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

If ever a book earned the much-abused term "relevant," Kramer's history of how people in the United States (and its British colonial antecedents) conceived of their "constitution" is it. Written in the aftermath of the contested 2000 presidential election in which nobody, it seems, questioned the undisputed right of the Supreme Court to be sole and final arbiter of what the law was and what the Constitution meant, Kramer presents a historical case to show the utter novelty—ironically, the radical and utterly anticonservative stance of a Court supporting an administration both of which have been mislabeled conservative—of this idea. Until the 1960s and 1970s, "popular constitutionalism" held sway; the Supreme Court was considered an important, but by no means the final and only, judge of which laws conformed to the Constitution. The change came—another irony here—when liberals pleased by the activism of the Warren court argued that the Supreme Court could trump states' rights, laws, and customs in furthering human rights. What they did not realize is that they would be hoisted with their own petard if the Court became conservative.

Kramer begins with a thorough account of how colonial and revolutionary Americans envisioned multiple components and interpreters of an amorphous Constitution. British statute and custom, colonial statute and custom, and certain "fundamental" edicts such as the Magna Carta were all part of a Constitution in which true Britons gloried because—almost uniquely in the world—it preserved liberty. Theoretically speaking, the American Revolution was a reaction against the Mother Country's new idea—advanced by Blackstone—that Parliament was both the supreme legislator of something called an "empire" and the supreme interpreter and enforcer of its laws.¹

The idea that judges, rather than legislators or "the people themselves," were the supreme legal interpreters arrived circuitously. From the 1790s until President Franklin Roosevelt denounced the Supreme Court for declaring New Deal legislation unconstitutional, it was generally accepted that "the people" and their representatives held a responsibility and expertise for interpreting the Constitution at least equal to those of the Court. Unpopular decisions (Chief Justice John Marshall's Court protecting the Cherokees from removal by the State of Georgia in the 1830s, or Dred Scott nullifying the Missouri Compromise and legalizing the movement of slaves into free states) were overruled by President Jackson and an enraged northern populace, respectively.

The notion of judicial supremacy emerged gradually. Some of the Founding Fathers tentatively broached the notion when challenged by their adversaries to determine the final arbiter of the law, but even they insisted that the people had the right to change the structure of the courts via their legislators if they chose. (Unfortunately, constitutional niceties are rarely priority issues, although they seem to have been when the Federalists who passed the Alien and Sedition Acts in 1798 to restrict freedom of speech were overwhelmingly repudiated at the polls in the next election.) Rather, the legal profession, with its casebooks that regarded law as the shedding of irrelevant decisions and concentrating on supposedly crucial ones—institutionalized in law schools that trained most of the judges—offered an elite alternative to popular constitutionalism which is now so widely believed that almost no one questions that "the law is what the judges say it is."

Kramer does question this point, and brilliantly so, from a historical perspective. He encourages us to think deeply about what the United States Constitution really is, and why a supposed democracy has surrendered ultimate power to nine politically appointed individuals. By showing that history, rather than the Founders or the Constitution itself has shaped such a process, he should earn the gratitude of all concerned citizens and glory in the wrath of the Supreme Court and its champions.