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The People Themselves: Popular Constitutionalism and Judicial Review

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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.

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 review (e.g.,avoiding the tyranny of the majority) persuades the author that the practice should continue without restraint. The only problem I found in the argument was not with the historical evidence (although I don't necessarily share the author's reading of the historical record) but in his conclusion. How would "popular constitutionalism" operate within our current system? That is, how would the people's will be communicated to the courts and Congress, so they could interpret the Constitution and statutes accordingly? Some discussion on this point strikes me as a necessity. For those without some background in the topic, the book may be a bit heavy going due to its comprehensiveness. But for illuminating an important historical approach to the judicial review issue, it is hard to surpass.

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?

Larry D. Kramer has constructed a masterful work here that belongs in every American's library. When it comes to subjects like judicial review, many author's, themselves often constitutional attorneys, have a tendency to go out of their way to try to write "over the head" of the political novice. Not the case with Kramer's work. He writes in a succinct fashion that will be appreciated by both judicial professionals and constitutional beginners alike.

Much evidence is found here which doesn't really repudiate, and in many ways, supports that judicial review was in fact, the intent of the framer's and perhaps even a logical conclusion. Kramer doesn't really attempt to defy the judiciary claim of their right of review, but beyond that point, Kramer takes the gloves off and pounds away at what he categorizes as "judicial tyranny", the court usurping it's constitutional boundaries.

Kramer details the 200 year evolution of the court's abuse of power, beginning before MARBURY when the idea of judicial review came into play, through what we find today with the judiciary legislating from the bench and completely dismissing state's rights. It is also most interesting how the author chronicles Madison's changing opinion of judicial review.

This book, in many ways, mirrors and supports the earlier work by Martyn Babitz, THE ILLUSION OF FREEDOM, where both authors support Madison's concession that the "states only political recourse [over the federal courts] is through elections and impeachment". But Kramer hints of other possibilities at controlling our out of control judiciary in his epilogue when he writes;

"The Constitution leaves room for countless political responses to an overly assertive Court: Justices can be impeached, the Court's budget can be slashed, the President can ignore its mandates, Congress can strip it of jurisdiction or shrink its size or pack it with new members or give it burdensome new responsibilities or revise its procedures."

Interesting possibilities, to be sure. In conclusion, I believe Kramer concedes judicial review as bona fide, but constructs a solid foundation to dispute the notion of judicial supremacy. This is a very enjoyable book that I learned a great deal from. The book at times, does read a bit slow, but that has nothing to do with Kramer's writing style, it has to do with the fact that you are constantly finding new information and referring back to the bibliography, which will no doubt lead the reader to numerous other books to add to your reading list. I look forward to future books by this author.

Monty Rainey
Junto Society

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 of power established in 1937 and sought to make the Supreme Court preeminent over the Legislative and Executive branches.

Kramer's book provides ammunition for those tired of appointed lawyers on benches rewriting the Constitution.

A president and Congress who represent the will of 91 percent of the people (the number who favor keeping "under God" in the Pledge of Allegiance) could eliminate those judges on the Ninth Circuit who were so out of touch with America that they ruled it unconstitutional.

Furthermore, the Congress and the president can combine to block the courts from even considering cases on the Pledge, school prayer, marriage and other topics the American people overwhelmingly favor.

Kramer has written a manual on how the American people can legitimately exercise their historic right to create what he calls popular constitutionalism.

It's troubling to witness this slate of reviewers' inability thus far to understand basic constitutionalism so effusively explained by Madison and Jefferson.

As far as it goes, "The People Themselves" is one of the most trenchant studies by a living author, regarding the intersection of politics and the U.S. Constitution (priomordial law) in America. The problem is, it doesn't go far enough; as does every reviewer here thus far, the author pleads (petitio principii) on false premises.

In the first place, an earlier reviewer here comments that professor Kramer's book "support(s) Madison's concession that the 'states only political recourse [over the federal courts] is through elections and impeachment'," and that Kramer hints of other (political) possibilities at controlling our out of control federal judiciary.

Yes: and the operative word is POLITICAL. What everyone here seems to be missing -- but Madison and Jefferson -- and even Hamilton, for all love (see Federalist 28) -- did not, is that WE THE PEOPLE have LEGAL as well as political recourse when our federal creature slips its leash.

The petitio principii that I alluded to earlier, the malady of political parasites like Newt Gingrich and most constitutional law gurus is that while Madison (who should certainly know better than anyone else) asserts the almost unlimited perogatives of the sovereign People and sovereign States, and while his "Principles of '98" were echoed by Jefferson, suggesting VERTICAL checks and balances by the creators over the federal creature -- every reviewer here (thus far) misses the idea of (true) federalism: judicial review in the STATE courts, the highest courts to review violations of the US Constitution by the federal creature. If performed severally (against individual members of Congress), THAT judicial review can meet the tests laid down by Madison and Jefferson.

Such review, on a regular basis, can for the first time in history, satisfy the stated desiderata of both the Federalists (so-called) and the Anti-Federalists (so-called). Reviewer Ronald Clark asks, "How would 'popular constitutionalism' operate within our current system? That is, how would the people's will be communicated to the courts and Congress, so they could interpret the Constitution and statutes accordingly?" Well, within our current system, popular constitutionalism -- or any constitutionalism at all -- is impossible.

However: the AmericaAgain! 3-prong offensive is designed for The People Themselves to exercise daily oversight of their members of Congress right from their home computers. Tactical force-massing by US congressional district against torts and crimes, INTRAstate actions. Forcing through passage OUR reform legislation by tactical force-massing across the nation. Directly cutting the size of government by direct power of the purse.

THAT is popular constitutionalism from now on, from our homes, on OUR terms. The most efficacious judicial review of all, in this Internet age. Tactically breaking up Congress, bringing members home to the Court of their sovereign state, trying him/her SEVERALLY for criminal violations NOT of the U.S. Constitution (that would be USSC original jurisdiction), but under his/her STATE criminal statutes.

Read the Supremacy Clause carefully, without Justice Marshall's 1803 dictum ringing in your ears. The stipulation that "the Judges in every State shall be bound thereby" can as easily refer to his duty to ENFORCE the Constitution against a resident of the state (whether a member of Congress or some less eminent criminal) as it can refer to the state judge's duty to OBEY the Constitution.

Unlike the current crop of 10th Amendment lawsuits by states v federal, and the Obama administration lawsuits against states exercising their retained powers under the Constitution, the AmericaAgain! Indictment Engine(TM) can finally put teeth in those quaint vestigial organs, the Ninth and Tenth Amendments -- via the Courts of the sovereign States.

As I explain in my book 'This Bloodless Liberty' (buy it at Amazon), the 'judicial' watershed portended by Justice Marshall's dictum in Marbury and attained in Dred Scott was a MILITARY, not a judicial coup. The War to Enslave the States achieved the mercantilists' grail: bringing all Americans under a central State by splitting a formerly liberty-loving Christian population into equal opposing teams. While the internecine war could be maintained, ALL bank accounts could be quietly skimmed. A brilliant plan.

After the smoke from Lincoln's cannons cleared, the ingenious donkey-elephant WWF match took its place. The political parties are multi-billion-dollar career machines and no more than that.

Absent a vertical check on Congress' RICO operations, given that the inferior federal courts are the creatures of OUR creature, Congress...no amount of professorial gymnastics by the constitutional law guild can break Leviathan's hold on Americans. It's up to The People Themselves -- through our DAs and other state prosecutors; our state judges, grand juries, and law enforcement personnel in the thousands of state court districts across the republic. That process will pick up momentum when Tea Party mania dissolves at the end of 2010 into another Jacobin idea gone stale.

Dean Kramer does a masterful job re-framing Madison's thesis for our generation. The book should be required reading for all who support the Tenth Amendment and constitutional rule of law. As Madison and Jefferson reiterated exhaustively, our creature cannot check itself; the states MUST do so. Judicial review in federal courts is an ethical stub. Nor can elected state officials ever perform the duties abdicated by The People Themselves. It's up to us.

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.

Kramer seems to think that we have strayed from the path of letting the People decide constitutional issues. There are significant reasons why Madison and others thought that would be a problem. Freedom of speech, for example, is something that the majority of voters or their representatives in congress would do away with in an instant if it weren't for the Supreme Court. Freedom of speech is fine until some group like the communists or the nazi party tries to exercise it, then legislators try to make laws saying they can't. In our constitution it is imperative to have a less political branch deciding these issues. Yes, the Supremes make unpopular decisions sometimes, but that is their job. Allowing the boneheads in congress to decide important constitutional issues would be folly. They would play to the lowest common denominator and have us giving away our rights in the name of God or security or morality. The Constitution has a way for the people to check the Supreme Court. We can impeach them or amend the constitution. Kramer's book looks back on the golden age in 1800 when we voted out a political party because of the unconstitutional laws they passed. Does he deny the havoc some poorly thought out laws could wreak in 21st century America? We don't have time to allow people to take away American's rights with the idea we might get them back in the next election.

Although a departure from our usual book club read, we found this book to be immensely thought provoking and informative. It was well written and its author was clearly knowledgeable about his subject matter. We were particularly impressed with the vast number of sources used to support the ideas put forth in the book and appreciated the historical background which was presented in a concise yet interesting fashion. Even the few book club members (one to be exact) who disagreed with the notion of popular constitutionalism, could appreciate the intelligent nature of the well reasoned and cohesive historical interpretations on which this book is based. Although not all of us were lawyers, we found that this was a book which could be enjoyed and appreciated by lawyers and lay persons alike and the overwhelming consensus was that this book is an enjoyable read, rich with stimulating and intriguing ideas. We would heartily recommend it.

In today's society I believe "the people" need to feel energized about their ability to have stronger input in their govt. Too often the average citizen feels unable to exert any influence and therefore allows those in power to maintain control over society. The Constitution was written for the people and should be maintained by the people who who are the ones who should ultimately decide the validity of the laws of the land. I do not believe the writers of the Constitution ever considered it closed for citizen interpretration.