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Preempting The People: The Judicial Role In Regulatory Concurrency And Its Implications For Popular Lawmaking, Theodore W. Ruger
Preempting The People: The Judicial Role In Regulatory Concurrency And Its Implications For Popular Lawmaking, Theodore W. Ruger
Chicago-Kent Law Review
The phrase "popular constitutionalism" most commonly refers to the role of the public—or perhaps its elected representatives—in framing answers to particular substantive questions of constitutional interpretation. This essay explores a different aspect of the popular constitution of the United States, one that is indifferent to particular substantive questions but that forms the basic structure in which most lawmaking takes place. The United States is not merely a federal system but one with concurrent federalism, in which many issues are regulated by both state and federal governments. This norm of regulatory concurrency became entrenched in the twentieth century even as the …
Popular Constitutionalism As Presidential Constitutionalism?, David L. Franklin
Popular Constitutionalism As Presidential Constitutionalism?, David L. Franklin
Chicago-Kent Law Review
This essay, which focuses on Larry Kramer's book The People Themselves, makes three points. First, although Kramer makes popular constitutionalism the conceptual centerpiece of his book, it's not at all clear what popular constitutionalism is. Kramer's work can be read to embody two very different versions of popular constitutionalism: a populist sensibility model and a departmentalist model. Second, whichever model Kramer has in mind, he has performed a valuable service by reminding us that the meaning of the Constitution is not identical to the doctrines the Supreme Court uses to implement that meaning. Third, popular constitutionalism in 2006 may in …