(1) seek to introduce or consolidate a norm or principle as fundamental in our polity, (2) over time do “stick” in the public culture even as the norm evolves through a series of debates and even conflicts about its elaboration or specification, (3) such that the super-statute and its normative principle have a broad effect on the law—including effects beyond the four corners of the statute.
Eskridge and Ferejohn's new book, A Republic of Statutes: The New American Constitution (Yale University Press, 2010), expands on and elaborates their theory. The book is the subject of a recent review, by Adrien Vermeule (Harvard Law School), in The New Republic. Here's an excerpt:The entire review is worth reading, but to cut to the chase, here is Vermeule's final assessment:William Eskridge and John Ferejohn . . . claim that the United States is a republic of “superstatutes,” which in some sense possess constitutional importance. Eskridge and Ferejohn know a great deal about America’s major statutes, and have put it all between two covers. The book’s ambition is clear, but in many respects it leaves the subject of constitutional statutes murkier than it was before.
Eskridge and Ferejohn start with the indisputable observation that the large-c Constitution of 1789, which can be seen under glass in the National Archives, is only a part—and arguably not a large part—of America’s “working constitution.” The small-c constitution includes a large class of statutes that, they claim, are best understood as constitutional superstatutes. They describe the superstatutory constitution in nine overstuffed chapters, each of which studies statutes, judicial precedents, and history in a given area of public policy. Their list is heterogeneous. It encompasses the “constitution of equality,” exemplified not only by the Civil Rights Act, but also by the Pregnancy Discrimination Act and the Family and Medical Leave Act; the “democratic constitution,” exemplified by the Voting Rights Act; the “constitution of the market,” exemplified by the antitrust rules courts and agencies have elaborated under cover of the Sherman Act; the “constitution of the family,” exemplified by a hodgepodge of state laws regulating marriage, sex and property; the “green constitution,” exemplified by the Endangered Species Act and the Clean Water Act; the “monetary constitution,” exemplified by the Federal Reserve Act and other statutes establishing the federal system of financial and monetary policy; the “antihomosexual constitution,” now partially dismantled but shored up by the Defense of Marriage Act; and the “national security constitution,” transformed in important ways after 9/11.
Eskridge’s and Ferejohn’s treatment of the statutory constitution is so capacious, the boundaries of their enterprise so ill-defined, that it threatens to swallow up all of ordinary politics. In many of their chapters, Eskridge and Ferejohn basically describe the give-and-take struggle of lawmaking and regulation on more or less humdrum subjects—family and medical leave, antitrust, clean water laws—and then attach the label “constitutional” to the results. But if everything is constitutional, nothing is. The nagging merit of the book is that there is, clearly, some category of superstatutes with more than ordinary force and stature; but after reading the book, the nature and boundaries of that category are all the more opaque.
