A Republic of Statutes: The New American Constitution

"This breakthrough book marks a decisive turn in American constitutional thought---away from ancestor worship, toward a realistic understanding of how real-world Americans make and remake their fundamental law." Bruce Ackerman, Sterling Professor of Law and Political Science, Yale University

"Eskridge and Ferejohn make a far-reaching claim in this tour de force---that constitutional struggles are frequently constitutional, not Constitutional. These struggles are still contests among ideas, but they are formulated, argued, synthesized, and (tentatively) concluded---until the next round of struggle---as often in the hotter venues of popular politics as in the cooler courtrooms, conference rooms, and chambers of jurists. Popular political deliberation provides the dynamic context for an evolving de facto constitutional order. This marriage of political science and public law is a landmark achievement." Kenneth A. Shepsle, Harvard University

"Why does our public law obsess about the Constitution when so many of our most fundamental national commitments are embodied in subconstitutional law? In this illuminating and stimulating volume, a distinguished political scientist and a gifted public lawyer unravel that question. Eskridge and Ferejohn's redefining study shows how `administrative constitutionalism'---agency elaboration of superstatutes, treaties, agreements, and state statutory regimes---both invites a `deliberation-respecting' role for U.S. courts and ends up shaping America's national character." Harold Hongju Koh, Legal Adviser, U.S. Department of State, and Martin R. Flug Professor of International Law, Yale Law School

The Constitution is often conceived as our nation's Grand Blueprint and the embodiment of our Highest Aspirations. The authors, using prominent cases such as Brown v. Board of Education, maintain that this conception is myth. Instead, William Eskridge and John Ferejohn propose an original theory of constitutional law whereby the Constitution provides a vision and our democracy advances by means of statutes. They argue that America enjoys a constitution of statutes that operates more like common law, supplementing and often supplanting its written Constitution. But the authors take this argument further, proposing that the statutory constitution creates entrenched normative commitments in a gradual process of legislation and administration that is comparable to and, in the authors' view, superior to the amendment- or judge-centered process by which Constitutional entrenchment is supposed to proceed. Not only does our democracy advance from the enactment of statutes, it should.

William N. Eskridge Jr. is the John A. Garver Professor of Jurisprudence at Yale Law School. John Ferejohn is the Charles Seligson Professor of Law at New York University School of Law.