The defeat of judicial supremacy and the reestablishment of a constitutional balance of power among the legislative, executive, and judicial branches will be one of the most intense and difficult struggles of our lifetime. It is also absolutely unavoidable if we are going to retain our freedoms and our identity as Americans.
These words begin the judiciary chapter in Winning the Future: A 21st Century Contract with America, a book I wrote four years ago. So when I was invited teach a law course this semester at the University of Georgia Law School, I knew exactly what subject to cover.
Called “Judicial Supremacy vs. Co-Equal Branches”, the purpose of the course is to explore historical legal and non-legal materials to examine the extent to which judicial supremacy constitutes a fundamental violation of traditional American constitutional thinking, a radical departure from the constitutional system that the Founding Fathers invented, and a dangerous model for the survival of a free American civilization.
To assist the students in the course, and to help generate an important national conversation this spring semester on this subject, the team helping me with this course has put together this blog site to provide an organized clearinghouse of facts, analysis, and arguments.
We want to invite students, professors, and the public across the country to weigh in on the arguments advanced in the course, as well as the counter-arguments and counter-counter arguments that will inevitably be generated. If we are able to catalog and tag the various posts effectively, then at the end of the semester we will have provided a very useful body of accessible knowledge for professors and students to use in the future.
There are four principal ways this blog hopes to generate dialogue.
First, there is the content of what I present in class, which will be posted to this blog in video and audio format, along with any related readings. You can find the video and audio from my first class lecture here. The public is invited to weigh in with reaction.
The second is that the blog invites undergraduate, graduate, and law students across the country to email us and share how their schools are teaching judicial supremacy – is judicial supremacy taught by professors at their school as a non-rebuttable reality or is it taught that judicial supremacy is a recent historical phenomenon and that there are several ways for the two other branches to check and balance the judicial branch? We hope that a survey of how judicial supremacy is taught at various schools will help people understand the extent to which the idea of judicial supremacy is or is not entrenched in our academic community.
Third, we have posted these fourteen discussion questions corresponding to the anticipated fourteen week life span of this blog that we hope students and others will respond to with analysis and argument in the given week dedicated to a question.
The fourth and last way we hope to engage readers is to have a contest to see who can come up with the best strategies and steps by which the country can reestablish a constitutional balance among the three branches. This contest corresponds with the writing requirement my students have in the U. of Georgia law class. Their assignment is to write a research memo for either the President’s White House counsel, the Speaker of the House, or the Chief Justice of the Supreme Court that (i) argues why the U.S. Constitutional system should move from judicial supremacy to a more balanced constitutional system (i.e. the memo must present arguments why judicial supremacy is bad democratic theory, bad constitutional history, and bad public policy), and (ii) proposes concrete strategies and steps on how to achieve a balanced constitutional system that can be adopted by the respective Counsel, Speaker, or Chief Justice over a 4-8 year period. The students’ research memos are to start with the assumption that we have judicial supremacy today and that we should move to a more balanced constitutional system among three co-equal branches.
While my students have up to 25 pages for their memo, the blog contest will be for the best submission by any reader of an 800-1000 word op-ed that explains the best strategy for any of the President, the Speaker of the House, or the Chief Justice to take to reestablish a balance of power among the three branches. We have not yet established the ground rules for this content – or the reviewing panel of judges — but this is something we will clarify in the next few weeks. The goal would be to have a submissions deadline sometime in early April, with the three winners (an op-ed winner for each of the President, Speaker, and Chief Justice) determined by mid-May.
Finally, four others will initially help with the majority of blogging on this site: Randy Evans, a partner at McKenna, Long and Aldridge, and my long time counsel; Linda Evans, a long time attorney and friend based in Atlanta; Vince Haley, my research director for many years at the American Enterprise Institute and now heading up research and policy at American Solutions; and Joel Alicea, who worked for me last summer as a research assistant at AEI and who is a junior at Princeton University studying under the tutelage of Robert George and Keith Whittington, two eminent scholars on the role of the judiciary in American society.
In the course of the semester we may add a few additional principal bloggers. Together, these bloggers will help organize the discussion and organize the various comments submitted by our readers.
We look forward to your comments on posts as well as your general email submissions on topics related to this subject.