Popular constitutionalism: The new living constitutionalism

• DOI: https://doi.org/10.1016/S1059-4337(08)00803-X
• Published date: 06 May 2008
• Date: 06 May 2008
• Pages: 73-105
• Author: George Thomas

POPULAR CONSTITUTIONALISM:

THE NEW LIVING

CONSTITUTIONALISM

George Thomas

The new assertion of popular political power and responsibility is not equivalent to the

substitution of democratic absolutism for democratic constitutionalism. Constitution-

alism necessarily remains; but the constitutions are instructed frankly to the people

instead of the people to the constitutions.

– Herbert Croly, Progressive Democracy

We live in peculiar times. Pleas for judicial restraint have become

ubiquitous as both the left and the right accuse the Court for engaging in

judicial activism. And yet they do so, at times, in near oblivion of one

another. Thus Dean Larry Kramer of the Stanford Law School can write:

‘‘Outside the liberal academy and the ever shrinking liberal wing of the

Democratic party, yit may simply be that no one thinks the Rehnquist

Court is doing anything all that wrong’’ (Kramer, 2004, p. 230). But the

conservative journal First Things – to take but one very clear example – had

years earlier organized a symposium on ‘‘The End of Democracy? The

Judicial Usurpation of Politics’’ that criticized the Rehnquist Court for

doing much wrong (First Things, 1996; see also Wolfe, 2004). Many of the

essays did so, moreover, in a manner that could find common cause with

elements of Dean Kramer’s call for popular constitutionalism as he insisted

that the Court ‘‘is ultimately supposed to yield to our judgments about what

the Constitution means and not the reverse’’ (Kramer, 2004, p. 248).

Special Issue: Constitutional Politics in a Conservative Era

Studies in Law, Politics, and Society, Volume 44, 73–105

Copyright r2008 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1016/S1059-4337(08)00803-X

73

Kramer even issued a democratic call to arms: ‘‘The Supreme Court has

made its grab for power. The question is: will we let them get away with it?’’

(p. 249). Kramer’s question echoes Robert Bork’s insistence in First Things

that the Court was becoming our ‘‘judicial oligarchy.’’ It might also find

common cause with a one conservative scholars’ more tempered contempla-

tion of ‘‘constitutional resistance’’ to judicial supremacy (Stoner, 2006), or

another’s lament that more and more the Court was ‘‘removing from the

arena of public deliberation questions that were once thought to be at the

center of our public lives’’ (Wolfe, 2004, p. 4).

The seeming agreement does not end here. Indeed, what is most

remarkable about the new wave of scholarship on popular constitutionalism

is that it is often expressed by left of center scholars who have come to

embrace positions that, only a decade or two ago, were deemed a threat to

the very notion of constitutionalism by many on the left. This suggests that

criticism of judicial supremacy was not a passing fancy aimed at the Warren

Court, but like original meaning, has taken solid root in ways that cannot be

easily characterized as left or right (Thomas, 2008;Balkin, 2006). And yet

left critics of the Court and right critics of the Court, not surprisingly, take

issue with different opinions, with the former focusing on the Rehnquist

Court’s opinions such as United States v. Lopez and the latter on its

opinions in cases such as Planned Parenthood v. Casey, even though they

now do so using a common vocabulary. This tension is indicative of our

current constitutional order.

This chapter explores the discontinuities in the current constitutional

order as both conservatives and liberals insist on ‘‘taking the Constitution

away from the Court.’’ It does so by focusing on the turn to popular

constitutionalism by prominent liberal legal scholars, illustrating how

elements that were most prominently associated with conservatives have

been used to criticize and even hold at bay aspects of a potentially

conservative constitutional vision. In fact, popular constitutionalism shares

many of the features – as do calls for judicial minimalism – that were

expressed in conservative critiques of the Warren Court. Yet left

constitutional scholars have turned to these very features to prop up the

legacy of the Warren Court against its conservative critics. The turn to

popular constitutionalism is a result, I suggest, of popular constitutionalists’

position in ‘‘political time’’ – that is, after Ronald Reagan’s 1980 election

and subsequent conservative electoral victories which sparked a debate

about constitutional fundamentals that shapes our current constitutional

discourse (Skowronek, 1993;Busch, 2006). Not only has the character of

national politics changed, but this has included a change in our

GEORGE THOMAS74

constitutional thought and culture, particularly in the kinds of constitu-

tional arguments that are viably put forward.

While popular constitutionalism is part of a broader scholarly turn in

constitutional theory which has happily gone beyond the Court in

examining the contours of American constitutionalism, popular constitu-

tionalists have drawn on these elements to insist upon the terms of

progressive and New Deal constitutionalism as the equivalent of a ‘‘new’’

Constitution or a foundational ‘‘settlement.’’ If conservatives challenged the

‘‘liberal order’’ of the Warren Court years and the New Deal ‘‘break-

through’’ on some issues, liberals have sought to preserve this order against

what many of them deemed a conservative or ‘‘collaborationist’’ Court

(Tushnet, 2006). But, as the prominent conservative critiques of the Court

indicate, the Rehnquist Court has been ‘‘liberal’’ as often at it has been

‘‘conservative’’ (Wolfe, 2004, pp. 1–3;Nagel, 2001).

1

In fact, arguments

about the Rehnquist Court, and now the Roberts’ Court, are often proxies

for arguments about the continued legitimacy of the New Deal break-

through.

Yet, in defending the New Deal order these scholars have attempted to

merge the Great Society and the Warren Court as natural developments of

the New Deal, which might be best seen as attempts to prop up a fractured

constitutional order, uneasily pushing it in new directions, while holding

conservative constitutional understandings at bay. In a curious inversion, I

argue that left liberal defenders of the New Deal order have already broken

with parts of its legacy, while conservative critics of the Court adhere to

elements of the New Deal breakthrough. To some degree, both liberals and

conservatives remain plagued by the progressive and New Deal preoccupa-

tion with the ‘‘problem’’ of judicial review in a democracy, which has

prevented them from offering a coherent foundation to the Constitution.

2

Given these discontinuities, our constitutional politics cannot be readily

characterized as liberal or conservative. It is not simply that the Court itself

embraces these discontinuities, which may well be why both the left and the

right seek to ‘‘take the Constitution away from the courts’’ at particular

moments. While the Court may reflect the current ‘‘political regime’’

(Tushnet, 2005), such a descriptive understanding does not capture the

particular shape that constitutional arguments – including Supreme Court

opinions – have taken in the wake of the New Deal breakthrough (Keck,

2004, p. 11). Nor does this understanding explain the arguments put

forward by popular constitutionalists

3

in relation to the success of

conservatives in partially altering the constitutional landscape. The

connection between these two is the focus of this chapter.

Popular Constitutionalism: The New Living Constitutionalism 75