In this article, I address the most common (and most influential) justification for originalism: popular sovereignty and the judicially enforced will of the people. Popular sovereignty both reflects and builds upon the normative theory of democratic rule - government by the majoritarian consent of the governed. The costs of judicial error under this approach waxes and wanes depending on the degree of departure from the people's will and the constraints placed on the ability of political majorities to respond to the court's error. The greater the intrusion into the democratic process, the greater the costs of judicial error and, accordingly, the greater the need for “weightier” pragmatic arguments if precedent is to control. Judicial errors that leave an issue under the control of political majorities generally impose such low costs in terms of constitutional legitimacy that the pragmatic considerations of stare decisis may come to the fore. On the other hand, judicial errors that completely remove a matter from majoritarian politics impose such high costs in terms of constitutional legitimacy that they ought to be treated as presumptively in need of overturning - a presumption I refer to as reverse stare decisis.Popular Sovereignty. That's one alternative -- there are, in American Legal history, others. President Andrew Jackson had a veiw that made the Executive at least co-equal with the Supreme Court:Allowing majoritarian politics to play a role in determining the strength of prior precedent is not a new idea: it was first suggested by James Madison, one of the authors of the Constitution and a committed popular sovereigntist.
Originalism, Popular Sovereignty and Reverse State Decisis
KURT T. LASH, Loyola Law School Los Angeles, Loyola-LA Legal Studies Paper No. 2007-16, Virginia Law Review, 2007
Between 1790 and 1871, the U.S. Senate ratified 380 treaties with Indian nations. Congress entered into treaties with the [nations] to acquire land which it would sell to pay off its huge debts. Start-up costs for a nation, even back then were staggering and the U.S. was too weak to take the land by force. What it had to offer the [Indian nations], in return, were sovereignty and peace.(btw -- I'd have more to say in re Jackson and the Cherokees, the war on terror, and on title, if anyone wants to hear, but it's not relevant to the question of who decides what is Constitutional.)When the legal concept of sovereignty was first challenged in the Supreme Court by the state of Georgia in the 1820s, Chief Justice John Marshall took pains to examine this legal apparatus and to explain how it functions. He knew battles with the [Indian nations] would only escalate over time.
This brace of cases, known as the Marshall Trilogy, held that every treaty ratified by the U.S. Senate under Article VI, Clause 2 of the Constitution, was now the "supreme law of the land." Sovereignty, explained Marshall, exists as a pre-condition among self-governing entities and acts as a legal shield protecting all rights and privileges reserved and implied by nationhood. In fact, treaties were the granting of rights from the [Indian nations] to the federal government.
President Andrew Jackson was so infuriated by Marshall's opinion that he declared: "Let him enforce it!" then sent thousands of Cherokee ... [westward. bvw: cutting out the most egregious PC tripe]
Cite for above left out, sorry. It is an American Indian website: http://www.canku-luta.org/fall00/indian_sovereignty.html
Marshall's SC used their powers as granted by the Constituion and determined what they thought was Constitutional.
President Jackson then used his powers as granted in the Constitution and took care of the enforcement...or lack there of.
Madison doesn't contradict anything that I said.