In his farewell address to the nation, on his last day as President, Ronald Reagan said: “Ours was the first revolution in the history of mankind that truly reversed the course of government, and with three little words: ‘We the People.’ ‘We the People’ tell the government what to do; it doesn’t tell us. ‘We the People’ are the driver; the government is the car.”¹ This quotation nicely captures a central theory of our Constitution, a theory known as “popular sovereignty.” We the People are sovereign because we govern ourselves through our elected representatives. We the People are sovereign because we control the government; it does not control us. (The term “popular sovereignty” means different things to different people. Chapter 1 presents a more detailed explanation of that concept.)

Unfortunately, the reality of government in the United States today is at odds with the principle of popular sovereignty. Today, the U.S. Supreme Court is the driver and We the People are mere passengers. Our elected representatives in Congress and in state legislatures have very little power to accomplish major legislative reforms because the Supreme Court has constructed an intricate web of constitutional rules that severely constrains the power of elected legislatures. Moreover, the powerlessness of average citizens is exacerbated by the fact that we have very little power to elect our legislators. According to Cook Political Report, only 43 out of 435 seats in the House of Representatives are considered “competitive” in the 2024 elections. Only twenty-one of those forty-three seats are genuine “toss ups,” where neither party has a clear advantage.² Thus, to return to President Reagan’s analogy, the Supreme Court is the driver, Congress and state legislatures are passengers who can occasionally wrest the steering wheel away from the Court, and We the People are like babies in car seats who have no control over the speed or direction of travel.

Two examples illustrate the point that the Supreme Court has restricted the power of legislatures by fabricating new constitutional rules that have no basis in the Constitution’s text. In 2010, the Supreme Court decided in McDonald v. City of Chicago that the Second Amendment imposes binding constitutional limitations on the power of state and local government to enact gun control regulations.³ For more than two centuries before McDonald, the question of what gun control regulations to enact at the state and local levels was a public policy question decided by democratically elected legislatures. McDonald converted that public policy question into a question of constitutional law to be decided by the Supreme Court. In 2015, in Obergefell v. Hodges, the Supreme Court decided that the Fourteenth Amendment creates a constitutional right to gay marriage.⁴ Before Obergefell, state legislatures had the power to decide, as a matter of public policy, whether to recognize gay marriage. Obergefell converted that public policy question into a question of constitutional law to be decided by the Supreme Court.

The Court’s decisions in McDonald and Obergefell are byproducts of the historical processes of “constitutionalization” and “federalization.” Federalization transferred decision-making authority from state legislatures to federal courts. Constitutionalization transformed public policy questions into questions of constitutional law, which are subject to the control of unelected, unaccountable judges. Both constitutionalization and federalization have contributed to democratic decay in the United States; they have weakened representative democracy and undermined popular sovereignty. (See Chapter 2 for additional analysis of constitutionalization and federalization.) In the words of Abraham Lincoln: “[I]f the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by the decisions of the Supreme Court … the people will have ceased to be their own rulers.”⁵

In a prescient article written in 1893, Professor James Bradley Thayer warned that the process of constitutionalization (my term) – which was just beginning at that time – would weaken American democracy.⁶ For far too long, the judicial branch has accumulated more and more power at the expense of state and federal legislators. The capacity of our elected representatives to enact meaningful legislation to promote the common good has diminished, in part because the judiciary has constructed an intricate web of constitutional rules that create tremendous uncertainty as to which statutes might survive the Court’s exacting constitutional scrutiny. In response, many legislators make a seemingly rational decision to spend their time on fundraising and political posturing,⁷ rather than legislating, because any attempt to pass meaningful legislation is fraught with constitutional difficulties.

Data from numerous sources confirms that the quality of democratic governance in the United States has been declining for more than a decade. The Varieties of Democracy Institute (V-Dem) provides several indices for measuring the quality of democratic governance. The U.S. score on the “liberal democracy” index declined from .856 in 2010 to .723 in 2020; our ranking dropped from number seven to number thirty. The U.S. score on the “participatory democracy” index declined from .661 in 2010 to .537 in 2020; our ranking dropped from number ten to number thirty-two.⁸ According to Freedom House, “the United States’ aggregate Freedom in the World score declined by 11 points,” from 94 to 83, between 2010 and 2020.⁹ The Economist downgraded the United States from a “full democracy” to a “flawed democracy” in 2016.¹⁰

Democratic decay in the United States is related to two other trends: declining trust in government and increasing polarization. The Pew Research Center has collected polling data to measure trust in government since 1958.¹¹ The polls measure the percentage of people who say that they “trust the government in Washington to do what is right ‘just about always’ or ‘most of the time.’” In 1964, 77 percent of Americans trusted the federal government “to do what is right” all or most of the time. By June 2023, that figure had declined to just 16 percent.¹² The figure has not topped 40 percent since 2004.

Measuring polarization is trickier than measuring trust in government because there are different types of polarization. For example, one could measure polarization in the media, or in the general population, or in members of Congress. Here, let us focus on polarization in Congress. Political scientists use “DW-Nominate” scores to measure polarization in Congress.¹³ The database scores each Member of Congress on a scale from most liberal to most conservative. Higher positive scores are more conservative. Higher negative scores are more liberal. Table 0.1 presents the median score for both major parties in both Houses of Congress for the 93rd Congress, the 103rd Congress, and the 118th Congress.¹⁴

The data shows that, in both the House and the Senate, the ideological gap between the median Republican and the median Democrat increased substantially between 1974 and 2024. During that fifty-year period, Democrats in both the House and the Senate became slightly more liberal, while Republicans in both chambers became much more conservative. The Democrats have been a center-left party for the past fifty years, but the Republicans changed from a center-right party to a far-right party. Consequently, the ideological gap between the median House Democrat and the median House Republican increased from .60 in 1973–74 to .893 in 2023–24. Similarly, the ideological gap between the median Senate Democrat and the median Senate Republican increased from .597 to .885. The growing ideological gap between Democrats and Republicans has made it increasingly difficult to strike the types of bipartisan deals that are necessary for Congress to enact legislation to promote the public interest.¹⁵ Congress’s inability to enact legislation to promote the public interest contributes to both declining trust in government and democratic decay.

This book advances two central claims. First, the Supreme Court is partially responsible for the twin problems of increasing polarization and democratic decay. The Court may not be the primary cause of either problem, but its constitutional doctrine has exacerbated both problems. The Court has implemented a set of revolutionary changes in constitutional doctrine since the 1990s. At least some of those changes demonstrate that the Justices, like the public at large, have lost faith in the capacity (or the will) of the political branches of government to “do what is right” most of the time. Consequently, the Court has developed a body of constitutional law that is rooted in a deep-seated mistrust of the People’s elected representatives. That body of constitutional law is one of several factors contributing to the problem of democratic decay.

My second main claim is that the Supreme Court could become part of the solution, instead of being part of the problem. However, to become part of the solution, the Court will need to repudiate much of the constitutional doctrine developed since World War II. In short, we need a Copernican revolution in constitutional law to reverse the process of democratic decay and revitalize popular control of the government. This will require a fundamental change in the way that the Supreme Court thinks about constitutional law. For at least the past thirty years, and arguably for the past seventy years, the Court has placed itself at the center of our constitutional universe.¹⁶ Other actors in the system – Congress, the President, the states, and We the People – revolve around the Court, like planets revolving around the sun. To restore popular sovereignty and reverse the process of democratic decay, the Court must place We the People at the center of our constitutional universe, with the other actors (including the Court) revolving around us.

The Constitution creates a system of representative democracy in which We the People govern ourselves through our elected representatives. If the electoral system works properly, so that all citizens “have an equally effective voice”¹⁷ in choosing our elected representatives, then laws enacted by democratically elected legislatures represent the will of the people. In that case, the courts’ only function is to apply the laws enacted by our elected representatives, unless a particular law violates a clear, unambiguous constitutional rule. If the electoral system functions properly, then it is an abuse of judicial power to apply vague, ambiguous constitutional text – or vague, general constitutional principles – to invalidate laws enacted by democratically elected legislatures. If, on the other hand, the electoral system is not working properly – in particular, if all citizens do not have an equally effective voice – then the Supreme Court should use its judicial power to correct malfunctions in the electoral process to help ensure that democratic legislatures fairly represent the will of the people.

Chapter 1 sketches the contours of a theory of judicial review. The theory divides constitutional law issues into three “baskets”: democratic self-government (popular sovereignty), individual rights, and structural issues (federalism and separation of powers). We the People adopted the Constitution to create a system of democratic self-government based on the principle of popular sovereignty.¹⁸ Current constitutional doctrine is divided between “rights” issues and “structural” issues. Structural constitutional law focuses on the division of power among government actors. That framing ignores a key structural feature of the Constitution: the division of power between the government and We the People. Constitutional rights doctrine focuses on negative, individual rights, not affirmative, collective rights. By ignoring affirmative rights, constitutional doctrine ignores the collective right of We the People to exercise control over our government. The Supreme Court’s constitutional doctrine has erased We the People from the Constitution. If one views the Constitution through the lens of the Court’s constitutional doctrine, We the People are invisible. We do not appear in the Court’s structural constitutional doctrine because that doctrine focuses exclusively on government actors. And we do not appear in the Court’s rights doctrine because it focuses on negative, individual rights, not affirmative, collective rights.

This book presents a critique of the Court’s constitutional doctrine, but it also charts a path forward. The path forward begins by recognizing that constitutional law, properly conceived, consists of three baskets: structure, rights, and democratic self-government (or popular sovereignty). Chapter 1 distinguishes between “strong” and “weak” judicial review. In a system of strong judicial review, the Supreme Court gets the last word on contested issues. In a system of weak review, Congress has the power to override the Court’s decisions by changing the governing rule for future cases. The theory of judicial review that I present and defend in this book can be summarized briefly as follows:

• • The Court should apply strong judicial review in election cases to enhance the quality of representative democracy and strengthen the power of We the People to maintain control over the government through our elected representatives. For example, courts should apply strong judicial review to ban partisan gerrymandering.

• • The Court should apply weak judicial review for most individual rights claims. Courts can protect individual rights by applying international human rights treaties – instead of applying the Constitution – as the primary source of protection for individual rights. In this way, courts can provide robust protection for rights while still preserving an option for legislative override if Congress disagrees with the Court’s resolution of a particular issue.

• • The Court should apply deferential review for claims involving federalism-based limits on Congress’s legislative powers.¹⁹ The Court’s modern federalism jurisprudence does not actually promote the ostensible goal of protecting state autonomy. Instead, the Court’s federalism doctrine transfers federal lawmaking authority from Congress to the Supreme Court, in violation of separation-of-powers principles.

The overall plan of the book is as follows. Chapter 1 presents the basic theory of judicial review. Chapter 2 presents a historical account of four previous revolutions in constitutional law. Chapter 3 discusses elections and Chapter 4 analyzes the problem of misinformation (which is a key factor contributing to democratic decay). Chapters 5 and 6 address judicial application of international law to protect individual rights. Chapter 7 addresses federalism. Finally, Chapter 8 provides a roadmap for revolutionary change. It addresses the question: “How do we get from here to there?”

Before concluding this Introduction, it may be helpful to say a few words about global trends related to democratic decay. The V-Dem annual report from 2022 noted that “dictatorships are on the rise and harbor 70% of the world population.” Additionally, “the level of democracy enjoyed by the average global citizen in 2021 is down to 1989 levels. The last 30 years of democratic advances are now eradicated.”²⁰ Thus, democratic decay in the United States is not an isolated phenomenon; it is one element of the worldwide trends of creeping authoritarianism and democratic erosion. It is impossible to prove that developments in the United States are causing democratic erosion elsewhere, but there is no question that the United States, as the most powerful nation in the world, has a significant influence on global trends.

In the same farewell address quoted previously, Ronald Reagan referred to one of his favorite metaphors – the United States as “a shining city on a hill.” He explained that the United States is “still a beacon, still a magnet for all who must have freedom, for all the pilgrims from all the lost places who are hurtling through the darkness, toward home.” He added that, in his vision of that shining city, “the walls had doors and the doors were open to anyone with the will and the heart to get here.”²¹ The contrast between Presidents Reagan and Trump is striking. President Trump wants to build a wall to keep people out. President Reagan wanted to open the doors “for all the pilgrims from all the lost places.”

Like President Reagan, I firmly believe that the United States has the capacity to serve a higher mission: to help spread freedom, democracy, and human rights to other countries throughout the world. To fulfill that mission, though, we must reverse the process of democratic decay at home. We cannot effectively combat democratic erosion in other countries until we get our own house in order. Moreover, without U.S. leadership, the global process of democratic decay will continue, and may even accelerate. It may sound odd to modern sensibilities to suggest that the Supreme Court has an important role to play in promoting democracy and human rights around the world. However, that is precisely what the Truman Administration told the Supreme Court in its brief in Brown v. Board of Education:

The message was not lost on the Justices: nothing less than the United States’ leadership of the free world was at stake. Justices Burton and Minton, in particular, were probably swayed by “the Cold War imperative for racial change.”²³

Today, we are once again engaged in a global struggle between the forces of democracy and autocracy.²⁴ For the past few decades, the Supreme Court has been on the wrong side of that battle. The Court has strengthened the domestic political forces that are undermining democracy; it has nurtured creeping authoritarianism in the United States. It is long past time for the Court to get on the right side of history by aligning itself with the forces that are fighting to enhance the quality of democratic self-government in the United States. It is not hyperbole to suggest that the future of freedom in the world is at stake.