T. Hunter Mason (Yale University, Law School) has posted As the Force of Their Reasoning May Deserve: A Unified Departmentalist Theory of Constitutional Interpretation on SSRN. Here is the abstract:
The power to interpret law is the power to govern at will. Although the Constitution parcels out interpretive authority over its own meaning among three coequal branches of government, the prevailing public narrative of constitutional interpretation is that the judiciary, with the Supreme Court at its apex, is the ultimate expositor of our shared charter. In the crusade against judicial supremacy, this departmentalist view of constitutional interpretation has garnered considerable scholarly support. But the conversation remains largely academic. In this Article, I seek to justify and reignite the interpretive faculties of the nonjudicial branches of the federal government. I do so by propounding a holistic theory of departmental interpretation of the Constitution that endeavors to catalog the full range of constitutional review available to each branch and how these tactics can legitimately resist the interpretive claims of rival branches. Through myriad revisionary devices, the Constitution precludes unilateral interpretive control by any one branch except in certain specified arenas of constitutional interpretation. The persuasive force of an interpretive stance-rather than its sourcedetermines the extent to which the interpretation is operationalized in the business of government. Departmentalist literature has stopped short of offering a systematic theory of when and how each branch may weigh in on a question of constitutional meaning and what effect their interpretive activities have on the ground. By appreciating the totality of their own interpretive prerogatives, the political branches may begin to jealously-and effectively-rebut claims of judicial supremacy and vindicate the fundamental American maxim that the only body from which there is no appeal on questions of fundamental law is the People.
Recommended.
