This Article looks at a rare part of the judicial role: those exceptional cases when the judge is called upon to pass judgment on the constitution itself. This arises in three groups of cases, roughly speaking. First, in exceptional cases the validity of the constitution and the legal order is thrown into dispute. Second, on some occasions the judge is asked to rule on the transition from one constitutional order to another. Third, there are some cases in which the health of the constitutional order requires the judge to act not merely beyond the law, as it were, but actually contrary to the law. This Article surveys these situations, and reflects on the principles and processes judges have used, and should use, to guide their reasoning.
N.W. Barber & Adrian Vermeule,
The Exceptional Role of Courts in the Constitutional Order,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol92/iss2/6