Popular Constitutionalism and Non-Judicial Precedent

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 During class, we read Professor Dean Smith’s academic paper,“The Real Story Behind the Nation's First Shield Law: Maryland, 1894–1897” The primary concepts in this paper are the ideas of Popular Constitutionalism and Non-Judicial Precedents.

“Popular constitutionalism," is a system where the people take an active role in interpreting and enforcing constitutional law. This concept is one where the populous changes the meaning of the constitution thereby making it a living, breathing document seen with an "interpretive view" (Smith). 


“Judicial supremacy," the antithesis of popular constitutionalism, is what most people associate with how laws are defined. As expected, when it comes to this understanding, judges are deemed to have the ultimate and only say on what the Constitution means.


Professor Smith’s second main concept is “non-judicial precedents,” which encompass constitutional actions handed out by authorities other than courts. Non-judicial precedents gain regulatory power by their avid acceptance over time. They are often derived from social movements that initiate changes within society. The Court sometimes follows suit by handing down rulings relating to the issue "to make a point, to appease important constituencies, [or] to encourage other States to follow suit" (Smith). 



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