The Judiciary and Republicanism

Powerful Essays
The United States promotes itself as being based on the principle of popular sovereignty, that is, the people’s capacity for self-government. The latter is secured by the existence of the higher and fundamental law that is the constitution. Indeed, article VI section 2 of the constitution states that it is the «supreme law of the land» by which the judges shall be bound. This fundamental law was «establish[ed] and ordain[ed]» by the people of the United States according to the preamble of the constitution; it thus follows that the people are sovereign. Nevertheless, one has to investigate the device by which it is assumed that the people have, in effect, established the constitution. One can presume, with no great difficulty, that it is not feasible to draft a constitution by concerting every individual of the United States on what should be included in it. The Philadelphia convention of 1787 assembled delegates from all states to discuss the drafting of the constitution. Although the delegates were representatives of their states, it is the process of ratification that substantiated the republican principle of popular sovereignty. Thus, it is the ratification of the Constitution that enables it to be «empowered by the people [and gives it] a truly legal authority» (Paine, 28).

One could initiate a debate on the process of ratification and its true value in assessing popular sovereignty. However, such an argument implies that one further examines the nature of the people, therefore leading us to digress from the purpose of this paper. Hence, one is accepting that the ratification process does account for the manifestation of popular sovereignty, thus confirming that the Constitution was «establish[ed] and ordain[ed] by the peo...

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..., we have seen that such a doubt is inherent to the concept of popular sovereignty and the meaning of «the people». On the contrary, it seems that judicial review furthers republican principle, as the Supreme Court is the guardian of the constitution, that is, the fundamental law which accounts for the sovereignty of the people.

Cited Works:

Andreas Hess, “Republicanism,” ch. 3 of American Social and Political Thought: A Concise Introduction (New York: NYU Press, 2000), pp. 28-36

Hamilton, Alexander, James Madison, John Jay, and Michael A. Genovese. The Federalist Papers. Basingstoke: Palgrave Macmillan, 2009. Print.

Hamilton, Alexander, James Madison, John Jay, and Terence Ball. The Federalist. Cambridge, U.K.: Cambridge UP, 2003. Print.

Paine, Thomas, and Philip Sheldon Foner. The Complete Writings of Thomas Paine. New York: Citadel, 1945. Print.