Article: Non-Judicial Precedent

This Article attempts to reenvision constitutional law through the perspective of non-judicial precedents. Most constitutional scholars equate precedents with judicial decisions, particularly those of the Supreme Court, and discount the constitutional significance of precedents made by non-judici al actors. Using a wide range of examples, I show how shifting our perspective from the Court to non-judicial actors allows us to see constitutional law in significantly new ways. First, I suggest that the one essential feature common to all non-judicial precedents is their discoverability-the publi c efforts made to invest certain past non-judicial activities with normative force. To illustrate how ...

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