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

Larry D. Kramer (Author)

Book Description

Publication Date: December 8, 2005 | ISBN-10: 0195306457 | ISBN-13: 978-0195306453

In this groundbreaking interpretation of America's founding and of its entire system of judicial review, Larry Kramer reveals that the colonists fought for and created a very different system--and held a very different understanding of citizenship--than Americans believe to be the norm today. "Popular sovereignty" was not just some historical abstraction, and the notion of "the people" was more than a flip rhetorical device invoked on the campaign trail. Questions of constitutional meaning provoked vigorous public debate and the actions of government officials were greeted with celebratory feasts and bonfires, or riotous resistance. Americans treated the Constitution as part of the lived reality of their daily existence. Their self-sovereignty in law as much as politics was active not abstract.

Editorial Reviews

Review

"A serious, provocative meditation on what kind of legitimacy the Supreme Court ought to have in a constitutional democracy. Kramer forces us to take seriously the possibility that Supreme Court Justices are no better than we are at deciding matters of fundamental moral and political concernwe should thank Kramer for forcing us to take a hard look at the undeniable social costs of judicial review."--Law and Politics Book Review

"A major achievement...it will be ignored at the peril of anyone who seeks to understand constitutional history is future politics"--American Historical Review

"...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

"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

"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

"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

"Kramer has marshaled an impressive array of evidence and has made a thorough survey of modern scholarship to build his case for what he calls 'popular constitutionalism.'"--First Things

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

About the Author

Larry Kramer is Richard E. Lang Professor of Law and Dean of Stanford Law School. 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 the University of Chicago, the University of Michigan, and New York University before moving to Stanford. He has written extensively in both academic and popular journals on topics involving the role of courts in society.

Product Details

• Paperback: 376 pages
• Publisher: Oxford University Press, USA (December 8, 2005)
• Language: English
• ISBN-10: 0195306457
• ISBN-13: 978-0195306453
• Product Dimensions: 5.7 x 0.8 x 8.9 inches
• Shipping Weight: 1 pounds (View shipping rates and policies)
• Average Customer Review: 4.7 out of 5 stars  See all reviews (11 customer reviews)
• Amazon Best Sellers Rank: #619,978 in Books (See Top 100 in Books)

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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

By Craig Matteson HALL OF FAMETOP 500 REVIEWER

Format:Hardcover

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.

12 of 12 people found the following review helpful

5.0 out of 5 stars Should Judicial Review by Limited? November 1, 2005

By Ronald H. Clark VINE™ VOICE

Format:Hardcover

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.

20 of 24 people found the following review helpful

5.0 out of 5 stars An important book October 24, 2004

By K. Koehler

Format:Hardcover

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?