EXCERPT: 'Making Our Democracy Work'


In the framers' eyes, then, the Court would help to maintain the workable democracy that the Constitution sought to create. I have previously written about the Court and democracy, explaining the ways in which that constitutional concept critically affects judicial interpretation of much of the Constitution's language and also how the Constitution's democratic objective assumes a public that actively participates in the nation's political life. The present book focuses on the Supreme Court's role in maintaining a workable constitutional system of government. It discusses how the public and the Court can help make the Constitution work well in practice. And it shows why the Constitution necessarily assumes that the typical American learns something of our nation's history and understands how our government works.

In particular, this book considers two sets of questions. The first concerns the public's willingness to accept the Court's decisions as legitimate. When the Court interprets the law, will the other branches of government follow those interpretations? Will the public do so? Will they implement even those Court decisions that they believe are wrong and that are highly unpopular? Many of us take for granted that the answer to these questions is yes, but this was not always the case.

Part I uses examples from our nation's history to show how, after fragile beginnings, the Court's authority has grown. It describes how the Court was given the power to interpret the Constitution authoritatively, striking down congressional statutes that it finds in conflict with the Constitution. And it goes on to describe several instances where Supreme Court decisions were ignored or disobeyed, where the president's or the public's acceptance of Court decisions was seriously in doubt. These examples of the Court's infirmity -- perhaps startling today -- demonstrate that public acceptance is not automatic and cannot be taken for granted. The Court itself must help maintain the public's trust in the Court, the public's confidence in the Constitution, and the public's commitment to the rule of law.

Applying U.S. Constitution to Today's World

Part II considers how the Court can carry out this constitutional responsibility. The key lies in the Court's ability to apply the Constitution's enduring values to changing circumstances. In carrying out this basic interpretive task, the Court must thoughtfully employ a set of traditional legal tools in service of a pragmatic approach to interpreting the law. It must understand that its actions have real- world consequences. And it must recognize and respect the roles of other governmental institutions. By taking account of its own experience and expertise as well as those of other institutions, the Court can help make the law work more effectively and thereby better achieve the Constitution's basic objective of creating a workable democratic government.

My argument in Part II takes the formof examples drawn fromhistory and from the present day, illustrating the Court's relationships with Congress, the executive branch, the states, other courts, and earlier courts. Part of my aim is to show how the Court can build the necessary productive working relationships with other institutions -- without abdicating its own role as constitutional guardian.

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