Quasi-Constitutional Law: The Rise of Superstatutes
Files
Description
Not all statutes are created equal. Appropriations laws perform important public functions, but they are usually shortsighted and have little effect on the law beyond the years for which they apportion public moneys. Most substantive statutes adopted by Congress and state legislatures reveal little more ambition: they cover narrow subjects or represent legislative compromises that are short-term fixes to bigger problems and cannot easily be defended as the best policy result that can be achieved. Some statutes reveal greater ambition but do not penetrate deeply into American norms or institutional practice. Even fewer statutes successfully penetrate public normative and institutional culture in a deep way. These last are what we call super-statutes. A super-statute is a law that (1) seeks to establish a new normative or institutional framework for state policy and (2) over time does ‘‘stick’’ in the public culture and generates popular support and confirmation, such that (3) the super-statute and its institutional or normative principles have a broad effect on the law—including an effect beyond the four corners of the statute. Super-statutes are typically enacted only after lengthy normative debate about a vexing social or economic problem, but a lengthy struggle does not assure that a law will become a super-statute. The law must also prove robust as a solution, a standard, or a norm over time, such that its earlier critics are discredited and its policy and principles become axiomatic for the public culture. Sometimes a law just gets lucky, catching a wave that makes it a super-statute. At other times, a thoughtful law is unlucky, appearing at the time to be a bright solution but losing its luster because of circumstances beyond the foresight of its drafters.
Source Publication
Congress And the Constitution
Source Editors/Authors
Neal Devins, Keith E. Whittington
Publication Date
2005
Recommended Citation
Eskridge, William N. Jr. and Ferejohn, John A., "Quasi-Constitutional Law: The Rise of Superstatutes" (2005). Faculty Chapters. 542.
https://gretchen.law.nyu.edu/fac-chapt/542
