The Framers of the American Constitution took special pains to
ensure that the governing principles of the republic were insulated
from the reach of simple majorities. Only super-majoritarian
amendments could modify these fundamental constitutional dictates.
The Framers established a judicial branch shielded from direct
majoritarian political accountability to protect and enforce these
constitutional limits. Paradoxically, only a counter-majoritarian
judicial branch could ensure the continued vitality of our
representational form of government. This important lesson of the
paradox of American democracy has been challenged and often ignored
by office holders and legal scholars. Judicial Independence and the
American Constitution provocatively defends the centrality of these
special protections of judicial independence. Martin H. Redish
explains how the nation's system of counter-majoritarian
constitutionalism cannot survive absent the vesting of final powers
of constitutional interpretation and enforcement in the one branch
of government expressly protected by the Constitution from direct
political accountability: the judicial branch. He uncovers how the
current framework of American constitutional law has been unwisely
allowed to threaten or undermine these core precepts of judicial
independence.
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