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Unpublished Paper
The Brand X Constitution
ExpressO (2007)
  • Richard W. Murphy, William Mitchell College of Law
In recent years, the Supreme Court’s claim to be the final, definitive interpreter of the Constitution has come under sustained attack from across the political spectrum from scholars pushing for a more “popular” constitutionalism. This Article contributes to “popular constitutionalism” by deploying recent developments in the Supreme Court’s own administrative-law doctrine against it. Together, these Chevron-related developments form the Brand X model, which stands broadly for the proposition that, where an agency uses transparent, deliberative means to adopt a reasonable interpretation of a statute it administers, the courts should defer to this interpretation regardless of whether it contradicts judicial precedent. Translating this Brand X model into a constitutional setting, this Article claims that courts should uphold reasonable, explicit constitutional constructions that are embedded in focused federal legislation even in the teeth of contrary Supreme Court precedent. In effect, this proposal would require the Supreme Court to extend about as much deference to select legislative precedents as it now indulges to its own judicial precedents. Adopting this approach would expand in a limited and controlled way the voice of the public, Congress, and the President (though the veto power) in constitutional construction. The most fundamental reason to pursue this change is that choosing among reasonable constitutional constructions is a political task that depends on the decision-makers’ value judgments and assessments of legislative fact. In a representative democracy, the problem of making policy choices within the space of legal reason should be committed to public judgment rather than nine life-tenured judges.
  • stare decisis,
  • precedent,
  • Chevron doctrine,
  • popular constitutionalism
Publication Date
March, 2007
Citation Information
Richard W. Murphy. "The Brand X Constitution" ExpressO (2007)
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