February 15, 2011
ON LEGISLATIVE AND ADMINSTRATIVE CONSTITUTION-MAKING
William N. Eskridge Jr. & John Ferehohn, A Republic of Statutes: The New American Constitution (New Haven & London: Yale U. Press, 2010) (“In a series of (nonexhaustive) case studies, this book explores the process by which a superstatutory principle or policy becomes entrenched. Every superstatutory policy begins with an important public need and, usually, strong political demand, as through a social movement such as the civil rights, populist, women’s rights, and old-age assistance movements, but also the very different new capitalist . . . and national security . . . movements of the early twentieth and early twenty-first centuries, respectively. Enactment of ambitious statutes demanded by We the People is just the beginning, for many highly popular statutes do not have social legs. The process of implementation by administrators and judges and feedback from the citizenry is essential if a popular statute is to develop the supportive constellation of interests that [Max] Weber identified as a deeper source of power. Entrenchment usually entails the following three features. First, the statute’s strong supporters and administrators (an overlapping group of the statute is to succeed) have to figure out practical and cost-effective ways to implement the putative superstatute, with evidence that it is making progress toward its stated goal(s). Second, the statutory application has to avoid the disasters predicted by opponents and, even better, ought to find ways to appeal to the values and concerns held by opponents. Third, the emerging susperstatute must be sufficiently valuable to an important and expanding group in American society that it generates an enthusiastic and dynamic and growing base of popular support. If all three of these conditions are met, it is likely that a subsequent legislature will reaffirm the putative superstatute and expand upon its principles or policy. As illustrated by case studies of the pregnancy . . ., voting rights . . ., antitrust . . ., and social security laws . . . , federal superstatutes are consolidated after a new and differently constituted Congress reaffirms the original, ambitious statute initiative.” “Popular and ambitious laws mature into superstatutes through a process of entrenchment that is institutional, but without the rigid supermajoritarian process required by Article V; that is deliberative, but with the focus on agencies and legislatures rather than courts; and that is popular, but with feedback occurring over time in a series of episodes rather than in one big Constitutional poll. In short, rather than changing fundamental institutional structures and normative commitments through a big showdown requiring immediate supermajorities at both the national and state level, as the Article V model recommends, the superstatutory model produces change through a series of statutes, together with implementational feedback, that stick in our public culture over a period of time. . . ." Id. at 16-17. Should be on every law students planned reading list for the summer.).