In class, we read an academic paper by Dean Smith regarding popular constitutionalism and non-judicial precedent. As a way to better understand these two concepts, we’ve been tasked with briefly explaining them in a blog-post format.
The theory of popular constitutionalism is one that says dialogue among the nation outside of the courtroom can have a direct change on the meaning of the United States Constitution. As the Constitution is frequently regarded as a “living document,” this very dialogue becomes a catalyst for change. It is a representation of “more voices than those of judges alone. That is the essence of popular constitutionalism” (Smith).
Non-Judicial Precedent is an idea that national dialogue found in Popular Constitutionalism leads to statutes preceding a Supreme Court decision. You can primarily find these within a social movement that directly represents a wanted change in government. “A wide range of social actors-- activists, journalists, industry leaders, lobbyists, legislators, and others-- contribute to the creation of what he (Gerhardt) has dubbed non-judicial precedents” (Smith).
Sources: https://www.tandfonline.com/doi/pdf/10.1080/10811680.2014.860828
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