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- Title
WHAT MARRIAGE EQUALITY CAN TELL US ABOUT POPULAR CONSTITUTIONALISM (AND VICE-VERSA).
- Authors
Schacter, Jane S.
- Abstract
In my response to Professor Eskridge's provocative argument, I look at marriage from the other end of the temporal telescope. The marriage debate has featured a sharp and relatively rapid change in public understandings and attitudes, and cries out for analysis not so much of history, but of how the dynamics of recent and rapid change of this sort connect to the enterprise of constitutional law. I explore the role of what might seem like the interpretive approach best suited to capture and emphasize the dramatic change in public views: popular constitutionalism. Popular constitutionalists argue th at the people, acting directly or through elected representatives, should engage with and help to shape the constitutional law and values of their day. Beyond emphasizing popular sovereignty in constitutionalism, however, there has always been an institutional black hole of sorts--th at is, a lack of precision about what the particulars of popular constitutionalism could and should look like and how, specifically, it would depart from conventional approaches. Looking at popular constitutionalism in the marriage debate elucidates the nature, and reinforces the problem, of this black hole. There are, I argue, fundamental uncertainties at the heart of normative popular constitutionalism. I focus here on one key problem--what I will call the problem of the plural populace. In a nutshell, the marriage debate provides a steady stream of examples of how different populaces can clash, as can different representatives for, or measures enacted by or in the name of, the same populace. This multiplicity makes it elusive to identify the relevant popular will on a question of constitutional meaning. By illuminating this difficulty, the marriage debate suggests that popular constitutionalism can be highly problematic as a freestanding or guiding normative principle. At the same time, though, popular constitutionalism has explanatory value and sheds light on how marriage equality has evolved to be as accepted as it is today. This analysis suggests that the general idea of popular constitutionalism is best understood as a descriptive adjunct to the normative approach reflected in old-fashioned living constitutionalism--that is, as an adjunct to the idea that judges as constitutional interpreters ought to adapt and update the broad norms in the document to accommodate social, economic, and other significant change.
- Subjects
UNITED States; SAME-sex marriage; LEGAL status of gay couples; MARRIAGE law; EQUAL rights; BAEHR v. Lewin (Supreme Court case); SAME-sex marriage laws
- Publication
Houston Law Review, 2015, Vol 52, Issue 4, p1147
- ISSN
0018-6694
- Publication type
Article