It is the job of the judiciary, as Chief Justice John Marshall famously wrote, to say what the law is.

Often, this is taken to mean a duty to interpret the Constitution and fix its meaning in place. But to say what the law is and to say what the Constitution means are two different tasks. The law concerns cases and controversies--the application of past precedent and broad principles to present circumstances.

Constitutional meaning is more abstract. It deals with the shape and structure of our political community. And as much as courts help build our collective constitutional understanding, the question of meaning is as much the purview of the public as it is the job of a jurist.

It is only in the last half-century, in fact, that we have fully conflated legal decision-making with the production of constitutional meaning. The result, as legal historians Nikolas Bowie and Daphna Renan have written, is a strong form of judicial supremacy, where the meaning of the Constitution and therefore the structure of our political community are fixed in place by the decisions of a small, cloistered and often self-interested tribunal.

In past eras of American politics, the people, through their representatives in Congress, have shaped and settled constitutional meaning, rebuking the court when it overstepped its role as a legitimate actor. The paradigmatic example is the reaction to the Supreme Court's decision in Dred Scott v. Sandford in 1857, when the Republican Party organized itself around opposition to that decision and fought to invalidate and overturn it through legislation and constitutional reform.

"Members of an ascendant Republican Party decried a court 'inflated with supremacy' and declared that whenever a decision is, 'in the judgment of Congress, subversive of the rights and liberties of the people,' it is the 'solemn duty of Congress' to override it," Bowie and Renan observed.

But there are other sources of constitutional meaning beyond legislatures and electoral politics. It is worth remembering that the Constitution was neither ratified by the Confederation Congress nor state legislatures nor the secretive committee that drafted it in Philadelphia. It was ratified by state conventions assembled from a broad part of the public--or at least as broad as they could imagine in 1787--that were meant, as much as was possible,........

© Arkansas Online