“Popular Revolution or Popular Constitutionalism? Reflections on the Constitutional Politics of Quebec Secession” in T. Kahana & R. Bauman, eds., The Least Examined Branch: The Role of Legislatures in the Constitutional State (New York: Cambridge University Press, 2006) 480-98.
Constitutional theorists are in the midst of a debate over the appropriate institutional arrangements for the interpretation and enforcement of constitutional norms in a constitutional democracy. For legal constitutionalists, supreme authority to interpret and enforce the constitution rests with the courts. Popular constitutionalists, by contrast, permit and even require that members of the executive and legislative branches independently interpret the constitution in the course of performing their function. In this chapter, I question the legal constitutionalist belief (expressed by Frederic Schauer) that equates constitutional strategies of precommitment with legal constitutionalism and judicial supremacy. Along with popular constitutionalists, I would argue that it would be a mistake to infer that the boundaries of judicial decision making are coterminous with the limits of the constitution. The choice is not between legal constitutionalism and its populist alternative. Rather, the true choice is when and to what extend to opt for one or the other. Indeed, the challenge may be to design arrangements that permit the responsive and even tentative allocation of institutional responsibility for resolving constitutional questions.