ADMINISTRATIVE CONSTITUTIONALISM AS POPULAR CONSTITUTIONALISM.

Author:Ross, Bertrall L., II
 
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ABSTRACT 1783 INTRODUCTION 1784 I. THEORIES OF POPULAR CONSTITUTIONALISM 1792 A. Direct Popular Constitutionalism 1794 B. Mediated Popular Constitutionalism 1797 II. DISAGGREGATING CONSTITUTIONALISM 1799 A. Direct Popular Constitutionalism 1800 B. Mediated Popular Constitutionalism 1803 C. Administrative Constitutionalism 1804 III. ADMINISTRATIVE POPULAR CONSTITUTIONALISM: THEORY 1806 IV. ADMINISTRATIVE POPULAR CONSTITUTIONALISM IN PRACTICE. 1809 CONCLUSION 1820 INTRODUCTION

Over a decade ago, Larry Kramer, one of the leading advocates of popular constitutionalism, issued a scholarly call to arms in the fight against judicial supremacy. Lamenting judicial assertions of control over the meaning of the Constitution, Kramer implored scholars to explore institutional alternatives that provide for greater popular input into constitutional meaning determinations. He asserted that we should no longer accept the notion that "popular constitutionalism can't work, so turn the Constitution over to the Court." (1) Instead, "[w]e should ... be asking what kind of institutions we can construct to make popular constitutionalism work, because we need new ones. We need to start rethinking and building institutions that can make democratic constitutionalism possible. And we need to start doing so now." (2)

Despite this call, popular constitutionalism remains a theory in search of a workable method. (3) The theory of popular constitutionalism is rather clear: the people should have the final say in determining the meaning of the Constitution. (4) It counters the notion that the Court is the supreme authority over constitutional meaning--which is the approach preferred by the Supreme Court and many constitutional scholars. (5) Judicial supremacy, the popular constitutionalists argue, is contrary to the Framers' intent, historical constitutional practice, and our democratic system of government. (6)

While clear at the level of theory, the suggested methods for implementing popular constitutionalism remain vague and underdeveloped. Popular constitutionalists agree that the formal process for amending the Constitution under Article V is an inadequate channel for popular input into constitutional meaning. (7) The barriers to passing an amendment through this formal channel are too high, resulting in amendments that are too few and far between to keep up with evolving societal values. (8)

From this point of agreement, popular constitutionalists diverge. One variant of popular constitutionalism argues for a direct form of popular input into constitutional meaning determinations similar to that demanded by the Article V amendment process but without the same high procedural barriers. (9) Central to this account are mass social movements that engage in dialogue with counter-movements and the courts to influence the meaning of the Constitution. The prime example of such direct popular constitutionalism is the second feminist movement of the 1970s. (10) Although the movement failed in its effort to pass the Equal Rights Amendment to protect the equality of the sexes, it did succeed through its dialogue with counter-movements and the courts in changing judicial doctrine to incorporate gender equality principles into the Fourteenth Amendment's Equal Protection Clause. (11) Other twentieth-century examples of direct popular constitutionalism include: (1) the civil rights movement, which inspired a broader principle of racial equality more protective of African Americans and a statutory regime focused on prohibiting racial discrimination; (12) (2) the gun rights movement, which informed a constitutional principle protecting the individual right to bear arms; (13) and (3) the gay rights movement, which influenced the development of constitutional principles of sexual autonomy and anti-discrimination against LGBT people. (14)

Direct popular constitutionalism provides an important popular counterweight to judicial supremacy. But social movements that succeed in changing the Constitution are not that common. The scarcity of examples of direct popular constitutionalism relative to the aggregate number of changes in constitutional meaning that the Court makes suggests that the general pattern of judicial control over constitutional meaning remains mostly undisturbed.

Another variant of popular constitutionalism identifies more indirect forms of popular constitutionalism mediated through elected and accountable institutional actors. (15) For mediated popular constitutionalists, the primary focal points are Congress and the President. (16) The political branches make constitutional meaning determinations through the enactment and enforcement of statutes, executive orders, presidential speeches, and presidential signing statements. (17) Because Congress and the President are directly elected by the people, their decisions regarding constitutional meaning are considered a form of constitutionalism that is responsive to the values of the people. (18)

Mediated forms of popular constitutionalism through Congress and the President account for a broader swath of constitutional meaning determinations than direct popular constitutionalism. But this more institutionalist account of popular constitutionalism leaves out an important vehicle for popular constitutional lawmaking that has been historically prominent and is even more important today: administrative agencies. (19) Understanding the role of administrative agencies in popular constitutionalism requires disaggregating constitutionalism, linking administrative actions to a form of constitutionalism, and then recognizing the multiple modes of administrative engagement with the public.

Popular constitutionalists have glossed over a critical distinction between two aspects of constitutionalism--the distinction between constitutional principle elaboration and constitutional principle application. Direct and mediated forms of popular constitutionalism foreground the people and the people's representatives in the elaboration of constitutional principles. Such principles include gender, racial, and sexual orientation equality; sexual and bodily autonomy; the individual right to bear arms; and the right to marry who one chooses. The articulation of these constitutional principles has captured the imagination of popular constitutionalists. But the level of generality at which these principles are elaborated means that intermediaries are needed to actually regulate conduct. These intermediaries come in the form of standards, rules, and other forms of constitutional principle applications.

For example, the constitutional principle of gender equality requires a standard or rule to determine whether a state employer's exclusion of women from pregnancy benefits or a state-law grant of hiring preferences for veterans over nonveterans (when most veterans are men) is inconsistent with the principle. Social movements, Congress, and the President are certainly involved in the development and enforcement of constitutional principle applications. But such applications typically lack the popular salience of constitutional principle elaboration and therefore do not motivate as much social movement activity. Similarly, Presidents, in their platforms and speeches, typically emphasize broader principles over narrower applications.

Statutes and executive orders therefore serve as the primary means of congressional and presidential engagement with constitutional applications. During active periods of lawmaking that involve the enactment of broad statutes with direct constitutional implications, Congress, through its engagement with the people and dialogue with the courts, fills much of the gap in popular constitutional lawmaking. But such active periods of congressional lawmaking are rare. In fact, with the exception of two brief periods--post-9/11 and the first two years of the Obama presidency (20)--the new norm over the past twenty years is one of congressional dysfunction and gridlock in which even ordinary lawmaking is nearly impossible. (21) Presidents have stepped into this breach using executive orders and presidential memoranda as lawmaking devices. (22) But while there are high profile examples, such as President Obama's memorandum establishing the Deferred Action for Childhood Arrival policy and President Trump's executive order banning entry into the United States by individuals from mostly Muslim-majority counties, executive orders and presidential memoranda rarely function as tools advancing constitutional principles and applications. (23) Contrary to the current popular constitutionalist account, Congress and the President are not always the primary institutional vehicles for popular engagement with the Constitution. Administrative agencies are critical components of the popular constitutionalist project.

Congress often delegates to agencies the authority to enforce statutes advancing constitutional principles. In their role enforcing statutes implicating constitutional principles, agencies often engage in dialogue with the people and the courts in their development and enforcement of particular constitutional applications. My prior work on administrative constitutionalism emphasizes popular input into administrative actions through the notice-and-comment rulemaking procedure. (24) But while this is an important aspect of popular engagement with administrative actions, it is neither sufficient nor necessary to satisfy the mandate of popular constitutionalism. (25)

Public engagement with the Constitution requires a catalyst that nationalizes a debate about constitutional principles and their applications. Courageous human acts such as Rosa Parks' decision to disobey a Jim Crow law and sit at the front of a Birmingham bus sparked a civil rights movement that ultimately triggered a national debate about the constitutional meaning of equal protection as applied to race. (26) Books such as Betty Friedan's...

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