The Brand X Constitution

Abstract:     
Scholars from across the political spectrum have in recent years attacked the Supreme Court's claim to supreme power to interpret the Constitution. This Article adds to this movement of "popular constitutionalism" by deploying the Supreme Court's own doctrine against it. Recent developments in the Chevron doctrine have culminated in what might be called, after the case that gave it form, the Brand X model of statutory interpretation. Broadly speaking, this model requires courts to uphold an agency's reasonable interpretation of a statute it administers - even in the teeth of contrary precedent - so long as the agency used transparent, deliberative means to adopt it. Translating this Brand X model into a constitutional setting, this Article claims that courts should uphold reasonable legislative constitutional constructions that are expressly stated in focused federal legislation even if they contradict contrary Supreme Court precedent. This proposal would thus require the Supreme Court to extend about as much deference to select legislative precedents as it now indulges its own judicial precedents. Adopting this approach would expand in an incremental and controlled way the voice of the public, Congress, and the President in constitutional construction. The most fundamental reason to pursue this change is that choosing among reasonable constitutional constructions is a political task that depends on value judgments and related assessments of legislative fact. In a representative democracy, the problem of making such policy choices should be committed ultimately to public judgment rather than nine life-tenured judges.

Number of Pages in PDF File: 62

Keywords: popular constitutionalism, legislative precedent, stare decisis, Chevron, Thayer, judicial deference

Accepted Paper Series