The People Themselves: Popular Constitutionalism and Judicial Review.

• Author: Prakash, Saikrishna
• Position: Brief Article - Book Review

THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW. By Larry D. Kramer. New York: Oxford University Press. 2004. Pp. xii, 363. Cloth, $29.95.

Many constitutional scholars are obsessed with judicial review and the many questions surrounding it. (1) One perennial favorite is whether the Constitution even authorizes judicial review. Another is whether the other branches of the federal government must obey the Supreme Court's interpretation of the Constitution and what, if anything, the other branches must do to execute the judiciary's judgments. Marbury v. Madison (2) has been a full-employment program for many constitutional law scholars, including ourselves.

Larry Kramer, the new Dean of Stanford Law School, shares this passion. He has devoted roughly the last decade of his career, with two lengthy law review articles (3) and a half a dozen shorter pieces, to these questions. In these works, he has consistently advanced a two-pronged argument against judicial review and judicial supremacy. First, Kramer has claimed that while the Founders explicitly sanctioned judicial review of state constitutions and laws, they never intended courts to judge the constitutionality of federal legislation. Given the novelty and relative obscurity of judicial review in 1789, the Founders would never have authorized judicial review of federal statutes. Second, Kramer has insisted that rather than crowning the judiciary supreme in constitutional interpretation, the Constitution actually took for granted that the people were the final arbiters of the Constitution's meaning and that they would influence and discipline the federal branches through voting, petitioning, and mobbing.

Kramer has pulled these arguments together, and in some places has extended them, in The People Themselves. His criticisms of the foundations of judicial review remain, but in more muted form. Whereas Kramer has, in the past, adamantly insisted that the Constitution's original understanding does not authorize judicial review, here he makes such comments much less frequently and only in passing, so much so that some readers may erroneously conclude that he has abandoned his earlier position. In toning down his claim, Kramer seems to have learned two lessons: first, that the argument against judicial review is a losing one (as we have argued, the Constitution's text contains numerous indications of judicial review's constitutionality and dozens of founders understood the Constitution to permit courts to review the constitutionality of federal statutes); and second, that the argument against judicial supremacy need not (and should not) rest on a futile assault on judicial review.

The other elements of Kramer's argument--the rejection of judicial supremacy and the celebration of popular constitutionalism--remain pretty much as they were before. Though the arguments may be couched slightly differently and though Kramer exhumes more of the historical record, we do not believe that he has fundamentally altered his claims. For Kramer, the people themselves--not the courts--should decide the Constitution's meaning through the process of voting, petitioning, and mobbing.

We should disclose up front that we have criticized the various incarnations of Kramer's attacks on judicial review. (4) As noted, we believe that the Constitution, properly understood, authorizes federal courts to judge the constitutionality of federal legislation. Even though the Constitution does not explicitly grant state courts the same power, such authority was unnecessary when the Constitution was enacted. (5) Given background presumptions, because the Constitution never forbade state court review of the constitutionality of federal legislation, the state courts could engage in such review.

We share Kramer's view that the Constitution does not crown any branch supreme in the interpretation of the Constitution although we reach that conclusion based on the Constitution itself, not on exogenous theories of politics. We believe that each branch, in the course of exercising its powers, has an equal responsibility to interpret the Constitution and to act consistent with their own reading of it. Judicial review is merely the means by which federal judges implement the Constitution's higher authority in the course of deciding cases or controversies.

Nonetheless, we think that Kramer's arguments, even after his refinements and revisions, suffer from some significant flaws. To begin with, his book, like his previous works, never adequately defines what he means either by "judicial supremacy" or by "popular constitutionalism." One has some general sense, but Kramer never precisely spells out what he favors and what he opposes. Second, by focusing exclusively on history, Kramer misses the significant textual and structural arguments against the notion that the rest of government must obey the judiciary's constitutional interpretations.

By granting the "judicial power" to the federal courts, the Constitution gives the judiciary the authority to decide certain cases and controversies. The courts decide cases by issuing a final judgment. Once issued, the final judgment decides the case once and for all. Because the courts have the judicial power and jurisdiction over cases arising under the Constitution, when they issue final judgments in cases that involve constitutional interpretation, other branches must obey and enforce such judgments.

On the other hand, the judiciary's exercise of judicial power over cases arising under the Constitution does not suggest that the other branches (or anyone else for that matter) must embrace the constitutional interpretations that underlay any particular judgment. A judicial opinion does not command the same authority as a judgment and has no more authoritativeness, so far as the Constitution is concerned, than anyone else's opinion. (6) Other branches can choose to look to judicial opinions in hopes of finding some judicial wisdom and to predict how future judges may decide a similar case, but they need not adopt the reasoning of judges.

Put another way, courts enjoy judgment supremacy--the other branches must enforce the judgments that resolve Article III cases or controversies. For the purpose of finally resolving a case, the judiciary decides who wins and loses, once and for all, even if everyone (save the prevailing party) thinks the courts have gotten it egregiously wrong. Courts lack interpretive supremacy--the power to resolve, once and for all, the Constitution's meaning. The Constitution nowhere requires that the other branches embrace the judiciary's constitutional readings. This was the argument Abraham Lincoln made in response to Dred Scott, (7) and we think Lincoln generally had it right. (8) Even though the political branches must enforce the judiciary's judgments, absolutely no one need obey the judiciary's readings of the Constitution.

What about the people themselves? Though "We the People" established the Constitution and may amend it, the people themselves are not the arbiters of the Constitution's meaning. The Constitution does not establish a People's Court or a People's Committee by which the people definitively decide the Constitution's meaning. Moreover, we have never decided cases by reference to who won at the ballot box or by which side had the biggest, most violent mob. (9)

None of this denies the significant role that the people can play in constitutional interpretation. Individuals can voice their own readings of the Constitution. They can take actions, such as voting, petitioning, and assembling, which can shape what government actors believe and say about the Constitution. They can elect state and federal legislators who can trigger the process for amending the Constitution. They can elect a President and Senate who can use the appointments process to change the composition of the federal courts and hence their direction. Yet there is no formal mechanism by which the people themselves can directly establish or fix the Constitution's meaning. While the people can be moved to take great actions in extraordinary situations, they are usually bystanders in the Constitution's day-to-day interpretation. The people themselves lack the time or the inclination to sit in review of every constitutional interpretation and somehow set it right.

Below, we first consider Kramer's arguments in favor of popular constitutionalism and against judicial supremacy. As noted, we regard them as lacking sufficient rigor, making it unclear what he favors and opposes. Then we advance the argument in favor of judgment supremacy and against interpretive supremacy.

I.

At the core of Kramer's book is a seemingly simple and "popular" proposition: the people themselves should decide the Constitution's meaning. (10) Surprisingly though, Kramer never makes clear what this means. Does Kramer suppose that the people will routinely and finally decide constitutional questions? Or does he instead mean that, in extraordinary situations, the people will insist upon their preferred reading of the Constitution? Most of the time Kramer writes as if he favors the former, more active, popular role. (11) Other times he seems to conclude that a more passive, rare popular constitutionalism is the best we can hope for from the busy, distracted, and typically divided people. (12) Kramer's discussion of popular constitutionalism is also muddled because by the end of his book, he seems to treat it synonymously with departmentalism--the idea that each coordinate branch of government must independently interpret the Constitution in the course of performing its own functions. (13) Departmentalism, however, has no necessary relationship with popular constitutionalism.

1. What Is Popular Constitutionalism?

   How should the people themselves decide the Constitution's meaning? Throughout most of his book, Kramer contends that the people will establish the Constitution's...