Judicial Elections as Popular Constitutionalism
88 Pages Posted: 14 Nov 2010 Last revised: 26 Nov 2010
Date Written: November 24, 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.
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
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