Legislative Constitutionalism & Federal Indian Law

97 Pages Posted: 31 Jan 2023

Date Written: January 30, 2023


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. In decision after decision, the Court has declared the federal judiciary as the primary forum and itself the primary arbiter of constitutional conflict and debate. The Court has asserted its methods—text, history, tradition—as the preeminent modes of constitutionalism. The Court has also established the superiority of its substantive vision of constitutional law and values—including a narrowed vision of equality as “equal treatment” as the sole vision of equality recognized by our constitutional framework. This “juricentric” 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, but it has also occluded the ways that Congress and the executive branch, as unique institutions, play distinctive and vital roles within constitutional lawmaking. This Article explores what lessons public-law scholars might draw from federal Indian law in building an alternative constitutional culture to our current, and deeply flawed, juricentric system.

So, what is to be done once scholars and the public lose the taken-for-granted belief that aggressive judicial review is necessary or even beneficial for our constitutional framework? How does one navigate a Supreme Court that is hostile to fundamental constitutional values, especially in the context of minority protection, rather than the best suited “pronouncer and guardian of such values”?

This Article offers some preliminary answers to these questions through the lens of Native people and their advocacy strategies, histories, constitutional philosophies, and the legal frameworks that govern them. The body of law that governs the relationship between Native peoples, Native nations, and the United States—termed federal Indian law—offers a unique perspective on the distinctive roles of the other branches in making and interpreting constitutional law. Of course, the success of Native advocates in shaping the United States constitutional system should not be overstated, nor should it be washed of the blood of generations of Native men, women, and children required to secure even the most tenuous constitutional change. But this Article begins to explore the ways that the resilience of Native advocates, their innovative strategies and the legal frameworks born of those strategies offer lessons for our current constitutional moment.

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

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