Popular Constitutionalism as Presidential Constitutionalism? Some Cautionary Remarks

21 Pages Posted: 13 Mar 2006 Last revised: 23 May 2012

David L. Franklin

DePaul University - College of Law

Abstract

This essay, which focuses on Larry Kramer's book The People Themselves, makes three points. First, although Kramer makes popular constitutionalism the conceptual centerpiece of his book, it's not at all clear what popular constitutionalism is. Kramer's work can be read to embody two very different versions of popular constitutionalism: a populist sensibility model and a departmentalist model. Second, whichever model Kramer has in mind, he has performed a valuable service by reminding us that the meaning of the Constitution is not identical to the doctrines the Supreme Court uses to implement that meaning. Third, popular constitutionalism in 2006 may in practice mean presidential constitutionalism - an outcome that should give us cause for concern. The essay concludes with two brief case studies that illuminate this concern.

Keywords: Constitutional law, popular constitutionalism, executive power

JEL Classification: K10

Suggested Citation

Franklin, David L., Popular Constitutionalism as Presidential Constitutionalism? Some Cautionary Remarks. Chicago-Kent Law Review, Vol. 81. Available at SSRN: https://ssrn.com/abstract=888911

David L. Franklin (Contact Author)

DePaul University - College of Law ( email )

25 E. Jackson Blvd.
Chicago, IL 60604-2287
United States

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