Eskridge, William N., Jr., Ferejohn, John, Duke Law Journal
Not all statutes are created equal. Appropriations laws perform important public functions, but they are usually short-sighted and have little effect on the law beyond the years for which they apportion public monies.(1) Most substantive statutes adopted by Congress and state legislatures reveal little more ambition: they cover narrow subject areas or represent legislative compromises that are short-term fixes to bigger problems and cannot easily be defended as the best policy result that can be achieved.(2) Some statutes reveal ambition but do not penetrate deeply into American norms or institutional practice. Even fewer statutes successfully penetrate public normative and institutional culture in a deep way. These last are what we call super-statutes.
A super-statute is a law or series of laws that (1) seeks to establish a new normative or institutional framework for state policy and (2) over time does "stick" in the public culture such that (3) the super-statute and its institutional or normative principles have a broad effect on the law--including an effect beyond the four corners of the statute. Super-statutes are typically enacted only after lengthy normative debate about a vexing social or economic problem, but a lengthy struggle does not assure a law super-statute status. The law must also prove robust as a solution, a standard, or a norm over time, such that its earlier critics are discredited and its policy and principles become axiomatic for the public culture. Sometimes, a law just gets lucky, catching a wave that makes it a super-statute. Other times, a thoughtful law is unlucky, appearing at the time to be a bright solution but losing its luster due to circumstances beyond the foresight of its drafters.
Super-statutes are applied in accord with a pragmatic methodology that is a hybrid of standard precepts of statutory, common law, and constitutional interpretation.(3) Although the courts do not have to consider the super-statute beyond the four corners of its plain meaning, they will often do so because the super-statute is one of the baselines against which other sources of law--sometimes including the Constitution itself--are read. Ordinary rules of construction are often suspended or modified when such statutes are interpreted. Super-statutes tend to trump ordinary legislation when there are clashes or inconsistencies, even when principles of construction would suggest the opposite. Occasionally, super-statutes can reshape constitutional understandings. Because super-statutes exhibit this kind of normative gravity, they have sufficient attraction to bend and reshape the surrounding landscape. Super-statutes do not always trump other sources of law, however, in part because they may clash not only with the Constitution but also with other super-statutes.
As we shall explain in the first part of this paper, super-statutes occupy the legal terrain once called "fundamental law," foundational principles against which people presume their obligations and rights are set, and through which interpreters apply ordinary law. Today, this kind of law might be considered "quasi-constitutional" fundamental and trumping like constitutional law, but more tentative and susceptible to override or alteration by the legislature or determined judges and administrators. The third part of this paper will explore the implications of this idea for modern public law. For example, super-statutes are related to other phenomena in public law, such as canons of statutory construction reflecting constitutional precepts. They also bear interesting resemblance to, and can be contrasted with, theories by which the Constitution itself evolves outside of the formal amendment process of Article V.
Although they do not exhibit the super-majoritarian features of Article V constitutional amendments and are not formally ratified by the states, the laws we are calling super-statutes are both principled and deliberative and, for those reasons, have attracted special deference and respect. …