The People Themselves: Popular Constitutionalism and Judicial Review

by Larry D. Kramer

In this groundbreaking interpretation of America's founding and of its entire system of judicial review, Larry Kramer reveals that the colonists fought for and created a very different system--and held a very different understanding of citizenship--than Americans believe to be the norm today. "Popular sovereignty" was not just some historical abstraction, and the notion of "the people" was more than a flip rhetorical device invoked on the campaign trail. Questions of constitutional meaning provoked vigorous public debate and the actions of government officials were greeted with celebratory feasts and bonfires, or riotous resistance. Americans treated the Constitution as part of the lived reality of their daily existence. Their self-sovereignty in law as much as politics was active not abstract.

Genres: Law, History, Politics, Nonfiction, Public Policy, School, American

363 pages, Paperback

First published May 1, 2004

Reviews

[Alex Kurtz · Rating 5 out of 5]

I began reading this book to answer a simple question: What would this left-leaning legal scholar, whom I had heard discussing the problems with judicial supremacy on Ezra Klein’s podcast several years earlier, think about the Trump administration’s threats to disobey the Court? Would he stick to his departmentalist guns, even in the face of what many viewed as a looming constitutional crisis? Or would he insist that this was no crisis at all, but rather the proper functioning of our democratic government, with each branch staking out a position and any disputes to be resolved via inter-branch negotiations or, failing that, via public opinion or voting on the part of “the people themselves”?

Searching the internet was a futile exercise. Kramer had no recent op-eds or active Twitter presence, had taken emeritus status at Stanford and was seemingly enjoying a peaceful semi-retirement overseas. I also was unable to find any evidence of other left-wing legal scholars advocating departmentalism in the face of Trumpian shenaningans. As a result, I turned to the only source I could: his 2004 book.

I finished this book thinking about another proposition entirely: Congress must be reinvigorated. This is one area where Larry Kramer agrees with many legal scholars on the right. The key question, though, in light of the limp state of Congress today, is how to revive it? The legal right offers one answer: originalism. Sticking to the original public meaning of the Constitution (and statutes), in their view, pressures Congress to change the law if the public doesn’t like it (because the courts won’t do it for them). Kramer, from the left, offers a different answer: reject judicial supremacy. In his view, downgrading the Supreme Court’s influence on constitutional questions from supremacy to trusted advice would both allow and incentivize Congress to once again take up the most important questions.

To answer the Trump question, then, Kramer would most likely say that it is up to Congress to oppose unconstitutional executive actions (and, failing that, for the people to express their displeasure—if they have any). Originalists in the Federalist-Society mold may disagree with that specific prescription, but they might well agree with his diagnosis as a whole. On the need to resuscitate Congress, both the Ezra Klein Show and the Advisory Opinions podcast are in accord. (As is the Federalist Society: its most recent student conference was on the topic of “Congress: Reviving the Impetuous Vortex.”) In the end, despite my 1790s-style Federalist tendencies, I found myself increasingly convinced that Kramer, like his rightwing counterparts, may be right. Perhaps the judiciary needs to cede some authority so that the legislative branch can start to do its job.

[Spencer · Rating 3 out of 5]

3.5

[Rachel · Rating 2 out of 5]

There are a number of historical inaccuracies and/or logical extensions that border on the absurd. It's a well-crafted book, but the argument is flawed (to say the least)

[Logan Markle · Rating 5 out of 5]

A book that elucidated the origins of judicial supremacy - the notion that the judiciary gets the final say on constitutional interpretations. I learned, once again, that a large percentage of my thinking is simply a product of my time. Though I read this book as a source for a paper I’m working on, this offers historical support to better understand the ongoing “constitutional crisis” we’re facing today under President Trump.

Long past are the days of Jefferson’s departmentlist view of co-ordinate branches, equally entrusted with interpreting the Constitutional, all subject to consent of the governed. Long past are memories of President Lincoln ignoring the Court’s despicable Dred Scott v. Sandford. Long past are memories of President Jackson’s supposed statement, “John Marshall has made his decision; now let him enforce it.”

This book advocates for equality amongst the branches as constitutional interpreters, with the people themselves as the final authority. While this sounds contrary to modern understandings of checks and balances, I think it actually holds up to scrutiny and reveals that our supposedly weakest branch acquired too much power.

Fun fact: Kentucky at one point had TWO Supreme Courts for two years as the state legislature tried to abolish the existing Court for invalidating a popular state law. People used both Courts as no one was quite sure which was valid. It took two election cycles for the state legislature to finally disband the newer one and reaffirm the old one.

[Soren Schmidt · Rating 4 out of 5]

A thoughtful and very important reminder, though at moments the historical evidence seems a bit one-sided and/or stretched.

[Steve Mayer · Rating 3 out of 5]

Who has the final word on what the Constitution? Most people would say, "the Supreme Court," without thinking much about it. Larry Kramer's mission is to remind us that, throughout most of American history, the People have had the last word in matters of constitutional interpretation. Or, at least, they were supposed to have the last word. Unfortunately, Kramer focuses far too much on the Founding and the decades immediately following, while glossing over the last 150 years with a pretty light touch. Moreover, Kramer strains to prove that any of this matters very much. He concedes that courts don't get into political trouble very often and that the political weapons that citizens and the political branches can use to circumscribe the Court are blunt weapons. However, we may be in one of those ages where these issues will ripen. Between Citizens United on the left, and same-sex marriage on the right, the Court may soon have fewer friends. Certainly its baneful impact on the political process deserves a forceful riposte, but since its decisions create political winners, as well as losers, it is hard to see how the People will make their views known.

[Shad · Rating 4 out of 5]

This book is exceptionally informative and well-reasoned. He convincingly demonstrates that the prevalent view of the history of judicial supremacy is inaccurate in that the Founding Fathers (and their children, and their children's children, as Kramer puts it) did not accept the idea of judicial supremacy and actively fought it whenever and wherever it appeared. His call to arms to embrace our duties as citizens and "the people themselves" is inspirational and should be answered.

[Andrew · Rating 4 out of 5]

Overall, a solid book. The historical underpinnings of judicial review are well researched. Kramer gets a little shaky on the modern day acceptance of judicial review, however. His link between the popular constitutionalism of the early republic to the acquiescence to judicial review today is weak, because popular constitutionalism does not play an active role in our civic lives any more (for better or worse, you decide).

[Melindita · Rating 4 out of 5]

Interesting study of how "the people" are meant to be part of the Constitution at work. Great story about a crowd stoning Hamilton on Wall Street when he suggested that the President had power to issue executive orders without review by the Congressional representatives of the people.

[Jim Goldsmith]

The law is to be the sole domain of elitists judges. Our constitutional framework's simplicity is such that each and every American should be able to understand and apply its principles.

[Dana Powers · Rating 5 out of 5]

Must read for anyone interested in constitutional democracy and the rule of law.