Introduction to The Yale Law Journal Online Symposium on Eskridge and Ferejohn's A Republic of Statutes: The New American Constitution
A Republic of Statutes: The New American Constitution is a landmark collaboration of two preeminent scholars, law professor William N. Eskridge, Jr. and political scientist John Ferejohn. Nearly a quarter century ago, Professor Eskridge, with the late Professor Philip Frickey, sparked the revival of legislation as a field of study. Commenting on the seminal Eskridge-Frickey casebook on legislation, Judge Richard Posner prophetically wrote: “[I]t has the potential to alter the law school curriculum . . . . The book has done for legislation what Hart and Sacks did for legal process, or Hart and Wechsler for federal courts: it has demonstrated the existence of a subject.” A Republic of Statutes is yet another important milestone in Eskridge’s bountiful journey, this time with Ferejohn as his formidable partner. In this work, Eskridge and Ferejohn are concerned with “administrative constitutionalism,” that is, the “process by which legislative and executive officials, America’s primary governmental norm entrepreneurs, advance new fundamental principles and policies.”
The “Large ‘C’” Constitution, embodied in the document of 1789 and its amendments, the authors write, is only a part of this nation’s working constitution. A critical component of that constitutional firmament, Eskridge and Ferejohn argue, is statutes, which lie at the heart of administrative constitutionalism. Some statutes, they contend, are superstatutes in that they become “entrenched” features of our constitutional structure. As such, Eskridge and Ferejohn write, these superstatutes are critical components of the “small ‘c’” constitution that guides our system of governance. And, they assert, those entrenched statutes and policies can shape the interpretation of the “Large ‘C’” Constitution. A Republic of Statutes seeks to explain how superstatutes arise through ongoing deliberation of various actors and institutions and how they become embedded in our constitutional structure. From that analysis, the authors offer a normative theory of U.S. constitutionalism. Thus, for example, as to superstatutes, they call on courts to play a “deliberation-respecting” role.
Eskridge and Ferejohn press their case through a series of detailed studies of statutory policy formulation and implementation across a variety of public policy areas. They write of the “democratic constitution” as illustrated by the Voting Rights Act; the “green constitution” as embodied in the Clean Water Act and the Endangered Species Act; the “constitution of equality” pursuant to the Civil Rights Act, the Family and Medical Leave Act, and the Pregnancy Discrimination Act; the “national security constitution” shaped by laws and regulations enacted in the aftermath of 9/11; the “monetary constitution” exemplified by the Federal Reserve Act and other laws regulating monetary and financial matters; the “constitution of the family” growing out of a variety of state laws pertaining to marriage, property, and sex; and the “constitution of the market” emerging from court and agency interpretations of antitrust laws.
Eskridge and Ferejohn show well the importance of statutes in our governance. Much of what I do as a judge is to interpret statutes, just as much of what administrators do is to interpret and implement statutes that Congress has enacted. In my pre-bench academic days, I decried the tendency of the institutional literature to focus on select parts of the decisionmaking process to the near exclusion of others—individual studies of the role of the executive, or the legislature, or the courts, or the state and local levels, in isolation and often in static ways. That selective prism can distort the reality of the lawmaking process, which I conceived to be dynamic and often complex, as the ongoing interaction of institutional processes to produce laws and what flows from laws. A Republic of Statutes is an antidote to the selective focus on individual institutions, which I argued skews understanding of the lawmaking process. As such, I believe that it will be an invaluable resource for scholars and judges alike. For political scientists and legal academics, Eskridge and Ferejohn have produced a work of extraordinary breadth and depth across policy areas. The case studies will be mined by those seeking to comprehend how policy entrepreneurs—legislative and executive officials—make laws, and how some statutory schemes become embedded in our national fabric. For judges interpreting statutes, A Republic of Statutes suggests that context matters, that beyond the words of statutes is a context that must be understood if statutes are to be fully understood. Any judge, textualist and nontextualist alike, who wants to appreciate better the lawmaking process should read this book.
As it was meant to do, A Republic of Statutes raises a full agenda of questions that will spawn further debate and examination, such as: When is a statutory scheme entrenched? When is it no longer entrenched? Empirically, examining the universe of laws, which statutory schemes qualify as entrenched ones? For judges interpreting statutes, should it matter whether a statutory scheme is entrenched? If a statutory scheme is not entrenched, does that necessarily mean that the role of courts as “deliberation-respecting” institutions should change?
Testament to the significance of A Republic of Statutes was the symposium held at the Yale Law School on December 10 and 11, 2010, bringing together leading law professors and political scientists to examine the implications of its framework for public health, national security, civil rights, and other important areas of American public law. This online symposium offers some of the contributions to that gathering.
Mathew D. McCubbins and Daniel B. Rodriguez seek to examine entrenchment in the different ways that Eskridge and Ferejohn use that concept, unpacking the assumptions and arguments that underlie it. Edward L. Rubin sets forth a third role for statutes, especially superstatutes that Eskridge and Ferejohn identify, beyond adding a “small ‘c’” constitution and influencing interpretation of the “Large ‘C’” Constitution: he writes that they represent interpretations of the “Large ‘C’” Constitution itself. Seizing on the “constitution of statutes” framework, Theodore W. Ruger argues that the Patient Protection and Affordable Care Act of 2010, together with Medicare and Medicaid, is a possibly transformative enactment that one day may come to be viewed as entrenched in the same way that Social Security is today. Focusing on the difficulties of achieving comprehensive immigration reform, John D. Skrentny and Micah Gell-Redman contend that A Republic of Statutes aids in understanding why attempts at reform have failed despite various legislative efforts that have had the support of presidents of different parties. While praising Eskridge and Ferejohn’s work, Stephen M. Griffin argues that their approach does not sufficiently take into account the constitutional change resulting from national security measures adopted during President George W. Bush’s Administration.
A measure of a work’s importance is whether, apart from its own substantive power, it stimulates further discussion and analysis. A Republic of Statutes has already fostered such engagements. Indeed, it is a teaching moment, which promises to help shape the way in which statutes are studied, taught, and understood, across disciplines. Few works have such a legacy. For all that, we owe a large debt to Eskridge and Ferejohn. May these brilliant scholars continue to teach us for many years to come.
The Hon. Robert A. Katzmann is a Judge on the United States Court of Appeals for the Second Circuit.
Preferred citation: Robert A. Katzmann, Introduction to The Yale Law Journal Online Symposium on Eskridge and Ferejohn’s A Republic of Statutes: The New American Constitution, 120 Yale L.J. Online 293 (2011), http://yalelawjournal.org/forum/introduction-to-the-yale-law-journal-online-symposium-on-eskridge-and-ferejohns-a-republic-of-statutes-the-new-american-constitution.