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The People Themselves: Popular Constitutionalism and Judicial Review [Hardcover]

Larry D. Kramer
4.7 out of 5 stars  See all reviews (11 customer reviews)

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Book Description

June 10, 2004 0195169182 978-0195169188 First Edition
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 as something beyond their competence, something whose meaning should be decided by judges, assisted by a cadre of trained lawyers and academics. Yet this submission to a lawyerly elite is a radical and troublesome departure from what was originally the case. For America's founding generation celebrated the central role of "the people" in supplying government with its energy and direction.

In this groundbreaking interpretation of America's founding and its concept of constitutionalism, Larry Kramer reveals how the first generations of Americans fought for and gave birth to a very different system from our current one and held a very different understanding of citizenship from that of most Americans today. "Popular sovereignty" was more than an empty abstraction, more than a mythic philosophical justification for government, and the idea of "the people" was more than a flip rhetorical gesture to be used on the campaign trail. Ordinary Americans exercised active control and sovereignty over their Constitution. The constitutionality of governmental action met with vigorous public debate in struggles whose outcomes might be greeted with celebratory feasts and bonfires, or with belligerent resistance. The Constitution remained, fundamentally, an act of popular will: the people's charter, made by the people. And it was "the people themselves" who were responsible for seeing that it was properly interpreted and implemented.

With this book, Larry Kramer vaults to the forefront of constitutional theory and interpretation. In the process, he rekindles the original spark of "We, the People," inviting every citizen to join him in reclaiming the Constitution's legacy as, in Franklin D. Roosevelt's words, "a layman's instrument of government" and not "a lawyer's contract."

Editorial Reviews


"...masterful opening chapters...deserves great praise for his detailed historical research, which recaptures the flavor of early constitutionalism and its deep connection with an active and spirited American people. He also deserves great praise for untangling the different conceptions of "constitution" floating around and rendering that understanding easily accessible to a modern audience...a provocative and original analysis of American constitutionalism that will command a wide audience."--Perspectives on Politics

"Offers a fresh way of viewing the origins and limits of judicial review. The People Themselves challenges conventional constitutional jurisprudence and conventional constitutional history with a deeply researched historical pedigree for popular refusal to accept the Supreme Court's usurping title to the people's document."--The New York Review of Books

"Mr. Kramer is to be applauded for reminding us that courts do not enjoy a monopoly on the Constitution's true meaning and that senators and presidents alike should take the Constitution seriously in the confirmation process and at other times as well."--The Wall Street Journal

"An instructive tour through the early history of American constitutionalism."--National Review

"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?.... A manual on how the American people can legitimately exercise their historic right to create what he calls popular constitutionalism."--Newt Gingrich, The New York Post

"Rarely since Edmund Burke's 'Speech on Conciliation with America' in 1774 has the legal dimension of the American Revolution been understood with such precision and presented with such conviction."--First Things

"This book is perhaps the most important work of constitutional theory and history in a generation."--Mark Tushnet, author of Taking the Constitution Away from the Courts

"Larry Kramer's important project offers a refeshing challenge to the hackneyed story that places John Marshall and Marbury v. Madison at the center of the history of constitutional interpretation. Kramer restores to our historical understanding a lost world of popular constitutionalism, where the resolution of fundamental issues was regarded not as the private property of courts and judges but of the people themselves. And I cannot think of a better moment for such a challenge, because we live in an era when doubtful claims for the ultimate authority of the Supreme Court on all matters constitutional are again being heard in the land."--Jack Rakove, author of Original Meanings

"An intelligent and stimulating book. Unlike many law professors writing history, Kramer is very sensitive to context and differing historical circumstances. He offers an impressive and powerful argument for the origins of judicial review."--Gordon Wood, author of The Radicalism of the American Revolution

"This is the best account to date of the development of the power of judicial review in an age of revolutionary politics, and this history challenges us to ask what it really means to live in a democracy today. A fascinating work that deserves a wide audience."--Keith Whittington, author of Constitutional Construction

"Kramer's history is absorbing, his political theory subtle. He puts flesh on the bones of debates over judicial review and popular constitutionalism. With a sure and rare conceptual touch, he traces, and correlates to other political events, modulations over time in the American idea of the Constitution as law. As he does so, he rings the changes on this idea's perceived implications regarding the justifications, self-understandings, and modes of conduct of judicial review."--Frank Michelman, Harvard Law School

About the Author

Larry Kramer is Russell D. Niles Professor of Law at New York University. He served as a law clerk to Justice William J. Brennan, Jr., of the United States Supreme Court and taught at the law schools of both the University of Chicago and the University of Michigan before moving to NYU. He has written extensively in both academic and popular journals on topics involving the role of courts in society.

Product Details

  • Hardcover: 376 pages
  • Publisher: Oxford University Press; First Edition edition (June 10, 2004)
  • Language: English
  • ISBN-10: 0195169182
  • ISBN-13: 978-0195169188
  • Product Dimensions: 9.1 x 6.1 x 1.1 inches
  • Shipping Weight: 1.4 pounds
  • Average Customer Review: 4.7 out of 5 stars  See all reviews (11 customer reviews)
  • Amazon Best Sellers Rank: #864,027 in Books (See Top 100 in Books)

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Customer Reviews

Most Helpful Customer Reviews
24 of 27 people found the following review helpful
5.0 out of 5 stars A fabulous book that should be read by every American September 29, 2004
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.
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12 of 12 people found the following review helpful
5.0 out of 5 stars Should Judicial Review by Limited? November 1, 2005
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.
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20 of 24 people found the following review helpful
5.0 out of 5 stars An important book October 24, 2004
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?
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Most Recent Customer Reviews
5.0 out of 5 stars These reviews beg the question
It's troubling to witness this slate of reviewers' inability thus far to understand basic constitutionalism so effusively explained by Madison and Jefferson. Read more
Published on October 10, 2009 by David M. Zuniga
5.0 out of 5 stars 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. Read more
Published on August 10, 2009 by theottersden
2.0 out of 5 stars This book has very troubling implications
Kramer seems to think that we have strayed from the path of letting the People decide constitutional issues. Read more
Published on August 2, 2005 by Edward J. Dziedzic
5.0 out of 5 stars A well-written account of the evil of American judges
Larry Kramer, Dean of the Stanford Law School, shows America
in this book the nature of judicial oppression and how it is
not consistant with the constitution. Read more
Published on April 11, 2005 by Albert Lee
5.0 out of 5 stars Junto Society thumbs up!
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... Read more
Published on January 24, 2005 by Monty Rainey
5.0 out of 5 stars Chicago Book Club
Although a departure from our usual book club read, we found this book to be immensely thought provoking and informative. Read more
Published on October 26, 2004 by Chicago Book Club
5.0 out of 5 stars Citizen Input
In today's society I believe "the people" need to feel energized about their ability to have stronger input in their govt. Read more
Published on October 25, 2004 by I M DEE
5.0 out of 5 stars 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... Read more
Published on August 26, 2004 by Newt Gingrich
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