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A Republic of Statutes: The New American Constitution

William N. Eskridge Jr. and John Ferejohn
A Republic of Statutes: The New American Constitution
Yale University Press, 2010

The Constitution is often conceived as our nation’s grand blueprint and the embodiment of our highest aspirations. In A Republic of Statutes, William N. Eskridge Jr. ’78 (John A. Garver Professor of Jurisprudence at Yale Law School) and John Ferejohn (Charles Seligson Professor of Law at New York University), use prominent cases such as Brown v. Board of Education to argue that this conception is myth.

Because the Large “C” Constitution, largely interpreted by judges, is not responsive to the dynamic needs of a polity for affirmative programs and protections, its importance has slowly given way to a small “c” constitution of statutes, largely interpreted by executive and administrative officials. Our nation’s republic of statutes not only fills in the details of the Constitution, but goes beyond and sometimes against the Constitution’s vision. This 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.

A Republic of Statutes