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.

You may also like...

7 Responses

  1. Brett Bellmore says:

    Unsurprisingly, all it takes for the elite to give up on democracy, is it producing an outcome they don’t like. They only approved of it so long as they thought they could control it.

  2. Joe says:

    No, something as broad as popular constitutionalism isn’t suddenly going to disappear because of Trump.

    Couple things. First, a major threat to jury nullification were abolitionists in the mid-1850s. Repeatedly, those were the types told that the law was the law and you had to follow it. Second, I wonder — given Brett’s opposition to various things local majorities pass — he is a member of the “elite.” Or, it’s different since he isn’t just concerned about “liking” things, but what the Constitution requires. OTOH, so do others, they just disagree on the merits.

    • Brett Bellmore says:

      Once you adopt living constitutionalism instead of originalism, the difference between liking things and what the Constitution requires collapses. Whether you like things becomes HOW you determine whether or not the Constitution requires something.

      So, “disagree on the merits” is somewhat of an empty concept, once living constitutionalism is permitted.

      • Shag from Brookline says:

        When did the Court adopt originalism and under what provision of the Constitution?

        • Brett Bellmore says:

          Gödel’s incompleteness theorems apply here, I think. Trying to specify the rules under which the rules will be interpreted involves one in an infinite regress, at some point you just have to assume good faith. As living constitutionalism is just precisely a rejection of the obligation to show good faith in interpreting a constitution, explicitly repudiating living constitutionalism in a constitution is a waste of time. The repudiation would be interpreted away…

          • Shag from Brookline says:

            Brett avoids a direct answer. But perhaps infinite progress is preferable to infinite regress. The law is not a science.

      • Joe says:

        First, again, you think the people themselves should not have the power to do certain things and support “elites” like the courts to overrule their will. As do others in the appropriate situations. The disagreement is on the merits of the question.

        I have repeatedly quoted people from the Founding period, especially John Marshall, who spoke of the broad language of the Constitution and how it will be applied in ways the people of the time only faintly understand. We apply the Constitution as things are understood today, using current understandings of the text and what has come before. This was the case in 1900 too.

        How you apply the Constitution in various ways would surprise people in the past; there was no special golden age here in that respect. It is not a matter of “liking” but how the law is generally understood as a whole. Your use of language to de-legitimatize is subjective spin.

        Originalism isn’t the difference here and a good case can be made it is originalist to have a so-called living constitution, which is actually basically how it was always applied.