Law Commons^™

"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 – …

Presidential Popular Constitutionalism, Jedediah S. Purdy

Jedediah S Purdy

This Article adds a new dimension to the most important and influential strand of recent constitutional theory: popular or democratic constitutionalism, the investigation into how the Constitution is interpreted (1) as a set of defining national commitments and practices, not necessarily anchored in the text of the document and (2) by citizens and elected politicians outside the judiciary. Wide-ranging and ground-breaking scholarship in this area has neglected the role of the President as a popular constitutional interpreter. Presidents articulate and revise normative accounts of the nation that interact dynamically with citizens’ constitutional understandings. This Article sets out a “grammar” of …

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 Irony Of Judicial Elections, David E. Pozen

Faculty Scholarship

Judicial elections in the United States have undergone a dramatic transformation. For more than a century, these state and local elections were relatively dignified, low-key affairs. Campaigning was minimal; incumbents almost always won; few people voted or cared. Over the past quarter century and especially the past decade, however, a rise in campaign spending, interest group involvement, and political speech has disturbed the traditional paradigm. In the "new era," as commentators have dubbed it, judicial races routinely feature intense competition, broad public participation, and high salience.

This Article takes the new era as an opportunity to advance our understanding of …

Fighting Women: The Military, Sex, And Extrajudicial Constitutional Change, Jill Elaine Hasday

Georgetown Law Faculty Publications and Other Works

The Supreme Court in Rostker v. Goldberg (1981) upheld male-only military registration, and endorsed male-only conscription and combat positions. Few cases have challenged restrictions on women's military service since Rostker, and none have reached the Supreme Court. Federal statutes continue to exclude women from military registration and draft eligibility, and military regulations still ban women from some combat positions. Yet many aspects of women's legal status in the military have changed in striking respects over the past quarter century while academic attention has focused elsewhere. Congress has eliminated statutory combat exclusions, the military has opened many combat positions to women, …