Extrajudicial Constitutional Interpretation: Three Objections and Responses

Abstract

A higher law background runs deep in our constitutional thinking.Whether the record of "eternal and immutable" principles is supreme due to "their own intrinsic excellence"' or as the product of conscious and positive acts of "higher lawmaking," ' 2 the Constitution is understood to stand above and against politics, a legal constraint on the power of democracy and elected officials.The judiciary emerges naturally from this perspective as an essential guardian of the constitutional order.By issuing authoritative interpretations of the Constitution, the judiciary, and especially the Supreme Court, is thought to circumscribe the sphere of politics with legal norms and ensure that fundamental principles are respected. 3 Constitutions, it is thought, require a single, authoritative interpreter, subject to neither popular pressure nor electoral instability.Constitutional government requires judicial supremacy. 4 The Supreme Court itself has been a primary exponent of this argument.In 1803