University of Minnesota
What would it mean for "the canon of constitutional law" if we were to take seriously "the Constitution outside the courts"? What would happen to the canon if we were to distinguish (as Cass Sunstein and Larry Sager do) between the partial, judicially enforceable Constitution and the Constitution that imposes higher obligations upon legislatures, executives, and citizens generally to Fursue constitutional ends or to secure constitutional rights? How would the canon be affected by "taking the Constitution away from the courts," as Mark Tushnet proposes,2 or by adopting what Sandy Levinson has called a "Protestant" rather than a court-centered "Catholic" approach to the question, who may authoritatively interpret the Constitution?
Sotirios Barber & James E. Fleming,
The Canon and the Constitution Outside the Courts
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2763