Michael Serota (UC Berkeley- School of Law) has posted Popular Constitutional Interpretation (Connecticut Law Review, Vol. 44, No. 2, 2011) on SSRN. Here is the abstract:
Over the last decade, the theory of popular constitutionalism has gradually become one of the most important developments in American jurisprudence. By trumpeting a more pronounced role for the public in the constitutional decision-making process, popular constitutionalists hope to reestablish the connection between the American people and their Constitution. One strand of popular constitutionalism - what I call popular constitutional interpretation - would go so far as to transfer final interpretive authority over the Constitution from the Supreme Court to the public. The questions left unanswered, however, are whether "the people" could faithfully interpret the Constitution, and relatedly, whether the outcome of popular constitutional interpretation would be normatively desirable.
This Article answers both of these foundational questions by analyzing contemporary research in psychology and political science. Conceptualizing a functional system of constitutional adjudication as requiring interpreters to demonstrate fidelity to the Constitution’s text, I argue that the people must possess a set of traits I label "interpretive competence" in order to maintain the Constitution’s integrity in such a system. Given that such competence is currently lacking, I argue that popular constitutionalists must turn to institutions of civic education - and to the civic curricula of the eighteenth and nineteenth centuries - to cultivate the people’s interpretive competence.