The Supreme Court Doesn’t Own the Constitution

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........

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