Author: nyust

The Anti-Federalist writer Brutus warned that federal courts would become an unaccountable aristocracy, accessible only to the wealthy, and had no place in republican democracy. Hamilton wrote countering that judicial independence from popular majorities was essential because popular passion posed the greatest threat to constitutional order. The judiciary must stand as “the bulwarks of a limited constitution,” protecting individual rights “from the effects of those ill humours, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves.”[1] For Hamilton, then, the Court’s removal from democratic accountability was not a defect but a feature.

The current Supreme Court crisis stems not from recent political developments alone but from an incomplete theory of popular constitutionalism at the Founding. This piece proposes a solution: a Constitutional Advisory Body composed of randomly selected citizens who would deliberate on constitutional questions and provide non-binding recommendations to the Court in cases involving fundamental rights. Dobbs v. Jackson Women’s Health Organization offers a case study, demonstrating how unresolved debates about constitutional interpretation produce outcomes that large segments of the population view as democratically illegitimate, and exploring how the Advisory Body would have changed the decisional landscape.

Popular constitutionalism represents a powerful theoretical challenge to judicial supremacy and exclusivity in the Jeffersonian tradition. It insists that, broadly, “the people assume active and ongoing control over the interpretation and enforcement of constitutional law.”[2] Yet as scholars observe, popular constitutionalists offer “few clues for their theory [that] might work in practice.”[3]

The various approaches to popular constitutionalism share a common limitation: they seek to inject popular voice into constitutional interpretation without creating meaningful opportunities for participation. Whether courts defer to political branches, survey public opinion, or apply historical gloss, the people themselves remain passive subjects whose views are consulted but who never directly engage with constitutional questions. I propose an institutional infrastructure that enables deliberative popular input into constitutional adjudication itself.

Left-leaning writers and academics have called for reforming the constitutional structure with renewed urgency since the 2016 elections.[4] Among the more radical proposals comes from Tom Malleson, a community organizer and political theorist, who advocates for a “People’s House:” a legislative body composed of randomly selected citizens who serve extended terms that include substantial education and deliberation.[5] In Malleson’s design, approximately one thousand people chosen through stratified random selection would serve four-year terms. The first two years would be dedicated to training, where members would “receive substantial training in issues of budgets, taxation, and distributive justice; be exposed to the various fields of government; take classes in how to deliberate rationally, empathetically, and with a sense of the common good.”[6] Only in the latter half of their term would they exercise legislative power, deliberating on policy questions within specialized departments before submitting proposals to the full body for a vote.[7]

I propose adapting Malleson’s framework to create a “Constitutional Advisory Body” that would inform Supreme Court decision-making on questions implicating fundamental rights. The body would comprise randomly selected citizens serving for one supreme court term, plus a training period. The selection would be stratified to ensure demographic representativeness across gender, race, class, age, and geography. The first few months would constitute an intensive education phase, exposing members to diverse constitutional philosophies (originalism, living constitutionalism, popular constitutionalism, critical legal theory). Leading scholars and practitioners could brief these ideas. Members would study foundational texts such as the Federalist Papers, Supreme Court precedents, and the philosophical debates underlying contemporary constitutional controversies. The subsequent twelve months would be devoted to deliberation on specific questions submitted by parties before the Supreme Court or identified by the Court itself.

Critically, this body would serve a semi-binding, or more than purely advisory, function. Both parties in cases before the Supreme Court would have the right to submit questions to the Advisory Body relating to contemporary American beliefs about the proper scope of government power, the nature of fundamental rights, and the relationship between individual liberty and community interests. The Advisory Body would deliberate on these questions and issue written opinions reflecting their considered judgments, which would then be made available to the Justices, the parties, and the public. The opinions of the Advisory Body would be dispositive as to the issues before it, but not necessarily to the question before the Court. The Court would maintain broad latitude in issuing its decision, because they would still evaluate competing interests under the proper level of scrutiny, apply precedent, and balance interests. The result? Even when the Court declines to follow the intended results of the Advisory Body, they would be required to explain to the American people why.

Critics will charge that this function already exists in the amendment process to the Constitution. While true to an extent, contemporary political conditions make constitutional amendment a practical impossibility. As constitutional scholar Sanford Levinson observes, the multiple super-majority requirements of Article V make the U.S. Constitution “among the most difficult to amend of any in the world.”[8] These high procedural barriers are bolstered by the system’s numerous veto points. As Donnelly notes, “Our system’s numerous veto points—federalism, bicameralism, the separation of powers, checks and balances, and the filibuster—block popular action. The elected branches struggle to both pass new laws and repeal outmoded ones.”[9]

When amendment is impossible, constitutional interpretation necessarily becomes the primary mechanism for adapting fundamental law to changing circumstances. Yet courts engaged in this adaptive interpretation lack reliable information about contemporary popular constitutional values. They are forced to guess at what “We the People” would think about questions the Framers never contemplated. We apply interpretive methodologies like originalism, history and tradition, and others, that only exacerbate constitutional stagnation. The Constitutional Advisory Body would partially compensate for amendment gridlock by providing courts with contemporary deliberative popular input on constitutional questions that can no longer be resolved through Article V’s formal mechanisms.

The 2022 Dobbs v. Jackson Women’s Health Organization decision illuminates both the need for and the operation of the Constitutional Advisory Body. The release of the decision sparked nationwide public protest and celebration, and remains top of mind for advocates of court reform.[10] The decision further exemplifies how contemporary constitutional controversies strain existing interpretive methodologies while crying out for meaningful popular input. As the dissent observed, the majority’s reliance on historical evidence from 1868—when “people” did not ratify the Fourteenth Amendment but rather “men” did—demonstrates the representational deficit inherent in purely originalist approaches.[11] Yet the absence of reliable mechanisms for ascertaining contemporary popular constitutional values left the Court to choose between competing historical narratives without any systematic understanding of how present-day Americans, after sustained deliberation, would approach the constitutional questions at stake.

The Advisory Body would have transformed the decisional landscape in Dobbs by providing the Court with precisely the information it lacked: the considered judgment of a representative sample of Americans who had studied the philosophical, medical, legal, and social dimensions of reproductive rights. Consider how the process could have unfolded.

Under the proposed framework, both parties would have had the right to submit questions to the Advisory Body for deliberation. Petitioners defending Mississippi’s fifteen-week abortion ban might have submitted the following questions:

Do contemporary Americans believe that the Constitution’s guarantee of liberty protects abortion as a fundamental right, or should abortion policy be determined through democratic processes in the states?
How do Americans understand the moral and legal status of fetal life at different stages of pregnancy?

Jackson Women’s Health Organization, representing abortion providers and their patients, would likely have submitted the following questions following their theory of the case:

Do Americans today believe that women’s reproductive autonomy—including the ability to terminate a pregnancy—is essential to their capacity to participate as equal citizens in American society?
How do Americans weigh the competing interests at stake in abortion regulation: the woman’s liberty and bodily autonomy, the state’s interest in potential life, and the practical realities facing women denied abortion access?
Do Americans believe the Constitution should protect reproductive decision-making as part of a broader right to privacy and family autonomy, consistent with decisions like Griswold (contraception) and Loving (interracial marriage)?

It is difficult and likely not productive to speculate in this post on precisely how the Constitutional Advisory Body would respond. In any case, the Advisory Body’s findings would be definitive on those points. To the extent that a majority opinion addressed or argued any of the above points, they could not overrule the Advisory Body’s findings on those matters. The Justices would retain full authority to select the appropriate level of scrutiny analysis, balance competing interests, and apply precedent. But they would do so with far richer information about contemporary constitutional values than current methodologies provide.

Suppose the Advisory Body found that a majority of deliberative citizens today view reproductive autonomy as essential to women’s equal participation in society. This would not dictate the outcome, as the Court might reasonably conclude that historical practice should control, or that an identified state’s interest in protecting potential life survived a strict scrutiny analysis of these other rights identified by the Advisory Body. The Court would still, at minimum, have to explain why it finds those arguments compelling. This is perhaps the most important function of the Advisory Body: it would create a powerful accountability mechanism regardless of the Court’s approval of its findings.

The Constitutional Advisory Body might thus transform Dobbs from a clash of competing historical narratives into a constitutional conversation that includes the voices of present-day citizens. It preserves judicial independence and legal expertise while opening constitutional interpretation to genuine popular participation. Whether this would produce different outcomes or simply more legitimate processes in the eyes of Americans remains an empirical question. But in cases like Dobbs, where the stakes are high, the people are deeply divided, and existing doctrine leaves many unsatisfied, we could finally give citizens a productive outlet for their frustrations. In an era when faith in judicial supremacy has fractured along partisan lines and constitutional amendment has become impossible, we must forge new institutional arrangements that treat judicial independence and popular sovereignty not as competing values but as mutually reinforcing commitments essential to constitutional democracy.

* J.D. Candidate, 2026, Northwestern Pritzker School of Law

[1] The Federalist No. 78, at 416 (Alexander Hamilton) (J.R. Pole ed., 2005).

[2] Robert Post & Reva Siegal, Popular Constitutionalism, Departmentalism, and Judicial Supremacy, 92 Calif. L. Rev. 1027, 1027 (2004).

[3] Thomas Donnelly, Popular Constitutionalism Inside the Courts: The Search for Popular Meaning, 57 Univ. Calif. Davis L. Rev. 2465, 2471-72 (2024).

[4] See, e.g., Osita Nwanevu & Jake Grumbach, Democracy v. the Constitution, Boston Rev., Aug. 2025, https://www.bostonreview.net/articles/democracy-v-the-constitution/.

[5] Tom Malleson, Beyond Electoral Democracy, https://jacobin.com/2018/05/legislature-lot-electoral-democracy-real-utopias (last visited Nov. 22, 2025). See also Osita Nwanevu, The Right of the People: Democracy and the Case for a New American Founding 170 (2025).

[6] Id.

[7] Id.

[8] Sanford Levinson, Reframing the Constitution, Texas Law News (May 12, 2014), https://law.utexas.edu/news/2014/05/12/reframing-the-constitution/.

[9] Donnelly, supra note 3, at 2500 (2024).

[10] Shawn Hubler, Supreme Court Rules on Abortion: Thousands Protest End of Constitutional Right to Abortion, The New York Times, June 24, 2022, https://www.nytimes.com/live/2022/06/24/us/roe-wade-abortion-supreme-court.

[11] Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215, 372 (2022) (Breyer, Sotomayor & Kagan, JJ., dissenting).