We found a match
Your institution may have access to this item. Find your institution then sign in to continue.
- Title
Popular Constitutional Argument.
- Authors
Donnelly, Tom
- Abstract
Critics have long attacked popular constitutionalists for offering few clues about how their theory might work in practice--especially inside the courts. These critics are right. Popular constitutionalism--as a matter of both theory and practice--remains a work in progress. In this Article, I take up the challenge of developing an account of (what I call) popular constitutional argument. Briefly stated, popular constitutional argument is a form of argument that draws on the American people's considered judgments as a source of constitutional authority--akin to traditional sources like text, history, structure, and doctrine. Turning to constitutional theory, I situate popular constitutional argument within contemporary debates over judicial restraint, living constitutionalism, popular sovereignty theory, and originalism. And turning to constitutional practice, I offer the interpreter a concrete framework for crafting popular constitutional arguments-- cataloguing the various indicators of public opinion that have played a role in recent Supreme Court decisions. These indicators include measures associated with the president, Congress, state and local governments, the American people's actions and traditions, and public opinion polls. Throughout, I use illustrative examples to show the various ways in which popular constitutional argument already operates at the Supreme Court--appealing to jurists from across the ideological spectrum. While this Article begins to explore how popular constitutionalism might operate inside the courts, much work remains.
- Subjects
UNITED States; CONSTITUTIONALISM; CONSTITUTIONAL law; ORIGINALISM (Constitutional interpretation); UNITED States. Supreme Court; CIVIL Rights Act of 1964
- Publication
Vanderbilt Law Review, 2020, Vol 73, Issue 1, p73
- ISSN
0042-2533
- Publication type
Article