Chapter Three develops the argument in favor of strong judicial review to correct malfunctions in our electoral system. The first section analyzes flaws in our current electoral system, explaining why the market for elective office is not sufficiently competitive. The next section reviews the Warren Court’s decisions in key malapportionment cases: Wesberry v. Sanders and Reynold v. Sims. Those cases provide a helpful model for strong judicial review to correct flaws in our electoral system. The chapter then presents a critique of four election law decisions since 1976 where the Supreme Court has contributed to democratic decay by engaging in antidemocratic judicial review. The final section presents several proposals for new constitutional rules that build on the principles articulated in Wesberry and Reynolds. The proposed rules are designed to enhance competition in the market for elective office and improve the quality of democratic self-government in the United States.

Chapter Two presents an abbreviated history of judicial review, divided into six time periods. It documents four previous revolutions in constitutional law. The history suggests that future revolutions are almost inevitable. The chapter highlights two broad trends that are supported by empirical data. First, the Supreme Court shifted its primary focus from private law to public law between the late nineteenth century and the mid twentieth century. Second, the type of law that the Court applies to decide public law cases has changed. In the nineteenth century, the Court applied a mix of international law, statutes, and common law – but rarely constitutional law – to decide public law cases. By applying types of law other than constitutional law, the Court was engaging in weak judicial review. Since the Warren Court era, the Court has consistently applied constitutional law in more than 50 percent of public law cases. Application of constitutional law typically involves strong judicial review. When the Court applies constitutional law to decide public law cases, Congress cannot override Supreme Court decisions involving major public policy controversies.

Chapter Four contends that the electronic amplification of false and misleading election-related claims poses a significant threat to American democracy. To address that threat, we urgently need government regulation of companies that provide electronic amplification services. However, the Supreme Court has created a body of First Amendment doctrine that places Congress in a constitutional straightjacket, making it almost impossible for Congress to enact the type of legislation that is urgently needed to protect our democracy. This chapter sketches the outlines of a proposed federal statute that would restrict the electronic amplification of election-related misinformation. It explains why any statute along those lines – indeed, any statute that might be moderately effective in protecting American democracy from the threat posed by the electronic amplification of misinformation – would almost certainly be deemed unconstitutional under the Court’s current First Amendment doctrine. Therefore, the Court must revise its First Amendment doctrine to help save American democracy.

Chapter One presents a normative theory of judicial review that relies on distinctions among strong, weak, and deferential judicial review. In a system of strong review, judicial decisions applying the Constitution are not subject to legislative override. In a system of weak review, judicial decisions are subject to legislative override. The chapter defends three main normative arguments. First, courts should apply strong judicial review in election-law cases to enhance the quality of representative democracy and ensure that every citizen has an equally effective voice in choosing our elected legislators. Second, courts should apply weak judicial review for most individual rights claims. Courts can provide robust protection for individual rights by applying federal statutes and international human rights treaties, instead of applying the Constitution, as the primary source of protection for individual rights. Third, courts should apply deferential review for claims involving federalism-based limits on Congress’s legislative powers. To protect state autonomy, the Court should exercise self-restraint to curb judicial violations of the Tenth Amendment.

Chapter Six contends that courts should apply a system of weak judicial review to protect individual rights. Most of the rights protected under current constitutional doctrine are included in the Covenant on Civil and Political Rights. The United States is a party to that treaty. Congress has the power to authorize judicial enforcement of those treaty rights. If Congress enacts such legislation, and courts practice constitutional avoidance in cases where judicial enforcement of treaties provides a substitute for judicial enforcement of the Constitution, the net result would be a system of weak judicial review. The proposed system would enable judicial protection for rights that is substantially equivalent to, and in some cases better than, the current system of strong judicial review. Moreover, with weak review, Congress could override judicial decisions with which it disagrees. The option for legislative override is necessary to restore the power of We the People to exercise control over our government, a core structural feature of the Constitution.

The Supreme Court has implemented a set of revolutionary changes in constitutional doctrine since the 1990s. It has developed a body of constitutional law that is rooted in a deep-seated mistrust of the People’s elected representatives. That body of law is one of several factors contributing to the problem of democratic decay in the United States. To reverse the process of democratic decay, 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 revitalize popular control of the government. For far too long, the Court has placed itself at the center of our constitutional universe. Other actors in the system 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 other actors (including the Court) revolving around us.

Chapter Eight responds to the likely objection that the proposals presented earlier in the book are unrealistic. The chapter first addresses theories of constitutional change, focusing on Professor Ackerman’s “movement, party, Presidency” model of constitutional transformation. The rest of the chapter lays out a program for revolutionary change, based on the assumption that the Democratic Party will be the main engine of constitutional transformation. If the Democratic Party decides to launch a constitutional revolution to restore the power of We the People to exercise effective control over our government, it will have to change the composition of the Supreme Court. The chapter analyzes proposals for Supreme Court reform, then discusses constitutional transformation related to the electoral process, and finally considers other potential constitutional changes.

Chapter Seven presents a critique of the Court’s so-called “federalism” doctrines. Those doctrines have had very little practical effect in protecting state autonomy from unwarranted federal interference. Under the banner of federalism, the Court has engaged in illegitimate judicial lawmaking by creating a set of judge-made rules that have no basis in the Constitution’s text. Moreover, when the Court speaks of federalism, it conveniently ignores the fact that the Supreme Court itself is part of the federal government. If the Court truly wants to protect state autonomy from unwarranted federal interference, it should exercise self-restraint by limiting the reach of judge-made law that interferes with state autonomy. In particular, the Court should repudiate incorporation doctrine – a judge-made doctrine invented by the Warren Court that has no basis in the text of the Fourteenth Amendment. As a practical matter, incorporation doctrine imposes much more severe restrictions on state autonomy than all of the federal statutes (viewed in the aggregate) that the Court has invalidated under various federalism doctrines.

Chapter Five presents historical analysis to establish two key points that lay a foundation for the normative argument presented in Chapter Six. First, throughout the nineteenth century, federal courts applied a system of weak judicial review in which they enforced treaty-based rules to protect individual rights from government infringement. Therefore, the type of weak review system I am proposing in Chapter Six has deep historical roots in American public law. Second, due to a largely invisible constitutional transformation that occurred between 1945 and 1965, international human rights treaties are not currently available to U.S. courts as a source of judicially enforceable rights. However, under current constitutional understandings, Congress has the power to make human rights treaties judicially enforceable by enacting an appropriate statute to that effect.