The People Themselves: Popular Constitutionalism and Judicial Review

The Constitution of the United States of America is a majestic old document, but in our age of legal realism the common wisdom is that judges do with it what they want. Naturally, then, the primordial public discussion of the Constitution, The Federalist Papers , has also come to seem superannuated, and its words to have lost their initial electric effect. We shrug at Alexander Hamilton’s argument in Federalist 78 that in striking down acts of legislation as unconstitutional, courts are acting as agents of the people, enforcing the people’s deliberate will, expressed in the Constitution, against the contrary will of their elected representatives or even against the momentary inclination of the people themselves.

The virtue of Larry Kramer’s The People Themselves is that it jolts one into reading Hamilton’s contention as literal truth. There really was an American people”an active and organized political community”that made the Constitution, and when judges enforced it by overturning laws, they thought they were vindicating that people, not applying their own theory of judging or of the Constitution. Professor of Law and Dean of Stanford Law School, Kramer has marshaled an impressive array of evidence and has made a thorough survey of modern scholarship to build his case for what he calls “popular constitutionalism” and against judicial supremacy. Judicial supremacy (as distinct from judicial review) is the idea, now widely taken for granted, that the Supreme Court is the sole authoritative interpreter of the Constitution.

By popular constitutionalism Kramer means an arrangement whereby the final arbiter of constitutional meaning is “the people themselves” acting through the elected branches of government. The supremacy of the people was the original understanding, and its replacement by judicial supremacy is at the root of the crisis of constitutional authority in our time.

The opening section of Kramer’s book deserves great praise. Rarely since Edmund Burke’s “Speech on Conciliation with America” in 1774 has the legal dimension of the American Revolution been understood with such precision and presented with such conviction. The colonists’ view of fundamental law may seem confused to us today, familiar as we are with written constitutions, but Kramer shows it to be clear and coherent. Back then, fundamental law was not a written document but a customary constitution, resting on the consent of the governed. It provided “a framework for argument, in which historical accuracy was less important than analogical persuasiveness in maintaining over time an established balance between liberty and power despite new or changed circumstance.” It was interpreted and enforced by the people through the whole range of political action available to colonial subjects, from legislation in colonial assemblies to mobbing in the streets. Precedent mattered when fundamental law was unwritten, for it carried the argument of custom, and so constitutional disputes were enlivened by a recognition that every decision now might be a precedent in the future, and that a false step might open up an erring path.

For all the snide remarks commonly made about “law office history,” only a historian with a lawyer’s eye like Kramer’s could resolve the riddle of the Boston Tea Party, with its destruction of actual goods in the name of property rights. The colonists saw no alternative to destroying the tea on December16, 1773, the nineteenth day after it arrived in Boston, because British laws against colonial re-exportation required either that it be offloaded within twenty days or that customs agents declare it forfeit, seize it, and collect the tax, setting a noxious precedent of unconstitutional payment. In Kramer’s account of the old fundamental law, there was ample precedent for constitutional enforcement by a disciplined mob.

Kramer’s description of the customary constitution is helpful, though not flawless, since the tonalities of natural law”as reality rather than as ideology”are outside his range. This keeps him from grasping the full depth of the unwritten constitution and its subtle relationship to emergent natural rights liberalism, and it leads him to quote or say silly things that might recommend popular constitutionalism to postmodernists but surely not to serious citizens, such as that “government requires make-believe.”

Still, Kramer correctly sees that the Founders deliberately innovated in seeking to establish by their Constitution a written version of fundamental law, and he acknowledges that they were aware that one innovation might beget others as the implications of new choices became apparent. Judicial review of legislation is an example. It emerged in the 1780s as one of a number of institutional devices that allowed the enforcement of fundamental (now constitutional) law within the framework of republican government, rather than enforcement outside government by the mob as in monarchical times. In the first state cases, courts defended property rights against state legislative schemes to degrade the value of money or to confiscate estates. Some immediately viewed with suspicion this effort by judicial power to void unconstitutional legislation, but most eventually accepted the arrangement as serviceable, if circumscribed. It was supposed to vindicate, not replace, the active authority of the people in determining what the constitution is and what it means. The writings of “Publius” (Hamilton, Madison, and Jay) and of many others whom Kramer quotes make it clear that this was the ruling concept.

As others have noted, there is nevertheless tension in the American attempt to put fundamental law in writing and thus to incorporate it in ordinary law. On the one hand, fundamental law becomes less nebulous, more permanent, and more enforceable. On the other hand, the discourse of lawyers comes to form the constitutional vocabulary, and ordinary courts of justice get to determine what constitutions mean and how they are applied. Kramer shows how this practice developed and how it quickly spawned the opinion that not the people themselves but the courts of law and especially the Supreme Court of the United States are principal deciders of what the Constitution means. But he is too committed a partisan to explain the spread of judicial review with equanimity. The battle between the Federalists and the Jeffersonian Republicans is portrayed here as a contest between the forces of evil and the forces of good, and while Kramer is surely right to relate emergent constitutional doctrines to their political sources, his account is still tendentious.

He expounds the logic of what has come to be called departmentalism (the view that each branch has the final say about the meaning of the Constitution in matters within its purview) and he correctly states that popular constitutionalism’s “essence was preserved by the departmental theory,” since it kept the people authoritative over the Constitution through the elected branches. But in his rush to condemn the Federalists as the authors of judicial supremacy, he minimizes the overreaching of those Republicans who claimed that Congress’ determination of the constitutionality of legislation is binding on the courts of law in all cases. He also sometimes misreads as supremacist Federalist complaints that were meant simply to counter Republican arguments of this sovereignty-of-parliament type.

Both Jeffersonian departmentalism and the circumscribed judicial attention to constitutionality defended by Chief Justice John Marshall are, Kramer knows, between these extremes. When he implies that concern about “the tyranny of the majority” was just a slogan when declared by the Federalists and is no more than a slogan today, he goes beyond Jefferson and Madison even at their most optimistic. Did these slaveholders ever forget for a moment that whole societies were capable of systematic wrong?

Once he gets beyond the demise of the Federalists, Kramer can be a bit more magnanimous about claims for judicial preponderance in the matter of reviewing legislation for its constitutionality. He gives a finely calibrated account of Madison’s last writings on the subject (in the age of Jackson and Calhoun)”writings in which Madison recovers the temper he had shown in The Federalist Papers and admits that, “without losing sight . . . of the coordinate relations of the three departments to each other, it may always be expected that the judicial bench, when happily filled, will . . . most engage the respect and reliance of the public as the surest expositor of the Constitution.” President Jackson’s Bank Veto Message of 1832 also gets credit for revitalizing the tradition of popular constitutionalism, and Kramer nicely links this to Van Buren’s theory behind the development of “the Democracy” as a political party that makes effective the will of the people against their persistent enemies.

Then Kramer races across more than a century-and-a-half of constitutional experience. He ignores Calhoun as a serious constitutional thinker, even though Calhoun was concerned precisely with the relation of the people to the Constitution. The Dred Scott decision he treats as a mere aberration even though Chief Justice Roger Taney, who wrote the Court’s opinion, had also been the ghost author of Jackson’s Veto Message. Lincoln’s response to the Dred Scott case he treats as routine, without noting that judicial supremacy was now being defended by its former opponents in the Democratic Party. Finally, he gives an altogether conventional liberal summary of the Supreme Court in the Progressive era, as if the crisis of the Court in the 1930s merely restored the popular Constitution”when it really revolutionized our whole way of thinking about the Constitution. It is a measure of the effectiveness of Kramer’s early chapters that the reader wants much more from him here.

If Kramer had stopped at 1840 he would have written a book impossible to dismiss. As it is, the book is indispensable as an account of popular constitutionalism in its early years, but the later chapters undercut his claim to offer an alternative to judicial supremacy here and now. It is not only that he dashes across the ages when resistance became civil war and judicial review became routine, when the courts became progressive and judicial supremacy came to be accepted by the people. Readers of this journal will also wonder how he can write the following sentence: “Outside the liberal academy and the ever shrinking liberal wing of the Democratic party, . . . it may simply be that no one thinks the Rehnquist Court is doing anything all that wrong.”

Kramer does well to remind us that constitutionalism emerges through the action of political parties, and he knows the difference between disagreement with a specific decision and dissent from the proposition that the Supreme Court nonetheless has the final say. But in overlooking half the serious opposition to the Court on the contemporary scene, Kramer unwittingly shows why judicial supremacy holds trump in a bitterly partisan age. Constitutionalism succeeds when it is accepted as a way to transcend mere partisanship, which only the judges now claim to do. Whether the authority of the people over the Constitution can be restored”and whether there is still widespread consensus among the American people about the meaning and the goodness of their Constitution”are questions raised and left unanswered by this fascinating book.

James R. Stoner, Jr. is Professor of Political Science at Louisiana State University and author most recently of Common-Law Liberty (University Press of Kansas).