Popular Sovereignty, Judicial Supremacy, and the American Revolution: Why the Judiciary Cannot Be the Final Arbiter of Constitutions


Key to understanding the connection between popular sovereignty and judicial review is the historical development of the theory of sovereignty in England and America. Section One of this article traces the defeat of divine right theory in England and the emergence of parliamentary sovereignty. Section Two considers the American colonists’ rejection of parliamentary sovereignty during the Revolution and their establishment of popular sovereignty as the cardinal principle of American constitutionalism. Section Three studies English precedent often cited as providing the basis for the American doctrine of judicial review and shows that these English cases were simply exercises in statutory construction and cannot be classified as precursors to American judicial review. The final section examines the development of judicial review in American state courts both prior to and after ratification of the United States Constitution. This section also examines Marbury v. Madison in the context of these early state court decisions and concludes that Chief Justice Marshall never contemplated setting up the Supreme Court as the final arbiter of our Constitution. A believer in popular sovereignty, Marshall would not have reverted to British practice whereby a branch of government has total control over fundamental law. Instead, the Marbury opinion—like the state decisions before it—simply recognized that the judiciary is a co-equal branch of government empowered to interpret the Constitution along with the executive and the legislature.


Constitutional Law | Legal History

Date of this Version

January 2006