Document Type

Article

Publication Title

Yale Law Journal

Abstract

The United States has reached a moment in its constitutional history when the Supreme Court has asserted itself as not only one of, but the exclusive, audience to ask and answer questions of constitutional meaning and constitutional law. This “juricentric” or court-centered constitutionalism has relegated the other, so-called political branches to a second-class status with respect to the Constitution. Not only has the dominance of the Court dampened our constitutional culture writ large, it has also occluded the ways that Congress and the executive branch play distinctive and vital roles within constitutional lawmaking. As we finally tamp out the last few embers of hope that the Supreme Court can alone sustain, preserve, and protect a robust constitutional culture within the United States, I offer here another world now in existence that could provide strategies and visions for a less juricentric future writ large — that is, the case study of federal Indian law and of American colonialism, and the Native advocacy that gave birth to this body of law. The core theoretical contribution of the case study is that recognizing legislative constitutionalism as a legitimate and co-equal form of constitutionalism could support a distinctive and thus more varied constitutional culture than that offered by our current juricentric system. Scholars have long celebrated the unique form of participation in the lawmaking process offered to the public by the institutional structure of Congress and have highlighted the ways that Congress has fostered constitutional deliberation with “the people themselves.” The case study of federal Indian law supports these earlier celebrations and allows us to build on them by also recognizing Congress’s ability to offer distinctive constitutional reforms. As a legislature, Congress can engage with constitutional lawmaking as statecraft — an approach wholly absent from the courts. In the context of American colonialism, Congress has offered constitutional reforms in terms of “structure” — that is, the institutions of the U.S. government and their design; implementation and alteration of the structural aspects of the constitutional order; the contours of its federalist framework; and the distribution of power — including to subordinated communities — as an insufficient and imperfect, but innovative form of constitutional lawmaking. For scholars of federal Indian law, recognizing the longstanding relationship between Congress and Native advocates as constitutionalism fosters a deeper understanding of the constitutional developments within the law over time — developments that place the philosophies and agency of Native people and Native Nations at the center of our constitutional law and history. Beyond reperiodization of our Native legal and constitutional histories, exploring legislative constitutionalism within the field of federal Indian law provides us with an illustration of Congress taking a central role in the identification and mitigation of constitutional failure — an illustration that illuminates the problems and promise of legislative constitutionalism. For reformers hungry to push back on the monopolization of power by the Supreme Court, the case study of federal Indian law offers an example of marginalized advocates successfully reining in the Court using little more than persistence and ingenuity. Importantly, this case study demonstrates that stripping power from the Court may not dampen our constitutional culture or leave it to the whims of populist passion, even in the context of constitutional failure and even as applied to subordinated populations. Rather, Congress has and can play a more central role in our constitutional lawmaking on par with the Court, if we the people finally embrace and support its ability to do so.

First Page

2205

Volume

132

Publication Date

2023

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