The People Themselves: Popular Constitutionalism and Judicial Review.

• Author: Williams, Norman R.
• Position: Book Review

THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW. By Larry D. Kramer. Oxford: Oxford University Press, 2004.

INTRODUCTION I. POPULAR CONSTITUTIONALISM AND THE ORIGINS OF DEPARTMENTALISM II. IS IT MARBURY'S FAULT? III. THE RISE OF JUDICIAL SUPREMACY IV. THE TRIUMPH OF JUDICIAL SUPREMACY V. JUDICIAL SUPREMACY AND THE MODERN COURT CONCLUSION INTRODUCTION

Larry Kramer is upset, and he thinks you should be upset, too. And, if Kramer is right, we should be upset, for what Kramer describes in this probing and elegant work is nothing less than a constitutional coup d'etat. According to Kramer, the federal judiciary has usurped the role of we the People in guarding our constitutional commitments. Worse still, we have accepted that, once the federal courts have spoken, the judiciary's word on the matter is final--that we the People are obligated to accede to the judiciary's interpretation of the Constitution, no matter how erroneous we think that interpretation may be. Kramer is scathing: we no longer live in a democracy in which the People decide for themselves the meaning of the Constitution; we live in an aristocracy in which a cabal of unelected judges decides for the rest of us what the Constitution means (p. 247). We have succumbed, it seems, to the rule by Platonic jurists of which Judge Learned Hand warned us. (1)

This is not some blunderbuss attack on the federal judiciary or the power of judicial review. Nor is it a reprise of the much hashed-over debate surrounding the so-called countermajoritarian dilemma. In fact, Kramer endorses the power of judicial review, agreeing that the federal courts should have the power to set aside legislation or executive action that is inconsistent with the judiciary's understanding of the Constitution. In this respect, Kramer's criticism of current constitutional practice differs from that of Mark Tushnet, who has called for the wholesale repudiation of the power of judicial review. (2) Nevertheless, Kramer's analysis of our current constitutional order and the federal courts' place in it is just as biting as Tushnet's. Drawing on an earlier foreword in the Harvard Law Review, (3) Kramer focuses his attack on the doctrine of judicial supremacy--the notion that the judiciary's understanding of the Constitution is supreme over those of Congress, the President, and the People. Kramer subscribes instead to a view called "departmentalism," which holds that each branch must decide for itself what the Constitution means. If there is a disagreement between two or more branches, it is for the People to resolve which view is the correct one.

For students of American constitutional history, there should be a familiar ring to all of this. Similar claims were made by James Madison, Thomas Jefferson, Andrew Jackson, and Abraham Lincoln. (4) Indeed, one of the central tenets of Kramer's work is that departmentalism reigned supreme (no pun intended) for the vast bulk of American history, only to be supplanted by judicial supremacy in the latter half of the twentieth century.

Kramer's contribution is an important one, and it is made all the more timely by virtue of the renewed interest over the past few years in defining the proper role of the Supreme Court in our constitutional order. The Rehnquist Court's aggressive use of the power of judicial review, coupled with its arrogant defense of its supreme position as constitutional interpreter, (5) has prompted many to reconsider the Supreme Court's role in our constitutional system. The outcry over Bush v. Gore (6) is only one manifestation of this concern; even more revealing (and less politically charged) is the ambivalence regarding Marbury v. Madison (7) and the power of judicial review expressed by several commentators. (8) Kramer is not alone in worrying that the modern Supreme Court is doing something much different than what our Constitution contemplates or permits. (9)

What does distinguish Kramer's work from many others, however, is its historical focus. Kramer's discussion of the history of American constitutionalism is a welcome and much-needed reprieve from the elaborate theoretical claims that typically predominate in debates regarding judicial supremacy. (10) While Kramer does respond to modern theoretical claims in favor of judicial supremacy in his closing chapter, Kramer's argument is first and foremost historical in nature. Kramer is less interested in debunking modern, theoretical justifications for judicial supremacy than in demonstrating that, for most of the nation's history, the People regarded themselves as both the creators and the supreme expositors of the Constitution--a view that Kramer labels "popular constitutionalism."

There is much to like in Kramer's work. Kramer's telling of American constitutional history is both richly detailed and surprisingly accessible. This is not legal history solely for historians; this is legal history for the rest of us. Moreover, the evidence Kramer offers to prove his historical claim is compelling. To be sure, at times Kramer seems too intent on squeezing ambiguous facets of American constitutional history into the popular-constitutionalist box. Popular constitutionalism was not a static conception of constitutional government; rather, Americans' understanding of constitutionalism evolved in ways that rendered popular government and judicial review less antagonistic to one another than was originally supposed. Nevertheless, Kramer is undoubtedly right that for most of our nation's history, the People viewed themselves, not the courts, as the ultimate arbiters of constitutional meaning.

While Kramer's reading of American history is compelling, Kramer is overly ambitious in drawing normative conclusions from his historical account of the judicial role. Kramer improbably attributes the rise of the Rehnquist Court's "New Federalism" to the triumph of judicial supremacy in the 1960s. Even more startlingly, Kramer forthrightly urges the American people to reassert their supreme interpretive power over the Constitution by threatening the Supreme Court with retaliation if it does not relinquish its self-proclaimed status as the ultimate interpreter of the Constitution. These claims are independent of his central, historical claim, and thankfully so. There are good reasons to question these conclusions; even those who agree with Kramer's historical claim that popular constitutionalism triumphed for most of our nation's history (as I do) might nevertheless believe (as I do) that we are better off with a system in which the judiciary occupies a privileged but nonsupreme interpretive position.

In this Review, I assess both Kramer's historical claim and the normative conclusions that he draws from it. In Part I, I describe Kramer's argument that, before, during, and immediately after the framing of the Constitution, popular constitutionalism represented the dominant constitutional conception in our republic. In particular, I argue that the American Revolution and the framing of the Constitution manifested a change in the American understanding of popular constitutionalism, opening the door to the notion that the judiciary would have a legitimate role alongside the People in enforcing constitutional constraints. I then turn in Part II to Marbury v. Madison, evaluating Kramer's claim that Marbury did not represent a significant departure from the popular-constitutionalist mold. In Part III, I focus on Kramer's argument that, after Marbury, judicial supremacy periodically reappeared but was rejected by the People. Here, I contend that, while Kramer is right that judicial supremacy did not prevail, the American antipathy to judicial review began to wane. I turn in Part IV to Kramer's claim that the rise of judicial supremacy was attributable to the New Deal, during which the judiciary reserved for itself a special role in protecting minorities and individual rights. Finally, in Part V, I assess Kramer's recommendation that we should reembraee popular constitutionalism and its judicial corollary, departmentalism. In particular, I question whether popular constitutionalism necessarily requires us to abandon the notion of a privileged interpretive position for the judiciary.

At the end of the day, Kramer's book is a vibrant, important work. His historical analysis provides a new perspective on American constitutional history, demonstrating that constitutional interpretation has not been the exclusive preserve of the judiciary. Even those who disagree with Kramer's ultimate prescription for a return to popular constitutionalism can nevertheless agree that Kramer has contributed significantly to our understanding of the role of the courts in interpreting the Constitution throughout our history.

1. POPULAR CONSTITUTIONALISM AND THE ORIGINS OF DEPARTMENTALISM

   The first hint that this is an unusual, original work on the history of judicial review and the Supreme Court's interpretive position vis-a-vis the other branches is that it does not begin with Marbury v. Madison. In fact, Marbury is not discussed until almost the midpoint of the book, and, even then, it plays a secondary role in Kramer's discussion. Contrary to Marbury-centric defenses of judicial review, (11) Kramer clearly does not view Marbury as foundational. Indeed, part of Kramer's task as he sees it is to situate Marbury within a broader political and historical context. (12) For Kramer, Marbury was but one step--and not nearly as revolutionary a step as most believe--in an ongoing process in which the branches of government were working out their respective roles and powers in the new constitutional order.

   The second hint is that Kramer does not begin with judicial decisions discussing judicial review. For Kramer, judicial review was not some novel invention concocted by judges; rather, its emergence was a manifestation of a broader societal understanding regarding the nature of constitutionalism and...