Footnotes (344)



Judicial Elections as Popular Constitutionalism

David Pozen

Columbia Law School

November 24, 2010

Columbia Law Review, Vol. 110, pp. 2047-2134, 2010

One of the most important recent developments in American legal theory is the burgeoning interest in "popular constitutionalism." One of the most important features of the American legal system is the selection of state judges – judges who resolve thousands of state and federal constitutional questions each year – by popular election. Although a large literature addresses each of these subjects, scholarship has rarely bridged the two. Hardly anyone has evaluated judicial elections in light of popular constitutionalism, or vice versa.

This Article undertakes that thought experiment. Conceptualizing judicial elections as instruments of popular constitutionalism, the Article aims to show, can enrich our understanding of both. The normative theory of popular constitutionalism can ground a powerful new set of arguments for and against electing judges, while an investigation into the states' experience with elective judiciaries can help clarify a number of lacunae in the theory, as well as a number of ways in which its logic may prove self-undermining. The thought experiment may also be of broader interest. In elaborating the linkages between judicial elections and popular constitutionalism, the Article aims to shed light more generally on some underexplored connections (and tensions) among theories and practices of constitutional construction, democratic representation, jurisprudence, and the state courts.

Number of Pages in PDF File: 88

Keywords: Judicial Selection, Judicial Review, Departmentalism, Role Fidelity, Direct Democracy, State Constitutions, Institutional Design, Federalism, Proposition 8, Majoritarian & Countermajoritarian Difficulty, Legislative Supremacy, Democratic Legitimacy, Backlash, Kramer, Tushnet, Post, Siegel, Waldron

Open PDF in Browser Download This Paper

Date posted: November 14, 2010 ; Last revised: November 26, 2010

Suggested Citation

Pozen, David, Judicial Elections as Popular Constitutionalism (November 24, 2010). Columbia Law Review, Vol. 110, pp. 2047-2134, 2010. Available at SSRN: http://ssrn.com/abstract=1708253

Contact Information

David E. Pozen (Contact Author)
Columbia Law School ( email )
435 West 116th Street
New York, NY 10025
United States
HOME PAGE: http://www.law.columbia.edu/fac/David_Pozen
Feedback to SSRN

Paper statistics
Abstract Views: 1,865
Downloads: 300
Download Rank: 72,172
Footnotes:  344

© 2016 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollobot1 in 0.188 seconds