The Constitutional Convention: Should Judges Judge Law?

History is the chronicle of choices made by actors/agents/protagonists in specific contexts. This simulation places students at the Constitutional Convention and asks them to engage with a problematic question: Who should have the final say in deciding whether a law or executive action is constitutional? Students will explore this in theoretical, practical, and political contexts. If one branch has the final say, does that negate the separation of powers? But if no branch has the final say, how are inter-branch disputes to be settled? If unelected justices of the Supreme Court can nullify legislative and executive measures, does that fly in the face of popular sovereignty? On the other hand, if constitutional interpretation is left to “the people,” how might that work, and might that lead to political turmoil? By wrestling with such questions, students will gain some insight into why the framers did not explicitly give the Supreme Court the authority to determine constitutionality, even though many expected the Court to exercise that authority. They will also understand why judicial review, although settled law at this point, remains so controversial.