Journal Name: International Journal of Constitutional Law

Abstract:

This article examines the relevance of the study of legal consciousness, particularly that of ordinary people, to constitutional interpretation. It draws on sociolegal scholarship to explain how empirically informed, ground-up research on legal consciousness can make important contributions to the study of constitutional law away from elite actors and formal political institutions. Statutes, regulations, and court opinions that restrict the exercise of constitutional rights, and political discourse that is averse or friendly to activism and rights claims are conditions that shape the legal consciousness of ordinary people—their willingness and ability to make constitutional claims of their own in the courts, as well as their self-perceptions, social interactions, and relationships. Constitutional interpretation by ordinary people—their legal consciousness—in turn influences the development of constitutional law as it is interpreted by courts and other branches of government. By studying the words, thoughts, feelings, and (non)actions of citizens as a means of revealing how they perceive, think, and behave toward the constitution, scholars can produce a different type of study about constitutional interpretation—one that emerges from the ground up. Adopting the approach of legal consciousness research can contribute much-needed empirical insights into typically normative debates in legal scholarship about constitutional legitimacy and developments.