Book Review: Kramer’s The People Themselves: Popular Constitutionalism and Judicial Review

Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford University Press; 2004), 363 pp.

Larry Kramer’s The People Themselves: Popular Constitutionalism and Judicial Review (“The People”) provides a provocative account of the historical development of judicial review filtered through the lens of “Popular Constitutionalism,” or popular sovereignty. In so doing, The People makes the case for eliminating the Supreme Court’s final interpretive authority over the Constitution by adding a fourth and final tier of review by the American public. Kramer argues that this correction is vital because it would allow the public to reclaim its diminishing role in the constitutional process.

As a general matter, Kramer’s call for a more constitutionally engaged public is well taken, since in today’s society, many private citizens lack even the most basic knowledge of or concern about most of the Court’s opinions.  Accordingly, much of The People is written with an inspirational rhetorical style that shines through in some of the book’s strongest moments.  For example, as Kramer describes what he believes to be the ongoing battle over judicial review between the aristocracy and the people, he writes:

The question Americans must ask themselves is whether they are comfortable handing their Constitution over to the forces of the artistocracy: whether they share this lack of faith in themselves and their fellow citizens, or whether they are prepared to assume once again the full responsibilities of self-government. And make no mistake: the choice is ours to make, necessarily and unavoidably. (p. 247).

To be sure, the spirit of Kramer’s work is relatively uncontroversial.  It is difficult to disagree with the goal of finding a way to motivate Americans to become more concerned with and attentive to the Court’s day-to-day business.  The letter of Kramer’s version of popular constitutionalism, however, calls for nothing less than a majoritarian revolution, a grim reality for which The People never sufficiently accounts.

Kramer suggests that the Court “is ultimately supposed to yield to our judgments about what the Constitution means.” (p. 248). However, Kramer never informs his readers as to how we are supposed to enforce “our” newly acquired power. It would be inevitable for groups of people to have conflicting views about any given constitutional question, so before the country were to institute Kramer’s vision, it would be vital to understand how to decide which group’s views truly reflect the will of “the people.”  But instead, the details of Kramer’s plan are mostly kept from the reader.

Indeed, Kramer’s broad strokes of abstraction make it difficult to discern exactly what he hopes to accomplish through popular constitutionalism. The following is the work’s most specific articulation:

The assumption that final interpretive authority must rest with some branch of the government belongs to the culture of ordinary law, not to the culture of popular constitutionalism.  In a world of popular constitutionalism, government officials are regulated, not the regulators, and final interpretive authority rests with the people themselves. (p. 107).

At first, the idea of the public as “regulators” and the government as “regulated” sounds empowering.  That we might restrict government practices according to our will in the same way that the Equal Employment Opportunity Commission enforces the will of Congress by prohibiting discriminatory employment practices is initially appealing.  But upon reflection, Kramer’s popular constitutionalism begs the following question: if “the people” are given this power, then what then might stop a majority of them from eliminating minorities’ civil rights, if their view of the Constitution demanded it? Obviously, Kramer does not advocate for these types of results, but he leaves few clues for readers trying to ascertain how popular constitutionalism can be squared with the Constitution’s anti-majoritarian aspects.

Relatedly, Kramer envisions a judicial system in which:

Supreme Court Justices would come to see themselves in relation to the public somewhat as lower court judges now see themselves in relation to the Court: responsible for interpreting the Constitution according to their best judgment, but with an awareness that there is a higher authority out there with power to overturn their decisions . . . . (p. 253).

Thus, in Kramer’s new world, the Court would be forced to operate under the people’s microscope, and justices would live with the omnipresent possibility of being overturned by the public.  As a result, Supreme Court justices would need to ascertain the will of the people and rule by it when making controversial decisions, or else risk irrelevance. However, the method by which justices would discover the people’s will is unknown.  Since the public has no defined body of constitutional jurisprudence for the Court to reference, perhaps Kramer wishes for the Court to consult public opinion polls? Accordingly, he seems to envision a world in which past landmark decisions that lacked initial public support, but later gained acceptance, could not have occurred.

But of course, this world I describe is only based on conjecture; The People never provides enough details to allow readers to fully discover the world for which Kramer is advocating.  But after considering the potential consequences of what few specifics The People does provide, I am not sold.  In fact, the erosion of constitutional protections for unpopular, marginalized groups would only be the beginning of Kramer’s popular constitutionalism.  It would also be likely to produce many other potentially catastrophic results, such as weakening constitutional limits on the actions of elected and unelected officials, increasing discordant constitutional interpretations across the branches of the federal government and the states, and relegating constitutional interpretation by the judiciary to advisory status within the federal system. (See Erwin Chemerinsky, In Defense of Judicial Review: A Reply to Professor Kramer, 92 Calif. L. Rev. 1013, 1015 (2004)).

Indeed, The People advocates for a new majoritarian branch that would, as Kramer puts it, threaten to “let[] the animal out its cage” or even worse, “tear down its cage” if the Supreme Court were to do something the people disliked. (p. 250). Kramer argues that the result of this cage-tearing would be a mere realignment of the Supreme Court’s “attitude and self-conception.” (p. 253). But Kramer significantly underestimates the implications of transferring the interpretation and enforcement of constitutional law to majoritarian rule. To wit, popular constitutionalism’s new rule of law is no rule of law at all.  Further contemplation of the specific implications of The People can only lead to a greater appreciation of our current system, however imperfect it may be.

Accepting at face value The People’s general themes facilitates a provocative and enjoyable read. The People’s main contribution exists in its ability to question the general view that many in American society hold:  that the current approach to judicial supremacy is in fact the only approach.  Kramer’s willingness to venture outside the mainstream, and to marshal a variety of historical sources to construct an unconventional narrative, is admirable.  Whether it is desirable, however, is a different question entirely—one that he never provides enough details to answer.


Michael Serota is a recent graduate of the University of California, Berkeley, School of Law. In Fall 2010, he will be working as a law clerk for the U.S. Court of Appeals for the Armed Forces.

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3 Responses

  1. Excellent review.

    There are any number of compelling reasons one should not be persuaded by the arguments of “popular constituitonalists” like Larry Kramer (or Mark Tushnet), and you cite several here. Others would include the wider arguments raised against the goals and proposals of participatory and (most) deliberative democratic theorists (Robert Goodin’s model of ‘democratic deliberation within’ being one exception), some of which are made or anticipated in The Federalist Papers. Popular constitutionalism comes dangerously close to “opinion poll” democracy and its remote chances for plausibility depend upon a public extremely well-educated or intelligent, with ample and well-directed leisure time, including sufficient motivation by values and principles that extend beyond a familial focus on materially “making it.” It’s not that “self-interests” are not linked to more public ones, it’s just that an ability to understand the complex causal mechanisms at work in such linkages appears, at our time and place, to be well beyond the cognitive capacity of the hoi polloi (the Tea Party mentality being the most egregious instance of this), hence the misplaced and deeply ignorant fulminations directed against “big government” and the widespread inability to understand the nature of our economic system. This sort of onstitutional tinkering fails to get to the heart of what ails us, both individually and collectively.

  2. Anon in SF says:

    I’m confused. Why are you writing — and this website running — a review of Dean Kramer’s book, now six years old? The review may be great. Or not. That’s a different question. I’m just curious what’s behind this post. It’s not as if the book didn’t get serious attention when it came out — again, six years ago.

  3. ANKLYN says:

    Anon in SF asks the right question. What’s next: A review of Democracy & Distrust?