The United States has bequeathed to global constitutionalism a particular vision: courts as supreme interpreters of constitutional meaning, wielding authority to definitively settle fundamental disputes about governmental power and individual rights. This model, crystallized in Marbury v. Madison and fortified through two centuries of practice, has become so naturalized that Americans often struggle to imagine alternatives. Yet judicial supremacy represents merely one institutional arrangement among several coherent possibilities—and arguably not the most democratically defensible one.

Across the constitutional landscape, diverse democracies have developed sophisticated mechanisms for constitutional enforcement that reject the premise of judicial finality. From Canada's notwithstanding clause to New Zealand's declaratory remedies, from the United Kingdom's parliamentary sovereignty to emerging forms of popular constitutionalism, these alternatives challenge us to reconsider foundational assumptions about who ultimately speaks for constitutional meaning. They suggest that constitutional fidelity need not require judicial hegemony.

The stakes of this inquiry extend beyond comparative curiosity. As democracies worldwide grapple with accusations of judicial overreach and counter-majoritarian difficulty, understanding alternative models becomes essential for constitutional design. This examination recovers neglected traditions within American constitutional thought itself, revealing that judicial supremacy emerged contingently rather than inevitably, and that coordinate interpretation by multiple institutions may better honor both constitutional commitment and democratic self-governance.

Before Cooper v. Aaron declared Supreme Court interpretations the "supreme law of the land," a robust tradition held that each governmental branch possessed independent authority to interpret constitutional meaning. This departmentalist vision, articulated by Jefferson, Jackson, and Lincoln, understood constitutional interpretation as a shared enterprise rather than a judicial monopoly. Each branch, bound by its own oath to uphold the Constitution, necessarily interprets that document when exercising its distinctive functions.

The theoretical foundations of departmentalism rest on constitutional structure itself. Article VI binds all officials to constitutional fidelity, not merely judges. When Congress considers legislation, it must assess constitutional permissibility; when presidents execute laws, they confront constitutional questions the judiciary may never address. To claim that only judicial interpretations bind other branches effectively removes constitutional judgment from actors who regularly exercise it and reduces the constitutional oath to mere deference.

Historical practice supports this coordinate vision. Jefferson refused to enforce the Sedition Act prosecutions despite judicial approval, understanding presidential pardon power as embodying independent constitutional judgment. Jackson vetoed the national bank partly on constitutional grounds, explicitly rejecting the notion that McCulloch v. Maryland settled the matter for coordinate branches. Lincoln's resistance to Dred Scott as binding political precedent preserved space for constitutional contestation that eventually yielded the Reconstruction Amendments.

The eclipse of departmentalism occurred gradually through accumulating claims of judicial authority, reaching its apex in the Warren and post-Warren eras. Cooper v. Aaron's unanimous assertion that Marbury established judicial supremacy represented rhetorical overreach—Marbury claimed only judicial authority to decide cases, not exclusive interpretive authority binding other branches. This slippage from judicial review to judicial supremacy occurred without sustained theoretical justification.

Contemporary departmentalism need not invite constitutional chaos. Sophisticated versions distinguish between judicial judgments in particular cases—which bind the parties—and broader interpretive authority over constitutional meaning. Executives might comply with specific court orders while maintaining interpretive disagreement, creating productive constitutional dialogue rather than departmental warfare. The question becomes institutional design: how might coordinate interpretation generate constitutional settlement without judicial monopoly?

Takeaway

Constitutional interpretation has historically been a shared enterprise among governmental branches, and recovering this departmentalist tradition reveals that judicial supremacy emerged through rhetorical accumulation rather than constitutional necessity.

The Commonwealth constitutional renaissance has generated innovative institutional forms that occupy middle ground between judicial supremacy and parliamentary sovereignty. These "weak-form" systems empower courts to identify constitutional deficiencies while preserving legislative authority over ultimate resolution. They represent sophisticated attempts to capture judicial review's benefits—principled constitutional reasoning by specialized institutions—without its democratic costs.

Canada's Section 33 notwithstanding clause permits legislatures to override judicial decisions on fundamental freedoms, democratic rights, and legal rights for renewable five-year periods. While rarely invoked, this mechanism fundamentally alters constitutional dynamics. Courts cannot claim final authority; legislatures must publicly assume responsibility for rights limitations rather than hiding behind judicial approval. The override's political costs encourage legislative attention to rights concerns while preserving ultimate democratic authority.

New Zealand's Bill of Rights Act represents even weaker judicial authority. Courts may declare legislative incompatibility with protected rights but cannot invalidate offending statutes. These declarations create political pressure and international embarrassment without legal compulsion. Parliament retains formal supremacy while courts contribute specialized constitutional reasoning to public deliberation. The model depends on political culture valuing rights-respecting governance rather than judicial enforcement.

The United Kingdom's Human Rights Act similarly empowers courts to issue declarations of incompatibility with Convention rights without invalidating primary legislation. This triggers fast-track parliamentary procedures for remedial action but imposes no legal obligation. The resulting dialogue between courts and Parliament has proven remarkably productive, with Parliament typically responding to declarations while occasionally maintaining contrary positions through explicit legislative reaffirmation.

Weak-form systems challenge the assumption that constitutional protection requires judicial supremacy. They suggest that sophisticated constitutional cultures may achieve rights protection through dialogue, public deliberation, and political accountability rather than judicial command. The critical variable becomes democratic commitment to constitutional values rather than institutional structure alone. These models presuppose what they cannot guarantee: legislative good faith and public attentiveness to constitutional concerns.

Takeaway

Weak-form judicial review, as practiced in Canada, New Zealand, and the United Kingdom, demonstrates that courts can meaningfully contribute to constitutional protection without possessing final interpretive authority over legislative judgments.

The most radical alternative to judicial supremacy locates ultimate constitutional authority in the citizenry itself. Popular constitutionalism, developed by scholars like Larry Kramer, Mark Tushnet, and Jeremy Waldron, argues that the Constitution belongs to the people who ratified it and their successors, not to judicial guardians who claim exclusive interpretive authority. This tradition recovers founding-era understandings while addressing contemporary democratic deficits.

Theoretically, popular constitutionalism derives from democratic legitimacy itself. Constitutional meaning gains authority from popular acceptance, not judicial pronouncement. When sustained majorities over time embrace particular constitutional understandings—as Americans eventually did regarding racial equality, free speech protection, and presidential term limits—these settlements carry democratic weight that judicial decisions alone cannot match. Popular constitutional meaning emerges through mobilization, deliberation, and electoral consequence.

Historical constitutional transformations support this populist vision. The Reconstruction Amendments emerged from popular mobilization and civil war, not judicial creativity. The New Deal constitutional revolution occurred despite judicial resistance, ultimately ratified through appointments reflecting popular judgment. The rights revolution of the 1960s depended on social movements that created political conditions enabling judicial action. In each instance, popular constitutional meaning preceded and enabled judicial recognition.

Institutionalizing popular constitutionalism presents formidable challenges. How can popular constitutional meaning be identified amid pluralistic disagreement? Through what mechanisms can citizens express constitutional judgment beyond electoral politics? Possibilities include constitutional conventions, popular initiatives on constitutional questions, citizen assemblies, and enhanced civic education. Each mechanism carries risks of manipulation, faction, and instability that constitutional structures traditionally aim to constrain.

The strongest version of popular constitutionalism suggests courts should operate as facilitators of democratic deliberation rather than final arbiters. Judicial decisions would clarify stakes, articulate competing principles, and ensure fair deliberative conditions without claiming ultimate authority. Constitutional settlements would emerge from sustained public engagement rather than judicial decree. This vision presupposes democratic capacities and civic virtues that may prove optimistic—yet skepticism about popular constitutional judgment ultimately becomes skepticism about democratic self-governance itself.

Takeaway

Popular constitutionalism reminds us that constitutional authority ultimately derives from the citizenry, and sustainable constitutional settlements require popular acceptance that judicial pronouncements alone cannot guarantee.

These alternative models illuminate judicial supremacy as a choice rather than a necessity—one institutional arrangement among several coherent possibilities for constitutional enforcement. Each alternative carries distinctive advantages and risks: departmentalism enables productive constitutional dialogue but risks interpretive fragmentation; weak-form review preserves democratic authority but depends on political good faith; popular constitutionalism honors democratic sovereignty but challenges institutional stability.

The deeper insight concerns constitutional culture rather than institutional mechanics. No arrangement succeeds without underlying commitment to constitutional values that transcends particular interpretive disputes. Judicial supremacy may prove appropriate for polities lacking robust democratic commitment to rights; weak-form systems presuppose what they cannot create. Constitutional design requires honest assessment of the political culture it must operate within.

For constitutional theorists and practitioners, these alternatives expand the imaginative horizon. The question is not whether judicial review exists but how interpretive authority should be distributed among institutions and citizens. Answers will vary across constitutional cultures, but the inquiry itself enriches our understanding of constitutional democracy's multiple legitimate forms.