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Popular Constitutional Argument, Tom Donnelly
Popular Constitutional Argument, Tom Donnelly
Vanderbilt Law Review
Critics have long attacked popular constitutionalists for offering few clues about how their theory might work in practice—-especially inside the courts. These critics are right. Popular constitutionalism—as a matter of both theory and practice—remains a work in progress. In this Article, I take up the challenge of developing an account of (what I call) popular constitutional argument. Briefly stated, popular constitutional argument is a form of argument that draws on the American people’s considered judgments as a source of constitutional authority—akin to traditional sources like text, history, structure, and doctrine. Turning to constitutional theory, I situate popular constitutional argument within …
Original Meaning And The Precedent Fallback, Randy J. Kozel
Original Meaning And The Precedent Fallback, Randy J. Kozel
Vanderbilt Law Review
There is longstanding tension between originalism and judicial precedent. With its resolute focus on deciphering the enacted Constitution, the originalist methodology raises questions about whether judges can legitimately defer to their own pronouncements. Numerous scholars have responded by debating whether and when the Constitution's original meaning should yield to contrary precedent. This Article considers the role of judicial precedent not when it conflicts with the Constitution's original meaning but rather when the consultation of text and historical evidence is insufficient to resolve a case. In those situations, deference to precedent can serve as a fallback rule of constitutional adjudication. The …