Preempting the People: the Judicial Role in Regulatory Concurrency and Its Implications for Popular Lawmaking

Larry Kramer and other legal scholars (many of them participants in this Symposium) are collectively responsible for the present flourishing of a mode of constitutional inquiry and analysis that is often called “popular constitutionalism.” In its standard forms, the study of popular constitutionalism attempts to measure and describe—and sometimes to normatively promote—the role of the American people in framing the answers to basic interpretive questions about the Constitution’s meaning. Although the discourse in the field is often at a general level, looming in the background is usually a consideration of the people’s role in resolving specific constitutional questions, such as the appropriate federal-state balance, the vague “equal protection” mandate of the Fourteenth Amendment, or the scope of the right to bear arms under the Second Amendment.1 This essay explores a somewhat different conception of “the People’s” constitution, and one that is only indirectly connected to the specific resolution of concrete interpretive questions. My concern here is structural, focusing on particular features of lawmaking under the current federal regime