87 Pages Posted: 5 Sep 2007
This Article attempts to re-envisions constitutional law through the perspective of non-judicial precedents. Most constitutional scholars equate precedents with judicial decisions, particularly those of the Supreme Court, and ignore the constitutional significance of precedents made by non-judicial actors. Using a wide range of examples, Professor Michael Gerhardt shows how shifting our perspective from the Court to non-judicial actors allows us to see constitutional law in new ways. First, he suggests the feature common to all non-judicial precedents is their discoverability - the public efforts made to invest past non-judicial activities with normative force. To illustrate how discoverability makes non-judicial precedents recognizable, Gerhardt compares three easy cases for spotting non-judicial precedents with three practically impossible ones. Second, non-judicial precedents have other distinctive features - they are more extensive than judicial precedents, enduring, designed largely to exert binding or persuasive authority, and have limited path dependency - weak force to dictate outcomes over time. Third, they perform many functions besides constraint - serving as a mode of constitutional argument, settling constitutional conflicts, implementing constitutional values, and shaping structure, national identity, and culture. The greater the network effects of non-judicial precedents - the more functions they perform and thus the more often they are cited - the more secure their meanings and values become. Fourth, non-judicial precedents are instrumental to solving some classic conundrums in constitutional theory, including "the counter-majoritarian difficulty." Because so much judicial doctrine is grounded in non-judicial precedents in such forms as historical practices, customs, norms, and traditions, few judicial decisions can credibly be called "counter-majoritarian." The less firmly grounded judicial decisions are in concrete expressions of majoritarian preferences the more they are open to political attacks. The Article concludes that shifting perspective on precedent from courts to non-judicial actors enables us to see how non-judicial actors are actually supreme in making constitutional law.
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