Presidential Popular Constitutionalism
Jedediah S. Purdy
Duke University School of Law
Fordham Law Review, Forthcoming
Duke Law School Legal Studies Paper No. 208
This Article adds a new dimension to the most important and influential strand of recent constitutional theory: popular or democratic constitutionalism, the investigation into how the Constitution is interpreted (1) as a set of shared and defining national commitments and practices, not necessarily anchored in the text of the document and (2) by citizens and elected politicians outside the judicial branch. Wide-ranging and ground-breaking scholarship in this area has neglected the role of the President as a popular constitutional interpreter, articulating and revising normative accounts of the national community that interact dynamically with citizens' understanding of the constitutional community. This Article explains the basic operation of presidential popular constitutionalism, lays out the historical development and major transformations in its practice, proposes a set of thematic alternatives for today's presidential popular constitutionalism, and locates presidential popular constitutionalism within the larger concerns of constitutional theory. In particular, it argues that some of the major political developments of recent decades, such as the "Reagan Revolution" and the Clinton-Bush era, can be fully understood only by grasping that they are episodes in presidential popular constitutionalism.
Number of Pages in PDF File: 28Accepted Paper Series
Date posted: May 5, 2008
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