Why should one be interested in the question of whether nonjudicial actors have incentives to interpret constitutions reasonably well? Primarily, because some answers to that question would alleviate some well-known tensions between constitutionalism and democratic self-governance. Constitutions deprive contemporary majorities of the power to do what they want to do and are, in that sense, antidemocratic. Enforcement of constitutional restricts on self-governance by judges removed from direct democratic accountability poses the equally well-known countermajoritarian difficulty. The tension between constitutionalism and self-governance and the countermajoritarian difficulty would be substantially reduced if nonjudicial actors had incentives to interpret the constitution, and were at least as good as judges at doing so. We could get the benefits of constitutionalism and self-governance were the constitution's primary interpreters nonjudicial actors who did a reasonably good job of interpretation.

This chapter examines two questions that arise in considering the role of nonjudicial actors in constitutional interpretation, in nations with constitutional systems fairly characterized as having been democratic for some reasonable period. First, what is the standard against which that role should be measured? Analyses typically examine how legislatures go about interpreting constitutions or measure how well they interpret, with reference to how courts interpret constitutions. I argue that a court-based standard is inappropriate, and offer a constitution-based standard instead. Second, what incentives do nonjudicial actors and judges have to engage in constitutional interpretation with reference to the constitution-based standard?