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Cleveland State Law Review


Noam Chomsky, judicial review, Aristotle, constitutional law, Edmund Burke, James Madison


Although Chomsky has never discussed judicial review in any detail, he recently made several interesting observations. He believes America's governmental structure remains acceptable, even desirable, even though all three federal branches have not just failed to protect us from private power's excesses but instead have devoted far too much of their energy and power to enhancing private power. The constitutional text creates a unique relationship between the Supreme Court and private power. Because the Court is staffed by unelected Justices who need not pander for money to be reelected, it is more independent of the rich and powerful than either of the elected branches. Consequently, the Court has an obligation to resist private abuses, a responsibility it has not adequately fulfilled. Nevertheless, the Court has done a better overall job than the two elected branches in making our society more just, particularly by expanding some individual human rights vis a vis the government. For example, the Supreme Court for many years led the battle against segregation, a particularly nasty combination of public and private malfeasances. This cluster of normative and descriptive claims, which I have never seen before, provides the impetus for the rest of this Commentary's discussion.