The United States promotes itself as being based on the principle of popular sovereignty, that is, the people’s capacity for self-government. The latter is secured by the existence of the higher and fundamental law that is the constitution. Indeed, article VI section 2 of the constitution states that it is the «supreme law of the land» by which the judges shall be bound. This fundamental law was «establish[ed] and ordain[ed]» by the people of the United States according to the preamble of the constitution; it thus follows that the people are sovereign. Nevertheless, one has to investigate the device by which it is assumed that the people have, in effect, established the constitution. One can presume, with no great difficulty, that it is not feasible to draft a constitution by concerting every individual of the United States on what should be included in it. The Philadelphia convention of 1787 assembled delegates from all states to discuss the drafting of the constitution. Although the delegates were representatives of their states, it is the process of ratification that substantiated the republican principle of popular sovereignty. Thus, it is the ratification of the Constitution that enables it to be «empowered by the people [and gives it] a truly legal authority» (Paine, 28).
One could initiate a debate on the process of ratification and its true value in assessing popular sovereignty. However, such an argument implies that one further examines the nature of the people, therefore leading us to digress from the purpose of this paper. Hence, one is accepting that the ratification process does account for the manifestation of popular sovereignty, thus confirming that the Constitution was «establish[ed] and ordain[ed] by the people of the United States».
By ratifying the Constitution, the people consented to its laws and provisions including the role that is given by the judiciary. Judicial review, that is, the capacity to «say what the law is [...] and to interpret and expound» it, was made explicit by Chief Justice John Marshall in the case Marbury v. Madison, presented to the Supreme Court in 1803. This case conferred to the judges the power to interpret what is, or is not, in accordance with the Constitution. One may argue that judicial review was an ex post facto attribution of power to the judiciary, the people did not consent to it when they ratified the constitution, thus making judicial review unconstitutional. However, John Marshall merely made explicit a power that was implicitly attributed to the Supreme Court by the Constitution in article III, section 2:
«The judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority [...]»
Not only is this paragraph vesting in the judges the power to assign meaning upon the Constitution, the laws of the United States and its treaties; but it also enables...