- The People Themselves: Popular Constitutionalism and Judicial Review
In December of 2000, amid discussions of hanging chads, voter disenfranchisement, and a failed political process, the Supreme Court of the United States stepped into the presidential election and pronounced George W. Bush the 43rd President of the United States. Larry D. Kramer's important work, The People Themselves: Popular Constitutionalism and Judicial Review, highlights the Court's decision in Bush v. Gore to illustrate how far we have strayed from the origins of American constitutionalism. Bush v. Gore, Kramer argues, is evidence of an overreaching judiciary and a passive citizenry, both of which would have deeply troubled the founders of American democracy.
The People Themselves is an impressive work of revisionist history. Kramer argues that modern scholars misunderstand the founding and fail to appreciate the very active and primary role of "the people" in American constitutionalism. Instead, he explains, scholars read the founders anachronistically and assign undue significance to their concerns about popular majorities, which results in a misreading of American constitutionalism that minimizes the role of the people. Although this version of history is widely circulated today, Kramer insists that the modern account fails to reflect the original understanding of constitutionalism or its lived meaning throughout most of American history.
The People Themselves retells the story of American constitutionalism with the purpose of straightening out the history and repositioning the people as [End Page 149] the true guardians and interpreters of the United States Constitution. Kramer begins by detailing seventeenth and eighteenth century usages of the word "constitution" and by fleshing out the lived experience of the colonists with a customary constitution. Chapter 1 introduces a wealth of evidence to convincingly demonstrate that constitutional law in America, from the very beginning, was distinct from ordinary law and the courts, and that constitutional law was fundamentally conceived as a tool of the people to regulate and restrain the government. Constitutional interpretation and enforcement were the responsibilities of the community. It is within this context, Kramer stresses, that American constitutionalism developed after the Revolution.
The next three chapters discuss the origins of judicial review, the struggle of the founding generation to articulate a clear role for the courts, and the eventual acceptance of judicial review. A host of primary voices reveal that the early practice of judicial review was significantly more restrained than the judicial practice today. Kramer explains that the modern practice of turning constitutional interpretation over to judges would have simply been unthinkable to the founding generation. He writes, "infused with Revolutionary fervor, the new American understanding of constitutionalism was active, reformist, optimistic, and progressive. In short, the customary constitution metamorphosed into something that could, for the very first time, truly be called a popular constitution" (56). Kramer revisits key voices that he argues have been misinterpreted by modern scholars to grant undue scope and authority to early judicial review. Justice Chase and Justice Iredell's debate in the 1798 case of Calder v. Bull and Madison's oft-quoted arguments in Federalist 49–50 are three of the many voices recontextualized. These chapters reveal that while judicial review gradually emerged as an accepted practice, it did not mean that the Court was also deemed the final voice of interpretive authority. In this culture of popular constitutionalism, the acceptance of judicial review only meant that it was the judiciary's responsibility, as agents of the people, to refuse the enforcement of unconstitutional law.
The persistent struggle between popular constitutionalism and judicial authority is the focus of the final chapters. Kramer tells us that throughout history, each play for judicial supremacy was answered and denied by the voice of the people. The aggressive judicial power that exists today, Kramer's version of history reveals, emerged only in the last few decades. The People Themselves details changing conditions in the American political, legal, and social landscape that aided the gradual development of judicial supremacy. The assimilation of constitutional law into ordinary law, the dissolution of popular politics into party politics, and the growing diversity...