This Article provides the first comprehensive analysis of the constitutional significance of non-judicial precedent. Non-judicial precedent is an important phenomenon not usually counted among the conventional sources of constitutional meaning. The term, non-judicial precedent, encompasses the constitutional activities of non-judicial actors. Non-judicial precedent has several distinctive features, which the article describes and illustrates through various examples. First, it is far more extensive than its judicial counter-part and more enduring than many scholars suppose. Second, the binding effects of non-judicial precedent vary according to several factors, including their timing and their direction – operating vertically as orders imposed by superior upon inferior authorities or horizontally as persuasive authority across authorities with equal power over the same domains. For instance, presidential signing statements comprise a horizontal-horizontal non-judicial precedent because they are merely persuasive authority to Congress and other presidents. Moreover, non-judicial precedents, like judicial ones, perform multiple functions, including shaping the Court, its doctrine, culture, and national identity. The Article suggests that incorporating non-judicial precedent into the lexicon of constitutional discourse will refine constitutional analysis and provide important connections among seemingly disparate constitutional events that dominate our headlines and fill our history books.
Date of this Version
Michael J. Gerhardt, "Non-Judicial Precedent" (August 3, 2006). bepress Legal Series. bepress Legal Series.Working Paper 1493.