Judicial Popular Constitutionalism

Abstract

In this Book Review, I explore the relationship between Bruce Ackerman's "We the People: The Civil Rights Revolution" and the theory of popular constitutionalism. Although not generally labeled a popular constitutionalist, Ackerman was an important forerunner of the movement, urging scholars to look outside both the courts and the formal constraints of Article V to find the real story of constitutional change in the United States. Perhaps the most enduring criticism of popular constitutionalism is that the theory offers little guidance to judges looking to decide constitutional cases. Ackerman's new volume provides a useful starting point for building a robust account of (what I call) judicial popular constitutionalism. Both Ackerman and the committed popular constitutionalist begin with a shared premise. Whenever the American people speak, judges should listen. However, whereas Ackerman limits periods of genuine popular sovereignty to a few pivotal decades in American history, the popular constitutionalist is open to following the American people's constitutional commands on a more consistent basis. Importantly, this Book Review provides the popular constitutionalist with some methodological tools for doing so.

Keywords: popular constitutionalism, judicial review, institutional reform, constitutional law, Ackerman, constitutional change, constitutional construction