Functional Departmentalism and Nonjudicial Interpretation: Who Determines Constitutional Meaning?

Abstract

Published as part of a Duke Law School symposium on Conservative and Progressive Legal Orders, this article considers the appropriate role of the political branches - Congress and the President - in the development of constitutional meaning, including the extent of presidential and congressional authority to act on constitutional views at odds with judicial doctrine. The article discusses deficiencies in strong forms of both judicial supremacy (such as that behind the Rehnquist Court's recent limits on Congress's section 5 authority) and what is described in the academic literature as departmentalism (which emphasizes near-plenary authority for each branch to act on its own constitutional views). The article proposes what I call functional departmentalism as an alternative approach that would recognize the shared nature of the interpretive enterprise and only limited, context-dependent authority to act on constitutional views at odds with the views of the other branches. Issues of nonjudicial interpretation and competing constitutional views arise, of course, in diverse contexts (currently ranging, for example, from executive branch authority to engage in torture to the appropriate standards for judicial selection). To illustrate, the article concludes with a functional departmentalist approach to congressional legislation that would regulate abortion premised on constitutional views arguably inconsistent with Supreme Court doctrine (including the Partial Birth Abortion Ban Act of 2003 and versions of the Freedom of Choice Act' introduced, but never enacted, beginning in 1989).

Keywords: congressional power, constitutional interpretation, constitutional change, Rehnquist Court, judicial selection, judicial appointments, non-judicial constitutional interpretation, judicial supremacy, departmentalism, abortion, partial birth abortion ban act, separation of powers, section 5

JEL Classification: K10, K19, K30, K39