Constitutionalism Outside the Courts
30 Pages Posted: 18 Jan 2015 Last revised: 10 Mar 2015
Date Written: January 16, 2015
This essay is a chapter to be included in the forthcoming Oxford Handbook on the U.S. Constitution. Using the actions of Arkansas Governor Orville Faubus during the Little Rock crisis of 1957 and the U.S. Supreme Court’s subsequent decision in Cooper v. Aaron as a lens, it explores constitutional interpretation and enforcement by extrajudicial institutions. I explore the critique of Cooper’s notion of judicial supremacy by departmentalists like Walter Murphy, empirical scholars skeptical of judicial efficacy like Gerald Rosenberg, and popular constitutionalists like Larry Kramer and Mark Tushnet. I also consider four distinct institutional forms of extrajudicial constitutional interpretation and enforcement: protection of constitutional values through political processes and checks and balances; the role of social movements in shaping constitutional meaning; resolution of particular constitutional controversies in the political branches through processes of “constitutional construction”; and the role of “administrative constitutionalism.” The critique of judicial supremacy and the analysis of extrajudicial interpretation and enforcement have had a salutary impact in broadening the horizons of constitutional law. To the extent that theories of constitutionalism outside the courts are used to go further and attack judicial review, however, I find them less persuasive. One need not believe in judicial supremacy to value the courts’ ultimate settlement function in litigated constitutional controversies. If the Constitution is to continue to act as an external constraint on political action, then constitutionalism outside the courts can never be wholly autonomous of constitutionalism inside.
Keywords: judicial review, popular constitutionalism, departmentalism, administrative constitutionalism
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