Standing Athwart History: Anti-Obergefell Popular Constitutionalism and Judicial Supremacy's Long-Term Triumph

Abstract

There is one debate in all of constitutional law and constitutional theory even more important than what any particular provision or clause in the Constitution means: who is responsible for interpreting the Constitution, in the first instance. This Article looks anew at the historical interpretive debate between judicial supremacy, on the one hand, and constitutional departmentalism, on the other hand. This debate, focusing on the extent to which the judicial branch's idiosyncratic judgments in a given Article III "case" or "controversy" can more broadly bind the political branches of the federal government, is as old as the United States itself.

Specifically, this Article looks at that debate through the prism of popular constitutional resistance to the landmark same-sex marriage Supreme Court ruling of 2015, Obergefell v. Hodges. This Article traces the history of the judicial supremacy debate and analyzes the legal justifications for popular constitutionalist attempts to undermine the Obergefell decision. It also considers why the judicial supremacy side of the debate has largely prevailed, over time.

Keywords: Constitution, Constitutional Law, Judiciary, Judicial Branch, Judicial Review, Judicial Supremacy, Separation Of Powers, Jurisprudence, Law