The People's Constitution
47 Pages Posted: 19 Aug 2004
In his recent book, "The People Themselves," Larry Kramer attacks the doctrine of judicial supremacy - the notion that the judiciary's understanding of the Constitution is supreme over that of Congress, the President, or the People. Instead, Kramer subscribes to a view called "popular constitutionalism," which posits that the People, not the courts, are the ultimate guardians and expositors of the Constitution. While Kramer does respond to modern theoretical claims in favor of judicial supremacy, Kramer's argument is first and foremost historical in nature, demonstrating that, until the Warren Court era of the 1960's, the nation was committed to popular constitutionalism.
In this review of his book, I assess both the historical claims in favor of popular constitutionalism and the normative conclusions that Kramer draws from American constitutional history. As a historical matter, I attempt to show that popular constitutionalism was not a static conception of constitutional government during the late-eighteenth and early nineteenth century; rather, during that time - when the practice of judicial review was instantiated - Americans' understanding of constitutionalism evolved in ways that rendered popular government and judicial review less antagonistic to one another than was originally supposed.
Moreover, as a normative matter, I question the relevance of the historical ascendance of popular constitutionalism to the modern debate surrounding the proper role of the judiciary in our constitutional government. I posit that the nation may be better off with a system in which the judiciary occupies a privileged but nonsupreme interpretive position. James Madison came to endorse such a role for the judiciary late in his life, and modern considerations regarding the need for constitutional stability and interpretive excellence similarly caution against treating the judiciary as no better than any other political agent in implementing our constitutional commitments.
Keywords: Judicial review, popular constitutionalism, Marbury v. Madison
JEL Classification: K40
Suggested Citation: Suggested Citation