On extrajudicial constitutional interpretation

In Cooper v. Aaron, the Supreme Court asserted that its interpretations of the Constitution bind all officials, and that the obligation of nonjudicial officials to obey the Constitution is an obligation to obey the Constitution as interpreted by the Supreme Court. Since Cooper, however, a consensus has developed among scholars and officials that Cooper cannot be taken at face value, and that nonjudicial officials need not treat Supreme Court opinions as authoritative in order to comply with their obligation to the Constitution. In this Article, Professors Alexander and Schauer challenge this consensus, and offer an unqualified defense of Cooper and the judicial supremacy that it asserted. They argue that settlement of contested issues is a crucial component of constitutionalism, that this goal can be achieved only by having an authoritative interpreter whose interpretations bind all others, end that the Supreme Court can best serve this role. They further argue that constitutionalism entails obeying a constitution even when its directives seem mistaken, and that once we accept the obligation of officials to follow a mistaken constitutional directive, it is only a small step to expect them to follow a court decision that they believe similarly mistaken. Both constitutionalism itself and judicial supremacy embody the goal of providing settlement of issues as to which people disagree, and the coordination function of law in general and constitutionalism in particular yields not only an obligation to obey the law, but also an obligation to obey a single authoritative interpreter of the law.