The People Themselves: Popular Constitutionalism and Judicial Review

by Larry D. Kramer

Book Overview

The United States Constitution is the foundation of the longest and most successful democratic experiment in modern human history. It serves not only as legal bedrock for the world's most powerful nation-state, but also, more broadly, it reflects that nation's fundamental aspirations and commitments as a society.

Who then has the authority to interpret a blueprint of such extraordinary influence? Americans have come to treat the Constitution...

• Format: Hardcover
• Language: English
• ISBN: 0195169182
• ISBN13: 9780195169188
• Release Date: June 2004
• Publisher: Oxford University Press, USA
• Length: 376 Pages
• Weight: 0.40 lbs.
• Dimensions: 1.1" x 9.3" x 6.3"

Customer Reviews

Mixed feelings about Kramer's version of popular constitutionalism...

At the outset, I should say that anyone who is interested in constitutional development and/or theory ought to read this book. It is well-written, creative, and thought-provoking. On the other hand, I cannot help but feel that the author wrote two books, one of which was long (the historical part) and one of which was very short (the normative part). I'm still not clear on how Kramer envisions judicial review w/out judicial supremacy in practice and I also think that he may underestimate the risks of undermining judicial supremacy, which, for better or for worse, Americans have gotten used to. I just wish that he had better defended some of the normative claims that he made in the last chapter, which I found to be the most interesting part of the book, and really engaged the owrries that Tribe and Dworkin (and many others) have raised about more popular forms of constitutionalism. I would be surprised if Kramer would be pleased by Newt Gingrich's favorable review of his book; it shows that popular constitutionalism may have conservative political implications that someone like Kramer would be hesitant to embrace. Indeed, many left-leaning law professors are attracted to various forms of popular constitutionalism in the first place, precisely because they're so unhappy w/ a federal judiciary that is dominated by conservative jurists. At any rate, I highly recommend this book, and I would encourage the reader to make up his or her own mind about its merits.

Should Judicial Review by Limited?

This is a very fine work of scholarship. The research is staggering in its comprehensiveness, and it is a definite contribution to the literature on the federal courts at a time when there is much attention being devoted to judicial power. The basic thesis of the book is that throughout American constitutional history, what the author terms "popular constitutionalism" has played a "pivotal role" in interpreting the Constitution. The author believes that "judicial supremacy" has caused a disfunction in the political system and needs to be offset by more attention to the expressions of popular direction in making interpretations. In order to argue his thesis, the author has produced a very valuable history of judicial review. At the outset, the author carefully defines his terms, including "customary constitution," "fundamental law," "natural law" and "common law." Next the author moves on to a discussion of judicial review in England to try and demonstrate that no solid precedent for this practice had developed prior to the drafting of the Constitution. An excellent example of popular sovereignty is the fact that juries during this period often made findings of law as well as fact. The author devotes considerable attention to the purported pre-constitutional precedents for judicial review, finding them either to be overstated or misinterpreted. The historical record does disclose limited acceptance of the practice, but only in cases where the judiciary was protecting its own prerogatives. The author argues that the issue really did not come up very much at this point. Similarly, a solid discussion is devoted to the Constitutional convention and the ratification debates where, once again, the issue came up only sporadically. The post-ratification period also is examined in several chapters. Once again, the author concludes that there was no clear consensus on the practice of judicial review. The emegence of political parties inhibited popular interpretation, since it placed a layer between the people and the government. However, Jacksonian opposition to the practice persisted. It is only after the Civil War, with the increasing professionalization of the bar and the enhanced conservatism of courts that the practice became recognized (after all, it was not until the Dred Scott decision in the 1850's that the Court again exercised the power it had staked out in Marbury v. Madison). The "Old Court's" abuse of the power was checkmated by the New Deal Settlement stemming from FDR's court-packing attempt. That is, the power would be exercised to review laws impacting individual right, but not Congressional powers such as commerce and general welfare. This compromise lasted until the Rehnquist Court. There is a lot to consider in this volume. The author's arguments are well thought out and he is straightforward when discussing historical periods when the sentiment in favor of judicial review was pronounced. None of the arguments for judicial rev

An important book

Kramer's book is thoughtful and careful and like all good historians his commitment to getting it right is much more important to him than that it serve any particular present interests. And that is why this book got hatcheted by Lawrence Tribe in the Sunday New York Times book review (Oct. 24), or by someone purporting to be him (one can never tell these days with Harvard professors who are the authors of work bearing their names). Tribe consistently distorts, to the extent he even talks about Kramer's book, and simply ignores the sheer weightiness of the evidence Kramer accumulates. He barely mentions that Kramer's is a work of history, not of lawyerly argumentation where the facts of the matter are either to be ignored if against you, or appropriated if they can be of service. Kramer's account, though, was bound to anger those who have made a career of fetishizing the Supreme Court, making it into the aristocratic institution (the arbiters of taste, of morals, of right and wrong, of proper thinking) whose interests they have served not unlike fawning courtiers in the courts of kings. Don't think me against the rule of law. The law is a fine thing, and our law has its own mistrust of experts embedded deep within it in the institution of the jury. And don't let the fact that Mr. Gingrich loves this book turn you liberals away from it, for Newt flattens out the nuance in Kramer's account, the sheer richness of the historical material, and means to hijack it to his own purposes, whereas Tribe just means to murder it, for having, as he sees it, committed the crime of lese majestie. The cumulative weight of Kramer's facts does fit into a tradition of American populist historiography, but that need put him neither on the right nor on the left. It does however put him against a good hunk of the constitutional law professorial guild. With enemies like that, could Kramer be wrong?

A fabulous book that should be read by every American

Every year or two a book comes along that provides me insight into a topic that has been nagging at me for many years. Larry Kramer's "The People Themselves" is one of those delightful treasures. It provides a concise and intriguing perspective on the circuitous development and varied fortunes of Judicial Review and Judicial Supremacy throughout American history. I grew up in the sixties, when Judicial Supremacy became the default doctrine of Constitutional interpretation. I attended Marshall Junior High School and even there we were taught that Marbury v. Madison was the proof text since the early days of the Republic. This wonderful book puts this case in its historical context and shows us how its fortunes waxed and waned depending on the philosophical needs of the day. Prof. Kramer also makes clear the various views of the early constitution and how the aristocratic Federalists actually had no intention of a widespread franchise and how they lost to Jeffersonian Republicanism. That rise caused its own problems that led to the rise of political parties that, of course, led to a sequence of storms over the centuries. I particularly liked the discussion of the departmental theory and how our various branches have contested for power and even ignored each other in the past. Prof. Kramer demonstrates how this has waned today and laments the complete submission to Judicial Supremacy while accepting the need for (a more limited) Judicial Review. Of course, I cannot summarize the whole book in these brief comments. However, please accept these comments as my strongest possible recommendation. You will benefit from reading this book no matter where you come down on this issue or whether you agree with the author or not. I wish I could make this required reading for all Americans. But that is not possible, so I have to urge as many as possible to pick up this terrific and well-written book and read it thoughtfully from cover to cover.

A book that will change history

In "The People Themselves," Stanford Law School Dean Larry Kramer explains one of the great mysteries of modern America - why, for 40 years, have the freest people in the world been powerless to stop courts of appointed lawyers from eroding their freedoms? This phenomenon - a relentless drive by a liberal establishment toward a secular, multicultural, values-neutral and historically ignorant country at odds with the values of the vast majority of Americans - is powerfully captured in Samuel Huntington's recent work, "Who Are We?" But Huntington does not present a solution to the problem. Kramer's book explains what we can do about it. By chronicling the history of constitutional interpretation, Kramer makes clear that the Founding Fathers decisively rejected judicial supremacy. He explains how Jeffersonians learned to distrust English judges when they represented the King's tyranny, and later learned to distrust district judges when the Federalists passed the Alien and Sedition Acts and locked up Jeffersonian activists. When the Federalists lost the election of 1800, they more than doubled the number of Federal circuit judges, appointing 18 Federalists during the lame-duck Congress of 1801. In response, Jefferson simply eliminated the 18 judgeships that the Federalists had created. Kramer makes the case that Marbury v. Madison, which established the principle of judicial review, must be read within the context of this presidential-legislative assault on the judiciary. Jefferson often repudiated the notion of judicial supremacy, claiming it would create "an oligarchy." Kramer convincingly argues that Justice John Marshall was careful not to assert judicial supremacy in the 1803 decision so as to avoid a conflict with the president and the Congress he knew he could not win. But today, Kramer continues, law schools explicitly misread that event and use it to create lawyers who arrogate to themselves far more power than the Constitution provides. Kramer blames the recent rise of judicial supremacy theory on the Warren Court. He notes that the Warren Court judges actually signed an ad asserting judicial supremacy and profoundly misrepresented Marbury v. Madison. The book's strength is its combination of historic detail with Kramer's clear distinction between interpreting the meaning of the Constitution and interpreting the meaning of ordinary law. He makes clear that the Founding Fathers felt that it was the people who would decide the interpretation of the Constitution through their elected officials, not appointed lawyers through their decisions. Kramer notes that the Dred Scott decision, far from proving judicial supremacy, led to a Civil War in which the American people decisively repudiated the Court's position. He argues that FDR won the fight with the Supreme Court in 1937 because the judges shifted their opinions to avoid having the Court packed. And Kramer asserts it was the Warren Court which unilaterally ended this balance o