47 Pages Posted: 31 Mar 2005
Larry Kramer has written an awesome book, and we mean awesome in its original and now archaic sense. The People Themselves is a book with the capacity to inspire dread and make the blood run cold. Kramer takes the theory du jour, popular constitutionalism (or popular sovereignty), and pushes its central normative commitments to their limits. The People Themselves is a book that says boo to the ultimate constitutional authority of the courts and hooray to a populist tradition that empowers Presidents to act as Tribunes of the People and has even included constitutional interpretation by mob. Along the way, Kramer offers a rich and powerful interpretation of American constitutional history, exposing ideas that have long been submerged, and stimulating a fundamental reappraisal of the contemporary ascendancy of the United States Supreme Court as the ultimate and final expositor of constitutional meaning.
This Review offers a critical assessment of The People Themselves. In Part II, we provide a brief recapitulation of the main themes of The People Themselves, tracing the story of popular constitutionalism from before the Revolution through the founding era to the present day. We then undertake in Part III a careful examination of Kramer's central concept by answering the question, What is popular constitutionalism? From analytic reconstruction, we move to normative assessment in Part IV, which states the case in favor of judicial supremacy and against popular constitutionalism. In Part V, we conclude this Review with observations about the paradoxical nature of Kramer's discussion of popular acceptance of judicial supremacy and an observation about the value of The People Themselves: Kramer's book makes an important contribution to constitutional theory by pushing the idea of popular constitutionalism to its limits.
Keywords: constitution, popular constitutionalism, legitimacy, popular sovereignty, democracy
Suggested Citation: Suggested Citation
Alexander, Larry and Solum, Lawrence B., Popular? Constitutionalism?. Harvard Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=692224
By Larry Backer