BICKEL, THE LEAST DANGEROUS BRANCH 16-17 (1962). 2. "Whoever attentively considers the different departments of power must perceive that, .. the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them." THE FEDERAUST No. 78, at 465 (A. Hamilton) (C. Rossiter ed. 1961). 6. Two distinct elements of the Convention's problematic claim to legality should be distinguished: The first involves its right to propose its' new Constitution; the second concerns its right to revise preexisting ratification procedures. On the first question, I do not wish to take a hard and fast line. While the Confederation Congress did explicitly limit the Convention to "the sole and express purpose of revising the Articles of Confederation," see 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 14 (M. Farrand ed. 1966), there are at least plausible legal arguments to support the Convention's decision to scrap the Articles altogether. On the one hand, one may follow The Federalist and argue that, appearances to the contrary notwithstanding, a deeper analysis reveals more fundamental continuities between the Constititution and the Articles. See THE FEDERALIST No. 40, at 249-55 (J. Madison) (C. Rossiter ed. 1961). On this line, the fact that Congress, in calling for a Convention, had expressed the desire for a "firm national government" justified the Convention in rejecting a narrow interpretation of the "sole and express purpose" limitation. On the other hand, one may follow an argument most forcefully developed by Julius Goebel, who seeks to justify the Convention's action by diminishing the legal role of the Confederation Congress in authorizing the Convention. On this view, the decisive legal text is not the congressional call for a Convention but the legal acts taken by each of the individual states when authorizing delegates to the Convention. See J. GOEBEL, HISTORY OF THE SUPREME COURT 198-204 (1971). Even Goebel admits, however, that three states-among them the critical states of Massachusetts and New York-expressly referred to Congress' limiting language in their own enabling acts; that a fourth state, Delaware, was even more restrictive; and that a fifth state, Rhode Island, refused to send any delegates at all to the Convention. Id. at 202. Given these concessions, I do not see why Goebel believes, as he plainly does, that he has laid to rest doubts about the legality of the Convention's decision to scrap the Articles and propose a new Constitution. I myself agree with those scholars who are unpersuaded by the strictly legal arguments, advanced by Publius and his later apologists, on behalf of the Framers' right to scrap the Articles and propose a new Constitution. See, e.g., Gunther, The Convention Method of Amending the United States Constitution, 14 GA. L. REV. 1, 4 (1979); Wright, Introduction to THE FEDERALIST at ii (B. Wright ed. 1961). Nothing in my larger project, however, depends on the assump...
Turn back the clock sixty years, and glimpse into the future: What were the prospects for constitutionalism as they might have appeared in the late 1930s? What was the potential for judicial reviews? Grim. The Weimar Constitution had crumbled, as had Austria's ingenious experiment with judicial review. Neither the French nor the English ever had much faith in the power of written constitutions to constrain democratic politics. Nor did a century of Latin American experience suggest anything hopeful. Since Bolivar, generations of liberals south of the border had sought to copy the North American model-only to see its promise of limited government dissolve in caudillismo and class war. And in the United States, the Supreme Court was reeling and would not recover a sense of direction for more than a decade. Amidst all this wreckage, only England and its overseas dominions offered glimmers of light. In Canada and Australia, New Zealand and South Africa, Westminster democracy was not a lifeless form but a living reality. Yet the lessons to be learned from these successes were bittersweet. The English had never indulged the Enlightenment conceit that a formal constitution was necessary for modern government. It was their culture of self-government, their common sense and decency, that distinguished their evolving commitment to democratic principles-not paper constitutions and institutional gimmicks like judicial review. It took Englishmen centuries to evolve this culture at home, and only Englishmen had managed to transplant it to foreign shores. Indeed, most thoughtful Americans suspected that this Anglo-Saxon heritage largely accounted for their own success and that the elaborate contraption designed in Philadelphia was, if anything, an impediment to further democratic development. Sixty years later, and how the world has turned. Even the British are debating the need for a newfangled constitution. It is almost politically incorrect to suggest that America's success is rooted in its Anglo-Saxon legal traditions. The Enlightenment faith in written constitutions is sweeping the world. Constitutional courts are powerful forces in Germany and France, Spain and Italy, Israel and Hungary, Canada and South Africa, the European Union, and India. Are we at the giddy top of a bull market or on the brink of worldwide hegemony? One thing is clear: American constitutional lawyers have treated this question with astonishing
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