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Hastings Constitutional Law Quarterly

Authors

Scott E. Gant

Abstract

When do, and when should, actors other than judges interpret the Constitution? Over time, this question has received attention from many prominent political leaders. In recent years, it has generated a rich yet underexposed academic debate. This Article seeks to draw attention to and further that debate.

This Article has three main parts. The first is a survey of responses in academic literature to the question "who interprets?" The author argues that although judicial supremacy is widely embraced as a model of constitutional interpretation, other accounts raise serious challenges to its descriptive power and normative appeal. The second part of the Article advances a revised model of judicial supremacy-one which retains the judiciary as the "ultimate" arbiter of what the Constitution means, but fosters the interpretative capacities of nonjudicial actors, and vests their interpretations with enhanced significance. In the last part, the Author discusses several current legal issues that demonstrate the relevance and utility of the "who interprets" inquiry to constitutional interpretation at large.

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