The Radical Possibility of Limited Community-Based Interpretation of the Constitution

This article courtesy of SSRN - Legal Scholarship Network and authored by Mark D. Rosen.

Abstract: This Article explores a radical method under the U.S. Constitution for devolving extraordinary political power to select communities. The United States Constitution places limitations on the exercise of public power by sub-federal polities. When insular groups seek to exercise public power to govern themselves, however, there may be special constitutional limitations that are operative - doctrines that afford their local governments more options in the exercise of power than ordinary state and local governments enjoy. The Article shows that Congress may grant the communities the authority to construe designated provisions of the United States Constitution insofar as the provisions apply to them, subject to only modest limitations.

The mechanism for self-governance proposed and explored here - the delegation of circumscribed interpretive authority of select provisions of the United States Constitution to a limited number of "community-based courts" - is not as unprecedented as it might at first sound. It is very similar to the powers exercised by Native Americans in tribal courts. Each tribe's courts are authorized to provide their own interpretations of "due process," "equal protection," "search and seizure," and the like, with no review from federal courts in virtually all cases. As a result, due process means one thing in San Diego, another in the 25,000 square miles of Navajo land, and yet something else on the Nisqually reservation.

In an earlier article I analyzed the many benefits of the regime of community-based courts in Indian country. See Multiple Authoritative Interpreters of Quasi-Constitutional Federal Law: Of Tribal Courts and the Indian Civil Rights Act, 69 Fordham L. Rev. 479 (2000). Such a regime permits the creation of unique doctrines and governmental institutions that support Indian culture, and the avoidance of doctrines and institutions that actively undermine it. Yet as the regime sustains cultural heterogeneity, it simultaneously helps to create a common nation-wide culture insofar as all tribes are interpreting the shared text of American constitutional principles. In short, allowing diverse communities the opportunity to construe authoritatively a shared text holds out the possibility of creating commonality without commanding homogeneity. It is an approach that is consonant with one of the federal system's chief objectives of uniting without snuffing out diversity.

Keywords: State government, Local government, Congressional authority, Native American, Tribal courts