Constitutional Dialogue in a Republic of Statutes

Abstract

This Article was written as a contribution to a Symposium on Barry Friedman’s book, The Will of the People. I begin by describing some of the conceptual difficulties and measurement problems associated with the idea of "the will of the people." I suggest that Friedman’s story could be reconstructed to stand for the proposition that the Court needs the support of powerful friends or allies to make bold or controversial decisions. I explain that if the will of the people cannot accurately be measured, and the Court needs the support of powerful friends or allies, then the role of elected officials and other public institutions necessarily takes on increased importance.

I proceed to describe recent scholarship by Bill Eskridge, John Ferejohn, and others, which recognizes that legislation and administrative law perform important constitutional functions in the modern regulatory state, and that the Constitution and the institutions and norms established by statutes and regulations have a reciprocal relationship. I claim that by integrating Friedman’s theory of constitutional dialogue with the lessons of "administrative constitutionalism," we can develop a better understanding of the entire process of constitutional change. I articulate the framework for understanding the process of American constitutional change that emerges from this exercise, and I identify the key questions that are raised by this framework and discuss a few of its most important implications.

Keywords: constitutional dialogue, administrative constitutionalism, constitutional change, legislation, administrative law, constitutional law