Legislative Constitutionalism & Federal Indian Law

99 Pages Posted: 31 Jan 2023 Last revised: 27 Jul 2023

See all articles by Maggie Blackhawk

Maggie Blackhawk

New York University School of Law

Date Written: January 30, 2023

Abstract

The United States has reached a moment in its constitutional history when the
Supreme Court has asserted itself as not only one of, but the exclusive, audience to ask and answer questions of constitutional meaning and constitutional law. This “juricentric” or court-centered constitutionalism has relegated the other, so-called political branches to a second-class status with respect to the Constitution. Not only has the dominance of the Court dampened our constitutional culture writ large, it has also occluded the ways that Congress and the executive branch play distinctive and vital roles within constitutional lawmaking.





As we finally tamp out the last few embers of hope that the Supreme Court can alone sustain,
preserve, and protect a robust constitutional culture within the United States, I offer here another
world now in existence that could provide strategies and visions for a less juricentric future writ
large—that is, the case study of federal Indian law and of American colonialism, and the Native
advocacy that gave birth to this body of law.





The core theoretical contribution of the case study is that recognizing legislative constitutionalism as a legitimate and co-equal form of constitutionalism could support a distinctive and thus
more varied constitutional culture than that offered by our current juricentric system. Scholars
have long celebrated the unique form of participation in the lawmaking process offered to the public by the institutional structure of Congress and have highlighted the ways that Congress has
fostered constitutional deliberation with “the people themselves.” The case study of federal Indian
law supports these earlier celebrations and allows us to build on them by also recognizing Congress’s ability to offer distinctive constitutional reforms. As a legislature, Congress can engage with constitutional lawmaking as statecraft—an approach wholly absent from the courts. In the context of American colonialism, Congress has offered constitutional reforms in terms of “structure”—that is, the institutions of the U.S. government and their design; implementation and alteration of the structural aspects of the constitutional order; the contours of its federalist framework; and the distribution of power—including to subordinated communities—as an insufficient and imperfect, but innovative form of constitutional lawmaking.





For scholars of federal Indian law, recognizing the longstanding relationship between Congress and Native advocates as constitutionalism fosters a deeper understanding of the constitutional developments within the law over time—developments that place the philosophies and
agency of Native people and Native Nations at the center of our constitutional law and history.
Beyond reperiodization of our Native legal and constitutional histories, exploring legislative constitutionalism within the field of federal Indian law provides us with an illustration of Congress
taking a central role in the identification and mitigation of constitutional failure—an illustration
that illuminates the problems and promise of legislative constitutionalism.

Keywords: legislation, federal indian law, Supreme Court reform, federal courts, constitutional law, constitutional history

Suggested Citation

Blackhawk, Maggie, Legislative Constitutionalism & Federal Indian Law (January 30, 2023). Yale Law Journal, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4342652

Maggie Blackhawk (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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