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Author

Tom Donnelly

Other affiliations: Princeton University
Bio: Tom Donnelly is an academic researcher from Harvard University. The author has contributed to research in topics: Constitutionalism & Constitutional law. The author has an hindex of 4, co-authored 5 publications receiving 20 citations. Previous affiliations of Tom Donnelly include Princeton University.

Papers
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Posted Content
Tom Donnelly1
TL;DR: Popular constitutionalism defies easy definition and its leading theorists fail to offer a common reading of constitutional history, a common methodology, or even a common set of remedies as discussed by the authors.
Abstract: Popular constitutionalism defies easy definition. Its leading theorists fail to offer a common reading of constitutional history, a common methodology, or even a common set of remedies. Given these diverse approaches, it is little wonder that one recurring complaint among popular constitutionalism’s critics is that the theory itself is incoherent. This criticism is overstated. Even as there are various strands of popular constitutionalism, its leading theorists do share one key attribute, a populist sensibility — a common belief that the American people (and their elected representatives) should play an ongoing role in shaping contemporary constitutional meaning. The question remains how best to achieve this shared goal, while also increasing popular constitutionalism’s normative appeal. In my view, the solution lies in committing to a broad-based agenda of both civic renewal and institutional reform — one that is as focused on the problems of legislative paralysis, incumbent entrenchment, and citizen apathy as it is on the threat posed by an aggressive judiciary. In this Article, I outline such an agenda. In addition, I consider one reform proposal in detail — the public reconsideration of judicial decisions — or, as I shall call it, the “People’s veto.” In the end, I seek to show that one does not have to hold anti-Court views (or unrealistic expectations about the capacities of ordinary citizens) in order to accept that the American people should play a more direct, ongoing, deliberative role in constitutional decision-making.

8 citations

Posted Content
Tom Donnelly1
TL;DR: The authors analyzes a set of constitutional stories that has not been the subject of focused study-the constitutional stories we tell our schoolchildren in our most widely-used high school textbooks.
Abstract: This Note analyzes a set of constitutional stories that has not been the subject of focused study-the constitutional stories we tell our schoolchildren in our most widely-used high school textbooks. These stories help reinforce a constitutional culture that is largely deferential to the Supreme Court, limiting references to popular resistance to the Court and often linking such popular resistance to the actions of self-interested politicians, at best, and historical villains, at worst. Our textbooks are especially critical of blunt institutional checks on the Court (like judicial impeachment and "court-packing"), but are sometimes receptive to subtler, longer-term checks (like social mobilization and judicial nominations). If judicial supremacy does run rampant, as popular constitutionalists claim, it would appear as though our public schools are complicit in its entrenchment.

5 citations

Journal Article
TL;DR: The authors analyzes a set of constitutional stories that has not been the subject of focused study, the constitutional stories we tell our schoolchildren in our most widely used high school textbooks, which help reinforce a constitutional culture that is largely deferential to the Supreme Court.
Abstract: This Note analyzes a set of constitutional stories that has not been the subject of focused study—the constitutional stories we tell our schoolchildren in our most widely used high school textbooks. These stories help reinforce a constitutional culture that is largely deferential to the Supreme Court, limiting references to popular resistance to the Court and often linking such popular resistance to the actions of self-interested politicians, at best, and historical villains, at worst. Our textbooks are especially critical of blunt institutional checks on the Court (like judicial impeachment and "court-packing"), but are sometimes receptive to subtler, longer-term checks (like social mobilization and judicial nominations). If judicial supremacy does run rampant, as popular constitutionalists claim, it would appear as though our public schools are complicit in its entrenchment.

4 citations

Journal Article
TL;DR: Ackerman et al. as mentioned in this paper pointed out the ways in which the lessons that we are teaching our schoolchildren undermine popular sovereignty, through mythologizing the Supreme Court, promoting “Founder worship,” and downplaying the constitutional achievements of successive generations.
Abstract: Popular constitutionalism scholarship has often left out the American people. Sure, ordinary citizens make cameo appearances—often through the actions of elected officials and elite movement leaders. However, focusing on high politics among elite actors—even if those actors are not judges—simply is not enough. If popular constitutional views do, indeed, matter, then we can expect constitutional partisans to try to manipulate the processes through which these views emerge. Some constitutional scholars have made a start, reflecting on the importance of the constitutional canon. However, these scholars focus mostly on the legal canon and often ignore its popular analog. At the same time, other scholars have worked to bring the American people back into constitutional theory by studying the constitutional views of ordinary Americans and explaining the ways in which key social movements shape constitutional doctrine. These scholars, however, have largely ignored the pathways of constitutional socialization—the ways in which citizens learn about the Constitution. An important part of this neglected project is tending to the set of stock stories transmitted by key institutions to ordinary citizens—in other words, tending to the popular constitutional canon. In this Article, I turn to one site of constitutional socialization—American public schools. This visit to our Nation’s classrooms highlights the various ways in which the lessons that we are teaching our schoolchildren undermine popular sovereignty, through mythologizing the Supreme Court, promoting “Founder worship,” and downplaying the constitutional achievements of successive generations. In the end, if public opinion matters to constitutional doctrine and reform, as many scholars argue, then these sites of constitutional socialization are worth studying. * Alpheus Thomas Mason Prize Fellow, Princeton University; Climenko Fellow and Lecturer on Law, Harvard Law School, 2010–12; JD, Yale Law School, 2009; BA, Georgetown University, 2003. This Article arises from years of research, reflection, and conversation spanning a range of institutions and organizations, including Yale Law School, Harvard Law School, the Constitutional Accountability Center, the National Constitution Center, and Princeton University. For their suggestions, encouragement, and inspiration at various stages, I extend my deep thanks to Bruce Ackerman, Akhil Amar, Richard Albert, Andrew Bradt, Stella Burch Elias, Desmond Jagmohan, Michael Klarman, Stephen Macedo, Robert Post, Jeffrey Rosen, Reva Siegel, Steven Teles, Susannah Barton Tobin, and Keith Whittington.

4 citations

Journal Article
TL;DR: Popular constitutional argument is a form of argument that draws on the American people's considered judgments as a source of constitutional authority, similar to traditional sources like text, history, structure, and doctrine as discussed by the authors.
Abstract: Critics have long attacked popular constitutionalists for offering few clues for how their theory might work in practice—especially inside the courts. These critics are right. Popular constitutionalism—as a matter of both theory and practice—remains a work in progress. In this Article, I take up the challenge of developing an account of (what I call) popular constitutional argument. Briefly stated, popular constitutional argument is a form of argument that draws on the American people’s considered judgments as a source of constitutional authority—akin to traditional sources like text, history, structure, and doctrine. Turning to constitutional theory, I situate popular constitutional argument within contemporary debates over judicial restraint, living constitutionalism, popular sovereignty theory, and originalism. And turning to constitutional practice, I offer the interpreter a concrete framework for crafting popular constitutional arguments—cataloguing the various indicators of public opinion that have played a role in recent Supreme Court decisions. These indicators include measures associated with the President, Congress, state and local governments, the American people’s actions and traditions, and public opinion polls. Throughout, I use illustrative examples to show the various ways in which popular constitutional argument already operates at the Supreme Court—appealing to jurists from across the ideological spectrum. While this Article begins to explore how popular constitutionalism might operate inside the courts, much work remains.

Cited by
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Dissertation
05 Aug 2013
TL;DR: The authors examined how state constitutions address education policy and whether states with language specifically connecting education to the maintenance of democracy required more stringent civics requirements for students to graduate from secondary school.
Abstract: A literal reading of the United States Constitution finds no mention of education. Because no fundamental federal mandate exists to provide public education for citizens, the Tenth Amendment gives states the authority for public education policy. Because states have different constitutional standards for education, civics requirements have little national consistency. This thesis explores the connections between state constitutional provisions for public education and graduation requirements for civics in each state. The research examined how state constitutions address education policy and whether states with language specifically connecting education to the maintenance of democracy required more stringent civics requirements for students to graduate from secondary school. Further investigation explored whether and how state constitutions in Minnesota and Wisconsin appeared to influence the development of graduation requirements. Indeed, Minnesota, whose constitution connects education to the maintenance of democracy, had a curriculum policy process far more rooted in its constitutional traditions than did Wisconsin, which had no such constitutional language or curriculum process.

11 citations

Posted Content
TL;DR: In particular, this paper argued that the Court's premature engagement with limiting principles bypassed the benefits of its ordinary incremental, case-by-case analysis, and circumvented institutional synergies that can generate superior and more democratically legitimate outcomes when courts and legislatures work together, over time, to flesh out constitutional judgments.
Abstract: Crucial to the Court’s disposition in the constitutional challenge to the Affordable Care Act (ACA) was a hypothetical mandate to purchase broccoli, which Congress never had considered and nobody thought would ever be enacted. For the five Justices who concluded the ACA exceeded Congress’s commerce power, a fatal flaw in the government’s case was its inability to offer an adequate explanation for why upholding that mandate would not entail also upholding a federal requirement that all citizens purchase broccoli. The minority insisted the broccoli mandate was distinguishable.This Article argues that the fact that all the Justices insisted on providing a limiting principle – which was the demand underlying the broccoli hypothetical – was perhaps the most notable, precedent-breaking aspect of its landmark decision. As the Article shows, when confronted with novel constitutional questions the Court almost always uses narrow, “localist” reasoning that analyzes only the government’s actual action. Indeed, the Court ordinarily explicitly declines to provide a limiting principle until it has heard several cases from which it can confidently deduce one. The Article provides the first comprehensive analysis of how, and why, the broccoli hypothetical ultimately proved so deeply consequential. Outside the courts, where the constitutionality of the mandate was robustly debated, the broccoli hypothetical served to highlight the potential liberty costs of the Act. In the courts – where, strictly speaking, the doctrinal question involved not personal liberty but congressional power – broccoli ensured that liberty costs would be a significant element of the constitutional analysis, and it also generated a perceived need to identify a limiting principle. In short, broccoli was a critical bridging mechanism that brought together a popular constitutional movement mobilized against the Affordable Care Act and the constitutional challenge taking place in the courts. We conclude with a normative assessment of this kind of relatively direct extrajudicial influence on the courts. We argue that while popular constitutional theory might justify the majority’s novel liberty-centered approach to congressional power, it cannot warrant the Court’s unusual break from localist legal reasoning. The Court’s premature engagement with limiting principles bypassed the benefits of its ordinary incremental, case-by-case analysis, and circumvented institutional synergies that can generate superior and more democratically legitimate outcomes when courts and legislatures work together, over time, to flesh out constitutional judgments.

10 citations

Journal ArticleDOI
TL;DR: In this article, the authors examine the space between legal texts and movement resources in a study of early activism surrounding Title IX and identify a distinctive legal framing technique tied to the often overlooked practice of lay legal education.
Abstract: We often understate the work that activists put into crafting movement tools. This article examines the space between legal texts and movement resources in a study of early activism surrounding Title IX. Though often hailed as a feminist law, the Title IX statute and regulations lay out a narrow set of individual rights and incorporate several conservative principles. In an analysis of early social movement mobilization surrounding Title IX by the Connecticut Women's Educational and Legal Fund (CWEALF), we identify a distinctive legal framing technique tied to the often overlooked practice of lay legal education. In a legal education campaign that targeted schools, CWEALF placed Title IX's actual requirements alongside broader feminist ideas about gender socialization and civic responsibility to imply that the law mandated substantially greater reforms, a tactic we call unobtrusively stretching law. This article contributes to research on social movements and legal mobilization by illustrating how legal e...

9 citations

Journal ArticleDOI
30 Apr 2013
TL;DR: In this paper, the main tenets of popular constitutionalism are discussed in detail, including the Founding Fathers's strand, democratic constitutionalism, and mediated popular constitucionalism mediado.
Abstract: espanolEl proposito de este ensayo es exponer las tesis principales de una de las teorias constitucionales norteamericanas que mas fuerza ha cobrado en los ultimos anos y que ha sido poco explorada en nuestro entorno: el constitucionalismo popular. Se trata de una propuesta especialmente util para repensar criticamente nuestra inclinacion por algunos aspectos del constitucionalismo europeo de la postguerra, en particular la supremacia judicial y el desden hacia los movimientos sociales como generadores de sentido constitucional. El articulo presenta las tres corrientes que pueden identificarse dentro del constitucionalismo popular: la de los padres fundadores, el constitucionalismo democratico y el constitucionalismo popular mediado. A continuacion se alude a ciertos cuestionamientos que la teoria ha recibido por parte de partidarios y detractores y se desarrollan algunas reflexiones propias EnglishThis article presents the main tenets of one of the most appealing constitutional theories in the last decades: popular constitutionalism. The theory is particularly helpful at questioning our penchant for aspects of post-war European constitutionalism, particularly judicial supremacy and disdain of social movements as agents of constitutional meaning. It presents in detail three main strands within popular constitutionalism: the Founding Fathers’s strand, democratic constitutionalism and mediated popular constitutionalism. It then presents some of the questionings that have been directed against the theory and shortly develops a personal view

9 citations

Journal ArticleDOI
TL;DR: For instance, the authors found that some people evaluate state supreme courts as more legitimate than others, and that people make a decision based on their assessment of the legitimacy of the state supreme court.
Abstract: Why do some people evaluate state supreme courts as more legitimate than others? Conventional academic wisdom suggests that people evaluate courts in nonpartisan ways, and that people make a distin...

8 citations