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Super statute

The term super statute was applied in 2001 by William Eskridge and John Ferejohn to characterize an ordinary statute whose effort "to establish a new normative or institutional framework ... 'stick[s]' in the public culture" and has "a broad effect on the law". As a result, it has a "quasi-constitutional" significance that exceeds its formal status as a statute with interpretive significance for other legislation.

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The term super statute was applied in 2001 by William Eskridge and John Ferejohn to characterize an ordinary statute whose effort "to establish a new normative or institutional framework ... 'stick[s]' in the public culture" and has "a broad effect on the law".1 As a result, it has a "quasi-constitutional"2 significance that exceeds its formal status as a statute with interpretive significance for other legislation.3

Characteristics

Super statutes have a broad effect on law due to cultural influence, affecting even interpretation of constitutional provisions.4 The fabric of the society would be fundamentally changed by repeal.5 In practical political terms, super-statutes are embedded in the constitutional order and changing them carries political risks.6 When super-statutes conflict, the Supreme Court will trim the one less impaired by nonapplication.7

Adrian Vermeule criticized the category boundaries as opaque.8

Other uses

According to Eskridge and Ferejohn, previous legal commentators had used the term "super-statute" for other purposes. Some writers have used the term to describe a constitution, e.g., A. E. Dick Howard, The Road from Runnymede: Magna Carta and the Constitutionalism in America (1968, pg.122) (stating that American lawyers in the eighteenth century viewed Magna Carta and the common law it was thought to embody "as a kind of superstatute, a constitution placing fundamental liberties beyond the reach of Parliament"). Other writers believe it's simply a big statute with no force outside its four corners, e.g., Bruce A. Ackerman, "Constitutional Politics/Constitutional Law", 99 Yale Law Journal 453, 522 (1989) ("Superstatutes do not seek to revise any of the deeper principles organizing our higher law; instead, they content themselves with changing one or more rules without challenging basic premises.").1

Examples

Eskridge and Ferejohn give these examples noting others exist.1:1227

References

References

  1. Super Statutes. Eskridge and Ferejohn. 50 Duke L. J. 1215
  2. Taylor, Alice (2023-08-24). Interpreting Discrimination Law Creatively: Statutory Discrimination Law in the UK, Canada and Australia. Bloomsbury Publishing. ISBN 978-1-5099-5294-6.
  3. Wintgens, Luc J. (2017-03-02). The Theory and Practice of Legislation: Essays in Legisprudence. Routledge. ISBN 978-1-351-88126-5.
  4. Hamoudi, Haider Ala (2013-11-12). Negotiating in Civil Conflict: Constitutional Construction and Imperfect Bargaining in Iraq. University of Chicago Press. ISBN 978-0-226-06879-4.
  5. Tucker, Paul (2019-09-10). Unelected Power: The Quest for Legitimacy in Central Banking and the Regulatory State. Princeton University Press. ISBN 978-0-691-19698-5.
  6. Tushnet, Mark (2020-07-03). Taking Back the Constitution: Activist Judges and the Next Age of American Law. Yale University Press. p. 250. ISBN 978-0-300-24598-1.
  7. Board, United States National Labor Relations (2014). Decisions and Orders of the National Labor Relations Board. National Labor Relations Board. ISBN 978-0-16-094806-0.
  8. "Adrian Vermeule Reviews "A Republic of Statutes: The New American Constitution" | New Republic". perma.cc. Retrieved 2025-06-30.