How do these statutes become super? Eskridge and Ferejohn posit a causal sequence. A political entrepreneur puts a problem on the public agenda, in many cases by mobilizing a popular movement that grabs the attention of incumbent politicians. Opponents predict disastrous consequences or condemn the proposal as inconsistent with “core national commitments.” A process of political argument unfolds, eventually producing a statute whose supporters are temporarily riding high in the saddle. But the statute becomes super only over the course of subsequent years, if confirmed and expanded by further rounds of political action. New legislation that reaffirms the statute’s central principles, or (even more likely) administrative interpretation monitored by judges and congressional committees, may effectively cement the statute in the working constitution.Vermeule is skeptical, and plausibly so, of the book's criteria for what is a superstatute: "entrenchment" raises more questions than it explains. If difficulty of repeal is the measure, is the home-mortgage tax exemption any less "entrenched" than Social Security or Title VII? Perhaps, but on what theory?
Myself, I think of Quine's "web of belief" in this context, with a law's being more or less "constitutional" corresponding (ha!) to a belief's being more or less "true." But that's not much help analytically. (On that theory, the deepest "truth" of American law would be equal suffrage in the Senate.)
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