The Constitution of the United States is a broad charter that establishes the structure of government and identifies the values to which the country aspires. All Americans have the prerogative as well as the responsibility to give this charter meaning in our day-to-day lives. We live under the Constitution and must be faithful to its mandates. This duty of fidelity applies as forcefully to ordinary citizens as it does to public officials.

Throughout history, the Supreme Court has been depicted as the final arbiter of the meaning of the Constitution. Such a view does not deny the role that the other branches of government or, for that matter, the general citizenry have in interpreting the Constitution, but only posits a priority for the interpretations of the judicial branch. The governing assumption is that where there are conflicting interpretations, the Court's should prevail.

In our time, this assumption found powerful expression in Brown v. Board of Education and in the struggles to make that decision a living reality. This assumption is now being challenged by a movement in the legal academy known as legislative constitutionalism, which claims a new and important role for Congress in the process of constitutional interpretation, but which, I am sad to say, is born of a misunderstanding of the role of the judiciary during the civil rights era and of a frustration with the Court ever since.

HISTORICAL ROOTS OF LEGISLATIVE CONSTITUTIONALISM

The Supreme Court's decision in Brown v. Board of Education declared the Jim Crow system of school segregation unconstitutional and in so doing set aside the laws of seventeen states and the District of Columbia.