Academic journal article
By Peabody, Bruce G.
Constitutional Commentary , Vol. 16, No. 1
During the past decade,(1) a lively debate has been percolating in an area of legal scholarship that has examined what has been variously described as departmentalism, constitutional Protestantism, coordinate construction, and nonjudicial constitutional interpretation.(2) While exploring a wide range of theoretical issues and analyzing disparate circumstances and phenomena, this work is loosely unified by its general skepticism regarding claims that the federal judiciary has exclusive authority in interpreting the Constitution, and its focus on what for many years has been an underdeveloped research topic: constitutional interpretation occurring outside the courts.
The proliferation of this scholarship has produced two unsurprising consequences. First, the suggestion by numerous scholars that we should give greater attention to nonjudicial constitutional interpretation has provoked something of a normative backlash by defenders of judicial supremacy--the doctrine that the Supreme Court has the ultimate say in interpreting the Constitution. Perhaps most prominent in these critiques is the claim that recognizing the interpretive authority of nonjudicial actors would jeopardize the authoritative settlement function of law.(3) Second, while the swell of interest in interpretation outside the courts has generated a growing body of sophisticated scholarship and the evaluation of an increasingly wide ambit of legal and political problems, it has also tended to obscure precisely what is being analyzed, and has led to numerous scholars needlessly talking past one another instead of attempting to build upon and integrate their diverse research projects.
Two recent articles, On Extrajudicial Constitutional Interpretation by Larry Alexander and Frederick Schauer(4) and Ducking Dred Scott: A Response to Alexander and Schauer by Emily Sherwin,(5) reflect these two developments and serve as useful entry points for considering the strengths and weaknesses of the burgeoning body of scholarship examining alternatives to judicial supremacy. On the one hand, several flaws in these authors' analyses can be attributed to their mistaken and undeveloped assumptions about the meaning and implications of a normative commitment to nonjudicial constitutional interpretation. But a second set of shortcomings in these two essays points not only to problems inherent in these texts, but to difficulties that tend to afflict the entire body of work examining nonjudicial interpretation, whether critical or supportive; thus, some of the weaknesses in Alexander, Schauer, and Sherwin's analyses mirror defects in the relevant legal literature as a whole.
This essay begins by examining the arguments presented in On Extrajudicial Constitutional Interpretation and Ducking Dred Scott to illustrate a general set of misconceptions that permeate work criticizing calls for a greater diffusion of interpretive responsibility, misconceptions that could be corrected by a closer review of existing scholarship and a greater appreciation for the ways in which scholars sympathetic to nonjudicial interpretation could respond to many of the objections leveled against their research. On the basis of this preliminary analysis, one might well conclude that research generally supportive of constitutional interpretation outside the courts is in a healthy, robust state, and deserves more nuanced treatment in future scholarly exchanges. But in reviewing a second set of defects that run through Alexander, Schauer, and Sherwin's analyses, this essay suggests that much important work remains to be done for both those advocating and those resisting a movement away from an interpretive system dominated by the courts.
I. LEGAL SETTLEMENT, CONSTITUTIONAL INTERPRETATION, AND THE SUPREME COURT
On Extrajudicial Constitutional Interpretation makes a case against the position "that judges should not be the exclusive and authoritative interpreters of the Constitution. …