Limit or License in Constitutional Adjudication?

Although American judges typically deploy history in a way that seems to deny them agency in answering constitutional questions, this chapter argues that history sometimes can operate as a license for, rather than a limit to, the exercise of judicial agency. The chapter then explains why this does not mean that judges have license to ‘legislate from the bench.’ It does so by arguing that constitutionalism is best understood as a social practice that calls for the exercise of shared agency by its many participants, which itself is constituted by several norms that discipline those participants. Under the shared agency account developed here, judges, along with many non-judicial actors, properly exercise ‘bounded agency’ when deciding constitutional questions that history reveals have not yet been resolved. Bounded agency is the golden mean between unrealistic agency-denial, on the one hand, and problematic legislating from the bench, on the other. A shared agency account of constitutionalism also provides many other penetrating insights into the practice of constitutionalism.