legitimacy problem will, once again, diminish.