Story Time with Whittington: Judicial Review in Repugnant Laws and Commentaries on the Constitution
Keith Whittington’s book, Repugnant Laws, does much to refine our views of the Supreme Court and its exercise of judicial review. Denying at once tales of an apo-litical or subservient judiciary, Whittington shows the Court has consistently acted as a partner within political coalitions but done so in its own, unique way. This ar-ticle compares his findings with the view of the judiciary articulated by Justice Joseph Story in his Commentaries on the Constitution of the United States. Many might assume that the two works are at odds over the purpose and practice of the Supreme Court. However, I explain how these works overlap significantly in their arguments and refine each other helpfully in their disagreements. Both show the need to consider theory in light of experience and the nature of judicial power in light of popular consent as well as Constitutional rights. Together, these two works help contemporary considerations of how we can understand the judiciary as a legitimate but distinct part of republican government.
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