Defining 'Popular Constitutionalism: The Kramer versus Kramer Problem
Southern University Law Review, Forthcoming
40 Pages Posted: 15 Feb 2014 Last revised: 9 Apr 2014
Date Written: April 9, 2014
Scholars of the American legal system use the term “popular constitutionalism” with considerable frequency. Ironically, as the usage of the term ballooned in the first decade of the twenty-first century its utility diminished. It came close to being a catchall phrase made to mean anything its user wanted it to mean. Drawing upon data we collected about the usage of the term in law journal articles published since 1980, we charted the temporal changes in legal academic usage of “popular constitutionalism.” We then analyzed some of the consequences of those changes for the traditional understanding of “popular constitutionalism” – paying particular attention to one recent and ongoing effort to reinvigorate the concept of “constitutionalism” (as distinct from “constitutional law”).
That traditional understanding takes as the central animating principle of “popular constitutionalism” “the idea that ordinary citizens,” rather than the courts, “are our most authoritative interpreters of the Constitution.” Under this approach, courts should not have “normative priority in the conversation” about the meaning of the U.S. Constitution. Challenges to interpretive judicial supremacy have always existed, but they enjoyed a mini academic revival in the late 1990s and early 2000s, in no small part because of the “popular constitutionalism” writings of Larry Kramer – in particular his acclaimed 2004 book The People Themselves.
Our data show a dramatic increase, between 2004 and 2006, in the number of law review articles that include substantive discussions of “popular constitutionalism” – an increase we show to be largely attributable to the influence of Kramer’s work. However, the data also evidence a precipitous decline in the percentage of “popular constitutionalism” articles that are actually employing the traditional anti-judicial supremacy understanding of that term (even though the majority of their authors claim that they are discussing ‘popular constitutionalism according to Larry Kramer’).
This is the result of what we term the Kramer versus Kramer problem – Professor Kramer’s failure, in his most popular “popular constitutionalism” writings, to employ a clear and consistent theory. Instead of adhering to a simple, objective definition that takes aim at judicial supremacy, Kramer is too easily distracted by judicial supremacy that takes the form of court decisions with which he ideologically disagrees. This definitional inconsistency has enabled other law professors to pen articles overusing and under-defining “popular constitutionalism” – for a term by any other name is neither as sweet nor as popular.
Keywords: legal theory, popular constitutionalism, constitutionalism, Larry Kramer, law reviews, judicial supremacy
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