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Popular Constitutionalism As Political Law

By Mark V. Tushnet

Abstract

This Article addresses some of the critical reviews of ‘The People Themselves’, focusing on how they respond to the proposition, which I believe to be correct and made in ‘The People Themselves’, that constitutional law is a distinctive or special kind of law. I call that kind of law political law. Both parts of the formulation are equally important. Constitutional law is law, what is sometimes described as \u22hard\u22 law. As law, it sometimes induces decision-makers to make decisions that are inconsistent with their \u22pure\u22 preferences, that is, those they would hold in the absence of law. My aim is primarily to clarify some methodological issues connected to the idea of constitutional law as political law, rather than to make a substantive contribution to the analysis. I observe at the outset, though, that I substantially agree with Kramer\u27s contention that we can find in U.S. history a persistent strain of popular constitutionalism - that is, as I understand the point, the deployment of constitutional arguments by the people themselves, independent of, and sometimes in acknowledged conflict with, constitutional interpretations offered and enforced by the courts. After setting out some general methodological considerations, I briefly discuss the way in which popular constitutionalism is continuous with, albeit distinct from, more standard descriptions of constitutional law, as involving a dialogue between the courts and the people. I conclude with an examination of some consequentialist criticisms of popular constitutionalism, that is, the claim that the people themselves have in fact done quite badly in interpreting the Constitution, as compared to the courts. Here I return to some methodological considerations, as the basis for arguing that the case for popular constitutionalism is stronger than its consequentialist critics suggest

Topics: Constitution – Interpretation and construction, judicial review, constitutional history, Constitutional Law
Publisher: Scholarship @ GEORGETOWN LAW
Year: 2006
OAI identifier: oai:scholarship.law.georgetown.edu:facpub-1238
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