Abstract
During his long and illustrious career as a constitutional law scholar, Professor Edward S. Corwin published a book in 1938 entitled Court Over Constitution: A Study of Judicial Review as an Instrument of Popular Government. He could not have known that, within another two generations, we would enter a period when some of our most thoughtful legal scholars would conclude "that the founding generation believed in higher law and saw the principle limiting government power as inherent in the social contract, which the written constitution only partially embodies." Corwin would not have been surprised, however, given that he had spent a career defending the idea that the legitimate role of the Supreme Court was limited to implementing the expressed will of the sovereign people and did not include imposing judicial constructions of the "higher law" background of the Constitution. He was well aware that there has always been a tendency to view constitutional interpretation as a sustained project to define and maintain the proper relationship between government and its citizens, and to reject seeing legal enforcement of the Constitution as limited to implementing a binding text adopted by a sovereign people. Moreover, Corwin would not have been surprised at the energy that has been devoted to reconciling the role of the Supreme Court as the ultimate arbiter of the proper relationship that should exist between citizens and government and the concept of popular sovereignty. The solution, now widely embraced, is that the people adopted a Constitution that empowered the Supreme Court to make precisely these decisions.
Recommended Citation
Frost, Nathan N.; Klein-Levine, Rachel Beth; and McAffee, Thomas B.
(2004)
"Courts Over Constitutions Revisited: Unwritten Constitutionalism in the States,"
Utah Law Review: Vol. 2004:
No.
2, Article 1.
Available at:
https://dc.law.utah.edu/ulr/vol2004/iss2/1