The court, the constitution, and the history of ideas

This Article argues that constitutional law scholars pay too much attention to political outcomes and too little to political philosophy. The Article posits that identifying the U.S. Supreme Court's role in the American constitutional order-the question scholars have been trying to answer for generations-is an exegesis in the history of ideas, rather than a lawyer's brief about policy results. Although the Article is ultimately about a number of the most significant political philosophers of all time (e.g., Aristotle, Montesquieu), it examines the dominant constitutional theory of the present day-popular constitutionalism-to illustrate why scholars need to spend less time reacting to recent high Court decisions and more time studying the ancient, medieval, and modern political philosophers of centuries past. The Article explores how a line of political philosophy running from Aristotle's theory of a mixed constitution through John Adams's modifications of Montesquieu culminated in the judicial institution embodied in Article III of the U.S. Constitution. The Article then explains how the political theory of an independent judiciary articulated by Adams made judicial review possible and committed that doctrine to the protection of individual rights. The Article thereby calls into question the central tenet of popular constitutionalism-that judicial review should be drastically limited, or eliminated altogether-and provides support for the traditional understanding that judicial review, vigorously employed, is an indispensable mechanism for protecting the individual rights guaranteed by the Constitution.