Abstract
A "doubtful case" or "clear mistake" rule is a rule calling for substantial deference by a reviewing court to a legislature's implicit affirmation of the constitutional probity of the statutes it enacts. Americans of the early Republic reportedly found a grounding for such a rule of judicial conduct in a conception of constitutional law as popular (not "ordinary") law. On examination, it proves difficult to trace a persuasive connection between the popular-law conception and demands for judicial adherence to a rule of deference to the implicit constitutional judgments of legislatures. Rather, the popular law conception calls for a kind of departmentalist approach to judicial review, one that would reject judicial deference to the contemporaneous constitutional judgments of legislatures. Deference would seem more in keeping with Alexander's Bickel's dismissal of the constitution-writing "people" as "an abstraction" than with popular constitutionalism's evocation of them as a real, live, active presence in the contemporary scene.
Recommended Citation
Frank I. Michelman,
Comment: Popular Law and the Doubtful Case Rule,
81
Chi.-Kent L. Rev.
1109
(2006).
Available at:
https://scholarship.kentlaw.iit.edu/cklawreview/vol81/iss3/18
