Just Judgment?: James Wilson on the Relationship Between Popular Sovereignty and Judicial Review
Judicial review has come to be the most important power of the American judiciary. Recent decisions made by the Supreme Court show that questions about judicial power are just as relevant today as they were at the time of the American Founding. Debates about judicial review are based on distinct understandings of the nature of judgment and the relationship between judicial review and the people. However, contemporary debates have taken on a character that misses the importance of judgment and draws a false dichotomy between judicial review and popular sovereignty. This thesis evaluates the problems with these contemporary arguments and examines James Madison’s, Alexander Hamilton’s, and the Anti-Federalist Brutus’s views on the judiciary and the nature of judgment. Ultimately, I turn to the thought of James Wilson to provide an alternative understanding of judicial power. Wilson’s distinct understanding of popular sovereignty, human nature, and the faculty of judgment provide the grounds to show that judicial review and popular sovereignty are compatible.