The People or the Court: Who Reigns Supreme, How, and Why?
4 Journal of Law (1 New Voices) 31 (2014)
19 Pages Posted: 31 Mar 2014 Last revised: 16 May 2014
Date Written: October 29, 2013
This Paper considers the normative and descriptive claims, proposed frameworks, and fundamental flaws in Barry Friedman’s "The Will of the People" and Larry Kramer’s "The People Themselves". Both authors endorse The People, rather than the Supreme Court, as the ultimate arbiters of constitutional meaning. Their historical narratives, however, could hardly clash more sharply: Friedman argues that The People seized their current authority to direct the Court, whereas Kramer argues that The People abdicated that authority after initially reigning supreme. In short, where Kramer sees a sharp decline in The People’s influence, Friedman sees a steady increase. To Kramer, today’s Court determines constitutional meaning. To Friedman, The People still reign supreme.
Descriptive conflicts aside, Friedman and Kramer both fail to adequately construct a workable framework to facilitate their popular constitutionalism. Specifically, neither sufficiently defines who constitutes The People nor what, if anything, constrains the substance of popular will. Even a Court dedicated to their normative ideal would have little clue how to proceed.
Finally, both suffer fundamental flaws. Kramer lacks the very faith he promotes. He grounds his normative ideal in The People’s trustworthiness. He urges The People to have enough faith in themselves to reclaim constitutional authority. Yet, he refuses to trust the decision The People already made — the decision to delegate some constitutional authority to the Court. Where Kramer lacks faith, Friedman lacks uncommon insight and persuasive evidence. His claim that the Court generally serves majoritarian ends is not new and should not surprise us. After all, justices only ascend to the Court by surviving a fundamentally majoritarian process. He then claims, but fails to persuasively demonstrate, that The People established and enforce the Court’s majoritarianism by threatening discipline and violent upheaval.
Keywords: Supreme Court, popular constitutionalism, popular rule, popular sovereignty, judicial activism, judicial review, constitutional law, constitutional interpretation, countermajoritarian, countermajoritarian dilemma, Barry Friedman, The Will of the People, Larry Kramer, The People Themselves
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