This Article proposes a new paradigm for analyzing the role of precedent in constitutional law. The conventional perspective equates precedent with judicial decisions, particularly those of the Supreme Court, and almost totally ignores the constitutional significance of precedents made by public authorities other than courts. Yet, non- judicial actors produce precedents that are more pervasive than those made by courts in constitutional law. Non-judicial precedents are not only confined to the backwaters of constitutional law, but they also pertain to serious constitutional matters-presidential succession, secession, congressional power to remove Presidents and Justices, and the respective authorities of the President and Congress to regulate war, just to name a few.
By reenvisioning constitutional law through the lens of non- judicial precedent, this Article develops several new insights into constitutional law generally and precedent in particular. First, shifting perspective improves the precision and clarity of the terms we employ in constitutional analysis. I define non-judicial precedents as any past constitutional judgments of non-judicial actors that courts or other public authorities imbue with normative authority. Once we understand non-judicial precedents in this way, they are more recognizable, and, in turn, their constitutional significance is more apparent.
Michael J. Gerhardt,
61 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol61/iss3/1