Johnsen examines the roles of nonjudicial entities--especially the Congress and the president--in the development of constitutional meaning. Although the other two branches are fearful of challenging judiciary supremacy, functional departmentalism may offer a certain degree of autonomy from the Court

Johnsen, Dawn E.

English

Published  as part of a Duke Law School symposium on Conservative and Progressive  Legal Orders, this article considers the appropriate role of the  political branches - Congress and the President - in the development of  constitutional meaning, including the extent of presidential and  congressional authority to act on constitutional views at odds with  judicial doctrine. The article discusses deficiencies in strong forms of  both judicial supremacy (such as that behind the Rehnquist Court\u27s  recent limits on Congress\u27s section 5 authority) and what is described  in the academic literature as departmentalism (which emphasizes  near-plenary authority for each branch to act on its own constitutional  views). The article proposes what I call functional departmentalism as  an alternative approach that would recognize the shared nature of the  interpretive enterprise and only limited, context-dependent authority to  act on constitutional views at odds with the views of the other  branches. Issues of nonjudicial interpretation and competing  constitutional views arise, of course, in diverse contexts (currently  ranging, for example, from executive branch authority to engage in  torture to the appropriate standards for judicial selection). To  illustrate, the article concludes with a functional departmentalist  approach to congressional legislation that would regulate abortion  premised on constitutional views arguably inconsistent with Supreme  Court doctrine (including the Partial Birth Abortion Ban Act of 2003 and  versions of the Freedom of Choice Act\u27 introduced, but never enacted,  beginning in 1989)

bepress Legal Repository

Functional Departmentalism and Nonjudicial Interpretation: Who Determines Constitutional Meaning?

Duke Law Scholarship Repository

Indiana University Bloomington Maurer School of Law

https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1333&amp;context=lcp

Functional Departmentalism and Nonjudicial Interpretation: Who Determines Constitutional Meaning?

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bepress Legal Repository

bepress Legal Repository

Duke Law Scholarship Repository

Indiana University Bloomington Maurer School of Law