When Law is Crafted by the People: Popular Constitutionalism and Non-Judicial Precedent

This blog post will be slightly different than others I have written because it will paraphrase two judicial concepts outlined in an academic paper written by Dean Smith. I will briefly explain these two concepts in two to three sentences. 

The first of these terms is Popular Constitutionalism, which can be defined as a political theory claiming that national dialogue outside the courts changes the meaning of the Constitution. This philosophy has existed for over twenty years and can be found in legislation that either strengthens or weakens Supreme Court decisions. Conversely, Supreme Court decisions can either uphold or reject legislation resulting from popular constitutionalism. Popular Constitutionalism is sometimes referred to when people say the Constitution is a living document that changes with time. Regardless of whether an individual agrees with this idea, it permeates into legislation. As a result, "legislative selection of judge-made concepts of constitutional law helps minimize the risk of subsequent invalidation on constitutional grounds" (Smith). 

Non-Judicial Precedent is the idea that popular constitutionalism and national dialogue can lead to statutes that precede a Supreme Court decision. Non-Judicial Precedent often results from social movements that make changes within society acceptable. Then, the Court hands down a ruling "to make a point, to appease important constituencies, [or] to encourage other States to follow suit" (Smith). 

Source: The Real Story Behind the Nation's First Sheild Law: Maryland, 1894-1897, published in 2014

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