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A miraculous celestial event looms this summer. No, it’s not the autumnal equinox in September. But just as that event teaches us something about the universe, this one can teach us about the less angelic topics of government and sovereignty. The completely accidental convergence I allude to is the synchronicity of the United Kingdom’s general election and the United States’ Independence Day, both occurring on the Fourth of July.
The full implication of the Founding Fathers’ decisions (note the plural) to break from their mother country has never fully sunk in with many Americans. This is especially true when we consider and critique the decisions of the U.S. Supreme Court. Why? Because, paradoxically, the court often doesn’t do its job of striking down unconstitutional laws because it is too British.
Under the British system, courts don’t judge laws on their constitutionality. But across the pond, America’s system requires them to. When the Supreme Court says it can’t strike down a law because doing so would be “undemocratic” (a frequent justification), it’s actually saying, “No judicial review please, we’re British.” For example, last year, when the court reviewed a California law that threatened to raise the cost of pork throughout the country in violation of the Constitution’s commerce clause, it politely demurred [ [link removed] ] because “[i]n a functioning democracy, policy choices like these usually belong to the people and their elected representatives.” Instead of making an excuse befitting a Jane Austen dinner party, the court would have been better off remembering why it was given the power to overrule a “democratic policy choice” after the American Revolution.
A Systemic Revolution
In 1776, Americans famously lacked a fully formed plan of governance. They tired of “a long train of abuses and usurpations” (some real, some artfully imagined), but their future was hazy. The signers of the Declaration of Independence wanted to cast off the sovereignty of King George III and the Westminster Parliament and embrace small-R “republicanism.” But what did that mean when it came to running a country? The term could have covered a lot of things. Indeed, some understandings of “republican” at that time included having a monarchy!
Within a few years, though, Americans chose, and chose decisively. Each state adopted a form of government where “the people” are sovereign, not a monarch or—crucially—a legislature. Not only that, but eventually all states settled on a form of government where the rulers are constrained by a written constitution that “the people,” not the legislature, adopt and that cannot be changed by a mere act of the legislature. The same was done, in spades, for the American federal government at the Philadelphia convention in 1787.
Thus, the American Revolution was really two revolutions. It was not merely casting aside British rulers, but also casting off the British rules of sovereignty and government. These were profound changes that Americans do often recognize, of course, but also so often forget.
By the 1770s, King George was already quite a hamstrung monarch compared to past British rulers, but he was also arguably the last with any real power. Today the “sovereign” of the United Kingdom is generally said to be the “Crown in Parliament,” but everyone knows it’s really just Parliament. And Parliament essentially means the House of Commons, as the unelected House of Lords has no hard power other than delaying legislation. Thus, when U.K. voters go to elect the members of the House of Commons on the Fourth of July, they will effectively be selecting their sovereign.
That new sovereign will then have the power, like all British Parliaments, to do essentially anything it wants. Any law that Parliament passes will, by definition, be constitutional even if it upends hundreds of years of written or unwritten constitutional practice. Even as venerable a constitutional backstop as the Magna Carta is, at the end of the day, it’s only a majority vote away from oblivion. Some defenders of the British system [ [link removed] ] have described the Westminster Parliament as a continuously sitting constitutional convention, reelected every few years.
There is no logical reason why the Founders couldn’t have adopted that same system, even after rejecting a king. A system with no “higher law” constitution and sovereignty residing in a legislature wouldn’t have been at all unusual. Sorting out how that structure works in a federal system would have taken a bit of tinkering, but essentially Americans could have plodded along with state legislatures and Congress themselves possessing sovereign power, unconstrained by a “higher law” that they themselves couldn’t change.
What would that have meant? Most importantly, there would be no such thing as an unconstitutional statute. If Congress said something is the law, then it would be the law—no ifs, ands or buts. And that would mean “judicial review”—courts declaring statutes unenforceable because they violate the Constitution—would be nonsensical. Yet the Founders didn’t choose that path, instead placing the Constitution at the center of their new political system.
The Purpose of the Judiciary
Americans deliberately staked out a new system where the people keep their sovereignty and bind their representatives with written constitutions that can only be changed through special, supermajoritarian procedures. Legislatures are not sovereign and can only do what their constitutions—federal and state—allow.
The idea that judges can “strike down” laws as unconstitutional has been with us since not long after 1776. It took a little development in America’s earliest decades before it was fully fleshed out, but in retrospect, it was inevitable. Once Americans broke away not just from Britain but from the British constitutional framework, judicial review was a gravitational force that would have required extra constitutional effort to break free from. Perhaps the Constitution’s Framers could have included a clause that said something like, “Courts shall ignore this document when interpreting the law,” but otherwise judicial review was an unstoppable freight train.
This is because in a “higher law” system—especially one where that written higher law both enumerates and implies various individual rights—run-of-the-mill laws are going to inevitably conflict with the higher law. This would happen by accident even when legislators were on their best behavior. With actual politicians it’s as regular as the chimes of Big Ben. And when those laws are challenged in court—an institution tasked with declaring what the law is—judges are frequently going to have to say that the ordinary law must give way to the higher law. Objecting to courts doing so on the grounds that the ordinary law is “democratic” doesn’t mean much. If you do object, what you’re actually saying is, “I wish our system were more British.”
Redcoats in Black Robes
I’m not saying anything new by pointing out the higher law/ordinary law distinction. Every American judge, legal scholar and menial lawyer has heard it many times. But its full implications are so frequently rejected you would think that the idea was revolutionary.
Take what Supreme Court justices themselves say. Examples stretch back into history, but here’s just a few from recent years. In Chief Justice Roberts’ dissent in the 2015 same-sex marriage decision of Obergefell v. Hodges [ [link removed] ], he proclaimed the issue in the case was “whether, in our democratic republic,” legalizing same-sex marriage “should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law.” Similarly, just two years ago Justice Breyer justified upholding laws [ [link removed] ] regulating the content of signs—in other words, regulating speech—by saying that otherwise courts would substitute “judicial for democratic decisionmaking.” And in 2018, Justice Thomas cast doubt [ [link removed] ] on finding laws unconstitutional under the due process clause because that could mean “constitutionaliz[ing] rules that were traditionally left to the democratic process.”
In each of these cases, the justices used “democratic” simply as a way of saying they shouldn’t strike down a democratically enacted law. But that, again, is not the American system. A law can be perfectly democratic and perfectly popular—and also perfectly unconstitutional.
What’s funny is that all these justices—and others—have at times sounded much more accepting of judicial review. The recent set of opinions in the [ [link removed] ]Rahimi [ [link removed] ]case [ [link removed] ], a Second Amendment challenge to a federal gun statute, is a good example. Among other thoughtful things various justices said there, Justice Kavanaugh explained that “[t]he Framers of the Constitution and Bill of Rights wisely sought the best of both worlds: democratic self-government and the protection of individual rights against excesses of that form of government. In justiciable cases, this Court determines whether a democratically enacted law or other government action infringes on individual rights guaranteed by the Constitution.”
Thus, American judges sometimes do understand that they are not British. And just because a judge thinks a law is constitutional doesn’t mean, of course, that he or she is “being British.” It may be the judge truly believes the ordinary law in question does not violate the higher law. But so very often in constitutional cases, instead of simply saying this, judges lean on the democracy crutch.
Ultimately, what this squishiness boils down to is called the “presumption of constitutionality.” Its advocates argue that when examining a law, judges should start with the premise that a democratically elected legislature acted properly, and only after careful consideration should the judges take the undemocratic step of declaring its work unconstitutional.
Now that, on its face, doesn’t sound unreasonable. We want judges to be careful about invalidating the work of elected representatives. The problem is, the presumption is often stretched from a rebuttable to an absolute one. That’s especially true in areas that go against a judge’s ideological inclinations—think guns for progressives, gay rights for conservatives—and it’s almost always true when it comes to economic matters. All sides stopped taking the right to earn a living [ [link removed] ] seriously a long time ago. People defending their livelihoods in court might as well be in Notting Hill, not Capitol Hill.
Limiting the Legislature
A strong presumption of constitutionality simply does not fit with the system of government Americans chose after 1776. Just look at the U.S. Constitution or any state constitution—there are oodles of rules about what the government can’t do. At the federal level, legislation can only concern certain enumerated powers. Treaties need supermajorities to be ratified. Taxes must be assessed in certain ways. And when it comes to the Bill of Rights, there are all kinds of liberties—enumerated and unenumerated—that the federal and state governments must respect. State constitutions have even more rules. In short, American constitutionalism mandates limited government. And when elected representatives do not stay within those limits, the sovereign—the people—has tasked the courts with pushing back.
Again, none of the numerous rules in the U.S. Constitution existed as “higher law” matters under the British Constitution. All of them were, and are, simply one Act of Parliament away from disappearing. That difference matters a lot. Yet it’s all too frequently forgotten when justices and their academic and political enablers preach the gospel of “judicial restraint.”
As a dual American-British citizen, this Fourth of July I’ll be enjoying both sides of the equinox from my home in Minnesota. First, I’ll watch the feed from either the BBC or ITV (whichever one C-Span simulcasts) of the choices of my fellow Brits. British democracy is something to cherish and has done a great deal of good both in the U.K. and as a beacon to the world. It’s something I take pride in watching and celebrating. But, second, I’ll relish the fireworks blowing up all over our neighborhood and think of how the American Revolution—from both the British and the British system—means that American liberty is protected not just by regular elections like the one on TV, but by the written words of our higher law and the judges who enforce it.

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