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80 N.C. L. Rev. 773 (2001-2002)
Extrajudicial Constitutional Interpretation: Three Objections and Responses

handle is hein.journals/nclr80 and id is 789 raw text is: EXTRAJUDICIAL CONSTITUTIONAL INTERPRETATION: THREE OBJECTIONS AND RESPONSES KEITH E. WHITTINGTON* Recent cases such as Flores, Kimel and Garrett highlight the fact that the most important question regarding judicial supremacy focuses on the proper degree of deference between the branches rather than the possibility of extralegal defiance of the Court. Extrajudicial interpretation of the Constitution has often been criticized as problematic, insufficient, and not authoritative. Although it is widely accepted that nonjudicial actors can and do interpret the Constitution, many constitutional theorists hold to a theory of judicial supremacy that argues that the Supreme Court is the ultimate, authoritative interpreter of the Constitution. This Article critically examines three of the most prominent objections to extrajudicial constitutional interpretation, and corollary defenses of judicial supremacy, and finds each inadequate. The three objections are that extrajudicial constitutional interpretation is 1) anarchic, 2) irrational, and 3) tyrannical. Each posits a corresponding virtue of judicial supremacy in terms of 1) the settlement function of the courts, 2) the deliberative function of the courts, and 3) the countermajoritarian function of the courts. This Article offers analytical and empirical responses to these critiques of extrajudicial constitutional interpretation, suggesting reasons why such interpretation should be regarded as more authoritative and deserving of greater deference by the courts. These arguments have implications not only for debates over judicial supremacy per se, but also for the related debate over the proper scope of judicial review. * Assistant Professor of Politics and John Maclean, Jr. Presidential Preceptor, Princeton University. With apologies to Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Nw. U. L. REv. 226 (1988). My thanks to Neal Devins, Christopher Eisgruber, Barry Friedman, Howard Gillman, Michael Klarman, Sanford Levinson, Henry Monaghan, Paul Safier, and Mark Tushnet. The author gratefully acknowledges the financial support of the John M. Olin Foundation and the American Council of Learned Societies during the preparation of this Article.

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