The Death of Popular Constitutionalism
“Popular constitutionalism” exerts significant influence in legal scholarship, including my own. There are two aspects to this approach: one descriptive and one normative. The descriptive part looks at how social movements and institutions outside of the courts interpret the Constitution and bring about change. The normative part celebrates these activities. Isn’t it wonderful when the people or elected officials take these important matters into their own hands? Courts, after all, are unelected havens for elites. My work often points out that popular constitutionalism does not always work out so well (as in Jacksonian Democracy of the rise of Jim Crow), but I think it’s fair to say that the rosy view has been the dominant one.
I think that is about to end. Donald Trump will probably kill normative popular constitutionalism for a generation, much as jury nullification by racist Southerners killed that idea. (The Brexit referendum may also be cited as a kind of anti-precedent for popular constitutionalism, though it’s too early to say). This social movement is going to crowd out memories of the beloved moments of popular constitutionalism, such as the Civil Rights Movement.
Indeed, I’ll go one step one further. I think we will soon see a revival of interest in H.L. Mencken, who made his name by criticizing democracy as expressed by what he called the “booboisie.” Mencken had his own problems (like being an Anti-Semite), but his disdain for Middle America is probably going to get a more sympathetic hearing in certain quarters.