Extrajudicial Constitutional Interpretation: Three Objections and Responses

Posted: 21 Dec 2001

See all articles by Keith E. Whittington

Keith E. Whittington

Princeton University - Department of Political Science


Recent cases such as Boerne, Kimel and Garrett highlight the fact that the most important question regarding judicial supremacy focuses on the proper degree of deference between the branches rather than the possibility of extralegal defiance of the Court. Extrajudicial interpretation of the Constitution has often been criticized as problematic, insufficient and not authoritative. Although it is widely accepted that nonjudicial actors can and do interpret the Constitution, many constitutional theorists hold to a theory of judicial supremacy that argues that the Supreme Court is the ultimate, authoritative interpreter of the Constitution. This paper critically examines three of the most prominent objections to extrajudicial constitutional interpretations, and corollary defenses of judicial supremacy, and finds each inadequate. The three objections are that extrajudicial constitutional interpretation is 1) anarchic, 2) irrational, and 3) tyrannical. Each posits a corresponding virtue of judicial supremacy in terms of 1) the settlement function of the courts, 2) the deliberative function of the courts, and 3) the countermajoritarian function of the courts. The paper offers analytical and empirical responses to these critiques of extrajudicial constitutional interpretation, suggesting reasons why such interpretations should be regarded as more authoritative and deserving of greater deference by the courts. These arguments have implications not only for debates over judicial supremacy per se, but also for the related debate over the proper scope of judicial review.

Keywords: Judicial Supremacy, Judicial Review, Judicial Activism, Constitution Outside the Courts, Constitutional Interpretation

JEL Classification: K3, K4

Suggested Citation

Whittington, Keith E., Extrajudicial Constitutional Interpretation: Three Objections and Responses. North Carolina Law Review, Vol. 80, No. 3, 2002, Available at SSRN: https://ssrn.com/abstract=293479

Keith E. Whittington (Contact Author)

Princeton University - Department of Political Science ( email )

Corwin Hall
Princeton, NJ 08544-1012
United States
609-258-3453 (Phone)
609-258-1110 (Fax)

HOME PAGE: http://www.princeton.edu/~kewhitt/

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