Popular constitutionalism

Abstract

Popular constitutionalism is a school of thought that emphasizes that the people are—or should be—the protagonists in interpreting and developing constitutional law. Born in American scholarship but later adapted to non-American debates, the discourse of popular constitutionalism has allowed judges, public officers, and scholars to defer to interpretations given by elected politicians claiming to represent the people, avoid reviewing legal norms passed by majoritarian political processes, and justify or build legal doctrines to argue that constitutional law has changed—or should change—according to popularly rooted political practices. Nevertheless, popular constitutionalism, as a theory, explaining how constitutional meaning should be created, can become elusive. It is not always clear when and how the people manifest, the idea of “the people” can become a contested concept in specific contexts, and different channels for popular manifestation beyond formal democratic decision-making procedures pose critical challenges.