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81 Fordham L. Rev. Res Gestae 1 (2012-2013)

handle is hein.journals/resgest3 and id is 1 raw text is: POPULAR CONSTITUTIONAL VALUES: THE LINKS BETWEEN PUBLIC OPINION AND THE SUPREME COURT'S 2011 TERM Peter J. Woolley* & Bruce G. Peabody** INTRODUCTION Over the past few decades, scholars have begun to explore the role private citizens play in shaping constitutional law. Some of these research efforts engage normative questions, while others construct descriptive, historical, and positive accounts of this phenomenon.' Despite this increased interest in popular constitutionalism, few have sought to identify and measure the precise form and political impact of this variant of extrajudicial constitutional interpretation. Stated differently, not much empirical work has defined popular constitutionalism's specific content and parameters. * Peter J. Woolley. Professor of Comparative Politics, Fairleigh Dickinson University. Professor Woolley is also co-founder and executive director (2001-2012) of PublicMind, Fairleigh Dickinson University's independent survey research group. ** Bruce Peabody, Professor of Political Science, Fairleigh Dickinson University. 1. See, e.g.. NEAL DEVINS, SHAPING CONSTITUTIONAL VALUES (1996) (examining the role of various actors in interpreting the Constitution in the context of the abortion debate); BARRY FRIEDMAN, THE WILL OF THE PEOPLE: How PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION (2009) (examining the impact of public opinion on constitutional change); LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004) (positing that customary constitutionalism is only achieved when the Constitution reflects the will of the people); RICHARD D. PARKER, HERE, THE PEOPLE RULE: A CONSTITUTIONAL POPULIST MANIFESTO (1994) (examining the flaws of anti-populist decision making); MARK TUSHNET. TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999) (arguing against constitutional judicial review): Matthew D. Adler. Popular Constitutionalism and the Rule of Recognition: Whose Practices Ground U.S. Law?, 100 Nw. U. L. REV. 719 (2006) (examining some of the obstacles for popular constitutionalism in light of the rule of recognition (i.e.. the rule for identifying law that is accepted as the ultimate rule by officials in the legal system)); Larry Alexander & Lawrence B. Solum, Popular? Constitutionalism?, 118 HARv. L. REV. 1594 (2005) (reviewing LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004)); Jack M. Balkin & Reva B. Siegel, Principles, Practices, and Social Movements, 154 U. PA. L. REV. 927 (2006) (arguing that social movements influence constitutional understanding); William N. Eskridge, Jr., Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century, 100 MICH. L. REV. 2062 (2002) (observing that popular constitutional movements have helped advance racial equality and gay rights); Walter F. Murphy, Who Shall Interpret? The Quest for the Ultimate Constitutional Interpreter, 48 REV. POL. 401 (1986) (examining who should be the ultimate constitutional interpreter). 1

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