ABSTRACT
The Constitution is the fundamental law of the United States, and judges must enforce the law. On that simple and strong argument John Marshall built the institution of judicial review of legislation, 1 an institution that is at once the pride and the enigma of American jurisprudence. The puzzle lies in this. Everyone agrees that the Constitution forbids certain forms of legislation to Congress and the state legislatures. But neither Supreme Court justices nor constitutional law experts nor ordinary citizens can agree about just what it does forbid, and the disagreement is most severe when the legislation in question is politically most controversial and divisive. 2 It therefore appears that these justices exercise a veto over the politics of the nation, forbidding the people to reach decisions which they, a tiny number of appointees for life, think wrong. How can this be reconciled with democracy? But what is the alternative, except abdicating the power Marshall declared? That power is now so fixed in our constitutional system that abdication would be more destructive of consensus, more a defeat for cultivated expectation, than simply going on as before. We seem caught in a dilemma defined by the contradiction between democracy and ancient, fundamental, and uncertain law, each of which is central to our sense of our traditions. What is to be done?
