Honors Program


Date of this Version

Spring 2024

Document Type



Hole, N. 2024. Constitutional Interpretive Authority: The Evolution of Judicial Supremacy & Popular Constitutionalism After Dobbs. Undergraduate Honors Thesis. University of Nebraska-Lincoln.


Copyright Natalie Hole 2024.


For the first two hundred years of American history, a tension permeated constitutional law. The United States spent centuries debating who had interpretive authority of the Constitution. Yet, even before the country had a constitution to interpret, a strong camp of theorists and legal scholars believed that the people and their representatives reserved the right to final interpretation. One prominent theorist of popular constitutionalism, Mark Tushnet, theorizes that returning interpretive authority to the people and their representatives is more effective in advancing social causes, like abortion rights, in comparison to relying on the courts. Nearly two decades later and theorists need not wonder what popular constitutionalism could do for the pro-choice movement.

This paper compares Tushnet’s theory about returning interpretive authority of abortion rights to the people and their representatives in a post-Dobbs v. Jackson Women’s Health Organization world. State level legislation, elections, and referendums in response to Dobbs are used as measures of popular constitutionalism. This paper argues that legislative and electoral behavior support Tushnet’s theory about abortion rights and his overall argument that abortion rights are a winning issue for the Democratic Party. Further, this analysis extends this theory, arguing that referendums and ballot initiatives are the most direct form of popular constitutionalism and have thus far provided unanimous support for abortion rights regardless of demographic political majority.