Making Popular Constitutionalism Work
Harvard Law School
November 21, 2011
Wisconsin Law Review, Vol. 2012
Harvard Public Law Working Paper No. 11-29
Popular constitutionalism defies easy definition. Its leading theorists fail to offer a common reading of constitutional history, a common methodology, or even a common set of remedies. Given these diverse approaches, it is little wonder that one recurring complaint among popular constitutionalism’s critics is that the theory itself is incoherent. This criticism is overstated. Even as there are various strands of popular constitutionalism, its leading theorists do share one key attribute, a populist sensibility — a common belief that the American people (and their elected representatives) should play an ongoing role in shaping contemporary constitutional meaning. The question remains how best to achieve this shared goal, while also increasing popular constitutionalism’s normative appeal. In my view, the solution lies in committing to a broad-based agenda of both civic renewal and institutional reform — one that is as focused on the problems of legislative paralysis, incumbent entrenchment, and citizen apathy as it is on the threat posed by an aggressive judiciary. In this Article, I outline such an agenda. In addition, I consider one reform proposal in detail — the public reconsideration of judicial decisions — or, as I shall call it, the “People’s veto.” In the end, I seek to show that one does not have to hold anti-Court views (or unrealistic expectations about the capacities of ordinary citizens) in order to accept that the American people should play a more direct, ongoing, deliberative role in constitutional decision-making.
Number of Pages in PDF File: 36
Keywords: popular constitutionalism, judicial review, institutional reform, constitutional law
Date posted: November 21, 2011 ; Last revised: March 25, 2012
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