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date: 18 May 2021

Abstract and Keywords

This chapter focuses on constitutional interpretation and enforcement by extrajudicial institutions. It explores the critique of judicial supremacy by departmentalists such as Walter Murphy, empirical scholars skeptical of judicial efficacy such as Gerald Rosenberg, and popular constitutionalists such as Larry Kramer and Mark Tushnet. It also considers four distinct institutional forms of extrajudicial constitutionalism: protection of constitutional values through political processes and checks and balances, the role of social movements in shaping constitutional meaning, resolution of particular constitutional controversies in the political branches through processes of “constitutional construction,” and the role of “administrative constitutionalism.” Although the critique of judicial supremacy has had a salutary impact in broadening the horizons of constitutional law, the chapter emphasizes the courts’ ultimate settlement function in litigated constitutional controversies.

Keywords: constitutionalism, courts, judicial supremacy, judicial review, Supreme Court, departmentalism, popular constitutionalism, administrative constitutionalism, constitutional construction, Constitution

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