Extra-Judicial Capacity

Abstract

This short essay, prepared for a symposium on Andy Coan's book Rationing the Constitution, examines how extra-judicial capacity shapes constitutional law. Coan powerfully shows how the limits of judicial capacity shape constitutional doctrine. Complementing his account, I consider how forces outside of courts may do the same. "Constitutional communities" — people who interpret, discuss, and invoke constitutions — appear to be both prerequisites to constitutional function and variables that may shape constitutional meaning. I discuss these points by drawing on state constitutional law.