The People Themselves: Popular Constitutionalism and Judicial Review (review)

In The People Themselves, Larry D. Kramer presents as complete a critical analysis of the principle of judicial review as one may find. His description of the development of judicial review spans the history of the United States. He begins with a discussion of the early English constitutional experience. This allows him to construct the paradigm carried through the book: the U.S. Constitution was established as a "customary constitution," a system in which the people were capable of constitutional interpretation. This customary constitution, he points out, was reflected in the idea of popular sovereignty that gained prominence among citizens of the new nation in the period immediately following the Revolution.

He then proceeds to the drafting and ratification of the Constitution. He reviews the primitive roots of judicial review as it developed in the 1780s with the writings of such figures as Supreme Court Justice James Iredell, who stated clearly the right of judges to declare void laws contrary to a state's constitution. But such statements, Kramer argues, were quite distinct from what we know as judicial review, so that in 1787, as the Framers began work on the U.S. Constitution, the principle of judicial review was still, at best, fuzzy. In Kramer's view, the language of the Constitution did not clarify the role of judicial review. There is little evidence that the delegates to the ratifying conventions had any clearer a vision than the Framers of judicial review as a power inherent in the judicial branch of the proposed government.

Popular constitutionalism evolved further with the development of the first political parties. The early Courts of the 1790s viewed judicial review "as a 'political-legal' act on behalf of the people, a responsibility required by their position as the people's faithful agents" (98). In the throes of the battles between the Federalists and Democratic-Republicans, Marbury v. Madison established the power of the Supreme Court to determine the constitutionality of federal law, but in this case, Kramer points out, the Court did not claim that this power was unique to the Court. In the years that followed, departmentalism—the belief that each branch of government had the right to decide the constitutionality of a law—came to dominate public political discourse. Presidents Thomas Jefferson, Andrew Jackson, and Abraham Lincoln advocated this theory.

The advancement of judicial review/judicial supremacy was seriously challenged in the mid-nineteenth and early twentieth centuries. The High Court's infamous decision in Dred Scott v. Sandford brought a staunch rebuke by northern newspapers that questioned the right of the Court to usurp the rights of the other two branches as well as of the people to make this decision. During the Progressive Era, Kramer points out, the Supreme Court has most often been depicted as promulgating the interests of corporations and the wealthy while disregarding popular opinion. These actions brought a stern warning by President Theodore Roosevelt that "if the people are not to be allowed finally to interpret the fundamental law, ours is not a popular government" (216).

Moving to the New Deal, Kramer points out that the Court fashioned a "settlement." In regard to claims that legislative enactments were void because Congress lacked authority to act, "the determination of constitutionality was left for Congress and the Executive to make, subject only to a highly deferential 'rational basis scrutiny' in the courts" (219). In reference to violations of personal freedoms, however, the Court maintained an active level of scrutiny. The terms of this settlement, Kramer concludes, remained intact until the mid-1990s.

Embedded in the historical narrative of this work are two themes. First, the modern concept of judicial review was not the intent of the Framers, but the result of a historical development that included such interpretations as "departmentalism" and the New Deal bifurcated system of judicial review. The second theme is his dominant one: that a significant level of tension has existed...