Against Constitutional Mainstreaming

59 Pages Posted: 2 Oct 2009 Last revised: 23 Dec 2013

See all articles by Bertrall L. Ross

Bertrall L. Ross

University of California, Berkeley School of Law; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Date Written: February 18, 2011

Abstract

Courts interpret statutes in hard cases. Statutes are frequently ambiguous, and an enacting legislature cannot foresee all future applications of a statute. The Supreme Court in these cases often chooses statutory interpretations that privilege the values that it has emphasized in its recent constitutional jurisprudence. In doing so, the Court rejects alternative interpretations that are more consistent with the values embodied in more recently enacted statutes. This is constitutional mainstreaming – an interpretive practice that molds statutes toward the Court’s own preferred values, and away from values favored by legislative majorities.

In addition to providing a novel descriptive framework for what the Court is doing in these hard cases, this Article offers two normative contributions. The first is a critique of constitutional mainstreaming. Challenging the prevailing view that constitutional norms should have primary influence on the interpretation of statutes in hard cases, I argue that the Court should not engage in constitutional mainstreaming because it implicitly undermines a central principle of statutory interpretation: legislative supremacy. The Article’s second normative contribution is an alternative to constitutional mainstreaming. I suggest that in the hard cases the Court should prioritize the values reflected in more recently enacted statutes, rather than the values emphasized in its own constitutional jurisprudence. These evolving statute-based values are more likely to reflect evolving democratic preferences than judicially emphasized constitutional norms.

Keywords: Dynamic Statutory Interpretation, public values, legislative supremacy, popular constitutionalism, constitutional moments, legislative overrides, positive political theory, judicial decision-making, Voting Rights Act, public choice theory

Suggested Citation

Ross, Bertrall LeNarado, Against Constitutional Mainstreaming (February 18, 2011). 78 University of Chicago Law Review 1203, Available at SSRN: https://ssrn.com/abstract=1479675

Bertrall LeNarado Ross (Contact Author)

University of California, Berkeley School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States
510-643-5788 (Phone)

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

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