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"The People" And "The People": Disaggregating Citizen Lawmaking From Popular Constitutionalism, Raphael Rajendra
"The People" And "The People": Disaggregating Citizen Lawmaking From Popular Constitutionalism, Raphael Rajendra
Raphael Rajendra
In this essay, I argue that popular constitutionalism can be understood – and the borders it shares with the wider corpus of studies on constitutional change can be demarcated – by thinking of constitutions that either "live among people" or are "entombed in glass cases." This analysis distinguishes between popular constitutionalism and a ballot initiative-oriented notion of constitutional change that I call "initiative constitutionalism." Popular constitutionalism and initiative constitutionalism advance substantially different models for tempering democracy and other fundamental values. To conflate these models – and to call the MCRI a product of popular constitutionalism when it is not – …
Popular Constitutionalism And Relaxing The Dead Hand: Can The People Be Trusted?, Todd E. Pettys
Popular Constitutionalism And Relaxing The Dead Hand: Can The People Be Trusted?, Todd E. Pettys
Todd E. Pettys
A growing number of constitutional scholars are urging the nation to rethink its commitment to judicial supremacy. Popular constitutionalists argue that the American people, not the courts, hold the ultimate authority to interpret the Constitution’s many open-ended provisions whose meanings are reasonably contestable. This Article defends popular constitutionalism on two important fronts. First, using originalism as a paradigmatic example of the ways in which courts frequently draw constitutional meaning from sources rooted deep in the past, the Article contends that defenders of judicial supremacy still have not persuasively responded to the familiar dead-hand query: Why should constitutional meanings that prevailed …
The Brand X Constitution, Richard W. Murphy
The Brand X Constitution, Richard W. Murphy
Richard W. Murphy
In recent years, the Supreme Court’s claim to be the final, definitive interpreter of the Constitution has come under sustained attack from across the political spectrum from scholars pushing for a more “popular” constitutionalism. This Article contributes to “popular constitutionalism” by deploying recent developments in the Supreme Court’s own administrative-law doctrine against it. Together, these Chevron-related developments form the Brand X model, which stands broadly for the proposition that, where an agency uses transparent, deliberative means to adopt a reasonable interpretation of a statute it administers, the courts should defer to this interpretation regardless of whether it contradicts judicial precedent. …