Brand X Constitution, The

Brigham Young University Law Review, 2007 by Murphy, Richard

ABSTRACT

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 voices of the public, Congress, and the President (through 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.

". . . Congress may not legislatively supersede our [Supreme Court] decisions interpreting and applying the Constitution."1

"According to today's opinion, the agency is . . . free to take . . . action that the Supreme Court found unlawful."2

I. INTRODUCTION

The first quote above comes from 2000's Dickerson v. United States, in which the Supreme Court recently reminded everyone that the Constitution means whatever a majority of the Court last said it means.3 Over the last ten years, academic opinion has veered strongly against this claim of judicial interpretive supremacy. A rapidly expanding literature supports one form or another of "popular constitutionalism." Proponents of this approach hale from across the political spectrum and vary with regard to just how "popular" they want their Constitution to be, but they all share the view that extrajudicial constitutional interpretations should play a greater role in determining operative constitutional meaning than judicial supremacy admits.4 As Dickerson indicates, however, a growing pile of books and law review articles condemning the Court's supremacist ways has not stopped the Court from reiterating that it is in charge of constitutional meaning.

One of the most enjoyable moves in argument is to deploy an adversary's own moves against it. In this spirit, this Article advances the case for an incremental form of popular constitutionalism by using the logic of the Court's own doctrines against it. More specifically, this Article contends that, after decades of difficult development, the Court's own administrative-law model for resolving statutory ambiguity suggests a novel yet simple means to implement an attractive, mild form of popular constitutionalism.5

We might call this model Brand X constitutionalism in honor of the source of the second opening quote above, 2005's National Cable & Telecommunications Association v. Brand X Internet Services.6 In Brand X, the Court held-de facto if not quite de jure-that agencies can trump judicial precedents thanks to the force of Chevron deference, which requires courts to defer to an agency's reasonable construction of a statute it administers under certain conditions.7 Read in light of its major precursors,8 Brand X suggests a broad principle: Where a politically accountable body uses transparent, deliberative means to adopt a reasonable interpretation of a law it administers, the courts should defer to this interpretation, regardless of whether it contradicts judicial precedent.

Translating this Brand X principle into constitutional law, this Article contends that courts should uphold reasonable legislative constitutional constructions that are expressly stated in focused legislation. Faithful application of this principle would give select legislative precedents the same level of semi-binding force that the Court extends to its own judicial precedents under current doctrine.9 The most spectacular application of this principle would come where Congress enacts (with the consent of the President or the overriding of a veto10) a reasonable constitutional construction that contradicts an earlier judicial precedent on the same point. Applying Brand X constitutionalism to such a clash, the reasonable legislative construction should control. This model thus concedes a limited legislative power to overrule judicial constitutional glosses.11